Kerala High Court
Union Of India vs T.P.Leena on 27 September, 2011
Author: C.T. Ravikumar
Bench: Thottathil B.Radhakrishnan, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
THURSDAY, THE 21ST DAY OF JUNE 2012/31ST JYAISHTA 1934
OP (CAT).No.467 of 2012 (Z)
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IN OA.107/2011 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER(S):
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1. UNION OF INDIA,
REPRESENTED BY SECRETARY, DEPARTMENT OF ANIMAL HUSBANDRY
DAIRYING AND FISHERIES, MINISTRY OF AGRICULTURE,
NEW DELHI.
2. THE DIRECTOR GENERAL
FISHERY SURVEY OF INDIA, BOTAWALA CHAMBERS
SIR P.M ROAD, MUMBAI.
3. THE ZONAL DIRECTOR
COCHIN BASE OF FISHERY SURVEY OF INDIA, COCHIN.
BY ADVS.SRI.GEORGE JOSEPH, CGC
RESPONDENT(S):
--------------
T.P.LEENA
W/O. M.S GOPINATH, JUNIOR HINDI TRANSLATOR
COCHIN BASE OF FISHERY SURVEY OF INDIA
COCHIN, RESIDING AT 'UNIDECK ENCLAVE'
ST. SEBASTIAN ROAD, KUMARANASAN NAGAR, ERNAKULAM.
BY ADV. SRI. SHAFIK.M.ABDULKHADER
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 11-04-2012, THE
COURT ON 21-06-2012 DELIVERED THE FOLLOWING:
O.P.(CAT).467/12
APPENDIX
PETITIONERS' EXHIBITS:
P1: TRUE COPY OF THE ORDER DATED 27.9.2011 OF THE CAT, ERNAKULAM
BENCH IN O.A.NO.107/2011.
P2: TRUE COPY OF THE O.A.NO.107/2011 FILED BY THE RESPONDENT
BEFORE THE CAT, ERNAKULAM BENCH.
P3: TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN
O.A.107/2011.
P4: TRUE COPY OF THE ADDL.REPLY STATEMENT FILED BY THE
PETITIONERS IN O.A.NO.107/2011.
P5: TRUE COPY OF THE 2ND ADDL.REPLY STATEMENT FILED BY THE
PETITIONERS IN O.A.107/2011.
P6: TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT IN
O.A.107/2011.
P7: TRUE COPY OF THE M.A. FOR PRODUCTION OF DOCUMENT FILED BY
THE RESPONDENT IN O.A.107/2011.
P8: TRUE COPY OF THE APPROVED PAY SCALES (PAY BAND + GRADE PAY)
OF THE VITH CPC FROM 1.1.2006.
P9: TRUE COPY OF THE DOPT'S O.M.35034/1197-ESTT (D)
DTD.9.8.1999.
RESPONDENT's EXHIBITS: NIL
//TRUE COPY//
P.A.TO JUDGE
THOTTATHIL B. RADHAKRISHNAN &
C.T. RAVIKUMAR, JJ.
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O.P.(CAT). No.467 OF 2012
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Dated this the 21st day of June, 2012
JUDGMENT
Ravikumar, J.
The petitioners-Union of India, the Director General and Zonal Director of Fishery Survey of India, were the respondents and the respondent herein was the applicant in O.A.No.107 of 2011 on the file of the Central Administrative Tribunal, Ernakulam Bench. For the sake of convenience, the parties are referred to hereinafter as 'the petitioners' and the 'respondent' evenwhile referring to the proceedings before the Tribunal. The respondent approached the Tribunal alleging wrong fixation of her pay upon granting of the first and second financial upgradations under the Modified Assured Career Progression Scheme (MACP Scheme) which came into existence with effect from 1.9.2008. The core contention of the respondent was that by virtue of paragraph 5 of the MACP Scheme, the promotions earned/upgradations granted under the ACP scheme should have been O.P.(CAT).467/12 2 ignored for the purpose of granting upgradation under the MACP Scheme. It is claimed in the light of paragraph 5 of the MACP Scheme for the first financial upgradation with the grade pay of Rs.4800/- with effect from 1.9.2008 and for the second upgradation with grade pay of Rs.5400/- with effect from 30.3.2010. As a matter of fact, the said claim of the respondent was found sanctionable by the internal audit department. The petitioners resisted the claims and contentions of the respondent and contended that the respondent's entitlement is only to the grade pay of Rs.4800/- in terms of MACP Scheme. Their contentions were summarised in paragraph 5 of the reply affidavit filed by them in the original application before the Tribunal. Rejoinder and affidavit were also filed respectively by the respondent and the petitioners. After considering the rival contentions and the materials on record, the Tribunal set aside Annexures-A1 and A2, the impugned orders. Annexure-A1 is the office order bearing No.F1-5/2010 dated 8.4.2010 of the second petitioner herein whereby the request of the respondent for extending the grade pay of Rs.5400/- O.P.(CAT).467/12 3 upon granting of financial upgradation as per MACP Scheme was refused. Annexure-A2 is the office order No.F.8-32/2009 dated 19.4.2010 issued by the third petitioner herein limiting the grade pay payable to the respondent at Rs.4800/- as against her claim of Rs.5400/- as grade pay. After setting aside Annexures-A1 and A2, the petitioners were directed to pass suitable orders refixing the pay of the respondent as hereunder:
(a)w.e.f. 01-09-2008: admissible pay in the scale of Rs.9,300-34,800 with grade pay of Rs.4,800/-.
