Ex Nk Samudra Singh vs UOI & Others on 9 December 2021

**ORDER**

**09.12.2021**

1. The above Original Application has been filed by the Applicant under the provisions of Section 14 of the Armed Forces Tribunal Act, 2007, praying for grant of benefit of MACP-II Benefit wef 01.01.2006 and consequential Pensionary Benefits.

2. Brief facts of the case are that the Applicant was enrolled in the Army on **22/10/1985** and was discharged from Service on **31.05.2006** after rendering more than 20 years of Service, however he has been not been granted the MACP-II Benefit. The Govt of India vide their letter dated 07.08.2003 introduced Assured Career Progression (ACP) Scheme wef 07.08.2003, according to which financial upgradation was entitled on completion of 10 years continuous service in the same Grade who could not be promoted due to stagnation of promotion. However, not more than two ACP Benefits were to be given in the entire Service Career. During the 6^th CPC, the ACP Scheme was further modified vide Govt of India letter dt 19.05.2009. This Scheme was made operational wef 01.09.2008. Consequent upon the Orders of Govt of India, ADGPS, IHQ of MoD (Army) vide their letter dated 13.06.2011

issued Administrative Instructions on grant of MACP Benefits to PBORs. Consequent upon the judgment of Hon'ble Supreme Court in the case of UOI Vs Balbir Singh Turn (Civil Appeal No 3744/2017 decided on 08.12.2017), the Govt of India, vide their letter No 14(1)/99-D(AG) dated 25.07.2018 made the MACP Scheme operational wef 01.01.2006. The Applicant had completed more than 20 years of Service on 01.01.2006, however the Respondents have not granted MACP-II Benefits.

3. Learned Counsel for the Applicant submitted that the Applicant had ✓ completed 20 years of Service on 22.10.2005 and was eligible for ACP-II Benefits as provided vide Govt of India letter dated 07.08.2003. However, the Applicant was not granted ACP-II Benefit as he had 23 days of Non Qualifying Service (NQS) and after adding 23 more days, he was eligible for ACP-II Benefits wef 13.11.2005. However, before the Applicant could be eligible/ granted the ACP-II Benefit, he was awarded Red Ink Entry Punishment on 25.10.2005, thereby making him ineligible for ACP-II Benefits for next one year. Consequent upon implementation of 6^th CPC, MACP Scheme was implemented wef 01.01.2006 and the Counsel for the Applicant contends that the Respondents are bound by the Policy letters dt 30.05.2011 and 13.06.2011 by ignoring Old ACP Scheme which was applicable upto 31.12.2005 and thereafter they should have followed the provisions of new MACP Scheme, which is applicable wef 01.01.2006. Para 1(c) of ADGPS, IHQ of MoD (Army) letter dt 03.08.2009 clearly specifies that this SAI supersedes all previous orders/ instructions on applicability of Assured Career Progression to a PBOR, issued from time to time. Since, the Red Ink Entry Punishment was awarded on 25.10.2005, ie before implementation of MACP Scheme wef 01.01.2006, it became irrelevant for the new MACP Scheme. The Applicant was not granted any punishment on or after 01.01.2006, therefore, he should be granted financial benefit of MACP-II wef 01.01.2006 as he had already completed more than 16 years of service.

4. The Respondents have filed a detailed Reply Statement. While not contesting the basic facts submitted by the Applicant, the Respondents have submitted that though the Applicant has rendered more than 16 years of service as on 01.01.2006, however he was awarded Red Ink Entry Punishment on 25.10.2005. The Applicant is not fulfilling Discipline Criteria, hence he is not entitled for further Promotion/ MACP Benefits in terms of IHQ of MoD (Army) letter dt 13/06/2011.

5. Heard and considered the submissions of Learned Counsel for the parties and perused the material placed on record. The question that merits consideration is whether the Applicant, who does not meet Disciplinary Criteria entitled for MACP Benefits?

6. On the conditions relating to fulfilling of Discipline Criteria for grant of ACP Benefit, Para 7 (b) (ii) of Govt of India, Ministry of Defence letter No 14(1)/99-D (AG) dt 07.08.2003, reads as under:- ***"7(b)(ii). He is eligible for promotion on the basis of disciplinary criteria applicable for promotion at the time of ACP upgradation."***

7. On the conditions relating to fulfilling of Discipline Criteria for grant of MACP Benefit, Para 20 of ADG PS, IHQ of MoD (Army) letter No B/33513/ACP/ AG/ PS-2(c) dt 13/06/2011, reads as under:- ***"20. Discipline Criteria. Discipline criteria applicable for promotion will also apply for MACP up-gradation. Thus, at the time of up-gradation, an individual should meet discipline criteria for promotion laid down vide letter No B/33513/AG/PS-2(c) dt 10 Oct 1997, as amended from time to time."***

8. The Discipline Criteria for promotion to JCOs/NCOs is laid down in AGs Branch, IHQ of MoD (Army) letter No B/33513/AG/PS2(c) dt **10/10/1997**, relevant portion of which reads as under:- ***"2. In addition to the provisions contained in AO 45/80 and SAO 8/S/78, the following criteria in regard to discipline, medical standards and ACRs will be adopted for the purpose of promotion to the ranks of Dfr/Hav and JCOs.***

**Discipline Criteria.**

**(a) An individual should not have more than three red ink entries (including recordable censure in the case of a Nb Sub) during the entire service and not more than one red ink entry in the last five years.** For promotion to the rank of Sub Maj, there should be no red ink entry including recordable censure in the rank of JCO.

