Confusion between Modified Assured Career Progression Scheme (MACP) and Military Service Pay (MSP) and the need to ignore unnecessary rumours and false hopes

There are certain messages floating on social and other media that the Supreme Court of India has passed directions to pay ‘Military Service Pay’ with effect from January 2006 rather than from 2008 as was granted by the Government.

This is incorrect and there are no such directions. People are probably confusing the recent judgment on Modified Assured Career Progression Scheme (MACP) with the concept of Military Service Pay (MSP). Even otherwise, de hors the absence of any such decision, no parallel can be drawn between the two issues.

As explained in the post of 12 December 2017, the Sixth Central Pay Commission had recommended the implementation of the ‘Modified Assured Career Progression’ Scheme (MACP) providing for the grant of three financial upgradations of pay at the gap of 8, 16 and 24 years of service in case of stagnation, for the defence services.

The Special Army Instructions (SAI) on the subject had also been issued with effect from 01 January 2006 and which contained therein the stipulation of MACP. However later, despite the existence of the said SAI, another fresh letter was issued by the Government stating that MACP will be prospectively implemented from 01 September 2008.

Hence ultimately, unlike other pay related modalities which were implemented with effect from 01 January 2006, MACP was implemented with effect from 01 September 2008, thereby not including in its scope the personnel who were released from service between the two dates. The Chandigarh Bench of the Armed Forces Tribunal (AFT) however ruled that the pay commission had granted all pay and pension related benefits from January 2006 and the prospective implementation was only effectuated for ‘allowances’ and hence MACP was also to be implemented from January 2006 since it pertained to upgradation of pay. While ordering so, the AFT had followed the decision of the Punjab & Haryana High Court which had earlier ruled upon the implementation of improved pay-scales of defence personnel from 1996 rather than 1997 in an anomaly emanating out of the Fifth Pay Commission. The decision of the AFT was challenged by the Government in the Supreme Court but the Apex Court dismissed the appeal filed by the Union of India thereby upholding the grant of MACP from 01 January 2006 rather than 01 September 2008.

The aspect to be noted however in the above is that in case of MSP, the pay commission had itself noted that it shall be applied prospectively without any arrears (Para 2.3.12 of the 6^th Central Pay Commission Report). Further when the SAI 1/S/2008 was issued, while it applied benefits of all modalities from 2006 (including MACP), it had specifically stated in Paragraph 5(d) that arrears of MSP shall only be paid with effect from 01 September 2008. There was no such negative stipulation for MACP. Further MACP was a replacement for the earlier ACP while MSP was completely a new element.

Hence, as the above would show, while the MACP was applied from 2006 but later tacitly retrospectively withdrawn and made applicable from 2008- an action was at the heart of the debate in Courts, there was no such controversy with regard to MSP which was always meant to be paid prospectively from September 2008.

Though at the surface both issues might appear to be similar to the untrained eye, there is actually absolutely no parallel between the concepts of MACP and MSP, and hence it is in the interest of sanity to ignore messages being circulated that MSP arrears will be paid to all personnel with effect from 01 January 2006. One should avoid forwarding such messages since it may promote unnecessary litigation and propel false hopes.

The above is not in the form of legal advice but merely my humble opinion since a litigious society is not in anybody’s interest.

Important decision for ranks other than Commissioned Officers who retired between 01-01-2006 and 30-08-2008

The Sixth Central Pay Commission had recommended the implementation of the ‘Modified Assured Career Progression’ Scheme (MACP) providing for the grant of three financial upgradations of pay at the gap of 8, 16 and 24 years of service in case of stagnation.

Unlike other pay related modalities which were implemented with effect from 01 January 2006, the MACP was implemented with effect from 01 September 2008, thereby not including in its scope the personnel who were released from service between the two dates.

The Armed Forces Tribunal (AFT) had however ruled that the pay commission had granted all pay and pension related benefits from January 2006 and the prospective implementation was only effectuated for ‘allowances’ and hence the MACP was also to be implemented from January 2006 since it pertained to upgradation of pay. While ordering so, the AFT had followed the decision of the Punjab & Haryana High Court which had earlier ruled upon the implementation of improved pay-scales of defence personnel from 1996 rather than 1997 in an anomaly emanating out of the Fifth Pay Commission.

The decision of the AFT was challenged by the Government in the Supreme Court but the Apex Court has dismissed the appeal filed by the Union of India thereby upholding the grant of MACP from 01 January 2006 rather than 01 September 2009. This will affect the pay and pensionary benefits of those personnel who retired during the said period. 

