- (1.) IT is conceded that similar matter has already been decided by this Court in D.B. Civil Writ Petition No. 553/2012(Union of India & Ors. Vs. Madan Lal Saini & Anr.) vide order dated 29.03.2012 and the case has been remitted to the Central Administrative Tribunal, Jaipur Bench, Jaipur. Following order was passed on 29.03.2012: "Heard finally with the consent of learned counsel for the parties.
(2.) PETITIONERS have questioned legality of the order dated 10.08.2011 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur (hereinafter referred to as 'the Tribunal) directing benefit of MACP Scheme to be extended to the applicant with effect from 01.09.2008 instead of 01.04.2009. The Tribunal has observed that other similarly situated persons have been given benefit of MACP with effect from 01.09.2008, as such, the same benefit has been ordered to be given to the applicant also. Aggrieved thereby, the writ petition has been filed. Mr. Gaurav Jain, learned counsel appearing on behalf of petitioners has submitted that applicant was unable to obtain benefit with effect from 01.09.2008 on the ground that in the ACRs for the years 2005-06 and 2006-07, he could not earn the grades prescribed for that purpose; he has earned grades below the benchmark prescribed. Thus, the action of the petitioner could not be termed to be arbitrary or against the Rules. It has also been submitted that no other similarly situated person has been extended the same benefit. Even otherwise, learned counsel for the petitioners has submitted that there is no concept of equality on the face of illegality; no parity can be claimed in such a matter. Even if, somebody has been given benefit illegally, the concept of equality is not attracted. Concept of equality is the positive one and not negative so as to claim benefit under Article 14 & 16 of the Constitution of India. Mr. Vinod Goyal, learned counsel appearing on behalf of applicant-respondent has submitted that other similarly situated persons have been given the same benefit, as such, benefit has rightly been ordered to be extended to the applicant. We find the order of the Tribunal to be untenable. It is settled proposition of law that concept of equality is not of negative equality. In case benefit has been illegally extended to some persons, direction to treat other persons similarly by perpetuating illegally cannot be issued by the Courts/Tribunal. Even if some orders implemented vis-a-vis to some similarly situated persons, in case action was illegal, petition preferred on that basis claiming parity cannot be accepted. It cannot be used as a ground against the petitioners to tolerate illegal orders and commit illegally time and again. It is also settled proposition of law that equal treatment can be extended to treat similarly situated persons similarly in accordance with law, in such cases obviously the benefit can be extended but the same cannot be extended for perpetuating illegality. We find that only ground employed by the Tribunal of equality without examining entitlement in accordance with law is not sustainable, the impugned order is liable to be set aside. The Tribunal has failed to consider contention raised in Para 1 of the return filed by the petitioners before the Tribunal, same is quoted below: "1. That the contents of para No.1 of the O.A. are not admitted in the manner as stated. The impugned order dated 19.02.2010 against which this OA lies, is in perfect consonance to para 17 to 20 of Annexure-1 of Govt. of India, Ministry of personnel, Public Grievance and Pension, Department of Personnel and Training OM No.35034/3/2008-Estt (D) dated 19.05.2009, the MACP Scheme, 2009. Para 17 of the scheme envisages inter alia that "the financial upgradation under the MACPS the benchmark of 'Good' would be applicable till the grade pay of Rs.6600/- in PB-3. The benchmark will be 'Very Good' for financial upgradation to the grade pay of Rs.7600/- and above." Whereas, Para 20 of the scheme runs as "Financial upgradation under the MACPS, 2009 shall be 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 employees on the ground that the junior employees in the grade has got higher pay/grade pay under the MACPS."
(3.) THE Applicant has earned ACR grade below the prescribed benchmark for the year 2005-06 & 2006-07. As such benefit of MACPS could not be extended to the applicant. Hence, action of Respondents cannot be termed as arbitrary or against the rules in vogue in this regard. THE MACPS, 2009 dated 19.05.2009 is annexed herewith and marked as Annexure-R/1?" From the aforesaid, it is clear that applicant was unable to reach the benchmark which was fixed for the years 2005-06 and 2006-07. This aspect ought to have been adverted by the Tribunal and what is effect of not qualifying the benchmark has to be considered. In view of aforesaid, we direct the Tribunal to consider the aforesaid aspects and take decision afresh in accordance with law by a reasoned order. Impugned order is set aside. ;