Union Of India vs K T Joseph on 12 June, 2024

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Kerala High Court

Union Of India vs K T Joseph on 12 June, 2024

1. Union of India is aggrieved of the order of the Central Administrative Tribunal dated 06.07.2023 rendered in OA No.146 of 2016 whereby the claim of the respondent- applicant has been allowed taking into consideration that the matter was squarely covered by the judgment of the High Court in OP(CAT) No.151/2016. The aforementioned decision of OP(CAT) No.151/2016 was followed in an other identical situation in respect of a person employed in Indian Army, by order in OP(CAT)No.179/2018.

2. Mr.Krishna T.C., learned Deputy Solicitor General in charge assisted by Mr.T.V.Vinu submitted that the findings of the Tribunal is not sustainable in the eyes of law as the matter is not covered by the decision rendered in OP(CAT) referred to above. Both judgments have not taken into consideration Rule 7 of the notification dated 29.08.2008 issued by Ministry of Finance, Department of Expenditure wherein, 7A(ii) requires that if the minimum of OP (CAT) NO. 184 OF 2023 4 the revised pay band /pay scale is more than the amount arrived at as per 7A(i), i.e., pay shall be fixed at the minimum of the revised pay band/pay scale with certain provisos and the Rule regarding applying of the multiple factor to the revised pay scale was held to be contrary. In fact the scale is to be determined by multiplying 'basic pay' as on 01.01.2006 by a factor of 1.86 and relied upon the judgment in Union of India and Others v. K.V.Rama Raju and Others [2018 (16) SCC 752].

3. The facts in brief are that the respondent- applicant challenged Annexure-A4 statement of fixation of pay under the Central Civil Services (revised Pay) Rules, 2008, whereby the petitioners revised the pay band 12090 instead of 13857 with effect from 21.11.2006. The applicant-respondent commenced his service as Postal Assistant on 29.05.1984. As on 01.01.2006 he was working as Postal Assistant (TBOP) in the pay scale of Rs.4500-7000. On 26.10.2006 was given ad hoc promotion to the post of Junior Accounts Officer (JAO) in the scale of Rs.6500-200- OP (CAT) NO. 184 OF 2023 5 10500 with effect from 21.11.2006 as per order dated 29.11.2006 was promoted as JAO in the aforementioned scale on regular basis.

4. The 6th Central Pay Commission recommendation was accepted on 29.08.2008 with effect from 01.01.2006 and in lieu thereof, Central Civil Services (Revised Pay) Rules, 2008 (hereinafter called 'the Rules') were promulgated as per Entry XX, Part B of Schedule I, the post of Section Officer identical to JAO in the pay scale of 6500- 10500 was merged with Assistant Accounts Officer in the pay scale of 7450-115000 and the merged cadre was upgraded to the scale of 7500-12000. Respondent-applicant opted for the revised pay structure from the date of his promotion under second proviso to Rule 5 of the Rules as evident from Annexure-A2 dated 24.10.2008. Pay was revised reckoning the basic pay in pre revised scale of Rs.6500/- without giving any fixation of the scale of Rs.7500-12000 with a Grade Pay of Rs.4200/-. Aggrieved of the same, a representation dated 05.11.2008 Annexure-A3 OP (CAT) NO. 184 OF 2023 6 was submitted pointing out that his pay has to be fixed after upgrading the pay scale of Rs.6500/-10500 to 7500- 12000. Subsequently, there was a revised fixation and it is evident that pre revised scale of Rs.6500-200-10500 was upgraded to Rs.7450-225-11500 and revised pay scale of Rs.9300-34800 plus Grade Pay of Rs.4800 was granted as evident from Annexure-A4.

5. Vide Annexure-A5 dated 25.06.2009, it was made clear that the posts of JAO and AAO were upgraded and placed in the common pay scale of Rs.9300-34800 plus Grade Pay of Rs.4800/-, the post was re-designated as AAO and classified as Group B (Gazetted). The factum on the mistake was pointed out by submitting another representation dated 19.10.2009 Annexure A6 which was rejected vide communication dated 13.05.2010 Annexure- A7. The stand of the petitioners/respondents was that consequent upon the 6th Pay Commission report, the pay scale in the JAO cadre Rs.6500-200-10500 was revised to the Pay Band 2 (PB-2) of 9300-34800 plus Grade Pay of OP (CAT) NO. 184 OF 2023 7 Rs.4200 with effect from 01.01.2006. But the applicant has sought the fixation and revision of corresponding pay of 6 th Central Pay Commission revised scale of Rs.9300-34800 plus Grade Pay of Rs.4200/- to be upgraded by granting higher pay scale of Rs.7500-250-12000 of corresponding 6 th Central Pay Commission revised pay scale of Rs.9300-34800 plus Grade Pay Rs.4800/-. Ministry of Finance issued a notification dated 29.08.2008 regarding upgradation of various pay scales. Office of the Comptroller and Auditor General of India issued some clarifications vide letter dated 22.09.2011 regarding the mode of fixation of pay.

