# THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v. NARENDER KUMAR & ORS

- **Citation:** [2022] 4 S.C.R. 480
- **Court:** Supreme Court of India
- **Decided:** 2022-03-08
- **Case number:** Civil Appeal No. 1880 of 2022
- **Bench:** Uday Umesh Lalit, S. Ravindra Bhat, Bela M. Trivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-vice-chairman-delhi-development-authority-v-narender-kumar-ors-36052
- **Pages:** 22

## Headnote

Service Law: Delhi Development Authority - Assured Career
Progression Scheme - In the instant case, the employees
(respondents) sought applicability of Assured Career Progression
Scheme, which if applies, will give them the benefit of grant of second
financial up-gradation w.e.f 03.01.2009 - On the other hand,
appellant-authority sought application of Modified Assured Career
Progression Scheme upon the ground that the same become operative
from 01.09.2008 - Respondents successfully filed application before
the Central Administrative Tribunal - Appellant authority
approached High Court - High Court relied on the decision in Union
of India v. Balbir Singh Turn, in which case it was held that the Armed
Forces Personnel had to be given benefit of MACP from the date of
the recommendation of the Sixth Central Pay Commission i.e. from
01.01.2006 and not from 1.09.2008 as decided by the Central
Government and therefore upon the same logic, in the instant case
the MACP shall come into effect from 01.01.2006 - Held: None of
the employees actually earned a second financial up-gradation,
though they undoubtedly became eligible for consideration but the
eligibility does not ipso facto translate into entitlement as per the
scheme of the ACP and therefore second ACP up-gradation was
not automatic but dependent on external factors, eg. employees'
record - The contention of the employees that they had vested right
is not tenable as benefit under the ACP scheme was by way of
incentive granted to avoid stagnation with respect to those employee
who could not get promoted for an ascertained period of time -
Such benefit by way of incentive are not embodied under rules but
is in the form of executive order and since MACP is aimed to benefit
a sizable section of the employees, and not only the respondent, as
in this case, hence the same cannot be interfered with.
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Service Law: Assured Career Progression Scheme - Policy
Behind Financial Up-Gradation - Financial up-gradation under
the ACP Scheme was available only if regular promotion during the
stipulated intervals, 12 years and 24 years, was not granted to an
employee - Its intent was to extend relief for stagnation faced by
employees' due inadequate promotional probabilities - A singular
feature of the ACP scheme was that while the benefit was pay based,
the employee had to fulfil the prescribed criteria to be eligible for
the benefits.
Service Law: Modified Assured Career Progression Scheme
- Essential features and distinction from - Held: Assured Career
Progression Scheme - Distinction - The noticeable feature of the
MACP Scheme is that three increments are to be granted to employees
on completion of 10, 20 and 30 years of service - According to the
MACP scheme, financial up-gradation is admissible on completion
of 10 years of continuous service -in the same grade pay - The
distinction between the ACP and the MACP scheme is not only with
respect to the number of benefits (i.e., two under the ACP scheme,
and three under the MACP scheme) but also that the former assured
the promotional grade, where the latter (MACP scheme) only assured
higher pay.
Delhi Development Authority - Scope of Application of MACP
upon its employees - DDA is an autonomous - statutory-organization
- It largely follows the Central Government's policies, in respect of
pay and allowances, and other benefits for its employees, however,
any revision of pay-structure or revision in other terms and
conditions, of Central Government personnel cannot and do not
automatically apply to the DDA - It has to consider the new or
fresh scheme formulated by the Central Government, and adopt it,
if necessary, after appropriate adaptation, to suit its needs.
State of Gujarat v. Raman Lal Keshav Lal Soni [1983]
2 SCR 287; Chairman, Railway Board v. C.R.
Rangadhamaiah [1997] Supp (3) SCR 63; Shankarsan
Dash v. Union Of India (1991) 3 SCC 47 : [1991]
2 SCR 567; Ajoy Kumar Banerjee v. Union of India
[1984] 3 SCR 252; Union of I

## Text

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[2022] 4 S.C.R. 480
480
THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY
v.
NARENDER KUMAR & ORS.
