Meghalaya High Court
Date Of Decision: 29.08.2025 vs State Of Meghalaya Represented By on 29 August, 2025
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
2025:MLHC:773
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 147 of 2023
Date of Decision: 29.08.2025
Smti. Anamika Dutta,
D/o (Late) Gitendu Narayan Dutta,
R/o Quarters No. G-73, Raj Bhavan, Shillong-793001,
East Khasi Hills District, Meghalaya .... Petitioner(s)
- Versus -
1. State of Meghalaya represented by
The Chief Secretary, Government of Meghalaya,
Shillong, Meghalaya.
2. Commissioner & Secretary to the Governor of Meghalaya,
Raj Bhavan, Shillong, Meghalaya
3. Deputy Secretary to the Governor of Meghalaya,
Raj Bhavan, Shillong, Meghalaya
4. Secretary to the Government of Meghalaya,
Personnel & AR Department.
5. Deputy Secretary to the Government of Meghalaya,
Personnel & AR(B) Department
Shillong, Meghalaya
6. Managing Director,
Meghalaya Tourism Development Corporation Ltd.,
Shillong, Meghalaya ... Respondent(s)
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_____________________________________________________________
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner(s) : Mr. H. Buragohain, Adv. with
Ms. S. Langstieh, Adv.
For the Respondent(s) : Mr. A.M. Tripathi, GA with
Ms. R. Colney, GA (For R 1-5)
Mr. S. Sen, Adv. with
Mr. M.U. Ahmed, Adv. (For R 6).
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER
1. The brief facts are that the petitioner had initially joined the
office of the respondent No. 6, as a Contractual Management Trainee from
1991 to 1993, on a monthly stipend, and on 01.05.1993, was appointed as
Supervisor with a basic pay of Rs. 1750/-. After serving in that capacity for
nearly 17(seventeen) years, she was then appointed as an Assistant Manager
in 2010, though at a lower pay scale than of her previous post. To compensate
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the same, the respondent No. 6 granted her a notional increment under FR
23(1). Thereafter, in 2011, the petitioner was deputed to the Governor's
Secretariat (Raj Bhavan), as Comptroller of Household, and was
permanently absorbed into the Governor's Secretariat in the year 2014.
2. The petitioner by the instant writ application claims that though
she is entitled to financial upgradation under the Assured Career Progression
(ACP) Scheme, for her 21(twenty-one) years of service in the MTDC (1993-
2011), and under the Modified Assured Career Progression (MACP)
Scheme, following absorption in 2014 in the State Government, the same
has been rejected by the respondents, which has prompted her to file this writ
petition.
3. Mr. H. Buragohain, learned counsel for the petitioner in his
written arguments has put forward the following points for determination,
which are as follows:
(i) Whether the MTDC Authorities could deny the claim of
the petitioner under the ACP Scheme, i.e. the 1st ACP
benefit upon completion of 12(twelve) years of service
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i.e. (1993-2005), when the said scheme had been adopted
by the MTDC on 05.07.2011.
(ii) Whether the one increment of Rs. 460/- received as
financial upgradation on her appointment to the post of
Assistant Manager can be construed to be under the ACP
Scheme.
(iii) Whether the petitioner would be eligible to benefits
under the ACP Scheme adopted by the State of
Meghalaya vide its O.M. dated 22.02.2010, and
thereafter, by the MTDC vide notification dated
05.07.2011.
(iv) Whether the petitioner is eligible to benefits under the
MACP Scheme brought into effect by O.M. dated
19.12.2017, by the State of Meghalaya.
4. The learned counsel on the first point has submitted that the
respondents have clearly ignored the fact that the writ petitioner has a
continuing cause of action from the date of the adoption of the ACP Scheme
by the State of Meghalaya, and thereafter, by the MTDC. It is submitted that
due to the inaction of the MTDC, the petitioner was denied her 1 st ACP
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benefit, which she had become entitled to in the year 2005, after completion
of 12(twelve) years of service in a regular post. In support of his arguments,
the learned counsel has cited the following decisions.
