Kerala High Court
Balachandran Nair Ck vs Union Of India
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY,THE 6TH DAY OF OCTOBER 2017/14TH ASWINA, 1939
WP(C).No. 14596 of 2016 (Y)
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PETITIONER(S):
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1. BALACHANDRAN NAIR CK
HAV/CIPH NO. EX JC351185N)
S/O. LATE KRISHNAN,
AGED 60 YEARS,
SUBEDAR/CIPH (RETIRED)
ASSAM RIFLES,
MEGHALAYA, RESIDING AT
CHITHRALAYAM,
BHAGAVATHIKUM WEST,
KEERUKUZHI P.O,
PATHANAMTHITTA DISTRICT-689502.
2. ABRAHAM K.P
HAV/CIPH NO. EX JC351140N)
S/O. LATE K. P. THOMAS,
AGED 61 YEARS, SUBEDAR/CIPH (RETIRED)
ASSAM RIFLES, MEGHALAYA,
RESIDING ATG PURATHOOTU HOUSE,
MUKKUZHY, KOTTANAD P.O.,
PATHANAMTHITTA DISTRICT, KERALA-689615.
3. DIVAKARAN K.
HAV/CIPH NO. EX 351154N)
S/O. LATE KRISHNAN NAIR,
AGED 60 YEARS,
SUBEDAR/CIPH (RETIRED)
ASSAM RIFLES, MEGHALAYA,
RESIDING AT RADHALAYAM,
NEDUVANNOOR,
AVANEESWARAM RSPO,
KOLLAM, KERALA-691508.
4. G. MADHAVANKUTTY,
HAV/CIPH NO EX 351161)
S/O. LATE K. GOPALA PILLAI,
AGED 60 YEARS,
SUBEDAR/CIPH (RETIRED)
ASSAM RIFLES, MEGHALAYA,
RESIDING AT MANJU NIVAS,
CHEPPAD P.O., ALAPPUZHA DISTRICT-690507.
5. GOPAKUMAR R.
HAV/CIPH NO. EX S 355852N)
S/O. REVINDRAN NAIR,
AGED 52 YEARS,
WP(C).No. 14596 of 2016 (Y)
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SUBEDAR/CIPH (RETIRED)
ASSAM RIFLES,
MEGHALAYA,
RESIDING AT SREE KARTHIKA,
KOKKOTTELLA P.O.,
ARYANADU,
THIRUVANANTHAPURAM DISTRICT,
KERALA-695542.
6. JOSEPH C.A.
HAV/CIPH NO. EX JC351130K)
S/O. LATE ANTONY THOMAS,
AGED 62 YEARS,
SUBEDAR/CIPH (RETIRED)
ASSAMR RIFLES, MEGHALAYA,
RESIDING AT CHEMPLANIKAL HOUSE,
KULATHUR P.O.
PATHANAMTHITTA DISTRICT,
KERALA-689588.
BY ADV. SMT.REKHA VASUDEVAN
RESPONDENTS:
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1. UNION OF INDIA
REPRESENTED BY THE SECRETARY
TO THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK,
NEW DELHI -110 001.
2. THE DIRECTOR GENERAL,
ASSAM RIFLES,
THE DIRECTORATE GENERAL
OF ASSAM RIFLES,
SHILLONG, MEGHALAYA-793011.
3. THE BRIGADIER (PERSONNEL),
SO2 (ADM I),
MAHANIDESHALAYA
ASSAM RIFLES,
THE DIRECTORATE GENERAL
OF ASSAM RIFLES,
SHILLONG, MEGHALAYA-793011
4. THE ACCOUNTS OFFICER,
CENTRAL PAY BILL OFFICE,
ASSAM RIFLES,
SHILLONG,
MEGHALAYA-793011.
