CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.2516/2012 Order Reserved on: 07.05.2013 Order Pronounced on : 23.05.2013 Honble Dr. Dharam Paul Sharma, Member (J) Honble Mr. Sudhir Kumar, Member (A) Madan Lal Jhamb, Serving as Hindi Translator Raj Bhasha Section, 22nd Floor, Civic Centre, New Delhi. -Applicant (By Advocate: Ms. Ritika Chawla for Shri M.K. Bhardwaj) Versus MCD & Ors. through: 1. The Director, Local Bodies, Delhi Secretariat I.P. Estate, New Delhi. 2. The Commissioner South Delhi Municipal Corporation Civic Centre, JLN Marg, Minto Road, New Delhi 3. The Director (Pers), CED, South Delhi Municipal Corporation Civic Centre, JLN Marg, Minto Road, New Delhi -Respondents (By Advocate: Shri Rajinder Khatter) O R D E R
Honble Mr. Sudhir Kumar, Member (A):
The applicant of this OA is before us complaining of denial of Assured Career Progression (ACP, in short) financial upgradation to him. He had joined the Respondent-Corporation as LDC on 17.09.1979. Even 18 years thereafter, he could not get even a single promotion. His normal promotional hierarchy was LDC-UDC-Head Clerk- Administrative Officer, but he could not even reach the level of UDC. After 19 years, his regular promotional channel orders, promoting him to the post of UDC, in the pay scale of Rs.1200-2040/, were issued by the respondents on 14.08.1997.
2. In the meanwhile, facing such stagnation, the applicant had responded to the Advertisement circulated for the Limited Departmental Competitive Examination (LDCE, in short) to be held from amongst the eligible LDCs/UDCs and Head Clerks of the Corporation for the post of Hindi Translator, which was not in his regular channel of promotion. On the basis of his merit in the LDCE, he was appointed as Hindi Translator in the pay scale of Rs.1640-2900/- vide the Office Order dated 09.09.1997.
3. The applicant has submitted that in between these two nearly dates, he never denied his promotion as UDC ordered on 14.08.1997, but since within less than one month of that he had got an appointment to a post carrying a higher pay scale, he opted for that, and joined. Now the claim of the applicant is that his having been promoted only once, as per the provisions of the ACP Scheme, which became operational on 09.08.1999, he was entitled to a second financial upgradation under the ACP Scheme after 24 years of his regular service with the Corporation from 17.09.1979, w.e.f. 16.09.2003. The applicant submitted his representation in this regard in October 2011, and thereafter in January 2012, but all of a sudden through the impugned order dated 22.02.2012 (Annexure A-1), the respondents have rejected his request for grant of second financial upgradation, stating that the same is not covered under the Rules, but have stated that he is however eligible for MACP. He has assailed the actions of the respondents in not granting him such second financial upgradation, even though similarly placed persons have been granted the benefit of second financial upgradation in the next higher scale, which is from the post of Hindi Translator to that of Administrative Officer.
4. The applicant has assailed the impugned order on the ground that it amounts to a violation of his rights under Articles 14 & 16 of the Constitution, and the DOP&T OM dated 09.08.1999, as adopted by the Respondent-Corporation, and that he continues to be entitled to second financial upgradation under the ACP Scheme for the next promotional post in the hierarchy, without which the entire purpose of the respondents adopting the ACP Scheme has been defeated, and the respondents have failed to appreciate that he fulfils all the conditions as stipulated for the grant of second financial upgradation into the pay scale meant for his now next higher post of Administrative Officer, as his service record is outstanding and no adverse proceedings are pending against him. He has also raised the ground that he is entitled to this benefit as Hindi Translator as he had joined this present post before his promotion to the post of UDC could be given effect to. In the result, he has sought for the following reliefs:-
i) That the Honble Tribunal may graciously be pleased to direct the respondents to grant 2nd financial upgradation to the applicant under ACP Scheme dated 09.08.1999 in the pay scale to the post of AO from the date of completion of 24 years of regular service with all arrears of pay.
ii) To declare the action of the respondents in not granting 2nd financial upgradation to the applicant under ACP Scheme dated 09.08.1999 w.e.f. 16.09.2003 as illegal and arbitrary and direct the respondents to grant the 2nd financial upgradation to the applicant in the pay scale meant for the post of AO with 9% interest.
iii) To allow the O.A. with costs.
iv) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant.
5. In support of his contentions, the applicant had filed as Annexure A-4 Note Sheets of one of the files of the Respondent-Corporation pages 6,7,8,9,10,11&12, from the relevant file in which his case for grant of ACP was considered, and even compared with that of another employee Shri Rajender Prasad Sharma, Hindi Translator.
6. In their reply, the respondents denied any wrong doing, and took a preliminary objection that the Note Sheets produced by the applicant are official documents, which the applicant has unauthorisedly obtained, as he has not obtained them under the provisions of the RTI Act, 2005, and as such the OA is liable to be dismissed on this ground alone, of information being taken out unauthorisedly with an ulterior motive.
7. On merits, the respondents submitted that as per Para-7 of the ACP Scheme, Financial Upgradation has to be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts, without creating new posts for the purpose. Since the applicant was initially appointed to the post of LDC, his next higher post in the line of hierarchy was that of UDC, and the next was Head Clerk. Therefore, the respondents submitted that the first financial upgradation to a person appointed on direct recruitment basis as LDC in the pay scale of Rs.950-1500/- has to be granted in the pay of UDC Rs.1200-2040/-, and the second grade applicable for any financial upgradation would be that applicable to the post of Head Clerk Rs.1400-2300/-. The respondents submitted that counting only his eligibility on the basis of his original post, against which he was recruited, applicant was eligible for the grant of second ACP pay scale of Rs.1400-2300/- w.e.f. 17.9.2003, on completion of 24 years of continued service with the Corporation. However, as the applicant was already working as a Hindi Translator in the still higher pay scale of Rs.1640-2900/- w.e.f. 09.09.1997, they denied that he was eligible for financial upgradation under the ACP Scheme as sought for by him. Explaining thereafter the concepts and the conditions for grant of benefits under the ACP Schemes, the respondents had relied on Para-H, which reads as follows:-
Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay-scales.
8. The respondents further submitted that as and when a person refuses to accept a higher post of regular promotion, he will be subject to normal debarment for regular promotion, as prescribed in the General Instructions in this regard, and under Ground-K of the ACP Scheme, which remained in force upto 31.08.2008, and since the applicant had denied accepting his substantive promotion as UDC, as ordered through the respondents Office Order dated 14.08.1997, he would be treated to have been debarred from not only promotion, but also ACP benefit, for the normal period of debarment for regular promotion as prescribed through the General Instructions in this regard.
9. It was further submitted that w.e.f. 1.9.2008 the respondent-corporation has adopted the Modified Assured Career Progression Scheme (MACP Scheme, in short) in accordance with which, on completion of 30 years of continued service, he is entitled to get the benefit of third MACP, which has been granted to him vide Office order dated 18.07.2012. In support of their contentions, they had described the Events in the career of the applicant as follows:-
EVENT CORRESPONDING 5TH/6TH CPC SCALE DATE Date of Appointment as Lower Division Clerk (Rs.950-1500) 3050-4590/- GP Rs. 1900 17.09.1979 Date of completion of 12 years of service 17.09.1991 Date of issue of Office Order for Promotion to the post of UDC (Rs.1200-2040) 4000-6000/ GP Rs.2400 14.08.1997 (Not joined) Date of Appointment as Hindi Translator (Rs.1640-2900) 5500-9000/ GP Rs.4600 09.09.1997 Date of introduction of the ACP Scheme 09.08.1999 Date of completion of 24 years of service 17.09.2003 Date of completion of 30 years of service 09.09.2007 Date of introduction of the MACP Scheme 01.09.2008 Effective date of grant of 3rd financial upgradation GP Rs.4800 01.09.2008
10. The respondents, therefore, submitted that in accordance with the ACP Scheme, the applicant was entitled for second financial upgradation in the pay scale of Rs,1400-2300/- w.e.f. 17.9.2003, but since he was already getting much higher pay scale of Hindi Translator at the time of completion of 24 years of his service, giving rise to his eligibility for second financial upgradation under the ACP Scheme to post of Head Clerk in the pay scale of Rs.1400-2300, which is still below his present existing pay scale, the second ACP benefit could not be granted to him. It was, therefore, submitted that the claim of the applicant for second financial upradation under the ACP Scheme is infructuous, in view of the fact that the applicant is already working in the pay scale higher than that was admissible to him under the ACP Scheme, as per the hierarchy of his original post from the date of his initial appointment.
11. In support of their contentions, the respondents have relied upon the Clarifications issued through the Govt. of India DOP&T OM dated 10.02.2000 in regard to the ACP Scheme, and in particular the Clarifications on Point of Doubt No.2, and the points of doubt No, 4,5, and 6 together, on Point of doubt No.8, and on point of doubt No.14, and Point of doubt No. 22. They have also produced the Office Order at Annexure R-3 dated 14.08.1997, by which the applicant had been promoted as UDC, which the applicant had not produced as a part of his OA. The respondents had denied that the applicant was ever promised that needful will be done as in the case of Shri R.P. Sharma, Translator, who is not an employee of South Delhi Municipal Corporation, and it was denied that the South Delhi Municipal Corporation was obliged to follow in the footsteps of North Delhi Municipal Corporation, since the benefits to Shri R.P. Sharma, Hindi Translator, had been sanctioned incorrectly.
12. In his rejoinder dated 18.1.2013 the applicant denied that it was true that he did not join the post of UDC. He submitted that since in the meanwhile he had been promoted as Hindi Translator, in the higher pay scale, therefore the respondents themselves did not relieve him from the post of LDC to join as UDC, and he had also denied even ever having received a copy of the promotion order as UDC, and he had thereby denied the contention of the respondents that he did not join the post of UDC, and the same amounts to refusal of promotion.
13. The specific contention taken by the applicant in the rejoinder, which was not taken by him in as many words even in the OA, was that as LDC, the applicant was having two clear channels or avenues of promotion available to him, i.e. one as UDC to Head Clerk to Superintendent to Administrative Officer, and the other as Hindi Translator, and then as Administrative Officer, and when in the same year he was promoted both as UDC as well as Hindi Translator, the respondents cannot allege that the applicant had refused promotion as UDC. He had, therefore, reiterated that when once he had accepted his promotion as Hindi Translator, instead of UDC, he was entitled to his second and third financial upgradations under the MACP Scheme from his post of Hindi Translator, which he had joined on 09.09.1997, and in the rejoinder he had also claimed eligibility for second financial upgradation under MACP Scheme in the Grade Pay of Rs.5400, and third financial upgradation in the same Pay Band to the Grade Pay of Rs.6600/-. He had, thereafter, reiterated his submission, as mentioned in the OA also, that same grades and benefits of financial upgradations have been given by the North Delhi Municipal Corporation to one Shri R.P. Sharma, Translator, and the same cannot now be denied by the South Delhi Municipal Corporation to him in his case.
14. Along with his rejoinder, the applicant had also filed a copy of DoP&T OM dated 04.10.2012, issuing clarification regarding the ACP Scheme, which has since been replaced with MACP Scheme w.e.f. 01.09.2008, and as Annexure RJ-4 he had filed the Recruitment Regulations for the post of Hindi Translator, which mentioned the post to be a selection post, to be filled up by promotion on the result of a departmental competitive examination, open to all employees of General Wing possessing the following educational qualifications:-
i) M.A. in Hindi or B.A. Honours in Hindi or B.A. with Prabhakar.
ii) 10 years service in the Corporation.
15. The case was heard in detail, and, thereafter, both the parties were permitted to file written submissions and supporting case-laws also in support of their claims and counter-claims.
16. In the written submissions filed by the learned counsel for the applicant on 08.05.2013, it was submitted that Para-7 of the ACP O.M. dated 09.08.1999 makes it clear that financial upgradation has to be given in accordance with the existing hierarchy, and since admittedly the next post in the hierarchy in the present cadre of the applicant of a Hindi Translator is that of an Administrative Officer, therefore, the applicant is entitled to financial upgradation to get the pay scale of an Administrative Officer, i.e., Rs.7500-12000/-. Once again, shelter was sought behind the case of Shri R.P. Sharma, Hindi Translator working in North MCD. It was further submitted that Shri R.P. Sharma also has been given the pay scale of Rs.7500-12000/- rightly, and that the order has not been withdrawn till date, and, therefore, there is no question of negative equality, as alleged by the respondents during the arguments on 07.05.2013.
17. In regard to the arguments of the respondents that the applicant has got the file Notings regarding his case unuthorisedly, without disclosing the source, it was submitted that this argument of the respondents is misconceived, as in the case of R.S. Saini vs. Bureau of Indian Standards, WP (C ) No.6132/2001, decided on 28.05.2004 by the Delhi High Court, it has been held that communication of any document to the Court would not amount to unauthorized communication to any other person, and by holding so, that Writ Petition was allowed. It was also submitted that even otherwise, the documents as annexed with the OA, including the Note Sheets, are not confidential documents.
18. It was further submitted that the issue regarding counting of service of the applicant from the date of his promotion as Hindi Translator was wrongly raised during the arguments by the respondents, as no such issue was raised by the respondents while filing their counter reply. It was submitted that a perusal of the Recruitment Rules for the post of Hindi Translator, as annexed at Annexure RJ-4, makes it clear that the said post does not have to be filled up by direct recruitment from the open market, but only by way of promotion from within the organization. It was submitted that only after taking note of the aforesaid Rule and Instructions, Shri R.P. Sharma, who was also appointed as Hindi Translator on 09.09.1997, on the basis of the same Limited Departmental Competitive Examination like the applicant, was correctly given second financial upgradation to the pay scale of Rs.7500-12000/-, which is meant for the post of Administrative Officer, by taking into account his entire service, and not only the service from the date of his promotion as Hindi Translator.
19. It was also submitted that as the said Shri R.P. Sharma is junior to the applicant, and as per O.M. dated 04.10.2012 issued by DOP&T, in case junior has been drawing higher pay on account of getting financial upgradation under the ACP Scheme, the pay of the senior should also be revised upwards, as per the OM annexed at Annexure RJ-3.
20. Finally, it was submitted in the written submissions that the applicant has got only one promotion after rendering 34 years of regular service with the respondents, and, therefore, he is fully eligible to get the financial upgradations under the ACP/MACP Schemes as prayed for, from due dates, with all consequential benefits.
21. The respondents also filed a summary of the judgments in their favour, and also a copy of the Madras High Court Madurai Bench judgment dated 12.09.2012 in the case of A. Rajaram vs. State of Tamil Nadu in W.P.(MD) No.12284/2009. It is seen that in its judgment, in Para-10 onwards, the Honble Madras High Court has summarized almost all the case law available on the subject, as follows, by quoting from the Honble Apex Court judgments in the cases of Gurusharan Singh vs. Delhi Municipal Committee (1996 SCC (2) 459); Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit, Indore v. President, Indore Development Authority, (2006) 2 SCC 604, Directorate of Film Festivals v. Gaurav Ashwin Jain (2007) 4 SCC 737, and in Shanti Sports Club v. Union of India (2009) 15 SCC 705, in which many other related judgments of the Honble Apex Court have also been referred to, and in particular Chandigarh Administration vs. Jagjit Singh (2005) 1 SCC 745, by stating as follows:-
10. The last contention that one delinquent has been considered for promotion irrespective of a serious charge involving moral turpitude and that the same yardstick ought to have been extended to the petitioner, who is not involved in any serious charge of misconduct, this Court is of the view that the doctrine of equality is a positive concept and it cannot be extended to a case wherein, an irregularity or illegality is committed by the administrative authorities and that if any benefit is obtained by some other person, by such an illegal or irregular order, the same cannot be extended to others also. In this context, this Court deems it fit to extract few judgments of the Supreme Court on the aspect, as to how the concept of equality enshrined under Article 14 of the Constitution of India, has to be applied.