(i) Union of India vs. Ramakrishnan, (2005) 8 SCC 394
(ii) State of Punjab vs. Jagjit Singh, (2017) 1 SCC 148
(iii) Union of India vs. Balbir Singh Turn, AIR 2018 SC 206
(iv) Union of India & Ors. vs. M.V. Mohanan Nair, AIR
2020 SC 5107
(v) Chairman Railway Board & Ors. vs. C.R.
Rangadhamiah, AIR 1997 SC 3828
5. On the second point of determination, the learned counsel
submits that though the MTDC Authorities admit that Rs.460/- was a
notional increment, and that the next increment of the petitioner was due on
01.09.2011, the stand taken that such notional increment is a financial
upgradation to reject the claim of the petitioner of the benefits under the ACP
Scheme, is unsustainable. It is further submitted that the denial of the
benefits is misplaced, inasmuch as, the same is opposed to the terms of the
ACP Scheme. In support of this contention that notional increment given to
create a parity or absorption cannot be treated as financial upgradation under
promotional schemes, and to show the difference between pay protection and
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actual progression under ACP/MACP Schemes, the learned counsel has
placed the following two decisions:
(i) K.K. Agarwal vs. State of Haryana, (2013) 15 SCC 523
(ii) Balbir Singh vs. Union of India, (2015) 4 SCC 204
6. On the third point, it is submitted that it is an admitted fact that
the writ petitioner entered her service as Supervisor in the year 1993, and
continued to render her service till 07.08.2011, as Assistant Manager in the
MTDC, whereafter she was deputed to the Governor's Secretariat, and is
continuing till date. It is contended that the petitioner till date, has not been
offered any promotion to any post, and that there has been stagnation in her
service career, without any financial upgradation, which is about to cross
30(thirty) years. The stand taken by the State respondents, he submits, that
the ACP Scheme is not applicable to the case of the petitioner, as she is hit
by Clause 5 of the said scheme, and therefore, not entitled to receive any
benefits, runs contrary to the stand taken by the MTDC that the petitioner
being covered by the scheme, her case had already been considered in the
year 2011, when on being appointed to the post of Assistant Manager
received a notional increment of Rs. 460/- as financial upgradation. The
learned counsel contends that apart from the respective stands of the
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respondents, a plain reading of both the schemes i.e. ACP and MACP
Schemes, clearly show that since the date of joining in 1993, the petitioner
has not received any promotion or financial upgradation, in spite of the two
schemes squarely covering the case of the petitioner, the eligibility of which
has to be considered as per the provision, and from the date of her joining to
a regular post on a regular basis.
7. On the fourth point, the learned counsel reiterates the fact that
the writ petitioner had entered into service as Supervisor in the year 1993 in
MTDC, and continued till 07.08.2011 as Assistant Manager, whereafter, she
was deputed to the Governor's Secretariat, and therefore, should have been
considered by the Screening Committee to be eligible for the benefits of both
the schemes, as the date of the implementation of both the schemes cover the
case of the petitioner. It is also submitted that the ACP scheme was adopted
by the State of Meghalaya on 22.02.2010, and the MTDC adopted the same
on 05.07.2011, which was made enforceable from 07.07.2011, and
thereafter, the MACP scheme was adopted by the State of Meghalaya on
19.12.2017, replacing the earlier ACP scheme, and that the petitioner
although in service, was never extended any benefits under the ACP and
MACP schemes. The entitlements/benefits of the petitioner it is asserted,
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under the schemes continued to subsist as the authorities under the terms of
the ACP scheme, were required to examine the cases of all the eligible
candidates from time to time by constituting Screening Committees. The
learned counsel has also contended that though the MTDC have put forward
the case that the petitioner having approached this Court, after a lapse of over
11(eleven) years, no subsisting right or cause of action exists, the same
cannot be sustained, in view of the facts and circumstances of the case,
wherein, it is evident that her grievances are continuing since adoption of the
said schemes. As such, he submits, it cannot be said or held that there has
been any delay and laches on the part of the petitioner in approaching this
Court. In this context, the learned counsel has cited the decisions of; (i)
Union of India vs. Tarsem Singh, (2008) 8 SCC 648 and (ii) Karnataka
Power Corporation Ltd. vs. K. Thangappan, (2006) 4 SCC 322.
