SECR. GOVT. OF NCT OF DELHI & ORS.versusGRADE-I DASS OFFICERS ASSOCIATION & ORS.

                         (2014] 8 S.C.R. 976


A           SECR., GOVT., OF NCT OF DELHI & ORS.
                                   v.
       GRADE-I DASS OFFICERS' ASSOCIATION & ORS.
            (Civil Appeal Nos. 5153-5157 of 2009)
                            JULY 30, 2014.
B
       [VIKRAMAJIT SEN AND SHIVA KIRTI SINGH, JJ.]

         SERVICE LAW:

c         Assured Career Progression Scheme (ACPS), 1999 -
    Second financial upgradation on completion of 24 years -
    Delhi Administration Subordinate Service (DASS) Grade-I,
    i.e., feeder grade and next promotional Grade, i.e., Delhi
    Andaman and Nicobar Island Civil Service (DAN/CS) Grade-
D   II, being in the same pay grade - Claim of respondents
    members of DASS Grade-I for second financial upgradation
    in DAN/CS Grade-I instead of in DAN/CS Grade-II - Rejected
    by Tribunal, but allowed by High Court - Held: Fairness on
    part of State is a constitutional obligation and, therefore, a pay
    scale, which regularly promoted employee could not get due.
E   to established hierarchy for promotion, cannot be granted to
    those like the respondents on the plea that the financial
    upgradation to which they are found entitled as per existing
    hierarchy is too meagre - In view of stipulations and
    conditions in ACPS, financial upgradation is admissible in the
F   next higher grade only in accordance with the existing
    hierarchy in a cadre/category of posts without creating new
    posts for the purpose - Financial upgradation under ACPS
    is not only in lieu of but also in anticipation of regular
    promotion - In such a situation, financial upgradation
G   claimed by respondents cannot be granted because the
     same would be much in excess of what the officer would gain
     on actual promotion in the hierarchy, - In the facts of the
    case, it would not be proper to exercise power of judicial review

H                                  976
 SECR., GOVT., OF NCT OF DELHI v. GRADE-I DASS             977
            OFFICERS' ASSOCIATION
so as to reverse or modify the policy decision of Government      A
and it would be violative of rules of fairness and Arts. 14 and
16 of the Constitution - The claim of respondents was rightly
rejected by Tribunal - Constitution of India, 1950 - Arts. 14,
16 and 226 - Government of India, Department of Personnel
& Training, O.M. No. 3503411197-Estt. Dated 18.7.2001 -           B
Clarification 52.

     The respondents, who were appointed as Grade-II in
the Delhi Administration Subordinate Service (DASS), and
promoted to the post of DASS Grade-I, on completion of C
24 years, were eligible for second financial upgradation.
Grade-I of DASS in the pay scale of Rs. 6500-200-10500
was the feeder grade for the next promotional grade in
the hierarchy which was Grade-II (Group B) under the
Delhi Andaman and Nicobar Island Civil Service
(DANICS), but the Grade-II (Group B) of DANICS also had D
the same pay scale of Rs. 6500-200-10500/-. Clarification
52 was issued by the Department of Personnel & Training
by O.M. No. 35034/1/97-Estt. Dated 18.7.2001, to the effect'
that since the feeder and promotional grades in the
hierarchy were in the same scale of pay, the benefit of E
financial upgradation under the ACPS was to be allowed
in the same pay scale, and as per Condition No. 9 of the
ACPS issued by the Department of Personnel & Training
O.M. dated 10.2.2000, pay would be fixed under the
provisions of F.R.22 (I) (a) (i) subject to a minimum benefit F
of Rs. 100/-. The representations of the respondents that
they should be granted upradation to the scale of Rs.
10,000-325~15200 which was the pay scale for Grade-I
(Group A) of DANICS, were rejected. Their O.A. was also
rejected by the Tribunal. However, the High Court allowed G
their writ petitions.

    Allowing the appeals, the Court

   HELD: 1.1. From the relevant stipulations and
conditions it is evident that the Assured Career                  H
   978     SUPREME COURT REPORTS              [2014) 8 S.C.R.


A Progression Scheme (ACPS) offers higher pay scale/
  financial benefits only to those eligible Government
  servants who remain deprived of regular promotions. For
  such deprivation, they are compensated by grant of
  monetary benefits on personal basis but the same does
s not amount to functional/regular promotion and does not
  require creation of new posts.As per Condition No.7 of
  the conditions contained in Annexure to the Assured
  Career Progression Scheme, financial upgradation is
  admissible in the next higher grade only in accordance
c with the existing hierarchy in a cadre/category of posts
  without creating new posts for the purpose. [para 11)
  [988-E-G]

       1.2. Condition No.9 indicates that on upgradation
  under ACP Scheme the re-fixation of pay must yield a
D minimum benefit of Rs.100/- in accordance with the
  relevant Office Memorandum. It also clarifies that the
  financial benefit under the ACP Scheme is final and no
  pay fixation benefit shall accrue at the time of regular
  promotion, i.e., posting against a functional post in the
E higher grade. [para 12) [989-C-D]

       1.3. Clarification 52 issued by O.M. dated 18. 7.2001 is
  found to be in accordance with the stipulations and
  conditions of ACPS. The High Court erred in taking a view
F that it supplants the basic provisions in the ACPS. In fact,
  the clarification, at best, supplements the provisions of
  the Scheme and cannot be faulted for doing so. [para 13]
  [989-F]
      1.4. In view of the stipulations and conditions in the
G ACPS, it can be safely concluded that the financial
  upgradation under the ACPS is not only in lieu of but also
  in anticipation of regular promotion. In such a situation,
  the appellants have correctly submitted that financial
  upgradation claimed by the respondents cannot be
H granted because the same would bP. much in excess of
 SECR., GOVT., OF NCT OF DELHI v. GRADE-I DASS            979
            OFFICERS' ASSOCIATION
what the officer would gain on actual promotion in the            A
hierarchy. As a corollary, such claim of the respondents
must be rejected on the ground that persons having
better claims on actual promotion could be fitted only in
the promotional post of Grade II (Group B) of DANICS, i.e.
Rs.6500-200-10500/- whereas the respondents, on their             B
claims being accepted, would get much higher pay scale
of Rs.10000-325-15200/- available only to Grade I (Group
A) in the DANICS. Such a situation would be violative of
rules of fairness and Arts.14 and 16 of the Constitution
of India. Fairness on part of State is a constitutional           c
obligation and, therefore, a pay scale, which regularly
promoted employee earlier belonging to Grade I (DASS)
could not get due to established hierarchy for promotion,
cannot be granted to those like the respondents on the
plea that the financial upgradation to which they are found       0
entitled as per existing hierarchy is too meagre. [para 14]
[989-G-H; 990-A-D]
      1.5. Besides being grossly unfair to the regular
 promotees, the view taken by the High Court would also
violate the Government policy reflected by the                    E
 stipulations in ACPS and the conditions attached to the
same, as the benefit claimed by the respondents would
 not be restricted to them alone, rather, the policy of
 Government reflected by the ACPS shall suffer a mis-
 interpretation for all times to come and the results would       F
-be violative of rules of fairness guaranteed by Arts. 14
 and 16 of the Constitution of India. In the facts of the case,
 it would not be proper to exercise power of judicial
 review so as to reverse or modify the policy decision of
 the Government.Accordingly, the judgment of the High             G
 Court is set aside and, as a result, the writ petitions
 preferred by the respondents shall stand dismissed.
 [para 15-17] [990-G; 991-D-F]
     Govt. of T. N. & Anr. v. s_ Arumugham & Ors_ 1997
(5) Suppl. SCR 295 = (1998) 2 SCC 198 - relied on.                H
    980       SUPREME COURT REPORTS              [2014] 8 S.C.R.


A       Union of India v. Prakash Chand & Ors. 132 (2006) DLT
    525; Council of Scientific & Industrial Research & Anr. v.
    K.G.S. Bhatt & Anr. (1989) 4 SCC 635 - distinguished.
                         Case Law Reference :
B      1997 (5) Suppl. SCR 295       relied on           para 8
       132 (2006) DLT 525          .• distinguished      para 9
       1989 (4) sec 635              distinguished       para 9
      CIVIL APPELLATE JURISDICTION : Civil Appeal
C Nos.5153-5157 of 2009.

