From what point are the three financial upgradations under the Modified Assured Career Progression Scheme counted?
Coram: Justice S.M.Subramaniam · Justice N.Senthilkumar · Justice N. Senthilkumar
Modified Assured Career Progression Scheme — Clause (1) — Clause (5) — Financial upgradation — Pay anomalies — Prospective operation — Modified Assured Career Progression Scheme — Clause (1) — Upgradation on 10, 20 and 30 years from the entry grade — Held: The Scheme provides three financial upgradations counted from the direct entry grade on completion of 10, 20 and 30 years, and an upgradation is admissible whenever an employee has spent ten years continuously in the same grade pay. (¶11, ¶13) Modified Assured Career Progression Scheme — Clause (5) — Confined to pay anomalies — Held further: Clause (5), which ignores earlier promotions to grades now carrying the same grade pay, addresses anomalies arising from merger of scales or upgradation of posts; it does not apply where upgradations fall due under Clause (1). (¶15, ¶16, ¶17) Modified Assured Career Progression Scheme — Prospective operation — No benefit before the Scheme existed — Held further: A scheme operates prospectively from the date it came into force, and no benefit can be claimed for years in which it did not exist; the third upgradation runs ten years from the accepted date of the second. Petitions allowed. (¶24, ¶26, ¶27)
From what point are the three financial upgradations under the Modified Assured Career Progression Scheme counted?
From the direct entry grade. Clause (1) provides three financial upgradations under the Scheme, counted from the direct entry grade on completion of 10, 20 and 30 years of service respectively, and a financial upgradation is admissible whenever a person has spent 10 years continuously in the same grade pay. The period of service is therefore reckoned from the employee's entry grade.
When does the clause ignoring earlier promotions to grades that now carry the same grade pay apply?
Only where a pay anomaly has arisen. Clause (5) addresses the situation in which a revision of pay scales pursuant to the Sixth Pay Commission left the employee in the same grade pay with no upward monetary benefit — that is, anomalies arising from the merger of pay scales or the upgradation of posts. It does not apply in the ordinary case where upgradations fall due under Clause (1) on completion of 10, 20 and 30 years.
Can an employee claim the benefit of a career-progression scheme for a period before the scheme came into force?
No. A scheme implemented prospectively confers no benefit for years in which it did not exist, and an employee cannot claim benefits that were non-existent. Where the second upgradation was granted with effect from the date the scheme came into force and that date was accepted and left unchallenged, the third upgradation falls due only on completion of ten years from it.
What did the Madras High Court decide on the challenge to the Tribunal's orders on MACP benefits?
The writ petitions were allowed and the Tribunal's orders dated 17.03.2023 were set aside, the directions issued by the Tribunal not being in consonance with the terms of the Scheme and the employees having made out no case for the relief sought in their Original Applications. Connected miscellaneous petitions closed; no order as to costs.
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(Order of the Court was made by S.M.Subramaniam, J.) Under assail are the orders dated 17.03.2023 passed in R.A.No.8 of 2018 in O.A.No.1815 of 2013, R.A.No.6 of 2018 in O.A.No.1817 of 2013 and R.A.No.7 of 2018 in O.A.No.1814 of 2013 respectively.
The Union of India has preferred these writ petitions under Article 226 of the Constitution of India. The second respondent in W.P.No.33823 of 2023 has filed O.A.No.1815 of 2013, seeking direction to the respondents to restore the II Modified Assured Career Progression Scheme (MACP Scheme) to the Grade Pay Rs.4600/- and the III Page No.4 of 16 WP NOS.33823, 27433 & 30026 OF 2023 Modified Assured Career Progression Scheme (MACP Scheme) to the Grade Pay Rs.4800/- benefits with effect from 01.09.2008, and consequential benefit, including re~fixing his pay and paying arrears and other benefits. Rejection order of the appellant was also sought to be set aside before the Tribunal.
Likewise, the second respondent in W.P.No.27433 of 2023 has filed O.A.No.1817 of 2013, seeking direction to the respondents to restore the II Modified Assured Career Progression Scheme (MACP Scheme) to the Grade Pay Rs.4600/- and the III Modified Assured Career Progression Scheme (MACP Scheme) to the Grade Pay Rs.4800/- with effect from 01.09.2008, and consequential benefit, including re~fixing his pay and paying arrears and other benefits. Rejection order of the appellant was also sought to be set aside before the Tribunal.
Similarly, the second respondent in W.P.No.30026 of 2023 has filed O.A.No.1814 of 2013, seeking direction to the respondents to restore the II Modified Assured Career Progression Scheme (MACP Scheme) to the Grade Pay Rs.4600/- and the III Modified Assured Page No.5 of 16 WP NOS.33823, 27433 & 30026 OF 2023 Career Progression Scheme (MACP Scheme) to the Grade Pay Rs.4800/- with effect from 01.09.2008, and consequential benefit, including re~fixing his pay and paying arrears and other benefits. Rejection order of the appellant was also sought to be set aside before the Tribunal.
The Tribunal considered the issues and disposed of the original applications on 17.03.2023, granting liberty to the respondents to pass appropriate orders, subject to the outcome of the Review Petition No.140 of 2016 pending before the High Court and Special Leave Petition in S.L.P.No.12140 of 2019.
The learned Senior Central Government Standing Counsel (SPC) appearing on behalf of the petitioners would submit that as per the MACP Scheme, III MACP Scheme benefits were granted to the 2 nd respondent in each writ petitions on 1st September, 2018, on completion of 10 years of service from the date of grant of II MACP Scheme benefits. Thus, the III MACP Scheme benefits were granted in accordance with the terms of the scheme and the 2 nd respondent in each writ petitions is not eligible or entitled to seek III MACP Scheme benefits from the year Page No.6 of 16 WP NOS.33823, 27433 & 30026 OF 2023 2008 as such sought for in the Original Applications filed before the Tribunal. This is because the MACP Scheme guidelines specify that the benefits are granted on completion of 10, 20, and 30 years of service.
The learned counsel appearing on behalf of the 2 nd respondent would oppose by stating that Clause (5) of the MACP Scheme pertains to promotions earned/upgradations granted under the ACP Scheme, which was not properly considered by the appellants in the case of the 2nd respondent. In support of the said clause, the learned counsel for the 2nd respondent relied on the illustrations given in Clause
(28) of the MACP Scheme.
According to the 2nd respondent, the III MACP Scheme benefits should have been granted with effect from 01.09.2008. However, these benefits were erroneously granted to the 2 nd respondent from 01.09.2018. The Tribunal has failed to consider the merits of the case and instead disposed of the original applications, granting liberty to the respondents/petitioners herein to decide the issues subject to the outcome of the review petition and special leave petition (SLP). Page No.7 of 16 WP NOS.33823, 27433 & 30026 OF 2023
The Tribunal has further held that the similar issue has been decided in original application in O.A.No.82 of 2020 dated 11.07.2022. In view of the pendency of the review application, the Tribunal has not considered the merits involved with reference to the relief sought for by the 2nd respondent in the Original Application. Thus, it is necessary to examine the scope of the scheme to determine the eligibility of the 2nd respondent to claim III MACP Scheme benefits.
The Government of India, Ministry of Railways, pursuant to the recommendations of the Sixth Central Pay Commission issued proceedings dated 10.06.2009, granting Modified Assured Career Progression Scheme (MACP Scheme) for Railway Employees.
Clause (1) of MACP Scheme stipulates “There shall be three financial upgradations under the MACPS, counter from the direct entry grade on completion of 10, 20 and 30 years of service respectively. Finance upgradation under the Scheme will be admissible whenever a person has spent 10 years continuously in the same Grade Pay”.
Clause (5) of MACP Scheme stipulates “Promotions earned/upgradations granted under the ACP Scheme in the past to those Page No.8 of 16 WP NOS.33823, 27433 & 30026 OF 2023 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”.
Holistic reading of above Clauses (1) and (5) reveals that the scheme provides for three financial upgradations. These upgradations are granted from direct entry grade upon completion of 10, 20 and 30 years of services, respectively. Consequently, the period of service is reckoned from the entry grade of the employees.
The Scheme further states that financial upgradation will be admissible, whenever an individual has spent 10 years continuously in the same grade. Therefore, an employee, who remains in the same grade pay for 10 years becomes eligible for financial upgradations under MACP Scheme.
Clause (5) clarifies that promotions earned or upgradations granted under the ACP Scheme in the past to those grades that now carry the same grade pay due to merger of pay scale or Page No.9 of 16 WP NOS.33823, 27433 & 30026 OF 2023 upgradation of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations.
The primary purpose of Clause (5) is to address the situation, where the revision of pay scales pursuant to the Sixth Pay Commission, if resulted in same grade pay leading to no upward monetary benefits, then such merger of pay scales or upgradation of posts recommended by the pay commission shall be ignored.
However, the said circumstances typically arises in the event of pay anomalies, rather than in normal cases, where the upgradations are granted as per Clause (1) on completion of 10, 20 and 30 years. In other words, Clause (5) is applicable only in the event of pay anomalies, but not otherwise. Pay anomalies arouse on account of merger of scales or upgradation of posts.
Let us now examine the service particulars of the 2 nd respondent in each writ petitions. Admittedly, the 2 nd respondent in W.P.No.33823 of 2023 joined as a Guard “C” on 07.10.1975, which is the entry~grade position. He was promoted to the post of Guard “B” on Page No.10 of 16 WP NOS.33823, 27433 & 30026 OF 2023 18.08.1982 within a period of 6.5 years. Then he was promoted to the post of Passenger Guard on 19.08.1986. The posts of Guard “B’ and Passenger Guard were merged into a single pay band. Consequently, the pay of the 2nd respondent was fixed accordingly.
Similarly, the 2nd respondent in W.P.No.27433 of 2023 joined as a Guard “C” on 25.07.1974, which is the entry~grade position. He was promoted to the post of Guard “B” on 25.11.1986 after a period of 12 years. Then he was promoted to the post of Mail Guard on 23.05.1990. The posts of Guard “B’ and Mail Guard were merged into a single pay band. Consequently, the pay of the 2 nd respondent was fixed accordingly.
Similarly, the 2nd respondent in W.P.No.30026 of 2023 joined as a Guard “C” on 17.11.1975, which is the entry~grade position. He was promoted to the post of Passenger Guard on 11.01.1990 and then promoted as Mail Guard on 19.07.1992. The posts of Guard “V’ and Mail Guard were merged into a single pay band. Consequently, the pay of the 2nd respondent was fixed accordingly. Page No.11 of 16 WP NOS.33823, 27433 & 30026 OF 2023
Admittedly, on competition of 10 years from the last effective promotion i.e., the promotion to the post of Passenger Guard was granted to the 2nd respondent in W.P.No.33823 of 2023 on 19.08.1986, II MACP Scheme benefits were granted to the 2 nd respondent. However, II MACP Scheme benefits were granted to the 2 nd respondent with effect from 01.09.2008, as the scheme itself came into force with effect from 01.09.2008. Consequently, upgradation was granted to the 2nd respondent to pay band PB~2 with grade pay GP4800.
Likewise, on competition of 10 years from the last effective promotion i.e., the promotion to the post of Mail Guard was granted to the 2nd respondent in W.P.No.27433 of 2023 on 23.05.1990, II MACP Scheme benefits were granted to the 2 nd respondent. However, II MACP Scheme benefits were granted to the 2 nd respondent with effect from 01.09.2008, as the scheme itself came into force with effect from 01.09.2008. Consequently, upgradation was granted to the 2 nd respondent to pay band PB~2 with grade pay GP4800.
Similarly, on competition of 10 years from the last effective promotion i.e., the promotion to the post of Mail Guard was Page No.12 of 16 WP NOS.33823, 27433 & 30026 OF 2023 granted to the 2nd respondent in W.P.No.30026 of 2023 on 19.07.1992, II MACP Scheme benefits were granted to the 2 nd respondent. However, II MACP Scheme benefits were granted to the 2 nd respondent with effect from 01.09.2008, as the scheme itself came into force with effect from 01.09.2008. Consequently, upgradation was granted to the 2 nd respondent to pay band PB~2 with grade pay GP4800.
Further, the period of 10 years for grant of III MACP Scheme benefits is to be calculated from 01.09.2008. However, the 2 nd respondent in each writ petitions wrongly set out their claim, on the ground that the period of 10 years completed in the posts of Passenger Guard and Mail Guard respectively, on 19.08.1986, 23.05.1990 and 19.07.1992 respectively and therefore, they are eligible to claim III MACP Scheme benefits in the year 2012. This calculation is erroneous, as the scheme itself was not in force during the year 2002 and it came into force with effect from 01.09.2008. Since the scheme did not exist, the employees cannot claim benefits that were non-existent.
The benefits of III MACP Scheme came into force on 01.09.2008 and II MACP Scheme was granted to the 2 nd respondent with Page No.13 of 16 WP NOS.33823, 27433 & 30026 OF 2023 effect from 01.09.2008. Therefore, the appellants rightly granted III MACP Scheme benefits with effect from 01.09.2018, on completion of 10 years from the effective date of second upgradation, thereby extending the benefit of III MACP Scheme.
When the 2nd respondent in each writ petitions accepted the 2nd MACP Scheme benefits with effect from 01.09.2008 and the said date remained unchallenged, they cannot claim the benefit of III MACP Scheme from 18.08.1982, 25.11.1986 and 19.07.1992 respectively. Such a ground is untenable. Scheme was not available prior to 01.09.2008 and it was implemented prospectively. After implementation of the scheme, the II MACP Scheme was granted to the 2nd respondent in each writ petitions on 01.09.2008. Consequently, on completion of 10 years, III MACP Scheme benefits were granted from 01.09.2018.
Therefore, the 2nd respondent in each of the writ petitions has not made out a case for grant of relief in their Original Applications. The directions issued by the Tribunal are not in consonance with the terms of the MACP Scheme. Thus, we are inclined to interfere. Accordingly, the orders dated 17.03.2023 passed in R.A.No.8 of 2018 in Page No.14 of 16 WP NOS.33823, 27433 & 30026 OF 2023 O.A.No.1815 of 2013; R.A.No.6 of 2018 in O.A.No.1817 of 2013 ; and R.A.No.7 of 2018 in O.A.No.1814 of 2013 respectively are set aside, and the writ petitions stand allowed. Consequently, connected Miscellaneous Petitions are closed. However, there shall be no order as to costs. [S.M.S., J.] [N.S., J.]
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