Neutral Citation No. - 2025:AHC-LKO:44758 Court No. - 5 Case :- WRIT - A No. - 8564 of 2025 Petitioner :- Rajendra Krishna And Another Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Energy Lko. And 3 Others Counsel for Petitioner :- Mayankar Singh Counsel for Respondent :- C.S.C.,Vibhanshu Srivastava Hon'ble Abdul Moin,J. 1. Heard learned counsel for the petitioners and learned Counsel for the respondents. 2. The instant writ petition has been filing praying for the following main relief: “(I) A writ, order or direction in the nature of certiorari thereby quashing office memos dated 05.07.2025 passed by the opposite party no.4 which are contained as Annexure No.1 & 2 respectively, in the interest of justice. (II) A writ, order or direction in the nature of mandamus commanding the opposite parties not to disturb the grant of second ACP in pursuance to the order dated 05.06.2015 passed by the competent authority, granting the grade pay of 6600, in the interest of justice. (III) A writ, order or direction in the nature of mandamus commanding the opposite parties to implement the office memo dated 01.01.2020 and provide the benefit of 3rd ACP to the petitioners in the shape of grade pay 8700 and the pay authority issued on 05.07.2025 may not be given effect to, in the interest of justice (IV) A writ, order or direction in the nature of mandamus commanding the opposite parties to make the re-fixation of the petitioners' pay w.e.f. 06.08.2019 after fixing the pay in the grade pay 8700 along with arrears thereof by providing the benefit of third ACP, in the interest of justice. (V) A writ, order or direction in the nature of mandamus commanding the opposite parties not to reduce the pay of the petitioners and also not to make any recovery from the petitioners in pursuance to the impugned order dated 05.07.2025, in the interest of justice.” 3. The petitioner no. 1 has already retired from service on 31.03.2022 while petitioner no. 2 is still in service working on the post of Assistant Engineer. Incidentally, despite order impugned indicating that entire action for the purpose of refixation of first, second and third ACP is being done on the basis of Office Memorandum dated 31.08.2017 no challenge has been raised to the order dated 31.08.2017. 4. Bereft of unnecessary details, the facts of the case as set forth by learned counsel for the petitioners is that both the petitioners were appointed as Junior Engineers on 11.01.2001. At that stage of time, the grade pay of Junior Engineer was Rs 4200 to which there is no dispute. Both the petitioners were promoted as Assistant Engineer vide order dated 06.08.2009 and were given grade pay of Rs 5400. Vide order dated 16.12.2011, a copy of which is annexure 5 to the writ petition, the assured career progression (ACP) scheme was introduced. Considering clause 2(1)(kha) of the said scheme, which provided for grant of ACP after 5 years of continuous service, both the petitioners were given next grade pay of Rs 6600 which was accorded to the petitioners vide order dated 05.06.2015, a copy of which is annexure 6 to the writ petition. 5. The respondents issued the MACP order dated 31.08.2017, a copy of which is annexure 7 to the writ petition. Clause 3 of the said scheme provided that on the date of promulgation of ACP scheme i.e. 28.02.2009, holder of the post, whether through direct recruitment or having received of one or more promotions, who is working in a particular pay scale and he has not been made admissible any benefit earlier in the time scale of pay then, under the provisions of the ACP scheme, he would be entitled for the next grade pay after 9, 14 and 19 years of service. The MACP order dated 31.08.2017 was followed by the office order dated 26.09.2017, a copy of which is annexure 8 to the writ petition, whereby the respondents superseded earlier order dated 16.12.2011 by which the petitioners have been provided the benefit of ACP and issued certain clarifications. Subsequent thereto the Government Order dated 04.11.2019 was issued, a copy of which is annexure 20 to the writ petition. The said government order made for certain changes in the ACP benefits and provided that it would be effective with immediate effect. Later the petitioners were granted grade pay of Rs 8700 vide order dated 01.01.2020, a copy of which is annexure 9 to the writ petition. The grade pay of Rs 8700 was granted to the petitioners in terms of the ACP. The respondents vide order dated 10.04.2023, a copy of which is annexure 19 to the writ petition, considering the provisions of Government Order dated 04.11.2019 reduced the grade pay. 6. The petitioners alongwith several others being aggrieved with the order dated 10.04.2023 filed various petitions which were clubbed together the leading being Writ A No. 2920 of 2023 in re: Rajendra Krishna and another vs U.P. Rajya Vidyut Utpadan Nigam Ltd and others and the order dated 10.04.2023 was quashed on the ground of it having been passed in gross violation of principles of natural justice vide judgement and order dated 27.01.2025 as corrected on 05.02.2025, copies of which are cumulatively filed as annexure 22 to the writ petition. 