The Director, Directorate of Enforcement vs K. Sudheesh Kumar

The Director, Directorate of Enforcement vs K. Sudheesh Kumar - Supreme Court Case 2022

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.442 OF 2022

The Director, Directorate of Enforcement & Anr.     ..Appellant (S)

VERSUS

K. Sudheesh Kumar & Ors.                    ..Respondent (S)

J U D G M E N T 

M. R. Shah, J.

1. Feeling   aggrieved   and   dissatisfied   with   the   impugned

judgment and order dated 23.10.2019 passed by the High

Court of Kerala at Ernakulam in OP (CAT) No.171 of 2019, by

which the High Court has allowed the said original petition

(OP) and set aside the order passed by the learned Central

Administrative Tribunal, Ernakulam Bench and has declared

that respondent Nos.1 & 2 herein – original petitioners are

entitled to grade pay of Rs.6600/­ on their third financial

upgradation as per the Modified Assured Career Progression

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(MACP) Scheme and they be paid the pension accordingly

with   effect   from   April,   2015,   the   Director,   Directorate   of

Enforcement, New Delhi and another – original respondents

before the High Court, have preferred the present appeal. 

2. That the private respondent Nos.1 & 2 herein were appointed

as Assistant Enforcement Officer (AEO) in the year 1976 and

1977, respectively. That in the year 2009, the Government of

India – Ministry of Personnel, Public Grievance and Pensions

(Department of Personnel and Training) notified the MACP

Scheme for the Central Government Civilian Employees. The

Scheme further provided as per clause 8.1 (which is relevant

so far as the present matter is concerned) ‘consequently upon

the implementation of Sixth CPC’s recommendations, grade

pay of Rs.5400 is now in two pay bands viz., PB­2 and PB­3.

It further provided that the grade pay of Rs.5400 in PB­2 and

Rs.5400 in PB­3 shall be treated as separate grade pays for

the purpose of grant of upgradations under MACP Scheme’.

However, it so happened that while granting third financial

upgradation   vide   order   dated   17.11.2009,   the   private

respondents herein and others were granted the grade pay of

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Rs.6600 for PB­3 under MACP Scheme, though as per clause

8.1 PB­3 carried the grade pay of Rs.5400. However, on the

objection being raised by the Audit Department their grade

pays (GP) of Rs.6600 in PB­3 was modified/corrected as GP

of Rs.5400 as per clause 8.1. Therefore, respondent Nos.1

and   2   herein   approached   the   Central   Administrative

Tribunal, Ernakulam Bench and prayed to continue the GP

of Rs.6600 as per the earlier order dated 17.11.2009 and not

to make any recovery. A decision of the Madras High Court

was   pressed   into   service   by   which   a   similar   order   of

withdrawing the GP of Rs.6600 and to grant GP Of Rs.5400

for PB­3 was set aside. On relying upon the clause 8.1 of the

MACP Scheme by which the implementation of Sixth CPC’s

recommendations,   grade   pay   of   Rs.5400   was   in   two   pay

bands i.e., PB­2 and PB­3 and for grant of upgradation under

MACP Scheme they shall be treated as separate grade pays,

the learned Tribunal dismissed the original application (OA).

3. Feeling aggrieved and dissatisfied with the judgment and

order   passed   by   the   Central   Administrative   Tribunal

dismissing   the   said   OA,   respondent   Nos.1   &   2   herein

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preferred the original petition before the High Court. By the

impugned judgment and order and ignoring clause 8.1 of

the MACP Scheme the High Court has allowed the said

petition   by   observing   that   the   next   promotion   post   of

Assistant Director which is in the PB­3 would be that of

Deputy Director which carries a grade pay of Rs.6600, when

the third financial upgradation is due to an employee, it has

to be of the next promotional post in the hierarchy as per

the Recruitment Rules. Feeling aggrieved and dissatisfied

with the impugned judgment and order passed by the High

Court, the department has preferred the present appeal. 

       

4. Ms. Madhavi Divan, learned ASG appearing on behalf of the

appellants  has   vehemently  submitted  that  the  impugned

judgment   and   order   passed   by   the   High   Court   is   just

contrary to the decision of the Delhi High Court in the case

of National Council of Educational Research & Training

& Anr. Vs. Anita Gupta & Anr. 2016 SCC OnLine Del 4720

as well as to the decision of this Court in the case of Union

of India and others Vs. M.V. Mohanan Nair (2020) 5 SCC

421.   