Overburdening the Supreme Court and blocking access to Justice: My oped for the DNA

My oped published in the DNA:

OVERBURDENING THE SUPREME COURT AND BLOCKING ACCESS TO JUSTICE

High Courts must not be regarded as stepping stones to onward appeals to SC

Navdeep Singh

It was heartening to note the statement of the President of India on occasion of the National Law Day stressing upon affordability and access to justice and expressing concern on judicial delays. Important issues indeed which bother all stakeholders, but unfortunately these aspects are like an unruly horse unwilling to be tamed for a variety of stated and unstated reasons. The leading reason being that the hierarchy of courts is now merely being used as a stepping stone to reach the Supreme Court as a routine rather than looking for quietus or culmination of litigation at much lower levels thereby leaving time and space for the SC for cases of general public importance or major constitutional issues.

In a federal structure, though it may come as a surprise to many, as far as certain powers are concerned, the High Courts and the Supreme Court are equal, with the HC in fact wielding a wider writ jurisdiction under Article 226 than the SC under Article 32. The SC does not even exercise superintendence over High Courts as HCs do over lower Courts. The superiority of jurisdiction of SC over HCs is primarily appellate when orders of the HC are challenged. The high majesty of High Courts however today is under threat since litigants opt to test every small error till the SC with the latter ending up exercising correctional jurisdiction than being granted the legroom to adjudicate major issues requiring its attention. Coupled with this there is the inexplicable system of providing direct appeals from certain tribunals to the SC in contravention of a Seven Judge Constitution Bench decision in L Chandrakumar’s case (1997). All this not only leads to delay, costs and overburdening of the highest Court of the land with innocuous and minor matters, but also results, at times, in seemingly conflicting decisions by different benches leading to lack of judicial certainty and judicial confusion for lower fora resulting in multiple little Supreme Courts within the SC, besides making justice extremely unaffordable and inaccessible for the citizenry, though, ironically, access to justice is a recognized fundamental right.

A Constitution Bench had this to observe in Bihar Legal Support Society vs CJI (1986):

“It may, however, be pointed out that this Court was never intended to be a regular court of appeal against orders made by the High Court or the sessions court or the magistrates....This extraordinary jurisdiction could be availed by the apex court for the purpose of correcting grave miscarriage of justice, but such cases would be exceptional by their very nature...We must realise that in the vast majority of cases the High Courts must become final even if they are wrong...We must, therefore, reconcile ourselves to the idea that like the apex court which may be wrong on occasions, the High Courts may also be wrong and it is not every error of the High Court which the apex court can possibly correct...this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter.”

Indeed, a hierarchy of Courts is also required in every democracy. A multi-layered appellate or judicial review process is much desirable since judicial errors in appreciation or application of law cannot be ruled out. But the question only is whether all routes should ultimately lead to the SC?

Rather than embarking upon the concept of a Court of Appeal between the HC and the SC, as suggested by some, and which may require constitutional amendment, I would like to think that restoring the majesty of the HC back to what the Constitution envisaged, along with certain minor doable adjustments within the existing set-up, could help. The following ideas hence come to mind:

1. Introducing Intra-Court/Letter Patents Appeal from Single Bench decisions to Division Benches within the same HC for multiple and more jurisdictions rather than the very narrow scope as is prevalent.

2. Abrogating direct appeals from tribunals to the SC and instead Division Benches of HC exercising time-bound judicial review over all tribunals as also recommended recently by the Law Commission in its 272^nd Report.

3. Supreme Court sitting in larger benches, if not en bloc, to prevent conflicting decisions and judicial uncertainty and exercising jurisdiction only in rarest of rare cases of grave miscarriage of justice, questions of law of general public importance, issues involving two or more States and matters of Constitutional interpretation and the scope thereof also defined as objectively as possible.

4. Restoring the Constitutional majesty of the HC as practically the highest court and preventing it from being used merely as a stepping stone for onward appeal to the SC.

While it would take some effort to return our Constitutional Courts to their true roles, to implement what the President expressed the greatest responsibility to reduce judicial burden as also needless litigation falls upon instrumentalities of the government which file appeals to the next judicial level without batting an eye at taxpayers’ expense not out of judicial necessity but due to egotism and a faux sense of prestige of certain personalities that is hurt on losing a case. The buck also stops at our community- the lawyers and bar associations, to ensure a well-balanced and well-oiled machinery where dispensation of justice is quick, affordable & accessible and a quietus is reached at the optimum level without prolonging the agony. I need not say more.