Dr.N.John Chellappan vs Union Of India on 12 June, 2024

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Kerala High Court

Dr.N.John Chellappan vs Union Of India on 12 June, 2024

The classic case where we are confronted with an order passed by the Central Administrative Tribunal, (for short, 'the Tribunal'), wherein, the law laid down by this Court has been categorically ignored and the Original Application is dismissed relying on an Office Memorandum which was specifically interpreted by a Coordinate Bench of this Court. In the hierarchy of courts, it is beyond doubt that the Division Bench of the Central Administrative Tribunal is certainly bound to follow the law laid down by the High Court. We however refrain ourselves from commenting any further on the issue.

2. The brief facts for disposal of the present Original Petition is as follows:

The applicant entered service as Processing Assistant in the National Institute of Fisheries on 18.4.1980. Non granting of the benefits under the 4th Central Pay Commission resulted in O.A. O.P.(CAT) No.162 of 2023 3 No.1323 of 1992 being preferred and, by order dated 20.9.1993, relief was granted by the Central Administrative Tribunal. The Government of India, thereafter, on 19.1.1994, fixed the pay scale of the applicant at Rs.1400-2300/- with effect from 1.1.1986. Consequent to the 5th Central Pay Commission, the pay of the applicant was revised to Rs.5000-8000/-. However, the 3 rd respondent granted the scale only at Rs.4500-7000. This necessitated a second round of litigation in O.A. No.201 of 2000, and, by order dated 23.2.2000, the pay was restored at Rs.5000- 8000/-. After the 5th Central Pay Commission report, the Government of India introduced Assured Career Progression (ACP) Scheme for civil servants. The 3 rd respondent granted the applicant the 1st ACP on completion of 12 years in the pay scale of Rs.5500- 9000/- with effect from 9.8.1999. Since the applicant was not given the pay scale of the Processing Technologist, which is the next higher promotion post, the applicant approached for the 3 rd time in O.A. No.41 of 2003 and the learned Tribunal, vide order dated 22.1.2003, directed the respondents to pay the applicant the first ACP in the scale of pay of Rs.6500-10500. After the 6 th Central Pay Commission report, the Government of India had issued Modified O.P.(CAT) No.162 of 2023 4 Assured Career Progression (MACP) Scheme bringing further modifications to the ACP Scheme. The 1 st respondent refused to sanction the 1st MCP benefit to the applicant and hence O.A. No.895 of 2010 was filed. The Departmental Screening Committee, by order dated 31.01.2013, expunged the Annual Confidential Report from 'Good' to 'Very Good' and the applicant was sanctioned the first MACP in the pay scale Rs.15600-39100 and Grade Pay of Rs.7600.

After the 6th Central Pay Commission Report came into effect from 1.1.2006, the Government of India issued MACP Scheme on 19.5.2009 with effect from 1.1.2006. The applicant was granted the 1st ACP in the pay scale of Rs.6500 -10500. As per the provisions of the MACP Scheme, 1st ACP granted to the applicant ought to have been nullified. Since the same was not done, the applicant submitted a detailed representation on 10.1.2018 before the authorities. The provisions of the MACP Scheme was interpreted by the Central Administrative Tribunal in O.A. No.230 of 2017. The representation was answered by the 2 nd respondent on 15.3.2019 closing the request for grant of 3 rd Financial Upgradation and limiting the same to Grade pay of Rs.8700. This was the subject of O.P.(CAT) No.162 of 2023 5 challenge before the Central Administrative Tribunal. The relief sought for in the Original Application reads as under;

(a) To call for the records leading to Annexures-A4 and A5 and to quash the same as illegal, arbitrary and against the Govt. Orders.

(b) Declare that the applicant is to be granted MACP in the pay band of Rs.37400-67000/- and grade pay of Rs.8700/- by ignoring the 1 st ACP granted in the pay scale of Rs.6500- 10500/-.

(c) To direct the 2nd respondent to issue orders sanctioning the 2nd MACP in the pay band of Rs.37400- 67000/- and grade pay Rs.8700/- with effect from 18.4.2010 with all benefits.

(d) To pay the arrears and reschedule the pensioner benefits.

(e) The applicant is entitled to grant other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of the case including the costs of this Original Application.

3. The respondents appeared and filed a reply statement asserting that the order impugned in the Original Application does not suffer from any arbitrariness or illegality. Specific reference was made to Annexure R3, Office Memorandum, dated 13.11.2009. Therefore, the order passed was sought to be justified.

4. Based on the materials and pleadings on record, the Tribunal came to the conclusion that the applicant is not entitled to any relief based on the Office Memorandum dated 13.11.2009. O.P.(CAT) No.162 of 2023 6

5. Before we comment upon the orders passed by the Central Administrative Tribunal, it is necessary to extract the relevant provisions of the MACP Scheme in order to appreciate the true purport of the Scheme. Clause 5 of the MACP Scheme reads as follows:

" 5.Promotions earned/upgradations granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPs.

The pre-revised hierarchy (in ascending order) in a particular organisation was as under:

Rs.5000-8000,Rs.5500-9000 & Rs.6500-10500.

(a) A Government servant who was recruited in the hierarchy in the pre-revised pay scale of Rs.5000-8000 and who did not get a promotion even after 25 years of service prior to 1.1.2006, in his case as on 1.1.2006 he would have got two financial upgradations under ACP to the next grades in the hierarchy of his organisation, i.e., O.P.(CAT) No.162 of 2023 7 to the pre-revised scales of Rs.5500-9000 and Rs.6500-10500.

(b) Another Government servant recruited in the same hierarchy in the pre-revised scale of Rs.5000-8000 has also completed about 25 years of service, but he got two promotions to the next higher grades of Rs.5500-9000 and Rs.6500-

10500 during this period.

In the case of both (a) and (b above, the promotions/financial upgradations granted under ACP to the pry-revised scales of Rs.5500-9000 and Rs.6500-10500 prior to 01.01.2006 will be ignored on account of merger of the pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 recommended by the Sixth CPC. As per CCS (RP) Rules, both of them will be granted grade pay of Rs.4200 in the pay band PB-2. After the implementation of MACPs, two financial upgradations will be granted both in the case of (a) and (b) above to the next higher grade pays of Rs.4600 and Rs.4800 in the pay band PB-2.

6. Annexure R3 Office Memorandum dated 13.11.2009 reads as follows:

O.P.(CAT) No.162 of 2023 8

F.No.1/1/2008-IC Government of India Ministry of Finance Department of Expenditure Implementation Cell New Delhi, dated the 13 November, 2000 OFFICE MEMORANDUM Subject: Grant of the revised pay structure of grade pay of Rs.4600 in the pay band PB-2 to posts that existed in the pre-revised scale of Rs.6500-10500 as on 1.1.2006 and which were granted the normal replacement pay structure of grade pay of Rs.4200 in the pay band PB-2 Sixth Pay Commission recommended merger of the three pre- revised scales of Rs.5000-8000, Rs 5500-9000 and Rs.6500- 10500 and replaced them by the revised pay structure of grade pay of Rs.4200 in the pay band PB-2 Vide para 2.2.21 (v) of its Report, the Commission recommended that on account of the merger of these 3 scales, some posts which, constituted feeder and promotion grades would come to lye in an identical grade. The Commission gave specific recommendations in its Report granting higher grade pay of Rs 4600 to some categories of these posts. As regards the other posts, the Commission recommended that it should first be seen if the posts in these 3 scales can be merged without any functional disturbance and if possible, the same should be done. Further, the Commission recommended that in case it is not feasible to merge the posts in these pay scales on functional consideration, the posts in the scale of Rs.5000-8000 and Rs 5500-9000 should be merged with the posts in the scale of Rs.6500-10500 being upgraded to the next higher grade in the pay band PB-2 with grade pay of Rs 4600 corresponding to the pre-revised scale of Rs.7450-11500. In case a post already exists in the scale of Rs.7450-11500, the post being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs 7450- 11500 2 The above recommendation of the Sixth Pay Commission were notified vide para (ii), Section 1 in Parts B and C of the First Schedule to the CCS (RP) Rules, 2008 While Part B of the First O.P.(CAT) No.162 of 2023 9 Schedule to the CCS (RP) Rules relates to revised pay scales for common categories of staff, Part C notifies revised pay structure for certain posts in Ministries, Departments and Union Territories.

The above provisions of the Rules specifically mentioned that upgradations in terms of para (ii) Section 1 may be done in consultation with Department of Expenditure, Ministry of Finance. 3 Consequent upon the Notification of CCS (RP) Rules, 2008, Department of Expenditure has received a large number of references from administrative ministries/departments proposing upgradation of the posts which were in the pre-revised scale of Rs.6500-10500 as on 1.1.2006 by granting them grade pay of Rs.4600 in the pay band PB-2. The matter has been considered and it has now been decided that the posts which were in the pre-revised scale of Rs.6500-10500 as on 1.1.2006 and which were granted the normal replacement pay structure of grade pay of Rs 4200 in the pay band PB- 2, will be granted grade pay of Rs.4600 in the pay band PB-2 corresponding to the pre-revised scale of Rs.7450-11500 w.e.f. 1.1.2006. Further, in terms of the aforementioned provisions of CCS (RP) Rules, 2008, in case a post already existed in the pre-revised scale of Rs 7450-11500, the posts being upgraded from the scale of Rs 6500-10500 should be merged with the post in the scale of Rs 7450-11500 4 Accordingly, in terms of Rule 6 of CCS (RP) Rules, 2008, revised pay of Government servants in the pre-revised scale of Rs.6500-10500 who were earlier granted grade pay of Rs.4200 and who have already exercised their option for drawal of pay in the revised pay structure in the format prescribed in the Second Schedule to the Rules, will be fixed again in accordance with illustration 4A annexed to CCS (RP) Rules 2008. 5 In case of all such Government servants in the pre-revised scale of Rs.6500-10500 who were earlier granted grade pay of Rs 4200 and who had opted to have their pay fixed under CCS (RP) Rules, 2008, action as prescribed in this Department's OM of even number dated 30 August, 2008 will be taken. In case a Government servant desires to revise his earlier option for coming over to the revised pay structure, he may be permitted to do so without making any reference to this Department. 6 On account of pay fixation in the revised pay structure of grade pay of Rs 4600 in the pay band PB-2 arrears of pay will be recalculated and difference of arrears in respect of the entire amount will be paid immediately. The manner of drawal of O.P.(CAT) No.162 of 2023 10 arrears has already been indicated in this Department's O.M. of even number dated 30.8.2008.

7. Hindi version will follow.

(ALOK SAΧΕΝΑ) DIRECTOR

7. Clause 5 of the MACP Scheme came up for interpretation before this Court in O.P.(CAT) No.467 of 2012 wherein, it was noticed by this Court that paragraph No.5 of the Office Memorandum dated 13.11.2009 is not applicable to the case especially when clause 5 of the MACP Scheme is operative. It is pertinent to note that the Central Administrative Tribunal, in O.A. No.107/2011, had considered the very same scheme and found that the applicant therein was eligible for the benefit under the MACP Scheme dehorse the Office Memorandum dated 13.11.2009. This resulted in the judgment rendered by the Coordinate Bench of this Court in O.P.(CAT) No.467 of 2012 dated 21.6.2012. Though the Union India attempted to challenge the same before the Honourable Supreme Court in SLP (Civil) No.28536 of 2012, the same was dismissed on 15.10.2012. Therefore, findings of this Court affirming the views of the Central Administrative Tribunal had become final. O.P.(CAT) No.162 of 2023 11

8. It is in the above backdrop we will have to analyse whether the Central Administrative Tribunal was justified in passing the order impugned in the Original Petition. The relevant portion of the order impugned is extracted below:

" 6. Paragraph 3 of Annexure R3 reads as follows:

"3. Consequent upon the Notification of CCS (RP) Rules, 2008. Department of Expenditure has received a large number of references from administrative ministries / departments proposing upgradations of the posts which were in the pre-revised scale of Rs.6500- 10500 as on 1.1.2006 by been granting them grade pay of Rs. 4600 in the pay band PB-2. The matter has been considered and it has now been decided that the posts which were granted the normal replacement pay structure of grade pay of Rs.4200 in the pay band PB- 2, will be granted pay of Rs.4600 in the pay band PB- 2 corresponding to the pre-revised scale of Rs.7450- 11500 w.e.f. 1.1.2006. Further, in terms of the aforementioned provisions of CCS (RP) Rules, 2008, in case a post already existed in the pre-revised scale of Rs.7450-11500, the posts being upgraded from the scale of Rs.5600-10500 should be merged with the post in the scale of Rs.7450-11500,"

7. It is clear from the above that as per Annexure R3 the scale of pay of Rs.5,000-8,000/- and Rs.6,500-10,500/- did not merge in the 6th CPC. Evidently, the applicant was proceeding on the basis of Annexure A1 alone. In the light of O.P.(CAT) No.162 of 2023 12 subsequent OM, Annexure R3, it is clear that the applicant was claiming a relief on the basis of a misconception. Though the applicant has claimed that similar benefits have been granted to other persons, there was absolutely no material to show that he was similarly placed as that of the persons with whom he sought comparison.

8. The above stand seems to have been conveyed to him by Annexure A5 dated 15.3.2019. Though Annexure A5 is cryptic and does not give actual reason for declining the relief, sought by the applicant, it is clear from the earlier reply given to him as Annexure R3. In the light of the above, though the reply given to him which are împugned as Annexure A5 as well as Annexure R2 does not clearly state the reasons, in the light of Annexure R3 it is clear that the applicant is not entitled for any benefit as sought for. It seems that the DoP&T was also consulted before taking a decision on this."

9. When we analyse the point of law affirmed by this Court in O.P.(CAT) No.467 of 2012, which was taken up before the Honourable Supreme Court unsuccessful, we find that the facts pleaded in the Original Application was squarely covered and, therefore, the Central Administrative Tribunal, under no circumstances could have relied on the very same Office Memorandum which was held to be inapplicable to the cases covered by Clause 5 of the MACP Scheme. We are also at pain to O.P.(CAT) No.162 of 2023 13 see that not only the Central Administrative Tribunal but also the Union of India are repeatedly taking the same stand despite being unsuccessful before the Honourable Supreme Court. Had the department shown a certain degree of sensitivity towards the cause, the applicant would not have been forced to come before the Central Administrative Tribunal for the relief. Equally, the Central Administrative Tribunal was also insensitive towards the entire case. The judicial discipline demands that the Tribunals to have respect the judgments of the High Court and grant reliefs to the applicant.

10. Viewed in the above perspective, we are of the considered view that the order of the Central Administrative Tribunal certainly call for interference in exercise of the powers under Article 226 read with 227 of the Constitution of India. Accordingly, Ext.P4 order passed by the Central Administrative Tribunal dismissing the Original Application is set aside. O.A. No.855 of 2019 would stand allowed. It is declared that the petitioner is entitled to be granted MACP in the pay band of Rs.37400-67000 and Grade Pay of Rs.8700/- by ignoring the first ACP granted. The respondents are directed to grant the consequential benefits and reschedule the O.P.(CAT) No.162 of 2023 14 pensionary benefits of the petitioner at any rate within a period of two months from the date of receipt of a copy of this judgment.

This O.P.(CAT) is allowed. No order to costs.

Sd/-

AMIT RAWAL, JUDGE Sd/-

EASWARAN S., JUDGE NS O.P.(CAT) No.162 of 2023 15 APPENDIX OF OP (CAT) 162/2023 PETITIONER ANNEXURES Exhibit 1 EXHIBIT P-1 TRUE COPY OF THE O.A.NO.855/2019 DATED 26-11-2019 FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM ALONG WITH ANNEXURE A1 TO A7.

 Annexure 4    TRUE   COPY OF  THE  LETTER  DATED              9-3-2018
               ADDRESSED TO THE 2ND RESPONDENT BY              THE 3RD
               RESPONDENT.
 Annexure 5    TRUE   COPY   OF   THE   ORDER      DATED       15-3-2019
               ISSUED BY THE 2ND RESPONDENT.


 Annexure 1    TRUE COPY OF THE OFFICE MEMORANDUM ISSUED BY THE
               GOVT.OF INDIA DATED 19-5-2009.
 Annexure 2    TRUE COPY OF THE REPRESENTATION DATED 10-1-2018.
 Annexure 3    TRUE   COPY  OF   THE   ORDER      OF    THE     DIRECTOR
               GENERAL DATED 22-11-2017.
Exhibit-P-2    TRUE   COPY   OF  THE   REPLY   STATEMENT   DATED
               4-3-2021    FILED   BY   THE    RESPONDENTS    IN

O.A.NO.855/2019 ALONG WITH ANNEXURES R1 TO R3. Annexure R1 TRUE COPY OF THE REPRESENTATION DATED 18-7-2019 SUBMITTED BY THE APPLICANT Annexure R2 TRUE COPY OF THE REPLY OF THE 2ND RESPONDENT DATED 19-11-2019.

Annexure R3 TRUE COPY OF THE DEPARTMENT OF EXPENDITURE'S OFFICE MEMORANDUM NO.1/1/2008-IC DATED 13-11- 2009.

Exhibit -P-3 TRUE COPY OF THE REJOINDER DATED 22-12-2022 FILED BY THE PETITIONER IN O.A.NO.855/2019.

Exhibit-P-4    TRUE   COPY   OF   THE   ORDER   DATED           8-8-2023
               OF   THE   CENTRAL     ADMINISTRATIVE           TRIBUNAL,
 O.P.(CAT) No.162 of 2023       16


               ERNAKULAM            BENCH IN O.A.855/2019.

Exhibit-P- 5 TRUE COPY OF THE ORDER DATED 27-9-2011 OF THE CAT ERNAKULAM BENCH IN O.A.107/2011 Exhibit-P- 6 TRUE COPY OF THE JUDGMENT DATED 21-6-2012 OF THIS HON'BLE COURT IN OP(CAT)NO.467/2012.

Exhibit-P- 7   TRUE COPY OF THE ORDER DATED        15-10-2012   OF
               THE      HON'BLE       SUPREME       COURT       IN
               SLP(CIVIL)NO.28536/12.

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