Kerala High Court
Union Of India vs Tomy Mathew on 31 October, 2019
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941
O.P (CAT).No.1124 OF 2011(Z)
AGAINST THE ORDER IN O.A.659/2008 DATED 31-05-2010
OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/ RESPONDENTS IN THE O.A:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF STATISTICS & PROGRAMME IMPLEMENTATION,
SARDAR PATEL BHAVAN, PARLIAMENT STREET, NEW DELHI.
2 THE ADDITIONAL DIRECTOR GENERAL,
MINISTRY OF STATISTICS & PROGRAMME IMPLEMENTATION,
NATIONAL SAMPLE SURVEY OFFICE (FIELD OPERATION DIVISION),
EAST BLOCK 6, LEVEL 4 TO 7, R.K.PURAM, NEW DELHI.
3 THE DEPUTY DIRECTOR GENERAL (ADMINISTRATION), NATIONAL
SAMPLE SURVEY OFFICE (FIELD OPERATION DIVISION)
EAST BLOCK 6, LEVEL, 4 TO 7, R.K.PURAM, NEW DELHI.
4 THE DIRECTOR NSSO (FOD),
REGIONAL OFFICE, KERALA NORTH, DR.RAJARAM BUILDING,
CHAKKORATHUKULAM, P.O.ERANHIPALAM, CALICUT.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
RESPONDENTS/ APPLICANTS IN THE O.A:
1 TOMY MATHEW, AGED 50 YEARS, S/O.SHRI.MATHEW K.A.,
INVESTIGATOR GRADE III,
NATIONAL SAMPLE SURVEY ORGANISATION
(FIELD OPERATION DIVISION),
TUDA COMPLEX, S.T.NAGAR, THRISSUR-1,
RESIDING AT KUDIPPARA HOUSE, MEKAD-P.O.,
NEAR K.B.HOSPITAL, ATHANI, PIN - 683 589.
OP(CAT).1124 of 2011 - 2 -
2 K.C.JOHNSON, AGED 49 YEARS, S/O.SRI.CHACKO,
INVESTIGATOR GRADE III,
NATIONAL SAMPLE SURVEY ORGANISATION
(FIELD OPERATION DIVISION),
SUB REGIONAL OFFICE, SALEM,
RESIDING AT KALLIATHUPARAMBIL HOUSE,
P.O.AMALA NAGAR, THRISSUR, PIN - 680 553.
3 T.SASIDHARAN, AGED 47 YEARS, S/O.SRI.K.RAMAN NAIR,
INVESTIGATOR GRADE III,
NATIONAL SAMPLE SURVEY ORGANISATION
(FIELD OPERATION DIVISION), CHAKKORATHUKULAM,
P.O.ERANHIPPALAM, KOZHIKODE, PIN-673006.
ADDITIONAL RESPONDENTS 4 & 5 IMPLEADED
ADDL. ALL INDIA ASSOCIATION OF STATISTICAL INVESTIGATORS,
R4 NATIONAL SAMPLE SURVEY ORGANIZATION
(FIELD ORGANISATION DIVISION),
SUBORDINATE STATISTICAL SERVICE,
MINISTRY OF STATISTICS & PROGRAMME IMPLEMENTATION TO
GOVERNMENT OF INDIA, CGO COMPLEX, SANJAY PALACE,
AGRA - 282 003, UTTAR PRADESH,
REP. BY ITS GENERAL SECRETARY: AJAY SAXENA.
ADDL. R.M.SREEDHAR, AGED 52 YEARS, S/O.LATE R.V.MOHAN RAO,
R5 WORKING AS SUPERINTENDING OFFICER,
NATIONAL SAMPLE SURVEY ORGANISATION (FOD),
NORTH REGION, SECOND FLOOR, BLOCK NO.III,
SHASTRY BHAVAN, CHENNAI - 600 006, TAMILNADU.
ADDITIONAL RESPONDENTS 4 AND 5 ARE IMPLEADED AS PER
ORDER DATED 23.05.2012 IN I.A.NO.6440 OF 2011.
R1 TO R3 BY ADV. SRI.P.RAMAKRISHNAN
R1 TO R3 BY ADV. SRI.T.C.KRISHNA
R4 & R5 BY ADV. SRI.N.UNNIKRISHNAN.
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 31.10.2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT).1124 of 2011 - 3 -
K.Vinod Chandran & V.G.Arun, JJ.
--------------------------------
O.P (CAT) No.1124 of 2011-Z
--------------------------------
Dated, this the 31st day of October, 2019
JUDGMENT
Vinod Chandran, J.
Union of India [for brevity "UoI"] challenge the order of the Tribunal, produced at Exhibit P6.
2. The issue arises in the Statistical Department of the UoI and concerns respondents 1 to 3, who were the applicants before the Tribunal. They were promoted on an ad hoc basis to the post of Assistant Superintendent, in a higher pay scale and continued there for long. Later, even without a reversion they were fixed in a lower pay scale on the formation of a Subordinate Statistical Service (Group-B Gazetted). A revision was made, in an attempt to protect their pay and they were permitted in the very same pay scale which they enjoyed in the ad hoc post. But, however, on fixation in the higher pay scale, their total pay was lesser than that fixed in the lower pay scale; which prompted a demand for recovery.
OP(CAT).1124 of 2011 - 4 -
3. The respondents 1 to 3 approached the
Tribunal for interfering with the recovery and also for regularization of their appointments in the post of Assistant Superintendents, which, they asserted, was not ad hoc, though termed so, in the orders at Annexures A-2 and A-3. The Tribunal found that there could not have been any reduction of pay especially when they were fixed in the higher pay scale. It was also found, on the basis of the clear admission of the petitioners herein, the official respondents, that there were posts in the cadre of Assistant Superintendents to which these applicants could have been promoted. In such circumstances,it was directed that the respondents 1 to 3 be regularized from the date of their ad hoc promotion and also granted benefits of Annexure A-19. Annexure A-19 was issued in favour of the existing Assistant Superintendents, on the creation of Statistical Investigator Grade-I and Statistical Investigator Grade-II posts in the SS Service. The existing Assistant Superintendents who were holding posts in the SS Service in the pay scale OP(CAT).1124 of 2011 - 5 -
5500-9000 was absorbed and appointed as Statistical Investigator Grade-II in the pay scale of Rs.6500-10500. The respondents 1 to 3 claimed the very same benefits on the ground that they ought to have been absorbed similarly.
4. On facts, we have to notice that the respondents were promoted by Annexures A-2 and A-3 orders in the year 1999 and 1998 respectively; Annexure A-2 being applicable to respondents 1 and 2 and Annexure A-3 to respondent No.3. The appointments are stated to be ad hoc and made as a stop-gap arrangement in those orders itself. They were, hence, continuing in the post of Assistant Superintendent on the basis of the ad hoc appointments made as per Annexures A-2 and A-3, which has a pay scale of Rs.5500-9000. Later, the Subordinate Statistical Service (Group B Gazetted) Rules, 2002 (Exhibit P4)was implemented with effect from 01.04.2004. Hence, the four pay scales in the SS Service, were integrated into three.
5. The respondents 1 to 3, on joining the SS Service, were fixed with pay scale of Rs.5000-8000, OP(CAT).1124 of 2011 - 6 -
which was lower to the pay scale which they enjoyed in the post of Assistant Superintendents, being Rs.5500-9000. While the so-called regular Assistant Superintendents were appointed as Statistical Investigator Grade-II, the respondents, who were termed ad hoc, were appointed as Statistical Investigator Grade-III. It is established from the pleadings and the records that the Assistant Superintendents, who were regularly promoted and continuing, were adjusted in the pay scale of Rs.6500-10500 as per Annexure A-19. The respondents 1 to 3 continued in the pay scale of Rs.5000-8000 till 2008. In fact, all the three persons were granted financial upgradation to the higher scale after they were accommodated on ad hoc promotions in the scale of pay of Rs.5500-9000.
6. On the introduction of the SS Service (Group B Gazetted) Rules, there were two grades prescribed, as is seen from Annexure A1, of Statistical Investigator Grade-I in the scale of pay of Rs.7450-11500 and Statistical Investigator Grade-II at Rs.6500-10500. On such creation of two gazetted posts in the SS Service, OP(CAT).1124 of 2011 - 7 -
the Assistant Superintendents, who were continuing regularly, as we already found, were posted as Statistical Inspectors Grade-II in the scale of pay of Rs.6500-10500. The claim of the respondents 1 to 3 was that there were sufficient vacancies available in the post of Assistant Superintendents even when they were promoted on ad hoc basis and continued till 2004, when the SS Service (Group B Gazetted) Rules were implemented. However, on implementation, they were treated as continuing on ad hoc basis and placed in the lower cadre of Statistical Investigators Grade-III, with a scale of pay of Rs.5000-8000 protecting pay earlier drawn, by treating them as continuing in the scale of pay of Rs.5500-9000. Though their pay was fixed at Rs.5500-9000, the Assured Career Progression ["ACP" for brevity] granted to them in 2000 (R-1 & R-2) and 1999 (R-3), respectively on 10.03.2000 and 01.11.1999 was not taken into account. This created an anomaly insofar as their total pay being reduced. This has now been rectified by order dated 03.08.2011, which has been produced across the Bar. The pay reduction was OP(CAT).1124 of 2011 - 8 -
rectified by giving them Special Pay and now there is no question of recovery. The recovery having been effaced by the order dated 03.08.2011, we do not say anything on that.
7. We notice that the order produced across the Bar also indicated that this would be subject to the result of the Original Petition. The learned Counsel appearing for the respondents 1 to 3, hence, urge for consideration of the Original Petition which would grant them regularization in the post of Assistant Superintendent even before the SS Services (Group-B Gazetted) was created and thus enable them to be posted as Statistical Investigator Grade-II in the gazetted post in the pay scale of Rs.6500-10500.
8. The essential contention raised by the respondents 1 to 3 before the Tribunal was also for consideration of their regularization in the post of Assistant Superintendents in the scale of pay of Rs.5500-9000 when they were promoted on ad hoc basis. This was even prior to the SS Services being introduced on the recommendation of the 5th Pay Commission.
OP(CAT).1124 of 2011 - 9 -
9. The learned Assistant Solicitor General of India, who appeared for the UoI, would raise two contentions against the said claim; one that the Department cannot be compelled to make promotions merely because there is a vacancy in the higher post. The Department has to definitely look into the various aspects, including the financial and administrative implications in making such appointments. Secondly, it is argued that there is no allegation raised of any junior of the respondents 1 to 3 having been promoted. There is no right for promotion as such and right can only be for consideration for promotion; is the compelling plea.
10. We perfectly agree with the principles as propounded by the learned ASG of India. However, on facts we have to differ in applying such principles to this case. We see that the petitioners have filed an affidavit before the Tribunal, which is available at page 132 of the paper book. The Tribunal has also extracted the vacancy positions in various years from that affidavit. We also deem it fit to extract OP(CAT).1124 of 2011 - 10 -
paragraphs 5 and 6 of the above document:
"5. It is submitted that all the investigators promoted as Asst. Superintendents on Adhoc basis during 1998-1999 were eligible for promotion according to Existing Recruitment Rules.
6. In view of the above, and the submissions in the reply statement, it is submitted that the regularization of the applicants at this juncture will disturb the whole structure of SSS. Further MACP Guidelines issued by the Department of Personnel and Training, Government of India takes due care of length of past service rendered by the employees and therefore financial interest is taken care of. Hence, it is respectfully submitted that the OA may be dismissed with cost to the respondents".
Hence, the only submission of the petitioners was that even when there were promotions on ad hoc basis made to the post of Assistant Superintendents during 1998 and 1999, those persons were eligible for promotion according to existing Recruitment Rules. The contention against regularization that if it is carried out at this juncture, it will disturb the whole structure of the SS Services, establishes that there were sufficient vacancies. We cannot countenance such a contention, OP(CAT).1124 of 2011 - 11 -
since the eligible officers who are entitled to be considered to vacancies, which were available and who were so considered, but promoted only on an ad hoc basis cannot be deprived of their right for regularization merely on the administrative version of the disturbance it would create in the structure of SS Service. This has to be definitely worked out by the Department and the persons adjusted to suitable vacancies.
