THE DIRECTOR, DIRECTORATE OF ENFORCEMENT & ANR. versus K. SUDHEESH KUMAR & ORS. on 28 January 2022

720

SUPREME COURT REPORTS

[2022] 2 S.C.R.

ATHE DIRECTOR, DIRECTORATE OF ENFORCEMENT & ANR.

v.

K. SUDHEESH KUMAR & ORS.

(Civil Appeal No. 442 of 2022)

BJANUARY 28, 2022

[M. R. SHAH AND SANJIV KHANNA, JJ.]

Service Law – MACP Scheme – Claim of grade pay ofRs.6600/- – Clause 8.1 of the scheme provides that the grade payof Rs.5400 in PB-2 and Rs.5400 in PB-3 shall be treated as separateCgrade pays for the purpose of grant of upgradations under MACPScheme – However, the respondents (in PB-2) were granted gradepay of Rs.6600 for PB-3 under MACP Scheme by the High Court –High Court observed that the next promotional post carries a gradepay of Rs.6600, when the third financial upgradation is due to anDemployee, it has to be of the next promotional post in the hierarchyas per the Recruitment Rules – On appeal, held: It was specificallyobserved and held by the Supreme Court in the case of M.V. MohananNair that MACP has nothing to do with the next promotional postand what the employee would be entitled would be the immediatenext higher grade pay in the hierarchy of the recommended revisedEpay bands and grade pay as given in the CCS (Revised Pay) Rules,2008 – As per clause 8.1 of the MACP scheme grade pay of PB-2and PB-3 would be Rs.5400/- – The High Court has committed agrave error in allowing the grade pay of Rs.6600, the grade paywhich was available to the next promotional post – Therefore,Fjudgment and the order passed by the High Court set aside –Respondents entitled to the next grade pay of Rs.5400 as per clause8.1 – CCS (Revised Pay) Rules, 2008.

Allowing the appeal, this Court

HELD: 1. At the outset it is required to be noted that theGissue involved in the present appeal is as such squarely coveredby the decision of this Court in the case of M.V. Mohanan Nair.By detailed judgment and order this Court has interpreted thevery MACP Scheme and it is observed and held that under theMACP Scheme employees are entitled to the immediate next H

higher grade pay as given in Section 1, Part A of the First Scheduleof the CCS (Revised Pay) Rules, 2008. It is specifically observedand held by this Court in the aforesaid decision that MACP hasnothing to do with the next promotional post and what theemployee would be entitled would be the immediate next highergrade pay in the hierarchy of the recommended revised pay bandsand grade pay as given in the CCS (Revised Pay) Rules, 2008.As per clause 8.1 of the MACP Scheme ‘consequently upon theimplementation of Sixth CPC’s recommendations, grade pay ofPB-2 and PB-3 would be Rs.5400. It specifically provides thatthe grade pay of Rs.5400 in PB-2 and Rs.5400 in PB-3 shall betreated as separate grade pays for the purpose of grant ofupgradations under the MACP Scheme’. Therefore, respondentNos.1 & 2 as PB-2 shall be entitled to the next grade pay ofRs.5400 as per clause 8.1 and as per Section 1, Part A of the FirstSchedule of the CCS (Revised Pay) Rules, 2008. The High Courthas allowed the grade pay of Rs.6600 by considering the nextpromotion post of Assistant Director i.e., Deputy Director whichcarries a grade pay of Rs.6600. However, the aforesaidinterpretation would be contrary to the MACP Scheme. Onconsidering the relevant clauses of the MACP Scheme, it appearsthat the MACP Scheme envisages placement in the immediatenext higher grade pay in the hierarchy of the recommendedrevised pay bands and grade pay as given in Section 1, Part A ofthe First Schedule of the CCS (Revised Pay) Rules, 2008. Thus,the High Court has committed a grave error in allowing the gradepay of Rs.6600 the grade pay which was available to the nextpromotional post as Deputy Director. Respondent Nos.1 & 2 asper PB-2 were entitled to the grade pay of Rs.5400 as PB- 3 asper clause 8.1. [Para 7][726-C-H; 727-A]

2. By the impugned judgment and order and while grantinggrade pay of Rs.6600 to respondent Nos.1 & 2 virtually, the HighCourt has modified the MACP Scheme which has been framedby the Government on the recommendations of the expert bodylike the pay commission and its recommendations for the MACPScheme. As observed and held by this Court in the case of M.V.

AB

C

D

EF

G

H

[2022] 2 S.C.R.

AMohanan Nair the ACP which is now superseded by MACPScheme is a matter of Government policy and interfering withthe recommendations of the expert body like the pay commissionand its recommendations for the MACP Scheme would haveserious impact on the public exchequer. It is further observedthat the recommendations of the pay commission for the MACPBScheme have been accepted by the Government andimplemented. It is further observed that therefore the High Courthas no jurisdiction to interfere with the Government policies inthe form of MACP Scheme which was after accepting the SixthCentral Pay Commission. In view of the above and for the reasonsCstated above and the binding decision of this Court in the case ofM.V. Mohanan Nair, the impugned judgment and order passedby the High Court granting grade pay of Rs.6600 to respondentNos.1& 2 is unsustainable and deserves to be quashed and setaside. Therefore, so long as Clause 8.1 and the grade paymentioned as per Section 1, Part A of the First Schedule of theDCCS (Revised Pay) Rules, 2008 stands, the employee shall beentitled to the grade pay accordingly. Therefore, if any of theemployees is aggrieved by Clause 8.1 and if in his opinion, thereis any anomaly the same has to be challenged by the aggrievedemployee, which can be considered in accordance with law and onEits own merits. However, as the same is not under challenge, thisCourt has to go by the MACP Scheme as it is. [Para 8][727-A-G]

Union of India and others Vs M.V. Mohanan Nair (2020)5 SCC 421 – relied on.

State of Rajasthan Vs. Mahesh Kumar Sharma (2011)F4 SCC 257 : [2011] 3 SCR 489 – referred to.

National Council of Educational Research & TrainingAnr. vs. Anita Gupta & Anr 2016 SCC OnLine Del 4720– referred to.

Case Law ReferenceG

(2020) 5 SCC 421relied onPara 4[2011] 3 SCR 489referred toPara 5.3

H

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 442 of2022.

From the Judgment and Order dated 23.10.2019 of the High Courtof Kerala at Ernakulam in O.P. (CAT). No.171 of 2019.

Ms. Madhavi Goradia Divan, ASG, Ashok Panigrahi, B. K. Satija,Zoheb Hossain, Manan Popli, M. K. Maroria, B. Krishna Prasad, Advs.for the Appellants.

Mathai Paikaday, Sr. Adv., Sunil Roy, Amit Singh, Alexander M.Paikaday, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 23.10.2019passed by the High Court of Kerala atErnakulam in OP (CAT) No.171 of 2019, by which the High Court hasallowed the said original petition (OP) and set aside the order passed bythe learned Central Administrative Tribunal, Ernakulam Bench and hasdeclared that respondent Nos.1 & 2 herein – original petitioners areentitled to grade pay of Rs.6600/- on their third financialupgradation asper the Modified Assured Career Progression (MACP) Scheme andthey be paid the pension accordingly with effect from April, 2015, theDirector, Directorate of Enforcement, New Delhi and another – originalrespondents before the High Court, have preferred the present appeal.

2. That the private respondent Nos.1 & 2 herein were appointedas Assistant Enforcement Officer (AEO) in the year 1976 and 1977,respectively. That in the year 2009, the Government of India – Ministryof Personnel, Public Grievance and Pensions (Department of Personneland Training) notified the MACP Scheme for the Central GovernmentCivilian Employees. The Scheme further provided as per clause 8.1 (whichis relevant so far as the present matter is concerned)‘consequently uponthe implementation of Sixth CPC’s recommendations, grade pay ofRs.5400 is now in two pay bands viz., PB-2 and PB-3. It further providedthat the grade pay of Rs.5400 in PB-2 and Rs.5400 in PB-3 shall betreated as separate grade pays for the purpose of grant of upgradationsunder MACP Scheme’. However, it so happened that while grantingthird financial upgradation vide order dated 17.11.2009, the privaterespondents herein and others were granted the grade pay of Rs.6600 for A

B

C

D

E

F

G

H

APB-3 under MACP Scheme, though as per clause 8.1 PB-3 carried thegrade pay of Rs.5400. However, on the objection being raised by theAudit Department their grade pays(GP) of Rs.6600 in PB-3 was modified/corrected as GP of Rs.5400 as per clause 8.1. Therefore, respondentNos.1 and 2 herein approached the Central Administrative Tribunal,Ernakulam Bench and prayed to continue the GP of Rs.6600 as per theBearlier order dated 17.11.2009 and not to make any recovery. A decisionof the Madras High Court was pressed into service by which a similarorder of withdrawing the GP of Rs.6600 and to grant GP Of Rs.5400 forPB-3 was set aside. On relying upon the clause 8.1 of the MACP Schemeby which the implementation of Sixth CPC’s recommendations, gradeCpay of Rs.5400 was in two pay bands i.e., PB-2 and PB-3 and for grantof upgradation under MACP Scheme they shall be treated as separategrade pays, the learned Tribunal dismissed the original application (OA).3. Feeling aggrieved and dissatisfied with the judgment and orderpassed by the Central Administrative Tribunal dismissing the said OA,Drespondent Nos.1 & 2 herein preferred the original petition before theHigh Court. By the impugned judgment and order and ignoring clause8.1 of the MACP Scheme the High Court has allowed the saidpetitionby observing that the next promotion post of Assistant Director which isin the PB-3 would be that of Deputy Director which carries a grade payof Rs.6600, when the third financial upgradation is due to an employee,Eit has to be of the next promotional post in the hierarchy as per theRecruitment Rules. Feeling aggrieved and dissatisfied with the impugnedjudgment and order passed by the High Court, the department haspreferred the present appeal.