**(b) A JCO/NCO who has been convicted for an offence mentioned in Appendix A to this letter will be permanently debarred for further promotion.**

**(c) A JCO who has been awarded recordable censure/red ink entry for any offence at Appendix B to this letter will not be eligible for further promotion for a period of next three years from the date of the award of the recordable censure/ red ink entry.**

**(d) An NCO who has been awarded red ink entry for any offence at Appendix B to this letter will not be eligible for further promotion for a period of three years from the date of award of the red ink entry.**

**(e) In exceptional cases, the stipulations as per sub paragraph (a) to (d) above in respect of those individuals who have distinguished themselves in War or Peace may be, waived by the GOC-in-C Command on the recommendation of the OIC Records.**

**(f) An individual will not be considered for promotion within one year of the award of red ink entry/recordable censure, as the case may be."**

9. Further, on the issue relating to fulfilling discipline criteria is also explained in Consolidated Guidelines issued vide Govt of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) letter No 35034/3/2015-Estt (D) dt 22/10/2019, relevant portion of which reads as under:- **"18. In the matter of disciplinary/penalty proceedings, grant of benefit under the MACPS shall be subject to rules governing normal promotion. Such cases shall, therefore, be regulated under the provisions of CCS (CCA) Rules, 1965 and instructions issued thereunder."**

10. After going through the instructions on ACP as well as MACP, it is clear that disciplinary criteria is a pre-requisite requirement both the the ACP and the MACP Benefits. Therefore, the contention of the Applicant that the MACP

Benefit was made operational wef 01.01.2006 and it has no relation, at all with the punishment awarded before 01.01.2006, is not sustainable and the Applicant is clearly not eligible for MACP Benefit before his retirement on the grounds that he had been awarded Red Ink Punishment on 25.10.2005. However, we feel that the Applicant had rendered more than 20 years of Service and cannot be deprived of the legitimate benefit, especially when the personnel who rendered only 16 years of Service as on 01.01.2006 had become eligible for grant MACP-II Benefits. Therefore, the ACP-II Benefit can only be granted, if the deficiency of 23 days of Non Qualifying Service is condoned and the Applicant is granted ACP-II Benefit as on 22.10.2005, ie well before award of Red Ink Punishment on 25.10.2005.

11. A similar question of Condonation of Deficiency in Qualifying Service was dealt with by Armed Forces Tribunal, Regional Bench, Chennai in the case of Ex Hav M. Sankarraj Vs UOI & Ors (OA No 108/2016 decided on 23.11.2017), the relevant portion of which reads as under:- ***"13. In the instant case, the Applicant had served for more than 24 years. However, there was a shortfall of 14 days to complete 24 years of service in view of some non qualifying service deducted from the total service rendered by him. Admittedly, the Applicant had 23 years, 11 months and 16 days of service at the time of his discharge from service and he was granted pension benefits for 24 years of service, after rounding off of the fraction of service to two half years, ie., one year, as he had served for more than nine months during his last year of service. In view of our conclusions, that the provisions of Regulation 18 of Pension Regulations for Army, 2008 for calculating qualifying service are equally applicable for grant of MACP, we find no impediment in computing his qualifying service as 24 years for the said purpose of granting 3^rd MACP (Naib Subedar), as well.***

**14. x x x x**

***15. In sum, the applicant is declared to be entitled to grant of 3^rd MACP. His terminal benefits including pensionary benefits shall be calculated and fixed after granting him 3^rd MACP and taking into account of that benefit as well. ....".***

12. Therefore, the deficiency of 23 days of Non Qualifying Service as on 22.10.2005 is hereby condoned. The Applicant is declared to be entitled for grant of ACP-II Benefit on completion of 20 years of Service, ie., on 22.10.2005. His terminal benefits, including pensionary benefits shall be calculated and fixed after granting him ACP-II Benefit and taking into account of that Benefit as well. Corrigendum PPO will be issued to that effect. However, it is made clear that arrears of pay/ pension based on ACP-II Benefit shall be restricted to three years prior to the date of filing of the OA. The OA was filed on 06.10.2020.

13. The Respondents are directed to pay the arrears of pay and allowances and the pensionary benefits to the Applicant within four months from the date of receipt of a copy of this Order, failing which the Applicant will be entitled to be interest at 8% per annum for the said amounts.

14. The Original Application is ordered, accordingly. No order on costs.

15. The Learned Counsel for the Respondents made an oral prayer for Leave to Appeal which was denied.

16. Miscellaneous Applications filed for condonation of delay and hearing the case at Circuit Bench, Jodhpur also stand Disposed Off.

(BOBBY CHERIAN MATHEWS) MEMBER (A)

(RAJENDRA MENON) CHAIRPERSON

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