11. In the above circumstances, we find that the respondents 1 to 3 were eligible to be promoted to the available vacancies of Assistant Superintendents even as per the admission of the petitioners herein on the dates on which they were promoted on an ad hoc basis as revealed from Annexures A-2 and A-3. Then their promotions are entitled to be regularized from that date. When their promotions are regularized as on that date, definitely the ACP granted to them on 10.03.2000 and 01.11.1999 would have to be withdrawn. We direct the regularization as on the date of ad hoc promotion also on account of they having been continued OP(CAT).1124 of 2011 - 12 -
in the higher post of Assistant Superintendents till the creation of SS Services. As we noticed, the ACP benefit given to them would have to be re-called since they were promoted prior to the grant of ACP and in that circumstance they would not be entitled to higher grade under the ACP scheme. But, that would not necessarily prejudice the respondents 1 to 3 because on creation of SS Service they would have to be absorbed and continued in the post of Statistical Investigators Grade-II and would have to be adjusted in the scale of pay of Rs.6500-10500. If there is any recovery necessitated on the basis of the pay fixation in the regular post of Assistant Superintendents as on the dates of Annexure A-2 & A-3 as also as Statistical Investigators Grade-II as per Ext.P19, it would be ensured that their pay drawn is protected, by granting them personal or special pay in the scales in which they were to be continued. However, on creation of SS Services, the Government will consider their suitability to be placed in the higher cadre of Statistical Investigators Grade-II as found from OP(CAT).1124 of 2011 - 13 -
Annexure A-19 in the scale of pay of Rs.6500-10500.
12. We are told that the Service Organization and one other person, have got themselves impleaded in the Original Petition in the year 2012. The learned Counsel appearing also wanted to advance arguments on the claim of the other persons similarly situated. We decline such claim, since they had not approached the Tribunal with an O.A at the proper time. They, as respondents in an O.P filed against the order of the Tribunal, cannot claim any relief. The O.A. before the Tribunal was by three individual officers, asserting their claim and it was not one filed in a representative capacity. The Original Petition is filed by the official respondents before the Tribunal and the mere impleadment of the additional respondents 4 and 5 would not confer any right on them to canvass their claims, neither in a representative capacity by the Association (additional respondent No.4) or the individual officer (additional respondent No.5). The benefits granted by the Tribunal and affirmed by us will be confined to the respondents 1 to 3 herein and OP(CAT).1124 of 2011 - 14 -
it cannot percolate to persons who did not attempt to challenge their denial of regularization in a post to which they were promoted on ad hoc basis; even if they be similarly situated, since law prohibits any such benefits to be conceded to fence sitters and not at all when they failed to challenge it.
The Original Petition is disposed of, making modifications to the Tribunal's order as indicated herein above. Parties are left to suffer their respective costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE vku/-
OP(CAT).1124 of 2011 - 15 -
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A PHOTOSTAT COPY OF THE ORIGINAL
APPLICATION NO.659/2008 FILED BY THE RESPONDENT/APPLICANT LONG THE ANNEXURE BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXHIBIT P2 A PHOTOSTAT COPY OF THE OM NO.12013/1/2004-SSS DATED 30TH JUNE 2004 ISSUED BY THE MINISTRY OF STATISTICS AND PROGRAMME IMPLEMENTATION, NEW DELHIL EXHIBIT P3 A PHOTOSTAT COPY OF THE COMMON ORDER DATED 20/01/2009 IN WP NO.13855-57/2006 AND 13845-46/2006 PASSED BY THE HONOURABLE HIGH COURT OF INDIA.
EXHIBIT P4 A PHOTOSTAT COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO.659/2008.
EXHIBIT P5 A PHOTOSTAT COPY OF THE AFFIDAVIT FILED BY THE PETITIONERS/ RESPONDENTS BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO.659/2008.
EXHIBIT P6 A PHOTOSTAT COPY OF THE ORDER DATED 31/05/2010 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN ORIGINAL APPLICATION NO.659/2008.
EXHIBIT P7 A PHOTOSTAT COPY OF THE LETTER NO.C-
18013/31/2008-CC DATED 30/12/2010 ISSUED BY THE MINISTRY OF STATISTICS AND PROGRAMME IMPLEMENTATION, NEW DELHI.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(A) A TRUE COPY OF THE OFFICE MEMORANDUM F.NO.11024/12/2013-SSS DATED 30/01/2014.
EXHIBIT R4(B) A TRUE COPY OF ORDER NO.11024/12/2013-SSS DATED 27/03/2014.
OP(CAT).1124 of 2011 - 16 -
EXHIBIT R4(C) A TRUE COPY OF PART II OF ORDER OF DOP&T
OM NO.22011/05/1986-ESTT(D) DATED
10/04/1989.
EXHIBIT R4(D) A TRUE COPY OF ORDER OF DOP&T OM
NO.28036/08/1987-ESTT.(D)
DATED 30TH MARCH 1988.
[ TRUE COPY ]