8. The learned counsel has then submitted that it is not in dispute
that during the period taken together from 1993 till the date of filing the
instant writ petition in the year 2023, the petitioner was ever extended with
any benefits under the ACP and MACP, and though she had filed
representations from 2021 onwards, the same were rejected. As such, he
submits the claim of the petitioner is continuing to subsist due to the inaction
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of the respondent authorities in addressing the grievances of the petitioner.
The learned counsel has again cited the case of Union of India & Ors. vs.
Tarsem Singh (supra) and has submitted that this decision covers the case
of the petitioner and that the claim made in the writ petition is still alive and
subsisting and the same cannot be construed to be a dead claim. On the point
that has been raised by the respondents that the writ petition is hit by the non-
joinder of a necessary party i.e. the MTDC, the learned counsel submits that
the Managing Director of the MTDC, who has been arrayed as the
respondent No. 6, is an authorized representative of the Corporation and has
also filed the affidavit-in-opposition on a representative capacity before this
Court. He contends that the respondents therefore, cannot raise this ground
and submits that the Supreme Court in various judgments, allows the High
Court to exercise its extra-ordinary powers without being constrained by
procedural formalities. The learned counsel, has also asserted that it has been
a consistent judicial approach that where the CPC is not strictly applicable,
its principles are implied by selective application and in support of this
argument, has placed reliance on the judgment of Poonam vs. State of U.P.
(2016) 2 SCC 779. He has then concluded his submissions, by praying that
the reliefs as prayed be allowed, as the respondents have wrongfully
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deprived the benefits due to the writ petitioner without any justifiable cause
or reason.
9. In reply Mr. A.M. Tripathi, learned GA with Ms. R. Colney,
learned GA for the respondents Nos. 1 to 5 submits that the petitioner was
on the rolls of the MTDC as its employee with lien on her post in MTDC till
25.11.2014 and that on her appointment to the post of Assistant Manager in
MTDC, her pay as Supervisor, which was higher than that of Assistant
Manager was protected under Rule 2 of the FR & SR, and that she was given
an increment of Rs. 460/- as a one-time measure by the MTDC. Most
importantly, it is submitted that the petitioner became a government
employee only on 25.11.2014, and therefore, will be entitled to all benefits
as available to her in law with effect from 25.11.2014. Her past service
however, he submits is being counted for the purposes of her pension as per
the Office Memorandum of the Government of India dated 29.08.1984, and
adopted by the Government of Meghalaya vide O.M. dated 25.01.1990.
10. The learned counsel then submits that the ACP benefit, is
available only as per the Scheme dated 22.02.2010, and in this context, to
urge this point, has referred to the relevant clauses of the ACP Scheme
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namely clauses 2(3), clause 3 and clause 5, which are reproduced
hereinbelow: -
"Clause 2(3)- Casual workers (including those with
temporary status or those conferred with regular casual
worker status and employees appointed under ad-hoc basis.
Regulation 3(f) and contract service shall not be eligible for
the benefits under the scheme. [Pg. 65]
Annexure-Conditions for grant of Financial
Upgradations under the ACPS:
Clause 3 - Counting of Regular service for the purpose
of the ACP scheme shall commence from the date of joining
of a post in direct entry grade on a regular basis either on
direct recruitment basis or on absorption/re-employment
basis. ... ... however, past continuous service in another
department of the government of Meghalaya in a post
carrying identical scale of pay prior to regular appointment
through proper channel in a new Department, without break,
shall also be counted towards qualifying regular service for
the purpose of the Scheme only (and not for regular
promotions).
.....
5. Past services rendered by an employee in another State
Government. Statutory body/Autonomous body/Public Sector
organization before appointment in any Department of the
Government of Meghalaya shall not be counted towards
regular service.”