(i) In Gursharan Singh v. New Delhi Municipal Committee reported in (1996 SCC (2) 459), it has been held as follows:-
" There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. & quot;
(ii) In Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit, Indore v. President, Indore Development Authority, reported in (2006) 2 SCC 604, it has been held as follows:-
8. .........Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality. (See Union of India v. International Trading Co.)
(iii) In Directorate of Film Festivals v. Gaurav Ashwin Jain, reported in (2007) 4 SCC 737, the Supreme Court has held as follows:-
"22. When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law. The principle has been stated by this Court in Chandigarh Admn. v. Jagjit Singh thus:
Generally speaking, the mere fact that the respondent Authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to lawindeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with lawbut even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles.& quot;
(iv) In Shanti Sports Club v. Union of India reported in (2009) 15 SCC 705, the Supreme Court has held as follows:-
"14. Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of equality enshrined in that article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Admn. v. Jagjit Singh this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq yd plot in Sector 31-A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the estate officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and the Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on 18-3-1991. Thereafter, the respondent again approached the estate officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the estate officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under: (Jagjit Singh case, (2005 SCC)1) 745.
8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent Authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or to pass another unwarranted order. (emphasis in original) The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. (emphasis supplied) By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case (sic court) nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world.
72. Similar is the ratio of the judgments in Narain Das v. Improvement Trust, Amritsar23; Gursharan Singh v. NDMC24, Jaipur Development Authority v. Daulat Mal Jain19, Yadu Nandan Garg v. State of Rajasthan20, State of Haryana v. Ram Kumar Mann25, Faridabad CT Scan Centre v. D.G. Health Services26, Style (Dress land) v. UT, Chandigarh27, State of Bihar v. Kameshwar Prasad Singh28, Union of India v. International Trading Co.29, Ekta Shakti Foundation v. Govt. of NCT of Delhi30, Sanjay Kumar Manjul v. UPSC31, K.K. Bhalla v. State of M.P.32, National Institute of Technology v. Chandra Shekhar Chaudhary33, Vice- Chancellor, M.D. University v. Jahan Singh34, State of Kerala v. K. Prasad35, Punjab SEB v. Gurmail Singh36 and Panchi Devi v. State of Rajasthan37."
11. In the light of the decisions, this Court is not inclined to subscribe to the contentions of the petitioner, on the aspect of discrimination. For the abovesaid reasons, the writ petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.