         From the Judgment and Order dated 15.02.2008 in Writ
    Petition Civil Nos. 5883-87 of 2004 of the High Court of Delhi
    at New Delhi.
D       K. Radhakrishnan, R.K. Rathore, Rekha Pandey, Rashmi.
    Malhotra, R.S. Nagar, D.S. Mahra for the Appellants.
       T.S. Tobia, Kiran Bhardwaj, Avinash Ahlawat, Rani
    Chhabra for the Respondents.
E         The Judgment of the Court was delivered by

       SHIVA KIRTI SINGH, J. 1. The Respondents in these
  Appeals were applicants before the Central Administrative
  Tribunal, Principal Bench, New Delhi (for short, 'the Tribunal').
F They preferred 0.A. No.579 of 2002 against the Appellants
  seeking quashing of the order dated 10.8.2001 and also sought
  a direction to grant the scale of Rs.10000-325-15200/- to them
  and all other members of Grade-I (DASS) Officers' Association
  from the date they had completed 24 years of regular service
G or 9.8.1999, whichever is later.
       2. The aforesaid claim was founded upon the Assured
  Career Progression Scheme (for short, 'ACPS') introduced
  w.e.f. 9.8.1999 which, inter alia, provides for benefit of second
  financial upgradation on completion of 24 years of regular
H service to such Central Government civilian employees who

               ,..
 SECR., GOVT., OF NCT OF DELHI v. GRADE-I DASS               981
  OFFICERS' ASSOCIATION [SHIVA KIRTI SINGH, J.]

faced stagnation and had not been granted two promotions            A
during their service tenure. The controversy or the dispute arose
in the background of some relevant facts which are as follows.

     3. The Respondents were appointed as Grade-II in the
Delhi Administration Subordinate Service (for short, 'DASS').       8
They were promoted to the post of Grate-I between 1986 and
1989. They had completed 24 years of regular service between
1998 and 2001 and were thus eligible for second financial
upgradation from 9.8.1999 or date of completion of 24 years
of service, whichever is later. The pay scale of Grade-II of        C
DASS was Rs.5000-150-8000/- and Grate-I was in the pay
scale of Rs.6500-200-10500/-. The Grade-I of DASS was the
feeder gr~de for the next promotional grade in the hierarchy
which was Grade-II (Group B) under the Delhi Andaman and
Nicobar Island Civil Service (for short, 'DANICS') but
unfortunately the Grade-II (Group B) of DANICS also had the         D
same pay scale of Rs.6500-200-10500/-. Because the feeder
and the promotional grades, though at two levels in the
hierarchy, had the same scale of pay, therefore, a clarification
being Clarification 52 was issued by the Department of
Personnel & Training vide O.M. No.35034/1/97-Estt.(D)Nol.IV         E
dated 18. 7.2001, to the effect that since the feeder and
promotional grades in the hierarchy were in the same scale of
pay, the benefit of financial upgradation under the ACPS has
to be allowed in the same scale for the reason that under the
ACPS financial upgradation has to be allowed as per the             F
exiting hierarchy. Financial upgradation cannot be allowed in
a scale higher than the next promotional grade. In such cases,
however, as per Condition No.9 of the ACPS issued vide
Department of Personnel & Training O.M. dated 10.2.2000, pay
shall be fixed under the provisions of F.R.22(1)(a)(1) subject to   G
a minimum benefit of Rs.100/-.

     4. The Respondents found the benefit under F.R.22(1)(a)(1)
to be too meagre, therefore, they raised a demand that financial
upgradation must be real and for that they should be granted
                                                                    H
   982       SUPREME COURT REPORTS               [2014] 8 S.C.R.


A upgradation to the scale of Rs.10000-325-15200/- which was
  the pay scale for Grade-I (Group A) in the DANICS.