11. As per the Scheme, the learned counsel submits that the ACP
benefits are available to an employee only after absorption in services on a
regular basis which is 26.11.2014 in the present case, and that the Scheme
does not permit the counting of past services in a PSU for calculation of
qualifying service under the ACP Scheme. It is submitted that an employee
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of a PSU even in cases where the PSU is owned 100% by the Government,
is not an employee of the Government as the Government has no control
over the sanction of his post, eligibility of his post, or any stage of
recruitment of his post. In support of this argument, the learned counsel has
placed the following authorities: –
i) A.K. Bindal vs. Union of India (2003) 5 SCC 163
ii) State of Bihar & Ors. vs. Baban Sharma (order dated 22.03.2023
in LPA No. 160 of 2018, Patna High Court)
iii) O.M. No. 35034/3/2008/Estt.(D) dated 19.05.2009 issued by
DoPT Government of India notifying MACP Scheme, clause 10-
‘Past Service’, Annexure-1.
12. The learned counsel then submits that it is an admitted fact that
the petitioner was not an employee of the State Government before
26.11.2014 and therefore, cannot claim any ACP/MACP benefit from the
State Government. This fact is clear he submits, from the representations
addressed to the MTDC dated 29.06.2022, 22.11.2022 and 07.12.2022,
where ACP benefits was sought from the MTDC and not from the State
Government, which shows that the petitioner admitted and understood her
legal position, and it was only on the rejection of her claim by the MTDC,
that she filed a representation dated 06.02.2023, requesting for ACP from
the State respondents for the first time. The MTDC rejection letter dated
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19.12.2022, the learned counsel submits, is solely based on the fact that as
the petitioner having been granted an increment of Rs. 460/- on 01.11.2010,
hence ACP could not be granted to her and it is not that the MTDC took the
stand that the petitioner had no claim over ACP benefits, as she had been
absorbed by the State Government.
13. The learned counsel has then contended that the writ petition is
hit by delay and laches, as she has approached this Court only in the year
2023, when admittedly the cause of action or the claim of ACP had arisen in
the year 2003 and 2013 itself. The petitioner therefore, he submits is entitled
for counting of her past services in MTDC only for the purposes of pension,
and her past services in MTDC, have been specifically excluded for being
counted for grant of any ACP/MACP benefits by a Policy decision of the
State Government which is universally applicable to all its employees. The
petitioner’s claim for ACP/MACP prior to 26.11.2014 he contends, lies with
the MTDC and her eligibility is to be decided by that organization as per the
Scheme. He lastly submits that there is no legal right in favour of the
petitioner to institute the present writ petition to seek the reliefs prayed for
against the State respondents Nos. 1 to 5, which are without any basis in law
and in fact.
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14. On behalf of the respondent No. 6, Mr. S. Sen, learned counsel
has submitted that the petitioner had consciously abandoned the post of
Supervisor and applied for the post of Assistant Manager, and on her being
selected and appointed in order to ensure her last drawn pay in the post of
Supervisor which was not higher than the new post, she was given an
increment in order to rationalize the pay scale. Any stagnation of pay scale
he submits, occurred while she was in the post of Supervisor much before
the implementation of the ACP Scheme and that there is no denial that the
stagnation if any, ceased after she left the post of Supervisor, inasmuch as,
on her appointment as Assistant Manager, she entered into a new cadre and
was provided a new job profile and higher pay scale.
15. The learned counsel submits that the ACP Scheme has been
introduced to deal only with existing cases of stagnation and the Scheme was
implemented by the MTDC with effect from 07.07.2011 prospectively,
whereas the petitioner’s alleged stagnation occurred in the post of Supervisor
with effect from 1993 till 2010, whereafter, she applied for the post of
Assistant Manager, thereby ending the stagnation on her own volition. The
petitioner he submits, cannot claim benefit of the Scheme to apply post
stagnation, and if her claim for benefit under the ACP Scheme is permitted
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for past stagnation in a post she willfully quit, it will open a flood gate of
such claims. The MTDC he submits, never intended for the Scheme to apply
to any case of past stagnation.