22. The respondents had also cited the ratio laid down by the Honble Apex Court in Paramjit Singh v. Union Territory of Chandigarh and Ors. AIR 1994 SC 2737, to state that notings in the departmental files do not create any rights in favour of any person. It is the orders issued by the Competent Authorities, and received by the applicant, which alone can create rights in favour of the applicant. In regard to their submission regarding the applicant of the present case having filed copies of Note Sheet file obtained by him unauthorizedly, they have cited the case of R.C. Jain v. High Court of Patna & Ors. JT 1996 (7) SC 442, in which the Honble Apex Court had held that filing of office note, without disclosing the source for obtaining the document, was not proper, by stating as follows:-
11.Along with the SLP, the appellant has filed a copy of the office note submitted by the Registrar (Inspection) dated 4/4/1996 before the learned chief justice for consideration of the chief justice. In the affidavit of urgency (available at pp. 52 to 55 filed by Shri Rajendra Kumar Jain, son of the appellant, the said office note (available at pp. 54 and 55 of the paper-book), has been reproduced. We questioned counsel for the appellant as to how the appellant was able to produce a copy of the office note dated 4/4/1996. The appellant having produced the said document, a duty is cast on him to explain the source from which he obtained the said copy and in what circumstances he could obtain the same. This is all the more so, since reference has been made in the affidavit of urgency dated 14/6/1996 to the said document. Counsel for the appellant declined to disclose the source from where he obtained a copy of the said document. On the other hand, he vehemently stated that this court should call upon the Registrar of the Patna High court to explain and it is no part of his duty to explain as to how he obtained a copy of the document. To say the least, we are surprised at the attitude of the appellant's counsel in totally refusing to disclose the source from which the appellant obtained a copy of the document. In our opinion, the appellant and his counsel owe a duty to this court to disclose the source or circumstances under which the said document dated 4/4/1996 was obtained. We express our strong displeasure at the attitude of the appellant and his counsel in totally refusing to disclose to the court the manner in which a document filed in court was obtained. For the present, we do not want to say anything further in this matter, but we want to make it clear that the attitude adopted is totally reprehensible and cannot be countenanced by a court of law.
23. It was pointed out that in the case of Ujagar Singh & Ors. Vs. State of Punjab and Ors. JT 1996 (7) SC 446, the Honble Apex Court had stated that the appellant having produced any document, a duty is cast on him to explain the source from which he obtained the said copy, and in what circumstances he could obtain the same.
24. We have given our anxious consideration to the facts of this case. It appears to us that both the applicant as well as the respondents are not correct in making the submissions, as they have made, while appreciating the applicability of the two Schemes, ACP Scheme effective from 9.9.1999 to 31.08.2008, and the MACP Scheme effective from 1.9.2008 onwards, both being in the nature of safety net schemes, to protect the employees from stagnation in one pay scale only for long years. It may be pointed out here that both the Schemes are not at all the same, and some of the salient features of the differences in the two Schemes, may for the sake of clarity, be reproduced as below:
ACP SCHEME MACP SCHEME
1. The first financial up-gradation under the ACP Scheme shall be allowed after 12 years of regular service and the second up-gradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment 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 up-gradation which would also get deferred accordingly;
1. The Sixth Central Pay Commission in Para 6.1.15 of its report, has recommended Modified Assured Career Progression Scheme (MACPS). As per the recommendations, financial upgradation will be available in the next higher grade pay whenever an employee has completed 12 years continuous service in the same grade. However, not more than two financial upgradations shall be given in the entire career, as was provided in the previous Scheme. The Scheme will also be available to all posts belonging to Group A whether isolated or not. However, organised Group A services will not be covered under the Scheme
2. Two financial up-gradation 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 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-gradation under the ACP Scheme shall be available only if no regular promotions 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 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;
2.The Government has considered the recommendations of the Sixth Central Pay Commission for introduction of a MACPS and has accepted the same with further modification to grant three financial upgradations under the MACPS at intervals of 10, 20 and 30 years of continuous regular service.
3. Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct recruit;
3. In case a Government Servant joins as a direct recruit in the grade pay of Rs. 1900 in PB-1 and he gets no promotion till completion of 10 years of service, he will be granted financial upgradation under MACPS in the next higher grade pay of Rs. 2000 and his pay will be fixed by granting him one increment plus the difference of grade pay (i.e. Rs. 100). After availing financial upgradation under MACPS, if the Government servant gets his regular promotion in the hierarchy of his cadre, which is to the grade of Rs. 2400, on regular promotion, he will only be granted the difference of grade pay between Rs. 2000 and Rs. 2400. No additional increment will be granted at this stage.