R1-R4 BY ADV. SRI.K.SHRI HARI RAO, CGC
SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-10-2017,
ALONG WITH W.P.(C).Nos.14597, 14598, 22611 and 22636 of 2016, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 14596 of 2016 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE FINAL ORDER DATED 25/06/2007 IN O.A 596/2005 OF
THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
P2 TRUE COPY OF THE JUDGMENT DATED 04/12/2008 IN W.P(C) 32624/2008
P3 TRUE COPY OF THE JUDGMENT DATED 10/04/2013 OF THE HONOURABLE
HIGH COURT OF MEGHALAYA AT SHILLONG IN W.P(C) (SH) 256/2012
P4 TRUE COPY OF THE JUDGMENT DATED 18/11/2014 IN W.A NO. 30/2013 OF
THE HONOURABLE HIGH COURT OF MEGHALAYA AT SHILLONG
P5 TRUE COPY OF THE ORDER DATED 15/12/2014 IN MC (WA) NO. 105/2014 IN
W.A NO.30/2013 OF THE HONOURABLE HIGH COURT OF MEGHALAYA AT SHILLONG
P6 TRUE COPY OF THE ORDER DATED 04/09/2015 IN W.P(C) 13534-13535/2015
OF THE HONOURABLE SUPREME COURT
P7 TRUE COPY OF THE CORRIGENDUM DATED 12/02/2015 ISSUED FOR THE
3RD RESPONDENT
P8 TRUE COPY OF THE REPRESENTATION DATED 11/05/2015 SUBMITTED BY
THE PETITIONER
P9 TRUE COPY OF THE ORDER DATED 11/06/2015 ISSUED FOR THE 3RD
RESPONDENT
P10 TRUE COPY OF THE JUDGMENT HIGH COURT OF MEGHALAYA AT
SHILLONG IN ITS JUDGMENT, (W.P.(C) NO.61 OF 2013) DATED 20.11.2014
P11 TRUE COPY OF THE LETTER NO.A/12011/1/2017/CF-3390063/PF/VI
DATED 04.07.2017 HAS BEEN DRAFTED BY THE MHA TO ASSAM RIFLES
P12 TRUE COPY OF THE ORDER NO.YOGINDRAPPA/UAPAO-
LEGAL/668/2017/1259 DATED 13TH JULY 2017, TO GRANT FINANCIAL UPGRADATIONS
P13 TRUE COPY OF THE ORDER TO GRANT "FIRST FINANCIAL
UPGRADATION" UNDER ACP SCHEME, YOGINDARAPPA/COURTCASE(ACP)/
2016/ADM-I (SIG)/2207 DATED 21ST JULY 2017
P14 TRUE COPY OF THE ORDER TO GRANT "SECOND FINANCIAL
UPGRADATION" UNDER MACP SCHEME, YOGINDRAPPA/COURTCASE(MACP)/
2016/ADML(SIG)/2208 DATED 21ST JULY 2017
RESPONDENT(S)' EXHIBITS
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R1 TRUE COPY OF THE LETTER DATED 28.11.2011 OF THE 2ND RESPONDENT
R2 TRUE COPY OF THE LETTER DATED 10.5.2016 OF THE 1ST RESPONDENT
R3 TRUE COPY OF THE LETTER DATED 19.5.2009 OF THE DEPARTMENT OF
PERSONNEL TRAINING
WP(C).No. 14596 of 2016 (Y)
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R4 TRUE COPY OF THE LETTER DATED 18.9.2009 OF THE 2ND RESPONDENT
R5 TRUE COPY OF THE SERVICE PARTICULAR OF THE 1ST PETITIONER
R6 TRUE COPY OF THE SERVICE PARTICULAR OF THE 2ND PETITIONER
R7 TRUE COPY OF THE SERVICE PARTICULAR OF THE 3RD PETITIONER
R8 TRUE COPY OF THE SERVICE PARTICULAR OF THE 4TH PETITIONER
R9 TRUE COPY OF THE SERVICE PARTICULAR OF THE 5TH PETITIONER
R10 TRUE COPY OF THE SERVICE PARTICULAROF THE 6TH PETITIONER
//TRUE COPY//
PA TO JUDGE
sab
ANU SIVARAMAN, J.