(Civil Appeal No(s). 1880 of 2022)
MARCH 08, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
BELA M. TRIVEDI, JJ]
Service Law: Delhi Development Authority - Assured Career
Progression Scheme - In the instant case, the employees
(respondents) sought applicability of Assured Career Progression
Scheme, which if applies, will give them the benefit of grant of second
financial up-gradation w.e.f 03.01.2009 - On the other hand,
appellant-authority sought application of Modified Assured Career
Progression Scheme upon the ground that the same become operative
from 01.09.2008 - Respondents successfully filed application before
the Central Administrative Tribunal - Appellant authority
approached High Court - High Court relied on the decision in Union
of India v. Balbir Singh Turn, in which case it was held that the Armed
Forces Personnel had to be given benefit of MACP from the date of
the recommendation of the Sixth Central Pay Commission i.e. from
01.01.2006 and not from 1.09.2008 as decided by the Central
Government and therefore upon the same logic, in the instant case
the MACP shall come into effect from 01.01.2006 - Held: None of
the employees actually earned a second financial up-gradation,
though they undoubtedly became eligible for consideration but the
eligibility does not ipso facto translate into entitlement as per the
scheme of the ACP and therefore second ACP up-gradation was
not automatic but dependent on external factors, eg. employees'
record - The contention of the employees that they had vested right
is not tenable as benefit under the ACP scheme was by way of
incentive granted to avoid stagnation with respect to those employee
who could not get promoted for an ascertained period of time -
Such benefit by way of incentive are not embodied under rules but
is in the form of executive order and since MACP is aimed to benefit
a sizable section of the employees, and not only the respondent, as
in this case, hence the same cannot be interfered with.
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481
Service Law: Assured Career Progression Scheme - Policy
Behind Financial Up-Gradation - Financial up-gradation under
the ACP Scheme was available only if regular promotion during the
stipulated intervals, 12 years and 24 years, was not granted to an
employee - Its intent was to extend relief for stagnation faced by
employees' due inadequate promotional probabilities - A singular
feature of the ACP scheme was that while the benefit was pay based,
the employee had to fulfil the prescribed criteria to be eligible for
the benefits.
Service Law: Modified Assured Career Progression Scheme
- Essential features and distinction from - Held: Assured Career
Progression Scheme - Distinction - The noticeable feature of the
MACP Scheme is that three increments are to be granted to employees
on completion of 10, 20 and 30 years of service - According to the
MACP scheme, financial up-gradation is admissible on completion
of 10 years of continuous service -in the same grade pay - The
distinction between the ACP and the MACP scheme is not only with
respect to the number of benefits (i.e., two under the ACP scheme,
and three under the MACP scheme) but also that the former assured
the promotional grade, where the latter (MACP scheme) only assured
higher pay.
Delhi Development Authority - Scope of Application of MACP
upon its employees - DDA is an autonomous - statutory-organization
- It largely follows the Central Government's policies, in respect of
pay and allowances, and other benefits for its employees, however,
any revision of pay-structure or revision in other terms and
conditions, of Central Government personnel cannot and do not
automatically apply to the DDA - It has to consider the new or
fresh scheme formulated by the Central Government, and adopt it,
if necessary, after appropriate adaptation, to suit its needs.
State of Gujarat v. Raman Lal Keshav Lal Soni [1983]
2 SCR 287; Chairman, Railway Board v. C.R.
Rangadhamaiah [1997] Supp (3) SCR 63; Shankarsan
Dash v. Union Of India (1991) 3 SCC 47 : [1991]
2 SCR 567; Ajoy Kumar Banerjee v. Union of India
[1984] 3 SCR 252; Union of India v. M.V. Mohanan
Nair (2020) 5 SCC 421; Union of India v. R.K. Sharma
(2021) 5 SCC 579 - relied on.
THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v.
NARENDER KUMAR & ORS.
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Union of India v. Balbir Singh Turn (2018) 11 SCC 99
: [2017] 12 SCR 421 -distinguished.
Chandi Prasad Uniyal v. State of Uttarakhand 2012
(8) SCC 417 : [2012] 7 SCR 307; State of U.P. & Ors.
v. U.P. Sales Tax Officer Grade-II Officer 2003 (6) SCC
250 : [2003] 3 SCR 617; Secretary Government (NCT
of Delhi) and Ors. v. Grade-I officers Associations &
Ors. 2014 (13) SCC 296 : [2014] 8 SCR 976; State of
Tamilnadu v. Arumugham (1998) 2 SCC 198 : [1997]
5 Suppl. SCR 295; State of Haryana & Anr. v. Haryana
Civil Secretariat Personal Staff Association 2002 (6)
SCC 72 : [2002] 1 Suppl. SCR 118; Himachal RTC v.
Retired Employees Union (2021) 4 SCC 502; Govt of
AP v. N. Subbarayadu 2008 (14) SCC 702; Ami Lal Bhat
v State of Rajasthan (1997) 6 SCC 614; State of
Bihar v. Ramjee Prasad (1990) 3 SCC 368; Union of
India v. Sudhir Kumar Jaiswal (1994) 4 SCC 212;
Union of India v. Shivbachan Rai (2001) 9 SCC
356; Council
of
Scientific
&
Industrial
Research v. Ramesh Chandra Agrawal (2009) 3 SCC
35 - referred to.