7. 7. A perusal of the order impugned indicates that the respondents have considered that the office order dated 16.12.2011 stands superseded; the MACP order dated 31.08.2017 has been considered; the order dated 26.09.2017 has been considered and it has been indicated that considering the MACP order dated 31.08.2017, as the benefits of the grant of ACP are to be considered as of 28.02.2009 and as on the said date, the petitioners, who were Junior Engineers, were having the grade pay of Rs 4200 consequently the grant of grade pay of Rs 6600 and Rs 8700 with effect from 16.12.2011 and 01.01.2020 is erroneous as the first ACP benefits would be granted to them in the grade pay of Rs 4800 considering that the grade pay of Junior Engineer stood upgraded with effect from 31.12.2015 as Rs 4600 and thus the first, second and third ACP/MACP benefits as admissible to the petitioners would be Rs 4800, Rs 5400 and Rs 6600 and consequently the erroneous fixation granted to them of a higher grade pay has been refixed and have been reduced to lower grade pay. A further perusal of order impugned also indicates that the order dated 16.12.2011 of ACP has been superseded by order dated 31.08.2017 read with 26.09.2017 and consequently the order impugned has been passed. Subsequent thereto, after affording opportunity of hearing to the petitioners, the orders impugned dated 05.07.2025 have been passed whereby the grade pay as earlier granted to the petitioners, has been reduced and they have been granted the grade pay of Rs 4800, Rs 5400 and Rs 6600 in pursuance of first, second and third ACP. 8. Being aggrieved instant writ petition has been filed. 9. While raising a challenge to the order impugned by which the grade pay earlier granted to the petitioners i.e. grade pay of Rs 6600 and Rs 8700 have been reduced to Rs 5400 and Rs 6600 so far as the petitioners are concerned, it is contended that (a) the respondents have followed the principles of Government Order dated 04.11.2019 which itself provides that it only has prospective effect, (b) if at all the Government Order dated 04.11.2019 can be held to be applicable, the same is only a clarification to the initial ACP scheme of the year 2014 and issued for the State Government employees which has got nothing to do with the respondent corporation, (c) the petitioners had correctly been given the grade pay of Rs 6600 and Rs 8700 vide order dated 05.06.2015 and 01.01.2020 on the basis of the ACP scheme dated 16.12.2011 which still continues to hold good as of date and has not been modified by the MACP order dated 31.08.2017 and the petitioners had been granted grade pay of Rs 8700 in pursuance of MACP dated 31.08.2017, (d) the benefits already accorded to the petitioners cannot be taken away by amending the scheme retrospectively rather the same can only be done prospectively and once the petitioners have already been granted grade pay of Rs 6600 and Rs 8700 in the year 2015 and 2020 consequently any such modification cannot be applied retrospectively. 10. On the other hand, Shri Himanshu Srivastava, learned counsel for the respondents no. 2 to 4 does not dispute to the aforesaid facts. However he states that after the promulgation of the ACP scheme dated 16.12.2011 the petitioners had been given grade pay of Rs 6600. Thereafter the MACP came into effect vide order dated 31.08.2017 which categorically provided in clause 3 that on the date of promulgation of ACP scheme i.e. 28.02.2009 holder of the post, whether through direct recruitment or having received of one or more promotions who is working in a particular pay scale and he has not been made admissible any benefit earlier in the time scale of pay then, under the provisions of the ACP scheme, he would be entitled for the next grade pay after 9, 14 and 19 years of service. 11. Considering that the date which was relevant for the purpose of grant of grade pay was 28.02.2009 and as on that day, the petitioners were Junior Engineers having a grade pay of Rs 4200 consequently the ACP benefits as had to be accorded to the petitioners was to be given as Grade Pay of Rs 4800 yet the same had been accorded as Rs 6600 which had been accorded erroneously and thus considering the MACP order dated 31.08.2017 and the crucial cut off date of 28.02.2009 the subsequent ACP benefits are to calculated from the grade pay Rs 4200 which, so far as it pertains to the petitioners would be Rs 5400 as second ACP and 6600 as third ACP as has now been extended to them. 12. 