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2020 Supreme(Del) 95
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. MURALIDHAR, TALWANT SINGH, JJ.
Indian EX Bordermen Movement & Others - Petitioners
Versus
Union of India & Others - Respondents
W.P.(C). No. 7447 of 2019 & CM. Nos. 31029 of 2019 & 3117 of 2020
Decided On : 03-02-2020
For the Petitioners:Richa Ojha, Advocate
For the Respondents:Suparna Srivastava, Nehul Sharma, Tushar Mathur, Advocates
The main legal point established is that the ACP scheme is part of the pay structure, and the Balbir Singh Turn case is relevant in determining entitlement to ACP benefits.
Headnote:
ACP Scheme - Retired BSF Personnel - 5th CPC, Rules 4 and 7, Balbir Singh Turn (2018) 11 SCC 99 - The court discussed the applicability of the ACP Scheme from 1st January 1996, the authority to modify the scheme, and the relevance of the Balbir Singh Turn case in determining the entitlement to ACP benefits. The court held that the ACP scheme is part of the pay structure and directed the grant of benefits to retired personnel from 1st January 1996.
Fact of the Case:
The Indian Ex-Bordermen Movement and its members, retired BSF personnel, filed a writ petition seeking benefits under the ACP Scheme from 1st January 1996, which were denied to them due to the implementation date of the scheme.
Finding of the Court:
The court found that the ACP scheme is part of the pay structure and held that the benefits should be granted from 1st January 1996 to retired personnel who superannuated between 1st January 1996 and 9th August 1999.
Issues: The issues involved the applicability of the ACP Scheme, the authority to modify the scheme, and the relevance of the Balbir Singh Turn case in determining entitlement to ACP benefits.
Ratio Decidendi: The court held that the ACP scheme is part of the pay structure and directed the grant of benefits to retired personnel from 1st January 1996 based on the Balbir Singh Turn case.
Final Decision: The court directed the grant of ACP benefits to retired BSF personnel from 1st January 1996 and issued specific directions for the implementation of the benefits.
JUDGMENT :
S. Muralidhar, J.
1. The Petitioner No. 1 association, Indian Ex-Bordermen Movement states that it works “to provide a platform” to retired personnel of the Border Security Force (‘BSF’) “for redressal of their grievances related to all matters pertaining to and arising out of their service/pension after retirement”. Along with 14 of its members, all retired ex-servicemen, it has filed the present writ petition seeking the grant of benefits under the Assured Career Progression (‘ACP’) Scheme applicable from 1st January 1996, which have heretofore been denied to them.
2. The background facts are that the recommendations of the 5th Central Pay Commission (‘CPC’), which included, inter alia, making effective the aforesaid ACP Scheme, were accepted by Ministry of Finance, Government of India (‘GoI’), with some modifications, by way of a resolution dated 30th September, 1997. Paragraph 4 of the said resolution provided that the recommendations of the 5th CPC “with regard to revised scales of pay and dearness allowance” shall become operational from 1st January, 1996.
3. Thereafter, the Department of Personnel and Training (‘DoPT’) issued an Office Memorandum (‘OM’) dated 9th August, 1999 for the implementation of the ACP Scheme. The said OM, under paragraph 8 thereof, stipulated that “the ACP Scheme shall become operational from the date of issue of this Office Memorandum”, i.e. 9th August, 1999.
4. The grievance of the Petitioners arises from the fact that since the aforesaid OM essentially postponed the implementation of the ACP Scheme to 9th August, 1999 from 1st January, 1996, personnel who retired between the two dates could not receive the benefit under the said Scheme. As a result, they were also deprived of the corresponding retiral benefits.
5. The Petitioners submit that the DoPT’s OM dated 9th August, 1999 essentially had the effect of revising or modifying a decision of the GoI in violation of the Government of India (Transaction of Business) Rules, 1961 (hereinafter, ‘Rules’). The Petitioners contend that Rules 4 and 7 of the Rules read with Entry (m) of Schedule II thereto, the relevant portions of which are reproduced hereunder, necessitated that such modification be carried out by the authorities which took the original decision:
“4. Inter-Departmental Consultations:
(1) When the subject of a case concerns more than one department, no decision be taken or order issued until all such departments have concurred, or, failing such concurrence, a decision thereon has been taken by or under the authority of the Cabinet.
Explanation: Every case in which a decision, if taken in one Department, is likely to affect the transaction of business allotted to another department, shall be deemed to be a case the subject of which concerns more than one department.
(2) Unless the case is fully covered by powers to sanction expenditure or to appropriate or re-appropriate funds, conferred by any general or special orders made by the Ministry of Finance, no department shall, without the previous concurrence of the Ministry of Finance, issue any orders which may:
(a) involve any abandonment of revenue or involve any expenditure for which no provision has been made in the appropriation act;
(b) involve any grant of land or assignment of revenue or concession, grant, lease or licence of mineral or forest rights or a right to water power or any easement or privilege in respect of such concession;
(c) relate to the number or grade of posts, or to the strength of a service, or to the pay or allowances of Government servants or to any other conditions of their service having financial implications; or
(d) otherwise have a financial bearing whether involving expenditure or not;
Provided that no orders of the nature specified in clause (c) shall be issued in respect of the Ministry of Finance without the previous concurrence of the Department of Personnel and Training.
...
7. Submission of Cases to the Cabinet:
(i) all cases specified in the Second Sch