Case Law Reference
[2017] 12 SCR 421
distinguished
Para 11
[2012] 7 SCR 307
referred to
Para 13
[2003] 3 SCR 617
referred to
Para 14
[2014] 8 SCR 976
referred to
Para 14
[1997] 5 Suppl. SCR 295
referred to
Para 15
[2002] 1 Suppl. SCR 118
referred to
Para 15
(2020) 5 SCC 421
relied on
Para 15
(2021) 5 SCC 579
relied on
Para 16
(2021) 4 SCC 502
referred to
Para 16
(2008) 14 SCC 702
referred to
Para 28
(1997) 6 SCC 614
referred to
Para 28
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(1990) 3 SCC 368
referred to
Para 28
(1994) 4 SCC 212
referred to
Para 28
(2001) 9 SCC 356
referred to
Para 28
(2009) 3 SCC 35
referred to
Para 28
[1983] 2 SCR 287
relied on
Para 33
[1997] Supp (3) SCR 63
relied on
Para 33
[1991] 2 SCR 567
relied on
Para 35
[1984] 3 SCR 252
relied on
Para 37
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1880
of 2022.
From the Judgment and Order dated 09.01.2020 of the High Court
of Delhi at New Delhi in WP (C) No.476 of 2019.
With
Civil Appeal Nos. 1881, 1882-1885, 1886, 1887, 1888 of 2022.
Kailash Vasdev, Sr. Adv., Anshay Dhatwalia, Vishnu Mohan Nair,
Ashwani Kumar, Anand Mishra, Amrendra Kumar Singh, Anant Vijay
Palli, Nikhil Palli, Deepak Goel, Ms. Samta Pushkarna Mishra, Kamal
Kumar Pandey, M. K. Bhardwaj, Ashutosh Kumar, Rajendra Beniwal,
Ms. Bano Deswal, R. C. Kaushik, Mishra Saurabh, Advs. for the
appearing parties.
The following Order of the Court was passed:
ORDER
1. Special leave granted, in all these proceedings. With consent of
counsel, this batch of appeals was heard finally.
2. In all these appeals, the common question which arises is
whether the reasoning adopted by the Delhi High Court to hold, and
direct that the Modified Assured Career Progression Scheme ("MACP")
had to be applied from 01-01-2006, is correct. The appellant, Delhi
Development Authority (hereafter called "DDA" or "the employer") is
primarily aggrieved by the ruling of the Delhi High Court1. Some of the
successful petitioners (respondents in those proceedings, hereafter called
1 Delivered on 9 January, 2020 in WP 5927/2018, WP 5932/2018 and WP 476/2019.
THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v.
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"the employees"), have also appealed to this court, contending that the
High Court's directions were not correct and seek a modification of the
relief granted by the impugned judgment. The DDA has preferred another
appeal against a subsequent order2 which followed the previous order
(dated 9th January, 2020).
Relevant facts
3. The Government of India introduced the Assured Career
Progression Scheme (in short, ACP Scheme), by an office memorandum,
in August, 19993, to remove stagnation. The salient features of the scheme
are extracted below:
"1. The ACP Scheme envisages merely placement in the higher
pay scale/grant of financial benefits (through financial upgradation) only to the government servant concerned on
personal basis and shall, therefore, neither amount to
functional/regular promotion nor would require creation of
new posts for the purpose;
2. The highest pay scale up to which the financial upgradation under the Scheme was available was to be Rs
14,300-18,300. Beyond this level, there shall be no financial
up-gradation and higher posts were filled strictly on vacancybased promotions;
***
4. The first financial up-gradation under the ACP Scheme
shall be allowed after 12 years of regular service and the
second financial up-gradation after 12 years of regular
service from the date of the first financial up-gradation
subject to fulfilment of prescribed conditions. In other words,
if the first up-gradation gets postponed on account of the
employee not found fit or due to departmental proceedings,
etc. this would have consequential effect on the second upgradation which would also get deferred accordingly;
***
5.1. Two financial up-gradations under the ACP Scheme in
the entire government service career of an employee shall be
2 Dated 11.02.2020, in WP. 528/2017.
3 OM dated 09.08.1999, which came into force on 09.08.1999
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counted against regular promotions (including in situ
promotion and fast track promotions availed through Limited
Departmental Competitive Examination) availed from the
grade in which an employee was appointed as a direct recruit.
This shall mean that two financial up-gradations under the
ACP Scheme shall be available only if no regular promotions
during the prescribed periods (12 and 24 years) have been
availed by the employee. If an employee has already got one
regular promotion, he shall qualify for the second financial
up-gradation only on completion of 24 years of regular
service under the ACP Scheme. In case two prior promotions
on regular basis have already been received by an employee,
no benefit under the ACP Scheme shall accrue to him;"
4. The Sixth Central Pay Commission submitted its report on 243-2008. These recommended the salary structure and allowances,
conditions of service and retirement benefits of the Central Government
employees and other public bodies, personnel belonging to the Defence
Forces, Officers and employees of the Audit and Accounts Departments
and Chairpersons and Members of Regulatory Bodies, except Reserve
Bank of India. By a resolution dated 29-8-2008, the recommendations
of the Central Pay Commission concerning civilian employees were
accepted by the Central Government with respect to revised scales of
pay and dearness allowances. It was resolved that these pay and
allowances benefits would be applicable with effect from 01-01-2006.