4. Financial up-gradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial up-gradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay-scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-III, will be eligible for the proposed two financial up-gradation only to the pay-scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts, which have no avenues of promotion at all. Since financial up-gradation under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on dynamic basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;
4 Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
25. In the instant case, it is clear even from Annexure RJ-3, as filed by the applicant along with his rejoinder, that his earlier post of LDC was not the only feeder cadre for the selection post of Hindi Translator, as the said selection was open to all employees of the General Wing of the Respondent-Corporation, who possessed the qualification of MA in Hindi and BA Honours in Hindi or BA with Prabhakar, and had 10 years service in the Corporation, as reproduced above. Therefore, all LDCs, all UDCs or even all Head Clerks, apart from any other categories of employees even in isolated posts, could have been eligible for appearing at the LDCE for the post of Hindi Translator, which was equivalent to the post of Superintendent, the promotional post of Head Clerks, in terms of pay scale and rank. It cannot be said that all the LDCs, all the UDCs, all the Head Clerks, and all isolated posts below that pay-scale level were in the feeder cadre. Therefore, the applicant cannot be allowed to claim continuity of service in the same promotional hierarchy, which was the very basis under the ACP Scheme, as w.e.f. 9.9.1997 he had entered a fresh stream of an isolated post, or a very small cadre, on selection basis. His period of stagnation as LDC had in fact already ended earlier itself, on 14.08.1997, when he was granted promotion as UDC, but both his service as LDC, and the grant of promotion to him as UDC on 14.08.1997, are immaterial for the purpose of ACP Scheme, in the case of the present applicant.
26. For the purpose of ACP Scheme, the applicant can be allowed to claim 12 years period of stagnation in the pay scale of Hindi Translator only from the date of 09.09.1997, the date on which he entered a new post of a much higher pay-scale, through a process of selection, which was not in the normal promotional hierarchy of his earlier post of LDC. That 12 years period under the ACP Scheme would have ended on 8.8.2009. However, before this period of stagnation could entitle him to the grant of his 1st ACP financial upgradation from the post of Hindi Translator, the ACP Scheme was no longer in existence, and had been discontinued on 30.08.2008.
27. With effect from 1.9.2008, under the MACP Scheme, the whole concept of protection from stagnation had changed, and the concept now is only that of continued employment with the same employer, in the same Pay Band and Grade Pay, for 10, 20 or 30 years, and the requirement of existence of promotional post or next higher pay-scale etc. for the purpose of counting stagnation was removed. Under the MACP Scheme, the period of 10 years, 20 years and 30 years has to be counted on the basis of the date of entry into a particular Pay Band and Grade Pay with the employer in which stagnation is being claimed, which the applicant entered on 09.09.1997.
28. The issue of the applicant having joined or not joined the post of UDC for the period of not less than a month, which had elapsed in between the orders of his promotion as UDC, and the date of his joining as Hindi Translator is immaterial, even though it was argued very vehemently before us. The fact remains that before the ACP Scheme became operational from 09.08.1999, the applicant was no longer stagnating as LDC, as he had been first promoted in to the grade of UDC, which post he may or may not have joined, and secondly he had got selected and had joined as a Hindi Translator, in a much higher pay scale. He is, therefore, not eligible for grant of any benefits on account of any stagnation whatsoever under the ACP Scheme. The applicants entitlement can flow only from the MACP Scheme.
29. This MACP Scheme has in Para-3 itself stated that it has been issued in supersession of the previous ACP Scheme, and all the clarifications issued thereunder. As a result, from the date of 01.09.2008, not only the ACP Scheme had ceased to exist, but also all the clarifications issued thereunder were also no longer valid.
30. The details of the conditions for grant of upto three financial upgradations under the new MACP Scheme were given in Annexure-I of the DOP&T OM dated 19.05.2009 announcing the MACP Scheme. At the cost of repetition the relevant paragraphs of this Scheme may be reproduced here once again as under:-
1. There shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 10, 20 and 30 years service respectively. Financial upgradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same grade-pay.
2. 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. In 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.
3 to 8. xxxxxxxxxxxx (Not reproduced) 9. 'Regular service' for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post.