6. Learned Tribunal, on consideration of the respective pleadings and the arguments of the parties, allowed the OA. Relevant portion of the order of the Tribunal ie., paragraphs 3 to 6 reads as under:

3. The learned counsel for the applicant placed reliance on the decision of this Tribunal in O.A 133/13 which was confirmed by the Hon'ble High Court in O.P(CAT) No 151/2016. The issue involved seems to be exactly similar.

The relevant portion of the above order is extracted as follows:

OP (CAT) NO. 184 OF 2023 8 As per the CCS (Revised Pay) Rules, 2008, the basic pay of the Section Officer, whose post had been merged with that of the Assistant Accounts Officer with effect from 01.01.2006, had to be seen as falling within the revised scale contemplated under the Rules for the post of Section Officer. That scale was Rs.7500-12000. It followed therefore that the existing pay of the Section Officer as on 01.01.2006 had to be seen as the pay drawn by him in the scale of Rs.7500-12000. In as much as the applicants were drawing a pay of Rs.7,100/Rs.7,300 in the pre- revised scale of Rs. 6500-10500 which was much less than the minimum pay in the scale of Rs.7500 12000, their existing pay for the purposes of the Rules had to be taken as Rs:7,500/- which was the minimum in the revised pay scale. The grade pay for the posts which had been 2022:KER:42850 O.P. (CAT) No. 151 of 2016 10 merged with effect from 01.01.2006 had also to be taken as Rs.4,800/- for the pay band PB-2. When the fitment table is applied to these figures the applicants will be seen as entitled to a revised basic pay of Rs.13,950/- and a grade pay of Rs.4,800/- with effect from 01.01.2006. The Tribunal having found that this is what is due to the applicants, we see no reason to interfere with the said conclusion of the Tribunal."

4. The principle laid down in O.P(CAT) 151/2016 was followed in an identical situation in relation to the persons employed in the Indian Navy by order in O.P(CAT) 179/2018.

OP (CAT) NO. 184 OF 2023 9

5. Having heard the learned counsel for the applicant as well as the learned ACGSC. we find that the above decision is directly applicable to the facts of the present case and the applicant is entitled to have his pay fixed accordingly. Though the learned counsel for the applicant pressed for interest based on the decision of the Hon'ble Supreme Court in the State of Andhra Pradesh and Another v. Smt Dinavahi Lakshmi Kameswari (Livelaw 2021 SC 113), having regard to the fact that the Original Applications Nos 271/2014 and 569/2014 from which the OP(CAT)s [OP(CAT)s 151/2016 and 179/2018) which we have referred supra arose did not grant interest, we are not inclined to grant interest.

6. It is declared that the applicant is entitled to have his pay fixed in 7500-12000 from 21.11.2006 and to have his pay fixed in the revised pay structure under the CCS (Revised Pay) Rules, 2008 reckoning his basic pay in the pre-revised pay scale as Rs.7500/- on 21.11.2006. In the result the Original Application stands allowed and the respondents are directed to fix his pay accordingly. Fresh fixation orders shall be passed within a period of two months from the date of receipt of a copy of this order and the entire amount due to him shall be paid within the above period.

7. The Original Application is allowed as above. No costs."

7. Sri.T.C.Krishna submitted that the matter is not squarely covered as pointed out by the petitioners for the OP (CAT) NO. 184 OF 2023 10 reason that Court should not place reliance on the decision without discussing as to how the factual situation fits in with the factual situation of the decision on which the reliance has been placed. Tribunal failed to consider Rule 7 of the Rules and as per Note 2A of the Rules, it has been provided that where the post has been upgraded as a result of recommendation of 6th Central Pay Commission, the fixation of pay in the applicable Pay Band will be done in the manner prescribed in accordance with Rule 7(A)(i)&(ii) by multiplying the existing basic pay as on 01.01.2006 by a factor 1.86. Applicant though had exercised the option under proviso to sub-rule 5 for revised pay scale from the date of his promotion ie., from 21.11.2006, the fixation of pay was done as per the aforementioned rule. On the date of promotion applicant was in the pre revised pay scale of Rs.6500-200-10500 which was done by multiplying the basic pay with factor of 1.86 and Grade Pay of Rs.4,800/- attached to the upgraded scale of Rs.7450-225-11500 was also given. The Department of Posts after consultation with OP (CAT) NO. 184 OF 2023 11 Department of Expenditure issued an order dated 29.09.2022 wherein merger of JAO post with AAO post into a single cadre was clarified. However, the Tribunal failed to refer to any submissions while passing the impugned order and got swayed away with the findings already rendered by the High Court in OP(CAT)No.151/2016. In fact, it was not covered by the judgment as relied on.