5. The Central Government, in supersession of the ACP Scheme,
introduced the MACP scheme, by an office memorandum in May, 20194.
The MACP was made applicable from an earlier date, i.e. 1stSeptember,
2008, through a specific condition in that scheme. The respondent
employees had been appointed as regular Work Charged Malis, by the
DDA, with effect from various dates, beginning from 03.01.1985. They
were granted the first financial up-gradation under the ACP Scheme,
w.e.f. 03.01.1997, i.e., on completion of 12 years of regular service.
Subsequently, they became eligible for grant of the second financial upgradation under the ACP Scheme, w.e.f. 03.01.2009, i.e., upon completion
of 24 years of service. This benefit was not given to them by DDA.
There is no dispute that under the MACP Scheme, the employees were
4 OM dated 19.05.2009
THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v.
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granted the second MACP benefits- later. The employees' grievance
was that the DDA introduced the MACP scheme with effect from (01/
09/2008) by an order dated 06.10.2009 and according to them, as their
eligibility (indeed, as claimed, their entitlement) to claim the second ACP
benefit had accrued to them earlier, they should have been granted the
benefit of second ACP. Consequently, they approached the Central
Administrative Tribunal (CAT) by filing original applications5.
Proceedings before CAT
6. Before CAT, the employee- respondents contended that the
ACP Scheme was more beneficial to them, in comparison with benefits
under the MACP Scheme. Therefore, as they had completed 24 years
of service on various dates in January, 2009, before introduction of the
MACP Scheme, (by OM dated 19.05.2009) they were entitled for the
second financial up-gradation under ACP Scheme, even though the
MACP Scheme was introduced with retrospective date, i.e., w.e.f.
01.09.2008.
7. The DDA contended that since the MACP scheme become
operative w.e.f. 01.09.2008, the employees were not qualified for the
second ACP benefits, as they had not completed 24 years of service
on that date. As a result, the grant of second ACP benefits w.e.f. January,
2009 could not arise. The ACP Scheme was valid up-to 31.08.2008. It
was urged that the OM dated 19.05.2009 under which the MACP Scheme
was introduced in supersession of ACP Scheme of 1999, which
categorically stated that financial up-gradations in terms of the earlier
ACP Scheme would be granted till 31.08.2008. None of the respondent
employees challenged that provision of the MACP Scheme. As a result,
they could not claim that their case for granting of second financial upgradation benefits under ACP Scheme had to be considered w.e.f.
January, 2009. DDA also relied on Para 11 of the MACP scheme which
is as follows:
"11. It is clarified that no past cases would be re-opened.
Further, while implementing the MACP Scheme, the differences
in pay scales on account of grant of financial up-gradation
under the old ACP Scheme (of August 1999) and under the
MACP Scheme within the same cadre shall not be construed
as an anomaly."
5 O.A.No.2005/2014; OA 1945/2014; OA 434/2016
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8. The DDA's contention was that the MACP scheme clearly
envisioned a situation where past benefits, which had actually accrued
and been granted to employees, under the ACP scheme, could not be
withdrawn; however, the MACP scheme contained nothing enabling the
employees to claim that, though it was introduced with effect from
1stSeptember 2008, yet since the memorandum was issued on 19.05.2009,
they would be entitled to the benefits of the previous (i.e. ACP) scheme).
9. The CAT, after considering the submission of parties, noticed
judgments of the Delhi, Madras and Bombay High Court and was of the
opinion that employees were entitled to the claim. Therefore, it allowed
the applications preferred by the employees and directed DDA to consider
their cases for granting of the financial up-gradations under the ACP
Scheme till 19.05.2009, i.e., the date of issuance of the MACP Scheme,
if they were otherwise qualified and eligible, and to grant appropriate
pay scales accordingly, with all consequential benefits. Arrears were
however, denied to the employees.
Proceedings before the Delhi High Court
10. The DDA's argument before the Delhi High Court, which it
approached, being aggrieved by CAT's order, was that with effect from
1st September, 2008, the MACP Scheme had become operational and
that the applicants- employees were no longer entitled to receive the
benefits under the (erstwhile) ACP scheme. It was contended that the
ACP scheme was valid only until 31st August, 2008. By that date the
employees had not completed 24 years of service. It was submitted that
since the MACP scheme was introduced by the Office Memorandum
("OM") dated 19th May, 2009, superseding the earlier ACP scheme, the
question of granting any benefit under the ACP scheme after 31st August,
2008 did not arise.
11. The High Court relied on the decision of this court, in Union
of India v. Balbir Singh Turn6 where it was held that Armed Forces
Personnel, had to be given the benefit of the MACP from the date of the
recommendations of the 6th Central Pay Commission ('CPC') i.e. 1st
January, 2006 and not from 1st September 2008, as decided by the Central
Government. Based on this logic, the High Court, in the impugned order,
directed that MACP benefits should be extended to the employees of
DDA from 1st January, 2006.