       5. Since the normal channel qf promotion for Grade-I of
  DASS was Grade-II (Group B) of DANICS and not the further
8 higher post in the hierarchy, Grade-I (Group A) in DANICS, the
  Appellants turned down the representations of the
  Respondents leading to O.A.No.579 of 2002 preferred by the
  Respondents. In that O.A., the Tribunal c.onsidered the
  provisions and conditions of ACPS contained in Annexure I to
  the Scheme and came to a finding that the contention of the
C Respondents that irrespective of the hierarchy in which they are
  placed, they should be granted financial upgradation in the pay
  scale which is much higher than the hierarchical promotion was
  not an acceptable interpretation of the.ACPS. The Tribunal
  found it patent in the ACPS that the financial upgradation is to
D be only in the next higher grade but it is with a rider that such
  upgradation has to be in accordance with the existing hierarchy
  in a cadre without creating new posts. The Tribunal placed
  strong reliance upon Para 7 of Annexure I to the ACPS dated
  9.8.1999. The Tribunal also turned down the contention that the
E Clarification No.52 dated 18. 7.2001 was contrary to the
  Scheme.

         6. Against the judgment and order of the Tribunal dated
  8.12.2003, the Respondents preferred a review petition bearing
F Review Application No.49 of 2004 which came to be dismissed
  by the Tribunal on 12.2.2004. Thereafter, the Respondents filed
  writ petitions being C.W.P.Nos.5883-5887 of 2004 before the
  High Court of Delhi which have been allowed by the judgment
  and order under appeal dated 15.2.2008 giving rise to the civil
G appeals under consideration. This Court granted interim stay
  and as a result, the benefits accruing from the judgment under
  appeal have not been made available to the Respondents as
  yet.

      7. To assail the judgment of the High Court whereby the
H Appellants have been directed to consider the placement of the
 SECR., GOVT., OF NCT OF DELHI v. GRADE-I DASS              983
  OFFICERS' ASSOCIATION [SHIVA KIRTI SINGH, J.]

Respondents in the next to next scale in the hierarchy, i.e.,        A
Rs.10000-325-15200/- by way of second upgradation in the
ACPS, learned senior advocate Mr. K. Radhakrishnan has
highlighted the relevant facts, as noted earlier, as also various
stipulations in the ACPS particularly Condition Nos.1, 5.1, 7,
8, 9, 10 and 12. He has also distinguished the letter dated          B
10.2.2000 discussed in Paragraph 17 of the High Court
judgment by showing that Doubt (1) was based upon entirely
different fact situation and hence the clarification against that
doubt is not attracted in the case of Respondents. He has also
assailed the adverse findings in respect of O.M. dated               c
18. 7 .2001 containing Clarification No.52 discussed in
Paragraph 18 of the High Court judgment. According to him,
the plea of the Appellants that under ACPS the Respondents
cannot be placed in a scale higher than what is provided for
under the hierarchy to normal promotees has also been wrongly        D
rejected in Paragraph 19 of the judgment.

     8. It is further contention on behalf of Appellants that ACPS
is a policy decision under which the burden of financial
upgradation is continued every month and hence the Appellants
have good reasons to prefer these appeals also on the ground         E
that High Court should not have granted a relief which
tantamounts to changing the policy of·State. He placed reliance
upon a judgment by this Court in the case of Govt. of T.N. &
Anr. v. S. Arumugham & Ors. (1998) 2 SCC 198. That case
related to promotion policy governing promotion as Deputy            F
Collectors in Tamil Nadu Civil Service. The Administrative
Tribunal had issued certain directions to the Government for
reframing of the Scheme in a particular manner. Criticizing the
same, it was held that such judicial review was not permissible
when the matter related to policy decision of Government.            G

     9. To the contra, it has been submitted by Mr. T.S. Doabia,
learned senior advocate for the Respondents that financial
upgradation as contemplated by the ACPS is to deal with the
problem of genuine stagnation in service or hardship faced by        H
I.·       984       SUPREME COURT REPORTS               [2014] 8 S.C.R.