8. On the other hand, Sri.Hari Raj, learned Senior Counsel drawn the attention of this Court to Annexure-A4 to contend that against serial No.4 pre revised scale of pay applicable for the post was shown as Rs.6500-200-10500 (scale upgraded to Rs.7450-225-11500) and against column No.7, 12090 which was being paid with effect from 21.11.2006. The said calculation was done from 21.11.2006 in the pay scale of Rs.6500/- but applicant was promoted on 21.11.2006 as JAO in the pay scale of Rs.7500/- and therefore, revised Pay Band has to be fixed not based on Rs.12090/- but Rs.13857, in view of the exercise of the option and order under challenge is perfectly legal and justified. OP (CAT) NO. 184 OF 2023 12

9. We have heard the learned counsel for the parties and appraised the paper book.

10. This Court upheld the findings of the CAT in OP(CAT)No.179/2018 decided on 04.01.2023. Paragraph 9 and 10 of the same reads as under:

"9. Having heard the learned counsel on either side we are of the view that the issue is essentially covered by our judgment in OP(CAT) 151 of 2016 dated 8.8.2022. The Rules in question in that case as well as the instant case are pari materia. In that case we had considered Rule 7(1)(A)(ii) of the Central Civil Service (Revised Pay) Rules, 2008, which is pari materia with the Rules in the instant case. The relevant Rules, 2008 are extracted hereunder:

"7(1)(A)(i) "the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10."

3(2) "existing scale" in relation to a Government servant means the present scale applicable to the post held by the Government servant (or, as the case may be, personal scale applicable to him) as on the 1st day of January, 2006 whether in a substantive or officiating capacity.

Interpreting the said provisions in the backdrop of the merger in pay scales that was implemented with effect from 01.01.2006, we had found as follows:-

OP (CAT) NO. 184 OF 2023 13 " As per the CCS (Revised Pay) Rules, 2008, the basic pay of the Section Officer, whose post had been merged with that of the Assistant Accounts Officer with effect from 01.01.2006, had to be seen as falling within the revised scale contemplated under the Rules for the post of Section Officer. That scale was Rs.7500 - 12000. It followed therefore that the existing pay of the Section Officer as on 01.01.2006 had to be seen as the pay drawn by him in the scale of Rs.7500 - 12000. In as much as the applicants were drawing a pay of Rs.7,100/Rs.7,300 in the pre-revised scale of Rs. 6500-10500 which was much less than the minimum pay in the scale of Rs.7500 - 12000, their existing pay for the purposes of the Rules had to be taken as Rs.7,500/- which was the minimum in the revised pay scale. The grade pay for the posts which had been merged with effect from 01.01.2006 had also to be taken as Rs.4,800/- for the pay band PB-2. When the fitment table is applied to these figures the applicants will be seen as entitled to a revised basic pay of Rs.13,950/- and a grade pay of Rs.4,800/- with effect from 01.01.2006. The Tribunal having found that this is what is due to the applicants, we see no reason to interfere with the said conclusion of the Tribunal. "

10. The issue in these Original petitions is covered by our judgment mentioned above. A reading of Rule 7 of the Rules 2008 as well as the definition of the existing basic pay and the existing scale it has to be held that the existing basic pay as on 01.01.2006 is the pay drawn in the prescribed existing scale of pay and that it can only be interpreted as the pay applicable to the post payable to the Government OP (CAT) NO. 184 OF 2023 14 servants as on 01.01.2006, as the pay in the old scale has ceased to exist on 01.01.2006 and a new scale scale has admittedly come into existence.

For the reasons mentioned above as well as for the reasons given by the Tribunal, we find no reason to interfere with the order of the Tribunal. Accordingly, we dismiss these original petitions."

11. It would be in the fitness of things to extract the impugned order Annexure-A4.

Statement of fixation of pay under Central Civil Service (Revised Pay) Rules, 2008.

1 Name of the Government Servant : K.T.Joseph 2 Designation of the Post in which pay is to be : JAO fixed as on January 1, 2006.