6 (2018) 11 SCC 99
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Contentions of parties
12. It was argued by Mr. Kailash Vasudev, Senior Counsel for
DDA that the MACP scheme came into effect on 01.09.2008 and this
should be the criteria with respect to which applicability of whether the
old ACP or the MACP should be decided. The employees completed 24
years in January 2009 i.e. after the date of coming into force of the
MACP, and hence were not entitled to up-gradation under the old ACP.
It was argued that the decision in Balbir Singh(supra), relied on by the
Delhi High Court, applied only to Armed Forces personnel and not civil
establishments like the DDA.
13. Counsel urged that it has been 12 years since the MACP
scheme was implemented and a decision such as the impugned judgment
would constitute judicial interference in policy matters and result in
enormous financial implications. The decision of this court in Chandi
Prasad Uniyal v State of Uttarakhand7 was cited to urge that excess
payments of public money cannot be permitted to be retained. It was
contended that the High Court failed to recognise that the respondents
became eligible for the second up-gradation only after the date of issuance
of the MACP and consequently were not entitled to an up-gradation
under the old ACP scheme.
14. It was emphasized, by citing this court's judgment in State of
U.P. & Ors. Vs. U.P. Sales Tax Officer Grade-II Officer8, that :-
"decision of expert bodies like the pay commission is not
ordinarily subject to judicial review, obviously because pay
fixation is an exercise requiring going into various aspects
of the posts held in various services and nature of the duties
of the employees."
This court's judgment in Secretary Government (NCT of Delhi)
and Ors. Vs. Grade-I officers Associations & Ors9, was also relied
on. The court had, in that judgment, refused to interfere with the ACP
Scheme as it would have violated the government's policy and further
held that exercise of judicial review would not be proper. The court
upheld the ACP Scheme and the conditions therein.
7 2012 (8) SCC 417
8 2003 (6) SCC 250
9 2014 (13) SCC 296
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15. Learned senior counsel also relied on State of Tamilnadu v
Arumugham10 where it was observed that the state has the right to
frame a policy to ensure efficiency and proper administration and to
provide the suitable avenues for promotion to officers working in different
departments. The court further observed that the Tribunal cannot
substitute its own views for the views of the government or direct new
policy based on the views of the tribunal. Likewise, the judgment in
State of Haryana & Anr. v Haryana Civil Secretariat Personal Staff
Association11 was cited to urge that fixation of pay and determination
of responsibilities is a complex matter in the realm of executive decision
making and that the courts should approach such matters with restraint.
The decision of this court in Union of India v. M.V. Mohanan Nair12
was cited to urge that this court had, in its decision, outlined the nature of
the MACP benefits, and also held that the scheme fell within the realm
of executive decision making.
16. Mr. Saurabh Mishra, who also appeared on behalf of the DDA,
relied on the later judgment of this court in Union of India v. R.K.
Sharma13, which held that the benefits from the MACP scheme could
not be given from 01.01.2006, and could be availed of only from
01.09.2008. Counsel also relied on Himachal RTC v. Retired Employees
Union14 that in matters of pay structure or promotion, the choice of a
cut-off date, when the new policy regime has to operate, cannot lightly
be interfered with by courts.
17. Mr. M.K. Bhardwaj, learned counsel appearing for some of
the employees, urged that the High Court's direction to operate the MACP
scheme from 01.01.2006 had not been sought by the employee-applicants.
What they in fact, sought was the grant of ACP benefits, which were in
force, in January 2009, before the MACP scheme was launched - by
an order dated 19 May, 2009, but with effect from 01-09-2008. In other
words, the employees' eligibility and entitlement was crystallized as in
January and February, 2009 when the MACP scheme had not been
published. It was argued that since on the date of the employees' eligibilityor entitlement, they should be granted benefits in terms of the existing
10 (1998) 2 SCC 198
11 2002(6) SCC 72
12 (2020) 5 SCC 421
13 (2021) 5 SCC 579
14 (2021) 4 SCC 502
THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v.
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scheme which were ACP benefits, - which in turn meant a higher or
promotional grade, that right could not be defeated on account of a policy
which was adopted later, albeit with effect from an anterior date.
18. Mr. Bhardwaj and other learned counsel stressed that the
employees' claim for second ACP was warranted in accordance with
the ACP scheme, because it is clearly postulated by the MACP scheme
itself, which, by clause 9 stated as follows:
"9. Any interpretation/ clarification or doubt as to the scope
and meaning of the provisions of the MACP scheme shall be
given by the Department of Personnel and Training
(Establishment-I)). The scheme would be operational w.e.f.
01.09.2008. In other words, financial up-gradations as per
the earlier ACP Scheme (of August, 1999) would be granted
till 31-08-2008."