4. Ms. Madhavi Divan, learned ASG appearing on behalf of theFappellants has vehemently submitted that the impugned judgment andorder passed by the High Court is just contrary to the decision of theDelhi High Court in the case of National Council of EducationalResearch & Training & Anr. Vs. Anita Gupta & Anr. 2016 SCCOnLine Del 4720 as well as to the decision of this Court in the case ofGUnion of India and others Vs. M.V. Mohanan Nair (2020) 5 SCC421.

4.1 It is submitted that on interpretation of very MACP Scheme,it is observed and held by this Court that the employees are entitled tothe grade pay as provided under the MACP Scheme which has beenHframed on the recommendations of the pay commission.It is submitted that on interpreting MACP Scheme, it is specifically observed and heldby this Court that MACP Scheme envisages merely placement inthe immediate next higher grade pay in the hierarchy of the recommendedrevised pay bands and grade pay as given in Section 1, Part A of theFirst Schedule of the CCS (Revised Pay) Rules, 2008 and has nothing todo with the next promotional post.

4.2 It is submitted that in the present case the High Court hasallowed the grade pay of Rs.6600. However, as per clause 8.1, PB-2and PB-3 carried grade pay of Rs.5400 and it specifically provided thatthe grade pay of Rs.5400 in PB-2 and grade pay of Rs.5400 in PB-3shall be treated as separate grade pays for the purpose of grant ofupgradation under MACP Scheme. It is submitted that thereforerespondent Nos.1 & 2 – original petitioners as per the MACP Schemeshall be entitled to the grade pay of Rs.5400 i.e., next grade pay for PB-3. It is submitted that as such by the impugned judgment and order anddirecting to grant grade pay of Rs.6600 the High Court has modified theMACP Scheme and has granted the benefit of three steps upward.

4.3 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to allow the present appeal.

5. The present appeal is vehemently opposed by Shri MathaiPaikaday, learned Senior Advocate appearing on behalf of the privaterespondent Nos.1 & 2 herein.

5.1 It is vehemently submitted by learned Senior Advocateappearing on behalf of the private respondent Nos.1 & 2 that theemployee shall be entitled to the next higher pay and the submissionsmade on behalf of the appellants that both PB-2 and PB-3 shall carrygrade pay of Rs.5400 is accepted in that case the purpose of higher-grade pay shall be frustrated. It is submitted that when the next higher-grade pay would be Rs.6600, the High Court has rightly directed togrant grade pay of Rs.6600.

5.2 It is submitted that it is true that the High Court has wronglyused the word next promotion post. It is submitted that the question isnot of next promotional post but the question is of next higher grade pay.

5.3 In the alternative it is prayed by the learned Senior Advocateappearing on behalf of respondent Nos.1 & 2 and relying upon the decisionof this Court in the case of State of Rajasthan Vs. Mahesh KumarSharma (2011) 4 SCC 257 that if this Court is inclined to accept the A

B

C

D

E

F

G

H

Asubmissions made on behalf of the appellants and set aside the judgmentand order passed by the High Court holding that respondent No.1 & 2shall be entitled to grade pay of Rs.5400, in that case no recovery beordered as respondent Nos.1 & 2 have already retired and the differencewould be of Rs.1200 approximately per month so far as the pension isconcerned.B