31. As mentioned above also, for the purpose of counting the period of stagnation under the MACP Scheme, the factum of the applicant having joined as UDC on his promotion, or not, became irrelevant, as what has to be seen is only regular service which, for the purpose of MACP Scheme, shall commence from the date of joining of a post in direct entry grade on a regular basis, either on direct recruitment basis, or on absorption/re-employment basis, which in the applicants case would be the date of his direct entry into the post of Hindi Translator by way of absorption in a new small (and isolated) cadre, on a regular basis.
32. Here, in the instant case, the applicant had had a jump over two of his earlier promotional levels, that of UDC, and Head Clerk, in gaining the pay scale of a Superintendent, equivalent to the pay scale of Hindi Translator. This was by way of a selection, and absorption into a new cadre of Hindi Translators, and not by way of a hierarchical promotion from the post of LDC. Therefore, the entitlement of the applicant to be placed in the immediately next higher grade pay in the hierarchy of his present revised Pay Band would arise on the date after he completes 10 years of his service as a Hindi Translator, for his first financial upgradation, which would be 09.09.2007, which would stand amended to 01.09.2008, the date of starting of the MACP Scheme.
33. If we forget the existence of ACP Scheme for some time, and apply only the provisions of the MACP Scheme alone to the case of the applicant (as if there was no ACP Scheme in between for the period from 09.08.1999 to 31.08.2008), the applicant would not be entitled to the counting of his full period of service from 17.09.1979 onwards for grant of first MACP benefit after 10 years, and second MACP benefit after 20 years, and he third MACP benefit after 30 years. That would have been possible only if he had continued to be in the same grade pay from 17.09.1979 onwards, which he actually was not. He has had a substantial jump both in terms of the scale of pay and grade pay w.e.f. 09.09.1997 onwards. Therefore, even within the provisions of the MACP Scheme, only when he stagnates for 10 years continuously in the same grade pay, which he could be said to have started stagnating in the Grade Pay applicable to Hindi Translator w.e.f. 09.09.1997 onwards, his first financial upgradation under MACP Scheme would still be eligible to him from 09.09.2007, and would be granted to him w.e.f. 01.09.2008, the date when MACP Scheme was introduced.
34. The applicant cannot also be allowed to derive any benefit from any fixation of the pay in the case of Shri R.P. Sharma, since we do not have the full facts of the case of the said employee before us. As was submitted by the counsel for the respondents during arguments, the respondents themselves are in the process of reviewing the fixation of pay granted to that employees, as per the Office Notings dated 14.01.2013 to 16.01.2013 filed by the respondents during the course of the arguments, from which it is seen that AC (Estt.) North Delhi Municipal Corporation has already asked for the case of grant of ACP to Shri Rajinder Prasad Sharma to be reviewed. While filing their counter reply, the respondents have needlessly confused in between the applicants eligibility under the ACP Scheme and MACP Scheme, by not appreciating the nuances of the difference in the concepts of the date of starting of stagnation of an employee under these two schemes, which are totally different in their basic character, even though both provide protection against stagnation for the employees. However, the one thing common in both these Schemes is that the financial upgradation under both these Schemes has to be granted after seeing as to the date when the clock of stagnation started ticking, and the period for which the clock of stagnation has ticked, while the Government servant is stuck in a particular pay scale.
35. In view of the above observations, since the prayers of the applicant at Para-8 (i & ii) both relate to the grant of only benefits under the ACP Scheme, which cannot at all be granted to him as per the discussion as above, and his eligibility for his first MACP financial upgradation would arise on 01.09.2008, the O.A. is therefore partially allowed under the prayer clause 8 (iv). Therefore, the respondents shall consider his case for granting him first MACP financial benefit w.e.f. 01.09.2008, when he had completed more than 10 years continuous service as Hindi Translator in the same grade pay, and consider placing him in the next available higher pay scale, subject to his eligibility, as per Rules. There shall be no order as to costs, and the prayer at Para 8 (iii) is rejected.
(Sudhir Kumar) (Dr. Dharam Paul Sharma) Member (A) Member (J) cc.