      A the employees due to lack of adequate promotional avenues
        and, therefore, mere grant of financial benefit of Rs.100/- cannot
        be equivalent of placement in the higher pay scale. According
        to him, the grant of financial benefits/placement in the higher
        pay scale indicated in Condition No.1 of Annexure I to the
      B Scheme has rightly been interpreted by the High Court to mean
        placement in the actual higher pay scale when the pay scale
        of feeder post and promotional post is found to be same.
        According to him, the interpretation and reliance placed upon
        Paragraph 7 of t~e conditions contained in Annexure I to the
      c Scheme by the Tribunal in Paragraph 13 of its judgment is
        incorrect in view of conditions Nos.10 and 12. He has also
        referred to the dictionary meaning of the word, 'upgrade' by
        referring to the New Shorter Oxford English Dictionary wherein,
        inter a/ia, 'upgrade' means, 'an additional feature or
        enhancement'. He has placed reliance upon a Division Bench
      0
        judgment of Delhi High Court in the case of Union of India v.
         Prakash Chand & Ors. 132 (2006) DLT 525 and a judgment
        of this Court in the case of Council of Scientific & Industrial
         Research & Anr. v. K.G.S. Bhatt & Anr. (1989) 4 SCC 635.
         Before deciding the relevant issue in the light of rival
      E submissions, it would be useful to extract the relevant
         conditions contained in Annexure I to the ACPS dated
         9.8.1999, i.e., Condition Nos.1, 5.1, 7, 8, 9, 10 (Part) and 12 :

                "1. The ACP Scheme envisages merely placement in the
      F         higher pay-scale I 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;
      G
                2. xxx xxx xxx xxx xxx

                3. xxx xxx xxx xxx xxx

                4. xxx xxx xxx xxx xxx
      H
SECR., GOVT., OF NCT OF DELHI v. GRADE-I DASS            985
 OFFICERS' ASSOCIATION [SHIVA KIRTI SINGH, J.]
  5.1 Two financial upgradations under the ACP Scheme in         A
  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 in which an employee was appointed as a direct           B
  recruit. This shall mean that two financial upgradations
  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    c
  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;                                    D

  5.2 xxx xxx xxx xxx xxx

  6. xxx xxx xxx xxx xxx

   7. Financial upgradation under the Scheme shall be given      ·6
  to the next higher grade in accordance with the existing
   hierarchy in a cadrefcategory 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
                                                                  FJ
                                                                        .
  -concerned in the immediately next higher (standard/
   common) pay-scales as indicated in Annexure-11 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         G
   indicated in Annexure-11, will be eligible for the proposed
   two financial upgradations 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           H
    986        SUPREME COURT REPORTS                   [2014] 8 S.C.R.


A         only for the incumbents of isolated posts which have no
          avenues of promotion at all. Since financial upgradations
          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-
B         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;

          8. The financial upgradation under the ACP Scheme shall
c         be purely personal to the employee and shall have no
          relevance to his seniority position. As such, there shall be
          no additional financial upgradation for the senior employee
          on the ground that the junior employee in the grade has
          got pay-scale under the ACP Scheme;
D
          9. On upgradation under the ACP Scheme, pay of an
          employee shall be fixed under the provisions of FR
          22(1)(a)(1) subject to a minimum financial benefit of
          Rs.100/- as per the Department of Personnel and Training
E         Office Memonradum No.116/97-Pay.I dated July 5, 1999.
          The financial benefit allowed under the ACP Scheme s'lall
          be final and no pay-fixation benefit shall accrue at the time
          of regular promotion, i.e,, posting against a functional post
          in the higher grade;
F         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 u.nqualified acceptance for regular promotion on
          occurrence of vacancy subsequently. In case he refuses
G         to accept the higher post on regular promotion
          subsequently, he shall be subject to normal debarment for
          regular promotion aJ prescribed in the general instructions
          in this regard ......... .