19. It was further submitted by learned counsel that the right to
be considered for the ACP benefits, was in the nature of a vested right,
which had to be granted even after the coming into force, of the MACP
scheme. In this regard it was argued that the rights which crystallize in
accordance with an old scheme, inure and can be enforced by the
beneficiary, regardless of the fact that a new scheme replaces it.
Analysis and Conclusions
20. The original scheme, i.e. the ACP scheme, (introduced by the
OM dated 9-8-1999) granted career progression to Central Government
civilian employees. Its intent was to extend relief for stagnation faced
by employees' due inadequate promotional probabilities. The ACP Scheme
was introduced by the Central Government -with modifications- based
on the recommendations of the Fifth Central Pay Commission. That
scheme, granted financial up-gradation after 12 years of regular service
and a second, after 12 years of regular service from the date of the first
financial up-gradation, subject to fulfilment of prescribed conditions. The
relevant conditions, i.e. Nos. 5.1 and 10 are extracted below:
"5.1. Two financial upgradation under the ACP Scheme in
the entire Government Service career of an employee shall
be counted against regular promotions (including in situ
promotion and fast track promotion availed through limited
departmental competitive examination) availed from the grade
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in which an employee was appointed as a direct recruit. This
shall mean that two financial up-gradation under the ACP
Scheme shall be available only if no regular promotion during
the prescribed periods (12 and 24 years) have been availed
by an employee. If an employee has already got one regular
promotion, he shall qualify for the second financial
upgradation only on completion of 24 years of regular service
under the ACP Scheme. In case two prior promotions on
regular basis have already been received by an employee, no
benefit under the ACP Scheme shall accrue to him.
***
10. Grant of higher pay scale under the ACP Scheme shall
be conditional to the fact that an employee, while accepting
the said benefit, shall be deemed to have given his unqualified
acceptance for regular promotion on occurrence of vacancy
subsequently. In case he refuses to accept the higher post on
regular promotion subsequently, he shall be subject to normal
debarment for regular promotion as prescribed in the general
instructions in this regard. However, as and when he accepts
regular promotion thereafter, he shall become eligible for the
second upgradation under the ACP Scheme only after he
completes the required eligibility service/period under the ACP
Scheme in that higher grade subject to the condition that the
period for which he was debarred for regular promotion shall
not count for the purpose. For example, if a person has got
one financial upgradation after rendering 12 years of regular
service and after 2 years therefrom if he refuses regular
promotion and is consequently debarred for one year and
subsequently he is promoted to the higher grade on regular
basis after completion of 15 years (12+2+1) of regular
service, he shall be eligible for consideration for the second
up-gradation under the ACP Scheme only after rendering ten
more years in addition to two years of service already rendered
by him after the first financial up-gradation (2+10) in the
higher grade i.e. after 25 years (12+12+1) of regular service
because the debarment period of one year cannot be taken
into account towards the required 12 years of regular service
in that higher grade."
THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v.
NARENDER KUMAR & ORS.
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21. As is apparent, financial up-gradation under the ACP Scheme
was available only if regular promotion during the stipulated intervals, 12
years and 24 years, were not granted to an employee. A singular feature
of the ACP scheme was that while the benefit was pay based, the
employee had to fulfil the prescribed criteria (i.e. qualifications,
experience, and also possess the requisite service records) to be eligible
for the benefits. The ACP benefit was a promotional grade, divorced
from the existence or otherwise of any vacancy, and without necessarily
being functional in the higher grade, with attendant responsibilities.
22. The MACP scheme, which replaced the ACP scheme, with
effect from 01-09-2008 (although the scheme was introduced on
19.05.2009) was preceded by the Sixth Central Pay Commission report
dated 24-3-2008. That report dealt with the pay-structure, allowances,
conditions of services and retiral benefits of Central Government
employees, etc. By a Resolution dated 29-8-2008, recommendations of
the Pay Commission concerning civilian employees were accepted by
the Central Government regarding revised pay-scales and dearness
allowances with effect from 01-01-2006. As regards revised allowances,
(excluding dearness allowance), the effective date designated by the
memorandum is 1-9-2008.
23. The noticeable feature of the MACP Scheme- is that three
increments are to be granted to employees on completion of 10, 20 and
30 years of service. According to the MACP scheme, financial upgradation is admissible on completion of 10 years of continuous service
-in the same grade pay. The distinction between the ACP and the MACP
scheme is not only with respect to the number of benefits (i.e., two
under the ACP scheme, and three under the MACP scheme) but also
that the former assured the promotional grade, where the latter (MACP
scheme) only assured higher pay.15
15 Para 2 of the MACP scheme- through Annexure I to the Office Memorandum, states
as follows:
"The MACPS envisages merely placement in the immediate next higher grade pay
in the hierarchy of the recommended revised pay bands and grade pay as given in
Section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008. Thus, the
grade pay at the time of financial upgradation under the MACPS can, in certain cases
where regular promotion is not between two successive grades, be different than what
is available at the time of regular promotion. ln such cases, the higher grade pay
attached to the next promotion post in the hierarchy of the concerned cadre/organisation
will be given only at the time of regular promotion."