21 11-2006 3 Status Substantive/officiating) : Substantive 4 Pre-revised scale (s) of pay applicable for : 6500-200-10500 the post [In case more than one scale of (scale upgraded to pay is applicable for the post and these Rs.7450-225-11500) been merged in pursuance of the recommendation of the Sixth CPC in a single revised scale, the scale of pay in which the employee was actually drawing his pay should be specified] 21.11.2006 5 Existing emoluments as on January 1, 2006 : 6500

(a) Basic pay (including stagnation : 3250 Increments, if any)

(b) Dearness Pay : 2340

OP (CAT) NO. 184 OF 2023 15 AICPI average 536 (1982-100)

(d) Total existing emoluments ((s) to (c)] : 12090

6 Revised pay band and grade pay : 9300-34800+GP 4800 corresponding to the pre-revised scale shown at St No.4 above. (In case of HAG+ and above the appropriate scale may be mentioned.) 7 Pay in the revised pay band/scale in which : 12090 wef 21-11-2006 pay is to be fixed as per the fitiment table attached at Annex-1 8 & Grade pay to be applied in terms of Rule : 4800 4 of CCS (RP) Rules, 2008.

9 Stepped up pay with reference to the Revised pay of Junior, if applicable [Notes 7 & 10 below Rule 7(1) of CCS) RP) Rules, 2008]. Name and pay of the junior also to be indicated distinctly.

10 Revised pay with reference to the substantive Pay in cases where the Pay fixed in the offciating post is lower than the pay fixed in the substantive post if applicable [Such Rule (2) of Rule 7]. 11 Personal Pay, if any [Notes 6 and 8 below Rule 7(1)].

12. Revised emoluments after fixation

(a)Pay in the Revised Pay Band/Pay Scale : 12090

(b) Grade Pay

(c)Special Pay, if admissible (sub Rule : 4800 I(C) of Rule 7

(d)Personal pay if admissible :

(e) Non-practicing Allowances, if :

admissible (sub Rule 1(D) of Rule 7) :

13 Date of Next Increment (Rules 9 & 10) and : 1-7-2007 Pay after grant of increment.

 OP (CAT) NO. 184 OF 2023
                                    16



     Date of increment           Pay after Increment

   1-7-2007                     Pay in the     Pay Grade Pay      (Wherever
                                Band/Scale         applicable)


                                12600              4800

14. Any other relevant information"

12. It is a matter of record that the petitioner was promoted with effect from November, 2006. Before promotion, was in scale of Rs.6500-10500 and when it was merged with AAO in the pay scale of Rs.7450/- merged cadre was upgraded to Rs.7500-12000. Therefore, it would not be reckoned to be from the basic pay but the pay scale which was granted on account of promotion. In fact, the petitioners did not take into consideration the fixation to the scale Rs.7500-1200 as per the Entry XX Part III Schedule 1 of the Rules.

13. Rule 7(1)(A)(ii) of the Central Civil Service (Revised Pay) Rules, 2008 as well as Rule 3(2) defining 'existing pay' reads as under:

OP (CAT) NO. 184 OF 2023 17 "7(1)(A)(i) "the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10."

14. The said Rules have already been extracted in the judgment of this Court and on cumulative reading of the aforementioned Rules, it is evident that petitioners ought to have given the benefit on account of the merger of the post the upgradation of pay scale for the purpose of revision in the pay fixation from the date of promotion which the respondent-applicant has claimed.

15. There is no quarrel to the ratio decidendi culled out in the judgment cited supra. However, it only pertains to the application of Rule which has already been done by applying the multiplier. The only thing is it should have been on considering the pay scale drawn on account of promotion OP (CAT) NO. 184 OF 2023 18 and not the previous pay scale, when there was a revision with effect from 01.01.2006. We do not find any illegality and perversity in the order of the Tribunal. Original petition stands dismissed.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE nak OP (CAT) NO. 184 OF 2023 19 APPENDIX OF OP (CAT) 184/2023 PETITIONER ANNEXURES Annexure A-4 TRUE COPY OF FIXATION MEMO DATED 20.3.2009.


Annexure A-7        TRUE COPY OF ORDER DATED 1869 /
                    ADMN.II/GEN   I     /   2009-10 DATED

26.3.2010, ALONG WITH THE FORWARDING LETTER NO. A&P/16- 14/09 DATED 13.5.2010.

Annexure A-11 TRUE COPY OF ORDER NO. A&P/ 16- 14/2009 DATED 8.1.2014.

Annexure A-1        TRUE     COPY      OF      ORDER       NO.
                    138/ADMN.I./E.I/C-10B   (VOL. II)    DATED
                    29.11.2006.

Annexure A-2        TRUE COPY OF OPTION DATED 24.10.2008.