16. The learned counsel has then submitted that notwithstanding the
petitioner’s eligibility or entitlement to the benefit as per the Scheme, she
would have become eligible after the first milestone of 12 years’ service in
2005, considering her joining year of 1993, but however, the ACP Scheme
was implemented by the MTDC only with effect from 07.07.2011, and has
since been superseded by the MACP Scheme. The petitioner he contends
cannot now claim benefit for the service period of 1993 to 2005 in 2023
under a replaced/superseded Scheme, that too as such a belated stage,
coupled with the fact that there is no vested right in the ACP Scheme. The
learned counsel has placed reliance in the judgment of the Union of India
vs. S. Ranjit Samuel, 2022 SCC OnLine SC 368. It is further submitted that
there has been an inordinate delay in seeking redressal on the part of the writ
petitioner considering that the claim is for the service period of 1993-2010,
and the ACP Scheme implemented with effect from 07.07.2011, and her first
representation was made only on 29.06.2022. The learned counsel has
reiterated the aspect of delay, and submits that delay and laches has rendered
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the claim of the writ petitioner stale; and in this context, has relied upon the
judgment in the case of CEO vs. S. Lalitha 2025 SCC OnLine SC 916 and
judgment dated 06.03.2024 passed in WP (C) 246 of 2022 (Amanda
Basaiawmoit vs. State of Meghalaya).
17. On another point in issue, it has been submitted that there has
been non-joinder of necessary parties and MTDC being a corporation has to
sue and be sued in its own name. It is further submitted that no relief has
been sought against the MTDC, though representation of the writ petitioner
was rejected by a letter dated 19.10.2022, which has not been specifically
challenged and the petitioner had all through addressed representations for
ACP/MACP to the State under the impression that upon being absorbed by
the Raj Bhavan, she is that State Government employee and her total services
shall be reckoned from the date of joining MTDC in 1993. The prayers he
contends are inconsistent and all reliefs are sought from the Deputy
Secretary, Governor of Meghalaya and no relief sought from the MTDC. The
learned counsel on this point has also placed reliance on the following
judgments: –
i) Chief Conservator of Forests vs. Collector (2003) 3 SCC 472
ii) Praveen Bethapudi vs. Savithramma 2010 SCC OnLine Kar 2294
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iii) Bharat Amratlal Kothari vs. Dosukhan Samadkhan Sindhi
(2010) 1 SCC 234
18. The learned counsel has also reiterated the submissions made
by the counsel for the State respondents that the Corporation is not a
Department of the Government and submits that regular service only
includes service in another Department of the Government of Meghalaya and
that the Corporation is a distinct entity and its affairs are managed and
controlled by a Board of Directors and not by the State Government. He
therefore submits, the petitioner is not entitled to the reliefs claimed and that
the writ petition is hopelessly barred by delay and laches.
19. Heard learned counsel for the parties. The issue in question
simply put, is whether the writ petitioner in the course of her service firstly
in the MTDC, and later under the State Government would be eligible to
avail of the benefit of ACP and MACP, taking into account the course of her
career, and also the other attendant facts and circumstances, such as the
question of delay and laches and non-joinder of necessary parties.
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20. As per the materials on record, the petitioner was appointed in a
regular post of Supervisor in the MTDC, a Public Sector Undertaking on
01.05.1993, and thereafter, after serving for nearly 17(seventeen) years was
selected and appointed to the post of Assistant Manager by order dated
15.11.2010. As per the ACP Scheme, which was formulated to address
career stagnation for employees in isolated posts with no promotional
avenues, the same provided for two financial upgradations the first being
after 12(twelve) years of service and the second after 24(twenty-four) years
of service. The ACP Scheme was implemented in the State of Meghalaya on
22.02.2010 and was adopted by the MTDC on 05.07.2011, and as such, if
the Scheme was applied retrospectively the petitioner would have completed
the first milestone on 30.04.2005 and would have been entitled to the benefit
of financial upgradation. However, due to her appointment to the post
Assistant Manager on 15.11.2010, her stagnation in the post of Supervisor
ceased before the ACP Scheme was implemented, which would not have
been the case had she continued to stagnate in the post of Supervisor, as she
then would have become eligible for a second financial upgradation under
the ACPS in 2017.
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21. The Modified Assured Career Progression Scheme (MACPS)
was implemented in the State of Meghalaya on 01.01.2017 and replaced the
ACPS, by providing for quicker career progression benefits and was
designed to further reduce the waiting period by provisioning for 3(three)
financial upgradations, instead of the earlier 2(two), at an interval of 10
years. The petitioner at the time of the implementation of the MACPS, had
rendered 6(six) years of service under the State respondents having joined
the Governor’s Secretariat initially on deputation on 08.08.2011 and
thereafter, was permanently absorbed on 26.11.2014. It is also relevant to
note that since her joining into permanent service under the State
respondents, the petitioner has already received a financial upgradation in
the pay scale from Level-15 to Pay Level-16 on 04.08.2021. As such, the
petitioner for her services under the State Government will also not be
eligible for any benefit under the MACPS.
22. It would also be apt to refer to the arguments that have been
advanced with regard to whether the one increment of Rs. 460/- received as
financial upgradation on her appointment to the post of Assistant Manager
can be construed to be under the ACP Scheme. This to the mind of this Court,
has little relevance in the discourse and cannot be construed to be a benefit
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under the ACP Scheme, inasmuch as, the same was in the nature of pay
protection and not a financial upgradation, on her being appointed to the post
of Assistant Manager in the MTDC.
23. Coming to the contention of the petitioner that for her past
service in the MTDC, an autonomous corporate body, the State respondents
were liable to allow her the benefit of the ACPS, the same as placed by the
counsel for the State would not be available, in view of clause-5 of the ACP
Scheme which does not allow the counting of past service rendered by an
employee in another State Government, Statutory Body/Autonomous
Body/Public Sector Organization before appointment in any Department of
the Government of Meghalaya. In the opinion of this Court, the watershed
moment in the service of the petitioner was the transition from the MTDC to
the State Government and are two distinct chapters in her service, that cannot
be reconciled for the purposes of counting of her past service to vest in her
any right to claim a cumulative benefit from the two Schemes i.e. ACP and
MACP. This aspect is also fortified by the fact that the petitioner had
addressed her representations, filed in the year 2022, seeking the benefit of
the ACP only from the MTDC, and on the rejection thereof, had then prayed
for benefits under the ACP from the State respondents by a representation
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dated 06.02.2023 for the first time. The petitioner therefore, having left the
service under the MTDC before the implementation of the ACPS, cannot
now seek to maintain her claim for consideration for grant of retrospective
benefit under the said Scheme which has since been replaced by the MACPS.
Further, having entered regular service under the State Government in 2014
and having been given a financial upgradation in 2021, the petitioner is also
not eligible or entitled to any further relief as claimed.
24. It may be further noted herein also that ACP or MACP Schemes
have been introduced to address only existing cases of stagnation and as
observed earlier, had been implemented by the MTDC with effect from
07.07.2011 prospectively, whereas the petitioner’s stagnation had occurred
in the post of Supervisor with effect from 1993 to 2010, and on her
appointment as Assistant Manager in 15.11.2010, i.e. before the
implementation of the Scheme, the petitioner was no longer stagnant in the
post of Supervisor. On the aspect of claim and retrospective application of
Career Progression Schemes, the Supreme Court in the case of Union of
India vs. S. Ranjit Samuel & Ors. reported in 2022 SCC OnLine 368 at Para
12 has held as follows:-
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“12. The issue is no more res integra. Recently this Court, in the case
of Vice Chairman Delhi Development Authority (supra), decided on
8th March, 2022, has considered a similar challenge with regard to
the employees of the Delhi Development Authority. In the said case
also, the employees had contended that they had completed 24 years
of service in January, 2009 and as such, they were entitled to get the
second benefit/financial upgradation under the ACP Scheme. This
court, relying on its earlier judgments in the cases Union of India vs.
M.V. Mohanan Nair and Union of India vs. R.K. Sharma observed
thus:
“35. In the present context, none of the employees actually
earned a second financial up-gradation. They undoubtedly
became eligible for consideration. However, the eligibility ipso
facto could not, having regard to the terms of the ACP scheme
translate into an entitlement. The eligibility was, to put it
differently, an expectation. To be entitled to the benefits, the
public employer (here DDA) had to necessarily review and
consider the employees’ records, to examine whether they
fulfilled the eligibility conditions and, based on such review
individual orders had to be made by DDA. In other words,
second ACP upgradation was not automatic but dependant on
external factors. Furthermore, as held by this Court in M.V.
Mohanan Nair (supra), MACP benefits are only an incentive
meant to relieve stagnation-framed under the executive policy.
Its continued existence cannot be termed as an enforceable
right.
36. Such expectation is akin to a candidate being declared
successful in a recruitment process and whose name is
published in the select list. That, such candidate has no vested
right to insist that the public employer must issue an
employment letter, has been held by a Constitution Bench
Judgment of this Court in Shankarsan Dash v. Union of
India [(1991) 3 SCC 47]. Therefore, it is held that employees’
contention that they acquire a vested right in securing the
second ACP benefit is insubstantial.
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37. The employees in this case approached the High Court,
complaining that their vested right, which was the assumed
entitlement to be given by second ACP, was taken away by the
MACP, introduced with effect from 01-09-2008, by an order
dated 19-05-2009. No doubt, the MACP scheme is an executive
order. Usually, such orders are expressed to be prospective.
However, the executive has the option of giving effect to such
an order, from an anterior date; especially if it confers some
advantages or benefits to a sizeable section of its employees, as
in this case. The nature of benefits- as emphasized by this court
earlier, were by way of incentives. They are not embodied
under rules. In such circumstances, a set of employees, who
might have benefitted from the then prevailing regime or
policy, cannot in the absence of strong and unequivocal
indications in the later policy (which might be given effect to
from an anterior date, like in this case), insist that they have a
right to be given the benefits under the superseded policy. It is
noteworthy that a larger section of employees would benefit
from the MACP benefits, because they are to be given after 10-
,20, 20-and 30-years’ service (as compared with two benefits,
falling due after 12 and 24 years of service) and further that
such benefits under MACP scheme are subjected to less
rigorous eligibility requirements, than under the ACP
scheme.”
[emphasis supplied]
25. What can be gleaned from the above quoted judgment is that
employees cannot claim a vested right to benefits under an old ACP Scheme
once it was replaced by the MACP Scheme even if the new Scheme was
applied retrospectively, and that eligibility did not guarantee entitlement as
the Scheme was merely an incentive based policy, rather than a statutory
right. The judgment cited by the counsel for the petitioner on retrospective
entitlement i.e. the case of Union of India & Ors. vs. Balbir Singh Turn &
Page 23 of 27
2025:MLHC:773
Ors. (supra) will have no application and is on a different footing, as in the
instant case, the grant of ACP/MACP is not part of the pay structure in the
service of the writ petitioner.
26. Much has also been made as to whether the alleged deprivation
of the benefit of the ACP Scheme to the petitioner would constitute a
continuing wrong and as such would not be hit by delay and laches and in
this regard, both sides have tendered their arguments. This Court has perused
the judgments cited by the writ petitioner especially the case of Union of
India & Ors. vs. Tarsem Singh (supra) wherein it has been held that where
a service related claim is based on a continuing wrong, relief can be granted
even if there is a long delay in seeking remedy with a rider that the reopening
of the case should not affect the settled rights of said parties and for example
should only relate to payment or fixation of pay or pension. In the considered
view of this Court, in the instant case the ACP/MACP Schemes not being
linked to any pay structure being only an incentive, and the entitlement to
pension of the petitioner having been reckoned cumulatively taking into
account her past services in MTDC also, as allowed by this Court by order
dated 13.04.2022 in WP(C) No. 101 of 2019, the writ petition seeking benefit
under the ACP Scheme is also hit by delay and laches, as no injury persists.
Page 24 of 27
2025:MLHC:773
27. The issue that has been raised by the respondent No. 6, as to
non-joinder of necessary parties is also another vital point that deserves some
attention, inasmuch as, the MTDC is a corporation having its independent
corporate identity and has to sue or be sued in its own name. Though the
petitioner had addressed her representations to the MTDC in 2022 from
whom relief was sought, she however has not arrayed the Corporation as a
necessary party in the proceedings, which surely cannot be said to be a mere
procedural lapse or a technicality that can be overlooked. In this context, it
would be useful to refer to the judgment in the case of Chief Conservator of
Forests vs. Collector (supra) cited by the counsel for the respondent No. 6,
where at paragraphs 12 &13, it has been held at follows:-
“12. It needs to be noted here that a legal entity – a natural
person or an artificial person – can sue or be sued in his/its
own name in a court of law or a Tribunal. It is not merely a
procedural formality but is essentially a matter of substance
and considerable significance. That is why there are special
provisions in the Constitution and the Code of Civil
Procedure as to how the Central Government or the
Government of a State may sue or be sued. So also there are
special provisions in regard to other juristic persons specifying
as to how they can sue or be sued. In giving description of a
party it will be useful to remember the distinction between
misdescription or misnomer of a party and misjoinder or non-
joinder of a party suing or being sued. In the case of
misdescription of a party, the court may at any stage of the
suit/proceedings permit correction of the cause-title so that the
party before the court is correctly described; however a
misdescription of a party will not be fatal to the maintainabilityPage 25 of 27
2025:MLHC:773of the suit/proceedings. Though Rule 9 of Order I CPC
mandates that no suit shall be defeated by reason of the
misjoinder or non-joinder of parties, it is important to notice
that the proviso thereto clarifies that nothing in that Rule shall
apply to non-joinder of a necessary party. Therefore, care must
be taken to ensure that the necessary party is before the court,
be it a plaintiff or a defendant, otherwise, the suit or the
proceedings will have to fail. Rule 10 of Order I CPC provides
remedy when a suit is filed in the name of the wrong plaintiff
and empowers the court to strike out any party improperly
joined or to implead a necessary party at any stage of the
proceedings.
13. The question that needs to be addressed is, whether the
Chief Conservator of Forest as the appellant-petitioner in the
writ petition/appeal is a mere misdescription for the State of
Andhra Pradesh or whether it is a case of non-joinder of the
State of Andhra Pradesh – a necessary party. In a lis dealing
with the property of a State, there can be no dispute that the
State is the necessary party and should be impleaded as
provided in Article 300 of the Constitution and Section 79 of
CPC viz. in the name of the State/Union of India, as the case
may be, lest the suit will be bad for non-joinder of the
necessary party. Every post in the hierarchy of the posts in the
Government set-up, from the lowest to the highest, is not
recognised as a juristic person nor can the State be treated as
represented when a suit/proceeding is in the name of such
offices/posts or the officers holding such posts, therefore, in
the absence of the State in the array of parties, the cause will
be defeated for non-joinder of a necessary party to the lis, in
any court or Tribunal. We make it clear that this principle does
not apply to a case where an official of the Government acts as
a statutory authority and sues or pursues further proceeding
in its name because in that event, it will not be a suit or
proceeding for or on behalf of a State/Union of India but by
the statutory authority as such.”
Page 26 of 27
2025:MLHC:773
28. The other judgments which have been cited by the petitioner
namely; case of Udit Narain Singh Malpaharia vs. Additional Member
Board of Revenue, AIR 1963 SC 786 and Poonam vs. State of U.P. (2016)
2 SCC 779 being of no assistance to the case of the petitioner are not
elaborated or discussed.
29. As such, in the totality of the circumstances, the case of the
petitioner fails on all fronts firstly, on the question of entitlement, the delay
in seeking legal remedy and also for non-joinder of necessary parties, and
accordingly writ petition is dismissed, however with no order as to costs.
JUDGE
Meghalaya
29.08.2025
“V. Lyndem-PS”
Signature Not Verified Page 27 of 27
Digitally signed by
VALENTINO LYNDEM
Date: 2025.08.29 16:04:00 IST
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