12. Shri Srivastava also argues that no challenge has been raised to the MACP order dated 31.08.2017 and consequently till such time clause 3 continues to subsist, which contains the date of 28.02.2009 for the purpose of calculation of grade pay and grant of grade pay in terms of ACP, as such no relief can be granted to the petitioners. 13. It is also contended that keeping in view the law laid down by Hon'ble Supreme Court in the case of Union of India vs M. V. Mohanan Nair (2020) 5 SCC 421 as followed recently by Hon'ble Supreme Court in the case of Union of India vs N. M. Rout and others 2024 SCC OnLine SC 3873 it is the next grade pay which would be applicable to the employees and not the next promotional pay scale. 14. Heard learned counsel for the parties and perused the record. 15. From the arguments as raised by learned counsels for the parties and perusal of record it emerges that that both the petitioners were appointed as Junior Engineer on 11.01.2001. Admittedly at that stretch of time the grade pay of Junior Engineer was Rs 4200. The grade pay of the petitioners was upgraded with effect from 31.12.2015 as Rs 4600 to which there is no dispute. The ACP Circular dated 16.12.2011 was introduced. Both the petitioners were given the next grade pay of Rs 6600 vide order dated 05.06.2015. Thereafter the petitioners were give grade pay of Rs 8700 with effect from 01.01.2020. 16. An order of MACP dated 31.01.2017 was issued providing certain conditions. The Circular dated 16.12.2011 was superseded vide order dated 26.09.2017 read with the Circular dated 26.09.2017 per which the critical date of consideration for ACP was provided as 28.02.2009. The respondents initially reduced and refixed the pay of the petitioners and various others vide order dated 10.04.2023 which was quashed in the earlier round of litigation on the ground of violation of natural justice and the respondents were directed to pass fresh orders in accordance with law. In pursuance thereof, the respondents have passed the order impugned dated 05.07.2025 whereby the benefit of ACP / MACP as had been accorded to the petitioners has been reduced and they have been refixed in a lower grade pay with the further direction of making recovery. 17. Admittedly the Circular of ACP dated 14.12.2011 stood superseded by the Circular dated 31.08.2017 read with Circular dated 26.09.2017. Incidentally no challenge has been raised to the orders dated 31.08.2017 and 26.09.2017. A perusal of order dated 31.08.2017 would indicate that the respondents have made effective the date for consideration of ACP as 28.02.2009 i.e. the pay as on 28.02.2009 is to be considered for grant of ACP and MACP benefits. 18. Admittedly as on 28.02.2009 the grade pay of the petitioners as Junior Engineer was Rs 4200 which was upgraded to Rs 4600 with effect from 31.12.2015. Consequently the first ACP benefits from the grade pay of Rs 4200 was admissible at Rs 4800 considering the Circulars dated 31.08.2017 and 26.09.2017 they had been given the grade pay of Rs 6600 and thereafter had been given the grade pay of Rs 8700 with effect from 01.01.2020. This was sought to be rectified by grant of grade pay of Rs 4800, Rs 5400 and Rs 6600 by grant of first, second and third ACP / MACP as has been done vide order dated 05.07.2025 and the recovery of excess amount has also been directed to be made. 19. At the risk of repetition, admittedly, no challenge has been raised to the orders dated 31.08.2017 and 26.09.2017 which have modified the earlier ACP order dated 16.12.2011 meaning thereby that the petitioners have accepted the said amendment / acquiesced to the said amendments / changes. Accordingly, till such time Circulars dated 31.01.2017 and 26.09.2017 continue to subsist, it cannot be said that the respondents have erred in any manner in reducing the grade pay as had been earlier granted to the petitioners in terms of now superseded Circular dated 16.12.2011 and to have directed for recovery of excess amount drawn up by the petitioners. 20. Considering the aforesaid, the writ petition is dismissed. 21. However, as the petitioner no. 1 has already retired from service as such keeping in view the law laid down by Hon'ble Supreme Court in the case of State of Punjab vs Rafiq Masih, 2015 (4) SCC 334, the respondents are restrained from making any recovery so far as it pertains to the petitioner no. 1. Order Date :- 1.8.2025 J. K. Dinkar Digitally signed by :- JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench