Kerala High Court
Capt.T.M.Thomas (Retired) vs Union Of India on 25 July, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937
WP(C).No. 13021 of 2008 (S)
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AGAINST THE ORDER/JUDGMENT IN OA 207/2005 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 25-07-2007
PETITIONER(S):
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CAPT.T.M.THOMAS (RETIRED), THAYIL HOUSE,
K.P. 16/393, NALANCHIRA P.O.,, THIRUVANANTHAPURAM -
695 015.
BY ADVS.SRI.P.N.SANTHOSH
SMT.K.P.GEETHA MANI
RESPONDENT(S):
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1. UNION OF INDIA, REPRESENTED BY THE
SECRETARY, DEPARTMENT OF SPACE,, GOVERNMENT OF INDIA,
ANTHAREEKSHA BHAVAN,, NEW B.E.L. ROAD, BANGALORE -
560094.
2. THE SECRETARY TO GOVERNMENT OF INDIA,
DEPARTMENT OF ADMINISTRATIVE REFORMS AND, PUBLIC
GRIEVANCES, MINISTRY OF PERSONNEL,, PUBLIC GRIEVANCES
AND PENSIONS, LOK NAYAK BHAVAN,, 3RD FLOOR, KHAN MARKET,
NEW DELHI - 110003.
3. THE VIKRAM SARABAI SPACE CENTRE,
REPRESENTED BY ITS DIRECTOR, VSSC,, ISRO POST,
THIRUVANANTHAPURAM - 695 022.
4. CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH REPRESENTED BY ITS, REGISTRAR.
R,R1-3 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
kkj
WP(C).No. 13021 of 2008 (S)
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1: A TRUE COPY OF THE O.A.NO.207 OF 2005 ALONG WITH WITH THE
ANNEXURES
EXT.P2: A TRUE COPY OF THE REPLY STATEMENT FILED BY THE
RESPONDENTS IN THE ABOVE O.A.
EXT.P3: A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER TO
THE REPLY STATEMENT OF THE RESPONDENT
EXT.P4: A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY
THE RESPONDENT IN THE ABOVE O.A.
EXT.P5: A TRUE COPY OF THE ORDER DATED 25.07.2007 IN O.A.NO.207
OF 2005 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL
RESPONDENTS' EXHIBITS
EXT.R1: PHOTOCOPY OF THE ORDER DATED 23.03.1999
// TRUE COPY //
PA TO JUDGE
K.SURENDRA MOHAN & P.V.ASHA, JJ.
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W.P.(C) No.13021 of 2008
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Dated this the 10th day of March, 2016
J U D G M E N T
Surendra Mohan, J.
The petitioner is before us challenging exhibit P5 order of the Central Administrative Tribunal (CAT for short) in O.A. No.207 of 2005. As per exhibit P5, the Original Application filed by the petitioner has been dismissed.
2. The petitioner is a retired Commissioned Officer from the Indian Army. He had joined the Indian Army on 12.04.1963 and after undergoing training for one year at the Military Academy, Dehradun he was commissioned on 26.04.1964 as an Emergency Commissioned Officer. During the Indo-Pak war, he was seriously injured and was invalidated. He was released from the Indian Army on 28.01.1971 after rendering a total service of seven years and nine months.
3. After his retirement from the Indian Army, he was appointed as a Transport Officer in the Vikram Sarabai -:2:- W.P.(C) No.13021 of 2008 Space Centre (VSSC for short) on 06.11.1973 with effect from 15.11.1973. While the petitioner was working in the VSSC, the Government of India converted the existing Indian Space Research Organisation (ISRO) of which VSSC was the major research Centre, into a Government Organisation w.e.f. 01.04.1975. Thereafter, the petitioner and other employees were given an option whether to continue in the service of the Government or not. As per Annexure-A4, the petitioner opted to continue in the service of the ISRO. Pursuant to Annexure-A4, as per Annexure-A5 Appointment Order dated 28.03.1975, the petitioner was appointed as an Administrative Officer (Transport) in the reconstituted ISRO with effect from 01.04.1975 as a Government Servant. Accordingly, he has been continuing in service ever since.
4. In the above circumstances, the petitioner put forward a claim that he was entitled to have his military service counted for seniority and pay as per the provisions -:3:- W.P.(C) No.13021 of 2008 contained in the Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971 (hereinafter referred to as the 1971 Rules). However, his claim was rejected. The rejection of his claim was challenged by the petitioner before the CAT in O.A.No.3 of 1990. However, the same was also dismissed. The petitioner carried the matter up to the Supreme Court, unsuccessfully. Annexure R1 that forms part of Exhibit P2 is a copy of the order of the Supreme Court in Civil Appeal No.2214 of 1994 dismissing the petitioner's appeal.
5. While so, the entitlement of Ex-servicemen who were in receipt of Compensation/Invalid pension but were not entitled to get their military service counted for fixation of pay in civil post even after opting combined service for pension as per Rule 19 of the CCS (Pension) Rules was considered by the Government of India. Thereafter, an Office Memorandum No.3/13/89/-P.II dated 22-1-1991 was -:4:- W.P.(C) No.13021 of 2008 issued by the Ministry of Personnel and Public Grievances and Pensions directing that the benefits of military service be extended to all ex-service men. Since the benefit of the said office memorandum was not given to the petitioner, he submitted a request. However, the request was rejected stating that the ISRO was an autonomous body at the time of initial appointment of the petitioner. The petitioner challenged the rejection of his claim before the CAT in O.A.No.207 of 2005. His claim was resisted by the respondents herein. After considering the respective contentions, the CAT has rejected the petitioner's claim and dismissed the Original Application. The petitioner is aggrieved by exhibit P5 order of the CAT.
6. According to Advocate P.N.Santhosh, who appears for the petitioner the CAT has proceeded to reject the claim of the petitioner on the ground that he had not raised the said claim before the Apex Court which had dismissed the appeal filed by him by exhibit R1 order. It -:5:- W.P.(C) No.13021 of 2008 has been further held that, the present claim was one that ought to have been raised in the said appeal. Not having put forward any such claim at that time, it is found that it was not open to the petitioner to agitate the said claim, at this length of time. The CAT has noticed that, when the appeal came up for final hearing, the counsel for the petitioner had informed the Court that the petitioner was not pressing the claim for fixation of his pay. According to the impugned order exhibit P5, the petitioner cannot be permitted to put forward the said claim since the issue had been concluded by the order of the Supreme Court. The said reasoning, according to the counsel is wrong and unsustainable. The said Original Application, O.A.No.3 of 1995 was filed by the petitioner claiming the benefits of the 1971 Rules in the matter of fixation of his pay and other allowances. The said Original Application was filed in the year 1990. It was the continuation of the said proceedings that culminated in the Supreme Court order exhibit R1. -:6:- W.P.(C) No.13021 of 2008 Therefore, it is pointed out that, annexure A10 order was not even in existence at that time. The said order was issued only on 24.04.1991. It was thereafter that, the petitioner had sought for the benefits of the said Office Memorandum. According to the learned Counsel therefore, the claim of the petitioner has been rejected by the CAT erroneously. The Counsel places reliance on the terms of Annexure A10 to contend that, the petitioner is entitled to the benefits thereof. Therefore, he seeks interference with the impugned order exhibit P5.
7. The contentions of the counsel for the petitioner are vehemently opposed by the Assistant Solicitor General of India who appears for the respondents. It is contended by the learned ASGI that annexure A10 order had been issued in the year 1991 whereas the Supreme Court has passed exhibit R1 order only on 23.03.1999. Therefore, it is contended that the present claim could also have been agitated before the Supreme Court.
-:7:- W.P.(C) No.13021 of 2008
8. Heard. As rightly contended by the counsel for the petitioner, OA.No.3 of 1990 was filed by the petitioner putting forward a claim that he was entitled to have his pay and allowances refixed in accordance with the provisions of 1971 Rules. It is true that he had claimed the benefit of counting of past service for the purpose of fixing his pay and seniority even in O.A.No.3 of 1990. However, his entire claim in those proceedings were based on the provisions of the 1971 Rules. It is also not in dispute that, when the said Original Application was filed, Annexure A10 order was not in existence. Therefore, the petitioner was not in a position to have raised any claim on the basis of Annexure A10 order at that time. The subsequent proceedings that followed right up to the Civil Appeal before the Supreme Court were a continuation of the initial proceedings that commenced with the filing of O.A.No.3 of 1997. Therefore, the petitioner could not have put forward any claim in the said proceedings on the basis of Annexure A10 Office -:8:- W.P.(C) No.13021 of 2008 Memorandum. In view of the above, we find that the CAT went wrong in holding that the petitioner's present claim were not maintainable in view of the order of the Apex Court in exhibit R1.
9. It is true that exhibit R1 order is dated 23.03.1999. Therefore, according to the learned ASGI, annexure A10 order was in existence at the time when the Supreme Court passed its final order. Though it is true that Annexure A10 was in existence at the time of passing exhibit R1, it does not follow that the petitioner ought to have raised his contentions on the basis of Annexure A10 also in those proceedings. There is nothing on record to indicate that the petitioner was aware of the said order on the said date. Even if he were aware, the claim on the basis of annexure A10 would not have been maintainable in the said proceedings for the reason that the claim thereon was on the basis of 1971 Rules. Therefore, the said contention is rejected. Since we have found that the petitioner's claim -:9:- W.P.(C) No.13021 of 2008 on the basis of annexure A10 was maintainable, we proceed to consider whether his claim was justified. In this context paragraph 2 thereof which is relevant, is extracted hereunder for convenience of reference.
However, at present there are no orders on refixation of pay of ex-servicemen who can similarly give an option for combined service for pension under Rule 19 of CCS (Pension) Rules, 1972 by surrendering their pensionary benefits. This issue has been considered and it has been decided that pay of such ex-servicemen who were re-employed prior to 01.07.86 and who being eligible have opted for combined service for pension in terms of Rule 19 of CCS (Pension) Rules, 1972, shall also be refixed from the date of re-employment in terms of Ministry of Finance O.M.dated 25.11.58 as amended from time to time, by assuming that they were not in receipt of any pension.
It is clear from the above that, in the case of ex-servicemen who have been re-employed prior to 1.7.1986 and who were eligible to have opted for and who being eligible have opted for combined service for pension in terms of Rule 19 of CCS (Pension) Rules, 1972, shall be refixed from the date of reemployment in terms of Ministry of Finance O.M. Dated -:10:- W.P.(C) No.13021 of 2008 25.11.1958. In other words, the petitioner who is an ex- service man who was re-employed prior to 01.07.1986 was also entitled to have his pay refixed in accordance with the Ministry of Finance O.M. We also notice from Annexure A9 that forms part of exhibit P1 dated 13.02.1992 that service rendered by the petitioner has been treated as "qualifying service" for the purpose of pension and other retirement benefits in ISRO under Rule 19 of the CCS Pension Rules,1971. Therefore, the petitioner was fully entitled to the benefits of annexure A10. However, the claim of the petitioner has been rejected on the ground that he had not been appointed to a civil post upon re-employment. This is for the reason that, according to the authorities, the ISRO at the time of re-employment of the petitioner was not part of the Central Government.
10. The above reasoning is also unsustainable and is liable to be rejected for the reason that, after the ISRO became part of the Government of India, the petitioner had -:11:- W.P.(C) No.13021 of 2008 been given an opportunity to exercise his option. Accordingly the petitioner had by submitting annexure A4 opted to continue in the service of the ISRO. Pursuant to Annexure A4 as per A5 dated 28.03.1975, the petitioner was appointed again as the Administrative Officer (Transport) with effect from 01.04.1975 as a Government Servant. Annexure A5 is prior to the date stipulated in Annexure A10, 01.07.1986. Therefore, respondents were wrong in rejecting the claim of the petitioner.
11. The petitioner having been appointed as a Government Servant as per Annexure A5 with effect from 01.04.1975 his entitlement for the benefits of Annexure A10 Office Memorandum from the said date cannot be disputed.
12. In view of the above, the petitioner is entitled to have his military service also counted for the purpose of fixing his pay and allowances in terms of the stipulations contained in Annexure A10 from the date of his appointment as a Government Servant as per annexure A5 -:12:- W.P.(C) No.13021 of 2008 with effect from 01.04.1975.
For the foregoing reasons, this Original Petition is allowed on the following terms.
1. Exhibit P5 order of the CAT in O.A.No.207 of 2005 dated 25.07.2007 is set aside. The Original Application is allowed.
2. The respondents are directed to refix the pay of the petitioner in accordance with the stipulations in Annexure A10 Office Memorandum from the date of appointment of the petitioner as a Government Servant by Annexure A5 order, in other words, with effect from 01.04.1975 onwards.
3. Appropriate orders in this regard shall be issued by the respondents refixing his pension and retirement benefits also on the above basis as expeditiously as possible, at any rate within a period of four months of -:13:- W.P.(C) No.13021 of 2008 the date of receipt of a copy of this judgment.
Sd/-
K.SURENDRA MOHAN JUDGE Sd/-
P.V.ASHA JUDGE kkj