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4.1 It is submitted that on interpretation of very MACP Scheme,

it is observed and held by this Court that the employees are

entitled   to   the   grade   pay   as   provided   under   the   MACP

Scheme which has been framed on the recommendations of

the pay commission. It is submitted that on interpreting

MACP Scheme, it is specifically observed and held by this

Court that MACP Scheme 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   and   has   nothing   to   do   with   the   next

promotional post. 

      

4.2 It is submitted that in the present case the High Court has

allowed the grade pay of Rs.6600. However, as per clause

8.1, PB­2 and PB­3 carried grade pay of Rs.5400 and it

specifically provided that the grade pay of Rs.5400 in PB­2

and   grade   pay   of   Rs.5400   in   PB­3   shall   be   treated   as

separate grade pays for the purpose of grant of upgradation

under   MACP   Scheme.   It   is   submitted   that   therefore

respondent Nos.1 & 2 – original petitioners as per the MACP

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Scheme shall be entitled to the grade pay of Rs.5400 i.e.,

next grade pay for PB­3. It is submitted that as such by the

impugned judgment and order and directing to grant grade

pay   of   Rs.6600   the   High   Court   has   modified   the   MACP

Scheme and has granted the benefit of three steps upward. 

4.3 Making   the   above   submissions   and   relying   upon   the

aforesaid decisions, it is prayed to allow the present appeal.

5. The present appeal is vehemently opposed by Shri Mathai

Paikaday, learned Senior Advocate appearing on behalf of

the private respondent Nos.1 & 2 herein.  

5.1 It   is   vehemently   submitted   by   learned   Senior   Advocate

appearing on behalf of the private respondent Nos.1 & 2

that the employee shall be entitled to the next higher pay

and the submissions made on behalf of the appellants that

both PB­2 and PB­3 shall carry grade pay of Rs.5400 is

accepted in that case the purpose of higher­grade pay shall

be frustrated. It is submitted that when the next highergrade pay would be Rs.6600, the High Court has rightly

directed to grant grade pay of Rs.6600.  

5.2 It   is   submitted   that   it   is   true   that   the   High   Court   has

wrongly used the word next promotion post. It is submitted

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that the question is not of next promotional post but the

question is of next higher grade pay. 

5.3 In the alternative it is prayed by the learned Senior Advocate

appearing on behalf of respondent Nos.1 & 2 and relying

upon the decision of this Court in the case of  State   of

Rajasthan Vs. Mahesh Kumar Sharma (2011) 4 SCC 257

that if this Court is inclined to accept the submissions made

on behalf of the appellants and set aside the judgment and

order passed by the High Court holding that respondent

No.1 & 2 shall be entitled to grade pay of Rs.5400, in that

case no recovery be ordered as respondent Nos.1 & 2 have

already   retired   and   the   difference   would   be   of   Rs.1200

approximately   per   month   so   far   as   the   pension   is

concerned.    

6. We have heard learned counsel appearing on behalf of the

respective parties. 

7. At   the   outset   it   is   required   to   be   noted   that   the   issue

involved in the present appeal is as such squarely covered

by the decision of this Court in the case of M.V. Mohanan

Nair (supra). By detailed judgment and order this Court has

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interpreted the very MACP Scheme and it is observed and

held that under the MACP Scheme employees are entitled to

the immediate next higher grade pay as given in Section 1,

Part A of the First Schedule of the CCS (Revised Pay) Rules,

2008. It is specifically observed and held by this Court in

the aforesaid decision that MACP has nothing to do with the

next  promotional   post  and  what  the  employee  would  be

entitled would be the immediate next higher grade pay in

the hierarchy of the recommended revised pay bands and

grade pay as given in the CCS (Revised Pay) Rules, 2008. As

per clause 8.1 of the MACP Scheme ‘consequently upon the

implementation of Sixth CPC’s recommendations, grade pay

of PB­2 and PB­3 would be Rs.5400. It specifically provides

that the grade pay of Rs.5400 in PB­2 and Rs.5400 in PB­3

shall be treated as separate grade pays for the purpose of

grant of upgradations under the MACP Scheme’. Therefore,

respondent Nos.1 &2 as PB­2 shall be entitled to the next

grade pay of Rs.5400 as per clause 8.1 and as per Section 1,

Part A of the First Schedule of the CCS (Revised Pay) Rules,

2008. The High Court has allowed the grade pay of Rs.6600

by considering the next promotion post of Assistant Director

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i.e., Deputy Director which carries a grade pay of Rs.6600.

However, the aforesaid interpretation would be contrary to

the MACP Scheme. On considering the relevant clauses of

the   MACP   Scheme,   it   appears   that   the   MACP   Scheme

envisages 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 High Court

has committed a grave error in allowing the grade pay of

Rs.6600 ­ the grade pay which was available to the next

promotional post as Deputy Director. Respondent Nos.1 & 2

as per PB­2 were entitled to the grade pay of Rs.5400 as PB3 as per clause 8.1. 

8. By the impugned judgment and order and while granting

grade pay of Rs.6600 to respondent Nos.1 & 2 virtually, the

High Court has modified the MACP Scheme which has been

framed by the Government on the recommendations of the

expert   body   like   the   pay   commission   and   its

recommendations for the MACP Scheme. As observed and

held   by   this   Court   in   the   case   of  M.V.   Mohanan   Nair

(supra) the ACP which is now superseded by MACP Scheme

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is a matter of Government policy and interfering with the

recommendations   of   the   expert   body   like   the   pay

commission and its recommendations for the MACP Scheme

would have serious impact on the public exchequer. It is

further   observed   that   the   recommendations   of   the   pay

commission for the MACP Scheme have been accepted by

the Government and implemented. It is further observed

that therefore the High Court has no jurisdiction to interfere

with the Government policies in the form of MACP Scheme

which   was   after   accepting   the   Sixth   Central   Pay

Commission. In view of the above and for the reasons stated

above and the binding decision of this Court in the case of

M.V. Mohanan Nair (supra) with which we also agree, the

impugned judgment and order passed by the High Court

granting grade pay of Rs.6600 to respondent Nos.1& 2 is

unsustainable and deserves to be quashed and set aside.

However, we observe that the view which we are taking

is on the premise that neither the MACP Scheme nor Clause

8.1 is under challenge and as per the law laid down by this

Court   in  M.V.   Mohanan   Nair   (supra),   an   employee   is

entitled to the higher grade pay as provided under MACP

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Scheme, more particularly, as per Section 1, Part A of the

First   Schedule   of   the   CCS   (Revised   Pay)   Rules,   2008.

Therefore,   so   long   as   Clause   8.1   and   the   grade   pay

mentioned as per Section 1, Part A of the First Schedule of

the CCS (Revised Pay) Rules, 2008 stands, the employee

shall be entitled to the grade pay accordingly.  Therefore, if

any of the employees is aggrieved by Clause 8.1 and if in his

opinion, there is any anomaly the same has to be challenged

by   the   aggrieved   employee,   which   can   be   considered   in

accordance with law and on its own merits.  However, as the

same is not under challenge, we have to go by the MACP

Scheme as it is.  

9. In view of the above and for the reasons stated above the

impugned judgment and order passed by the High Court is

hereby quashed and set aside and the judgment and order

that   of   the   Central   Administrative   Tribunal   is   hereby

restored. It is observed and held that on implementation of

MACP   Scheme   respondent   No.1   and   2   herein   shall   be

entitled to the grade pay of Rs.5400 and not of Rs.6600 as

claimed   by   them.   Their   pensions   be   refixed   accordingly.

However, it is observed that as respondent Nos.1 & 2 are

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the retired employees and till date they have received the

pension considering the grade pay of Rs.6600 and being

retired persons it will be very difficult for them to refund the

difference   in   the  pay   pension,   in   the   peculiar   facts   and

circumstances of the case we direct that there shall be no

recovery of the difference in the pension between the grade

pay of Rs.5400 and grade pay of Rs.6600 for the period

prior   to   December,   2021.   However,   on   refixation   of   the

pension as per the present judgment and order, fixing their

grade   pay   of   Rs.5400   they   shall   be   paid   the   pension

accordingly   from   January,   2022   onwards.   The   present

appeal   is   allowed   accordingly,   however,   with   the   above

observations and directions. No costs.      

…………………………………J.

                 (M. R. SHAH)

…………………………………J.

      (SANJIV KHANNA)

New Delhi, 

January 28, 2022.

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