Annexure A-3        TRUE   COPY  OF   REPRESENTATION  DATED

5.11.2008 SUBMITTED BY THE APPLICANT TO THE ACCOUNTS OFFICER O/ O. THE POST MASTER GENERAL, KOCHI.

Annexure A-5 TRUE COPY OF ORDER NO. 38(2)/2009/PA ADMN.1/ 153-207 DATED 25.6.2009 Annexure A-6 TRUE COPY OF REPRESENTATION DATED 19.10.2009 SUBMITTED BY THE APPLICANT TO· THE POSTMASTER GENERAL, CENTRAL REGION, KERALA CIRCLE, KOCHI.

Annexure A-8 TRUE COPY OF CLARIFICATION DATED 13.6.2011 ISSUED BY THE C&AG.

Annexure A-9 TRUE COPY OF ORDER NO 24 38(3)/10/PA-

ADMN 1/ 348-3B8 DATED 21.11.2012 Annexure A-10 TRUE COPY OF THE REPRESENTATION DATED 11.10.20 L3 SUBMITTED BY THE APPLICANT OP (CAT) NO. 184 OF 2023 20 TO THE DIRECTOR OF ACCOUNTS(POSTAL)KERALA CIRCLE, TRIVANDRUM.

Annexure A-12 TRUE COPY OF THE FINAL ORDER OF 10.12.2013 IN OA 53I/20L2, OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, JAIPUR BENCH.

Annexure A-13 TRUE COPY REPRESENTATION DATED 4.12.2015 SUBMITTED BEFORE THE SECOND RESPONDENT.

Annexure A-14 TRUE COPY OF FINAL ORDER DATED 9.8.2012 IN OA 293/2011 OF THE ALLAHABAD BENCH OF THE CENTRAL ADMINISTRATIVE TRIBUNAL. Annexure A-15 TRUE COPY OF FINAL ORDER DATED 3.12.2015 IN OA 1291/2013 CENTRAL ADMINISTRATIVE TRIBUNAL, CALCUTTA BENCH, KOLKOTTA.

Annexure R-1 TRUE COPY OF OM NO. F.NO. 1/1/2008-IC DATED 30.8.2008 Annexure R-2 TRUE COPY OF LETTER ISSUED BY THE MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE NO.F-2-1/2015/E.III(A) DATED 16.10.2015 Annexure R-3 TRUE COPY OF OFFICE MEMORANDUM NO.GOI OM NO.1/1/2008 - IC DATED 13.09.2008.


Annexure A-16      TRUE COPY OF     THE EXTRACT FROM THE
                   SERVICE BOOK     OF  THE  APPLICANT KT
                   JOSEPH.

Annexure A-17      TRUE COPY OF MINISTRY OF FINANCE UO NO.
                   10/1/2009-IC DATED 14/12/2009

Annexure A-18      TRUE     COPY      OF     ORDER     NO.

PC-VI/2010/I/RSRP/5 DATED 22/7/2010 Exhibit P-1 TRUE COPY OF ORIGINAL APPLICATION WITH OP (CAT) NO. 184 OF 2023 21 INDEX, SYNOPSIS AND ORIGINAL APPLICATION.

Exhibit P-2 TRUE COPY OF REPLY STATEMENT FILED BY THE RESPONDENTS.

Exhibit P-3 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT/APPLICANT Exhibit P-4 TRUE COPY OF THE ADDL. REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENTS Exhibit P-5 TRUE COPY OF MISCELLANEOUS APPLICATION DATED 27/7/2017 ALONG WITH ANNEXURE A- 16 TO A-18 Exhibit P-6 TRUE COPY OF ORDER DATED 6.7.2023 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN OA 180/00146/2016 Exhibit P-7 TRUE COPY OF DECISION REPORTED IN THE CASE OF BHARAT PETROLEUM CORPORATION LTD & ANR VS. N.R. VAIRAMANI & ANR REPORTED IN JT 2004 (8) SC 171 Exhibit P-8 TRUE COPY OF ORDER DATED 29.09.2022 ISSUED BY THE DEPARTMENT OF POSTS.

RESPONDENT EXHIBITS Exhibit R1(b) TRUE COPY OF THE JUDGMENT DATED 8/8/2022 IN OP(CAT)151/2016 Exhibit R1(c) TRUE COPY OF JUDGMENT DATED 4/1/2023 IN OP(CAT) 179/2018 Exhibit R1(a) A TRUE COPY OF THE ORDER NO.

195/ESTT/SAI/SDK DATED 3/7/2023 (ISSUED ON 3/8/2023) IN RESPECT OF MR. SANJAY. D.KHATAGALLI FOR THE GENERAL MANAGER , KARNATAKA POSTAL CIRCLE, BANGALORE

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