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24. The first issue which arises, is the correctness of the impugned
judgment, in applying the reasoning in Balbir Singh. In that decision,
the question which arose for consideration was the correct date from
which the MACP up-gradation scheme, was applicable to employees
(below the rank of officer). This court held that the scheme had to be
applied from 01.01.2006, and not the date designated by the concerned
order (01.09.2008). The Armed Forces Tribunal (AFT) held that ACP
benefits granted to employees is part of the pay structure which not only
affects pay but also pension. ACP then ruled that it is not an allowance
but a part of pay relied on a Government Resolution to hold that the
MACP scheme was payable w.e.f. 01.01.2006. This Court in Balbir
Singh Turn (supra) upheld that finding recorded by the AFT. Instructions
issued on 30-5-2011 were found to be contrary to the Resolution dated
30-8-2008 as, according to the resolution 1-1-2006 was the effective
date for implementation of Macps in matters relating to pay and dearness
allowance. There is no such parallel, in the facts of this case.
25. In M.V. Mohanan Nair (supra) a three judge Bench of this
court held, in the context of a dispute, which asserted that MACP benefits
would result in regular promotional advancement, that:
"The change in policy brought about by supersession of ACP
Scheme with the MACP Scheme is after consideration of all
the disparities and the representations of the employees. The
Sixth Central Pay Commission is an expert body which has
comprehensively examined all the issues and the
representations as also the issue of stagnation and at the same
time to promote efficiency in the functioning of the
departments. MACP Scheme has been introduced on the
recommendation of the Sixth Central Pay Commission which
has been accepted by the Government of India. After accepting
the recommendation of the Sixth Central Pay Commission, the
ACP Scheme was withdrawn and the same was superseded
by the MACP Scheme with effect from 01.09.2008. This is not
some random exercise which is unilaterally done by the
Government, rather, it is based on the opinion of the expert
body - Sixth Central Pay Commission which has examined
all the issues, various representations and disparities. Before
making the recommendation for the Pay Scale/Revised Pay
Scale, the Pay Commission takes into consideration the
THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v.
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existing pay structure, the representations of the government
servants and various other factors after which the
recommendations are made. When the expert body like Pay
Commission has comprehensively examined all the issues and
representations and also took note of inter-departmental
disparities owing to varying promotional hierarchies, the court
should not interfere with the recommendations of the expert
body. When the government has accepted the recommendation
of the Pay Commission and has also implemented those, any
interference by the court would have a serious impact on the
public exchequer."
26. This court, in R.K. Sharma & Ors.16, commented on the effect
of M.V. Mohanan Nair (supra) on the MACP scheme, especially the
date from which it was operative. It was held that:
"The judgment in M.V. Mohanan Nair clinches the issue.
Benefits flowing from ACP and MACP Schemes are incentives
and are not part of pay. The Resolution dated 29-8-2008 is
made effective from 1-9-2008 for implementation of
allowances other than pay and DA which includes financial
upgradation under ACP and MACP Schemes. Therefore, the
respondents and other similarly situated officers are not
entitled to seek implementation of the benefits of Macps with
effect from 1-1-2006 according to the Resolution dated 29-82008. Moreover, the implementation of Macps by granting
financial upgradation only to the next grade pay in the pay
band and not granting pay of the next promotional post with
effect from 1-1-2006 would be detrimental to a large number
of employees, particularly those who have retired."
27. It is therefore, quite clear that both Mohanan Nair(supra)
and R.K. Sharma(supra), examined the MACP scheme; the latter,
especially, ruled that the scheme was operable from 01-09-2008,
and that the respondents "officers are not entitled to seek
implementation of the benefits of Macps with effect from 1-1-2006
according to the Resolution dated 29-8-2008". Having regard to this
clearly enunciated principle, which, in this court's opinion, stems from a
correct reading of the scheme, the reasoning of the High Court, that the
MACP scheme is operative not from 01-09-2008, but from 01-01-2006,
16 (2021) 5 SCC 579
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is untenable. The mere circumstance that the resolution of the
Government which led to adoption of the MACP also contained the
effective date for implementation of the pay-benefits of the Pay
Commission recommendations, did not obliterate the fact that the date
from which the scheme was to be made effective, was another one.
28. The submissions of the DDA, that the executive agency's
considerations, while extending a benefit or new regime such as the
promotion or career advancement program, is to be effective, involves
decision making that is complex and nuanced, is justified. The date of
operation of new pay scales cannot be per se the same when the
operation of another scheme (which may also involve pay benefits) need
not be the same. The shifting of dates (once settled by the executive
after due deliberations) may seemingly have no consequences, but
inevitably would have radical financial implications. Given these factors,
it has been held, in previous decisions17 that courts should in the absence
of any facially compelling reason disclosing arbitrariness desist from
stepping into the arena of decision making, and avoid directing their reformulation or even requiring such schemes to be administered from
any anterior period.
29. The other reason why the High Court went wrong, in holding
what it did, is that DDA is an autonomous - a statutory - organization.
No doubt, it largely follows the Central Government's policies, in respect
of pay and allowances, and other benefits for its employees. However,
any revision of pay-structure or revision in other terms and conditions,
of Central Government personnel cannot and do not automatically apply
to the DDA; it has to consider the new or fresh scheme formulated by
the Central Government, and adopt it, if necessary, after appropriate
adaptation, to suit its needs. Therefore, the Central Government's MACP
scheme did not apply to it automatically. The DDA decided to apply it,
through an office order dated 06.10.2009.18 The High Court has
overlooked this aspect, and apparently assumed that the MACP scheme
applied automatically, upon its adoption by the Central Government, to
the DDA.
17 Govt of AP v N. Subbarayadu 2008 (14) SCC 702; Ami Lal Bhat v State of Rajasthan
(1997) 6 SCC 614; State of Bihar v. Ramjee Prasad (1990) 3 SCC 368; Union of
India v. Sudhir Kumar Jaiswal (1994) 4 SCC 212 Union of India v. Shivbachan Rai
(2001) 9 SCC 356 and Council of Scientific & Industrial Research v. Ramesh Chandra
Agrawal (2009) 3 SCC 35
18 Establishment Order, dated 6 October, 2009
THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY v.
NARENDER KUMAR & ORS.
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30. This brings the court to the next point, which is whether the
employees can assert what is termed as a vested right. The first
submission in this regard is that according to Para 9 of the MACP scheme,
those who are in employment on the date when MACP scheme was
brought into force and who are entitled to the ACP benefits, especially
the second financial up-gradation had a right to insist that their second
up-gradation should be granted in terms of the ACP scheme. In this
context, the argument advanced is that Rule 9 preserves and protects
such a right (for entitlement) to be granted the ACP benefits even after
the introduction of the MACP scheme.
31. Para 9 recognises the fact that if there is any ambiguity in the
interpretation of the MACP scheme it would be resolved by the
Department of Personnel and Training. It also clarifies in the last sentence
that financial up-gradation would be granted till 31.08.2008 (given that
the MACP scheme itself became operative on 01.09.2008), although
the office memorandum was issued on 19.05.2009. In the opinion of this
Court the undue influence placed upon the last sentence cannot be met
much of by the employees given that the ACP scheme itself ended on
31.08.2008. This provision (i.e. Para 9) was made to cater to the situations
where the grant of ACP benefits was under process, this would mean
both types of benefits i.e. the first and the second up-gradation.
Doubtlessly, the first up-gradation under the ACP scheme was to be
granted after 12 years. If Para 9 were to be considered in the context of
the first up-gradation it is a clarification to the effect that the individual
concerned who has crossed 12 years' service (and therefore became
eligible and whose case is under active consideration) would get the
ACP benefits. However, this provision cannot be understood as an
independent transitional provision, enabling all employees awaiting the
up-gradation to insist that the benefit of the ACP scheme should
indefinitely continue despite its ceasing to exist after 31.08.2008.
32. The second aspect in this regard is the argument that a vested
right accrued in favour of the employees who had completed the eligibility
for a financial up-gradation to insist that such up-gradation ought to be
only under the ACP scheme and not under the MACP scheme.
33. The concept of "vested right" has arisen for consideration
before this court in several contexts especially with respect to alteration
of service condition of public employees. That the Central Government
in the exercise of its legislative powers conferred under provision of
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Article 309 of the Constitution can frame rules which has the force of
law has been settled several decades ago. This court has also held that
such rules can be made to operate from anterior date by giving
retrospective effect to them. The determination of an anterior date for
the operation of a rule which has the effect of nullifying or refacing
intervening events or invalidating benefits which had been granted to
public employees was held to be unconstitutional in State of Gujarat vs
Raman Lal Keshav Lal Soni19. Several previous judgments of this Court
dealing with the question that what is accrued or vested right were
considered in Chairman, Railway Board v. C.R. Rangadhamaiah20
wherein the impugned rule in question sought to disturb the method of
calculating the last pay drawn for the purposes of pension and related
allowances. This impacted the pension disbursement of a large number
of employees who had retired much earlier. The court observed that the
amendments applied to employees who had already retired and were no
longer in service on the date the impugned notifications were issued, and
adversely impacted the pension they were drawing. In such context the
court held as impermissible, those benefits which accrued or in other
words had been actually enjoyed and were taken away by the devise of
giving retrospective effect to the rule. The court observed as follows:
"22. In State of Gujarat v.