H         12. The proposed ACP Scheme contemplates merely
 SECR., GOVT., OF NCT OF DELHI v. GRADE-I DASS                 987
  OFFICERS' ASSOCIATION [SHIVA KIRT! SINGH, J.]
    placement on personal basis in the higher pay-scale/grant        A
    of financial benefits only and shall not amount to actual/
    functional promotion of the employees concerned. Since
    orders regarding reservation in promotion are applicable
    only in the case of regular promotion, reservation orders/
    roster shall not apply to the ACP Scheme which shall             B
    extend its benefits uniformly to all eligible SC/ST
    employees also. However, at the time of regular/functional
    (actual) promotion, the Cadre Controlling Authorities shall
    ensure that all reservation orders are applied strictly;"

     10. For the controversy at hand Clarification 52 contained
                                                                     c
in O.M. dated 18.7.2001 is relevant. It reads as follows:

    Points of Doubt                Clarification
                                  Normally, it is incorrect to
    Following               the                                      D
                                  have a feeder grade in the
    recommendations of
                                  same scale of pay. In such
    the Pay Commission,
                                  cases, appropriate course
    feeder and promotional
                                  of action is to review the
    posts have been
                                  cadre structure. If as a
    placed in the same                                               E
                                  restructuring, feeder and
    scale. Consequently,
                                  promotional posts are
    hierarchy of a post
                                  merged to constitute one
    comprises of Grades
                                  single level in the hierarchy,
    'A', 'A' and  ·c·  i.e. the
                                  then in such a case, next
    entry level and the first
    promotional grade are
                                  financial upgradation will be      F
                                  in the next hierarchical
    in the same scale. What
                                  grade above the merged
    shall be his entitlements
                                  levels and if any promotion
    under ACPS
                                  has been allowed in the past
                                  in grades which stand              G
                                  merged, it will have to be
                                  ignored as already clarified
                                  in reply to point of doubt
                                  no.1 of O.M. dt.10.02.2000.
                                  However if for certain             H
    988      SUPREME COURT REPORTS               [2014] 8 S.C.R.


A
                      feeder and promotional grades as two
                      district levels in the hierarchy though in the
                      same scale of pay, thereby making a
                      provision for allowing promotion to a higher
8                     post in the same grade, it is inevitable that
                      benefit of financial upgradation under
                      ACPS has also to be allowed in the same
                      scale. This is for the reason that under the
                      ACPS, financial upgradation has to be
                      allowed as per the existing hierarchy.
c                     Financial upgradation cannot be allowed in
                      a scale higher than the next promotional
                      ~rade. However, as specified in condition
                      No.9 of the ACP Scheme (vide DoP&T
                      O.M. dated 10.02.2000, pay in such cases
D                     shall be fixed under the provisions of FR
                      22(1)(a)(1) subject to a minimum benefit of
                      Rs.100/-.
       11. On going through the ACPS and the relevant
E stipulations and conditions it is evident that the Scheme offers
  higher pay scale/financial benefits only to those eligible
  Government servants who remain deprived of regular
  promotions. For such deprivation, they are compensated by
  grant of monetary benefits on personal basis but the same does
F not amount to functional/regular promotion and does not require
  creation of new posts. The financial upgradations under the
  Scheme are to be counted against regular promotions in the
  service career of the concerned Government employee. The
  two financial upgradations under the Scheme shall be available
G only if no regular promotions during the prescribed periods (12
  and 24 years) have been availed by an employee. As per
  Condition No.7, financial upgradation is admissible in the next
  higher grade only in accordance with the existing hierarchy in
  a cadre/category of posts without creating new posts for the
  purpose. Practical solution has been indicated in case of
H isolated posts where there is no defined hierarchical grades.
  SECR., GOVT., OF NCT OF DELHI v. GRADE-I DASS               989
   OFFICERS' ASSOCIATION [SHIVA KIRTI SINGH, J.]

 The condition emphasizes that financial upgradation on a             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 isolatedposts which
  have no avenues of promotion at all. Condition No.7 fortifies
  the view taken by the Tribunal through the clear stipulation in     B
. the last two sentences - "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,"

      12. Condition No.9 indicates that on upgradation under
                                                                      c
ACP Scheme the re-fixation of pay must yield a minimum
benefit of Rs.100/- in accordance with the relevant Office
Memorandum. It also clarifies that the financial benefit under
the ACP Scheme is final and no pay fixation benefit shall
accrue atthe time of regular promotion, i.e., posting against a       D
functional post in the higher grade. Condition No.10 further
clarifies that benefit under the ACPS is to be conditional and
the concerned employee shall be deemed to have given an
unqualified acceptance for regular promotion on occurrence of
vacancy subsequently.                                                 E

      13. Clarification 52 issued by O.M. dated 18.7.2001 is
 found to be in accordance with the stipulations and conditions
 of ACPS. The High Court erred in taking a view.that it supplants
 the basic provisions in the ACPS. In fact, the clarification, at     F
 best, supplements the provisi<3ns of the Scheme and cannot be
 faulted for doing so.

      14. In view of stipulations and conditions in the ACPS
 noticed above, it can be safely concluded that the financial
 upgradation under the ACPS is not only in lieu of but also in        G
 anticipation of regular promotion. In such a situation, the
 contention advanced on. behalf of Appellants that financial
 upgradation claimed by the Respondents cannot be granted
 because the same would be much in excess of-what the officer
                                                                      H
    990      SUPREME. COURT REPORTS              [2014] 8 S.C.R.


A would gain on actual promotion in the hierarchy, is found to have
  substance. As a corollary, such claim of the Respondents must
  be rejected on the ground that persons having better claims on
  actual promotion could be fitted only in the promotional post of
  Grade II (Group B) of DANI CS, i.e. Rs.6500-200-10500/-
B whereas the Respondents, on their claims being accepted,
  would get much higher pay scale of Rs.10000-325-15200/-
  available only to Grade I (Group A) in the DANICS. Such a
  situation would be violative.of rules of fairness and Articles 14
  and 16 of the Constituiion of India. The claim of the
c Respondents had to be re)ected as was done by the Tribunal
  in view of Clause 7 of the ACPS read with other relevant
  clauses as well as on the basis of aforenoticed ground.
  Fairness on part of Stat~ is a constitutional obligation and
  hence a pay scale, which ~egularly promoted employee earlier
  belonging to Grade I (DA~S) could not get due to established
0
  hierarchy for promotion, cannot be gr~nted to those like the
  Respondents on the plea that the financial upgradation to which
  they are found entitled as' per existing hierarchy is too meagre.
  In case Respondents' claim was to be allowed on the ground
  accepted by the High Court that financial upgradation must be
E real and substantial, in case of regular promotion in future,
  employees like the Respondents would have fo be reduced in
  their pay scale because actual or functional promotion as per
  established hierarchy can be only on a post in Grade II (Group
  B) in DANICS.
F
        15. Besides being grossly unfair to the regular prornotees,
  the view taken by the High Court would also violate the
  Government policy reflected by the stipulations in ACPS and
  the conditions attached to the same ..In the facts of the case, it
G would not be proper to exercise power of judicial review so as
  to reverse or modify the policy decision· of the concerned
  Government. The judgment in the case of S. Arumugham
  (supra) has rightly been relied upon by learned senior counsel
  for the Appellants on the aforesaid issue.
H
 SECR., GOVT., OF NCT OF DELHI v. GRADE-I DASS                991
  OFFICERS' ASSOCIATION [SHIVA KIRTI SINGH, J.]
      16. So far as the judgment relied upon by the learned senior    A
counsel for the Respondents are concerned, it is found that the
facts and issues decided in the case of Prakash Chand (supra)
were quite different. The issue of fairness and constitutional
obligation under Articles 14 and 16 did not arise in that case.
So far as the judgment ill the case of Council of Scientific &        B
Industrial Research (supra) is concerned, the Court had found
in that case that the Respondent-Civil Engineer had suffered
injustice and had stagnated in one post for 20 years and,
therefore, this Court refused to exercise its powers under Article
136 of the Constitution of India although promotion granted to        c
the Respondent in that case by the Central Administrative
Tribunal appeared to be erroneous. In the present case,
however, .the benefit claimed by the Respondents wouid not be
 restricted to them alone, rather, the policy of Government
 reflected by the ACPS shall suffer a mis-interpretation for all
                                                                      0
times to come and the results would be violative of rules of
fairness guaranteed by Articles 14 and 16 of the Constitution
 of India.

     17. In the light of discussions made above, we find merit
in the case of the Appellants. The Appeals are allowed. The           E
judgment of the High Court under appeal is set aside and as a
result, the writ petitions preferred by the Respondents shall
stand dismissed. There shall be no order as to costs.
Rajendra Prasad                                    Appeals allowed.