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W.P.(C).Nos.14596, 14597, 14598, 22611
and
22636 of 2016
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Dated this the 6th day of October, 2017
JUDGMENT
The prayers in this writ petition are with regard to the entitlement of the petitioners for financial upgradation in terms of the ACP scheme on completion of 12 years from the date on which they were remustered as Havildhar/Cipher, under the ACP and MACP scheme and seeking the drawal and disbursal of arrears of pay and pension.
2. Heard learned counsel for the petitioners and the learned Assistant Solicitor General appearing for the respondents. It is submitted by the learned counsel appearing for the petitioners that the issue regarding the reckoning of the re-musteration of promotion has been found in favour of the petitioners by Exhibits P1 to P6 judgments. It is stated that by Exhibit P2 judgment by a Division Bench of this Court, it has been held that the re-musteration cannot be considered as a promotion and that the employees are entitled to financial upgradation as per the ACP scheme on completion W.P.(C).Nos.14596, 14597, 14598, 22611 and 22636 of 2016 2 of 12 years service from the date of remusteration. It is stated that pursuant to the said finding, the benefits had been extended to all serving employees as well. The petitioners are persons who had retired from service. It is stated that going by the declaration of law by this Court and the dismissal of the SLP preferred against similar judgments by the Apex Court, they are also entitled to the benefit of financial upgradation on completion of the required number of years from the date of their remusteration.
3. A counter affidavit has been filed on behalf of the respondents in one of these writ petitions, that is, W.P.(C).No.14596/2016, wherein it is stated that the petitioners would not be entitled to the benefits as sought for.
4. I have considered the contentions advanced on either side. It is evident that the stand taken by the respondents that the re-musteration amounts to a promotion which would disentitle the petitioners from claiming financial upgradation has been found against by the judgments of the Central Administrative Tribunal, Ernakulam Bench and the Division Bench of this Court as also other High Courts. This position has been affirmed by the dismissal of the SLP filed W.P.(C).Nos.14596, 14597, 14598, 22611 and 22636 of 2016 3 against such judgments. In the above circumstances, the position that the petitioners would be entitled to financial upgradation on completing the required number of years of service after re-musteration in accordance with the ACP/MACP cannot be disputed any more.
5. In the above view of the matter, the petitioners who are retired employees, would also be entitled to the benefit of the judgments. Since the benefits have already been extended to serving employees, I find no reason why the retired employees also shall not be granted the same benefits in case they are otherwise eligible for the same. These writ petitions are therefore allowed. It is declared that the petitioners would also be entitled to the benefit of financial upgradation in terms of the ACP/MACP, taking note of the date of remusteration as date of entry and financial benefits shall also be calculated and disbursed accordingly.
6. In W.P.(C) Nos.14596 of 2016 and 14598 of 2016, it is submitted that the benefits had already been granted to the petitioners. Later, orders of recovery were issued against them. In W.P.(C) No.14596 of 2016, recovery had been effected. However in W.P.(C) No.14598 of 2016 no such W.P.(C).Nos.14596, 14597, 14598, 22611 and 22636 of 2016 4 recovery was effected. It is made clear that the benefits due to the petitioners in those writ petitions on account of the financial upgradation granted with reference to the date of re-musteration are not liable to be recovered. W.P.(C) Nos.14596 of 2016 and 14598 of 2016 are also allowed. Order of recovery, if any, against the petitioners are set aside. The petitioners shall be entitled to repayment of the amounts wrongly recovered from them. The financial benefits due to the petitioners shall be calculated and disbursed to them, if not already disbursed, within a period of three months from the date of receipt of a copy of this judgment.
The writ petitions are ordered accordingly.
sd/-
ANU SIVARAMAN, JUDGE sab