6. We have heard learned counsel appearing on behalf of therespective parties.

7. At the outset it is required to be noted that the issue involved inthe present appeal is as such squarely covered by the decision of thisCCourt in the case of M.V. Mohanan Nair (supra). By detailed judgmentand order this Court has interpreted the very MACP Scheme and it isobserved and held that under the MACP Scheme employees are entitledto the immediate next higher grade pay as given in Section 1, Part A ofthe First Schedule of the CCS (Revised Pay) Rules, 2008. It is specificallyobserved and held by this Court in the aforesaid decision that MACPDhas nothing to do with the next promotional post andwhat the employeewould be entitled would be the immediate next higher grade pay inthehierarchy of the recommended revised pay bands and grade pay asgiven in the CCS (Revised Pay) Rules, 2008. As per clause 8.1 of theMACP Scheme ‘consequently upon the implementation of Sixth CPC’sErecommendations, grade pay of PB-2 and PB-3 would be Rs.5400. Itspecifically provides that the grade pay of Rs.5400 in PB-2 and Rs.5400in PB-3 shall be treated as separate grade pays for the purpose of grantof upgradations under the MACP Scheme’. Therefore, respondent Nos.1&2 as PB-2 shall be entitled to the next grade pay of Rs.5400 as perclause 8.1 and as per Section 1, Part A of the First Schedule of the CCSF(Revised Pay) Rules, 2008. The High Court has allowed the grade payof Rs.6600 by considering the next promotion post of Assistant Directori.e., Deputy Director which carries a grade pay of Rs.6600. However,the aforesaid interpretation would be contrary to the MACP Scheme.On considering the relevant clauses of the MACP Scheme, it appearsGthat the MACP Scheme envisages placement in the immediate next highergrade pay in the hierarchy of the recommended revised pay bands andgrade pay as given in Section 1, Part A of the First Schedule of the CCS(Revised Pay) Rules, 2008. Thus, the High Court has committed a graveerror in allowing the grade pay of Rs.6600 - the grade pay which wasavailable to the next promotional post as Deputy Director. RespondentH

Nos.1 & 2 as per PB-2 were entitled to the grade pay of Rs.5400 asPB-3 as per clause 8.1.

8. By the impugned judgment and order and while granting gradepay of Rs.6600 to respondent Nos.1 & 2 virtually, the High Court hasmodified the MACP Scheme which has been framed by the Governmenton the recommendations of the expert body like the pay commission andits recommendations for the MACP Scheme. As observed and held bythis Court in the case of M.V. Mohanan Nair (supra) the ACP which isnow superseded by MACP Scheme is a matter of Government policyand interfering with the recommendations of the expert body like thepay commission and its recommendations for the MACP Scheme wouldhave serious impact on the public exchequer. It is further observed thatthe recommendations of the pay commission for the MACP Schemehave been accepted by the Government and implemented. It is furtherobserved that therefore the High Court has no jurisdiction to interferewith the Government policies in the form of MACP Scheme which wasafter accepting the Sixth Central Pay Commission. In view of the aboveand for the reasons stated above and the binding decision of this Court inthe case of M.V. Mohanan Nair (supra) with which we also agree, theimpugned judgment and order passed by the High Court granting gradepay of Rs.6600 to respondent Nos.1& 2 is unsustainable and deservesto be quashed and set aside.

However, we observe that the view which we are taking is on thepremise that neither the MACP Scheme nor Clause 8.1 is under challengeand as per the law laid down by this Court in M.V. Mohanan Nair(supra), an employee is entitled to the higher grade pay as providedunder MACP Scheme, more particularly, as per Section 1, Part A of theFirst Schedule of the CCS (Revised Pay) Rules, 2008. Therefore, solong as Clause 8.1 and the grade pay mentioned as per Section 1, Part Aof the First Schedule of the CCS (Revised Pay) Rules, 2008 stands, theemployee shall be entitled to the grade pay accordingly. Therefore, ifany of the employees is aggrieved by Clause 8.1 and if in his opinion,there is any anomaly the same has to be challenged by the aggrievedemployee, which can be considered in accordance with law and on itsown merits. However, as the same is not under challenge, we have to goby the MACP Scheme as it is.

9. In view of the above and for the reasons stated above theimpugned judgment and order passed by the High Court is hereby A

B

C

D

E

F

G

H

Aquashed and set aside and the judgment and order that of the CentralAdministrative Tribunal is hereby restored. It is observed and held thaton implementation of MACP Scheme respondent No.1 and 2 hereinshall be entitled to the grade pay of Rs.5400 and not of Rs.6600 asclaimed by them. Their pensions be refixed accordingly. However, it isobserved that as respondent Nos.1 & 2 are the retired employees andBtill date they have received the pension considering the grade pay ofRs.6600 and being retired persons it will be very difficult for them torefund the difference in the pay pension, in the peculiar facts andcircumstances of the case we direct that there shall be no recovery ofthe difference in the pension between the grade pay of Rs.5400 andCgrade pay of Rs.6600 for the period prior to December, 2021. However,on refixation of the pension as per the present judgment and order, fixingtheir grade pay of Rs.5400 they shall be paid the pension accordinglyfrom January, 2022 onwards. The present appeal is allowed accordingly,however, with the above observations and directions. No costs.

D

Ankit Gyan(Assisted by : Rahul Rathi, LCRA)

Appeal allowed.

E

F

G

H