(b)w.e.f. 30.03.2010: admissible pay in the scale of Rs.9,300-34800 with grade pay of Rs.5,400/-.
The arrears arising from such fixation of pay was also directed to be paid to the respondent. It is feeling aggrieved by Ext.P1 order setting aside Annexures-A1 and A2 and the consequential directions issued thereunder that this original petition has been filed.
2. We have heard the Central Government Standing Counsel for the petitioners and the learned counsel appearing for the O.P.(CAT).467/12 4 respondent, elaborately, at the stage of admission. Parties have virtually reiterated the respective contentions raised before the Tribunal.
3. At the outset, we think it necessary and appropriate to comment upon one aspect. The affidavit accompanying the original petition would show that it was sworn in by one D.M.Ali, who is a Senior Fisheries Scientist holding the charge of Kochi Base of Fishery Survey of India. It is stated in the affidavit that he was authorised to swear affidavit for and on behalf of the petitioners and that he is competent to swear the affidavit as duly authorised by them. Conspicuously, the affidavit would not say anything as to whether he was authorised to file this original petition on behalf of the Union of India. Considering such aspects, as also the stake involved in this matter, we are constrained to say that National Litigation Policy is not only to be preached, but also to be practised, imbibing its real spirit and purpose. We refrain ourselves from making any further comment O.P.(CAT).467/12 5 and from going into the said issue any further. However, we fervently hope that the competent authorities would consider such matters in future, taking into account the spirit of the National Litigation Policy of the Union of India.
4. Reverting to the case in hand, admittedly, the claim of the respondent found favour with the internal audit department. Independent of that, we will look into the sustainability of the impugned order of the Tribunal considering the merits of the claim of the respondent and for that, it is relevant to look into the service particulars of the respondent.
5. The respondent joined the service of the Fishery Survey of India as Hindi Translator (Group C Non Gazetted) on regular basis on 30.3.1990. Admittedly, it was an isolated post with no promotional prospects. The scale of pay then attached to that post was Rs.1400- 2300. After the introduction of the revised Pay Rules, 1996, on O.P.(CAT).467/12 6 acceptance of the 5th Pay Commission recommendations, it was replaced by the scale of pay of Rs.4500-7000 with retrospective effect from 1.1.1996. On 8.11.2000, that scale of pay was replaced by the scale of pay of Rs.5000-8000 with retrospective effect from 1.1.1996. On 13.7.2004, the post of Hindi Translator was re-designated as Junior Hindi Translator without any change in the functional responsibilities as also in the pay scale. On 9.8.1999, the Assured Career Progression Scheme was introduced. In terms of the same, on 29.3.2002, the first financial upgradation was granted to the respondent and she was placed in the scale of pay of Rs.5500-9000 w.e.f 30.3.2002. While so, the 6th Central Pay Commission recommended for merger of scales of pay of Rs.5000-8000, Rs.5500- 9000 and Rs.6500-10500 and for replacing the said scales of pay in pay band 2 with scale of pay of Rs.9300-34800 with the grade pay of Rs.4200/-. As per that, the pre-revised pay of the post of Junior Hindi Translator was placed in the scale of pay of Rs.6500-10500. Subsequently, pay of the respondent was fixed in pay band 2- O.P.(CAT).467/12 7 Rs.9300-34800 with the grade pay of Rs.4200/-. Pursuant to letter No.8-1/09-E1 dated 4.5.2009 of the Senior Administrative Officer, Fishery Survey of India, as per Annexure-A6, the respondent's pay was fixed in the pay band of Rs.9300-34800 taking into account the upgradation in the pre-revised scale of Rs.7450-11500, with a grade pay of Rs.4600/-. ACP Scheme introduced on 9.8.1999 was replaced by MACP Scheme w.e.f 1.9.2008. The claim of the respondent, based on paragraph 5 of the MACP Scheme, was for first financial upgradation with grade pay of Rs.4800/- w.e.f. 1.9.2008 and the second financial upgradation with grade pay of Rs.5400/- w.e.f. 30.3.2010. As per Annexure-A5 office memorandum dated 13.11.2009, the pay scale of Rs.6500-10500 with grade pay of Rs.4200/- was revised to 7450-11500 w.e.f 1.1.2006 and the grade pay was enhanced to Rs.4600/-. The claim of the respondent was that on 30.3.2010, she had completed 20 years of service and thereby, had acquired the entitlement to be considered for the second financial upgradation under the MACP as well, ignoring the upgradation O.P.(CAT).467/12 8 granted under the ACP Scheme. It was the denial of the said claim and passing of Annexures-A1 and A2 that constrained the respondent to approach the Tribunal.
6. Relying on paragraph 5 of the MACP scheme, the respondent contended before the Tribunal that it ought to be deemed that she had not earned any promotion/upgradation for the purpose of grant of financial upgradations as per that scheme. To gain support for the claim for the two financial upgradations as per MACP, the Internal Audit Department Note was reproduced in Ground C. The petitioners resisted the claims and contentions of the respondent. The counter contentions were raised in paragraph 5 of the reply affidavit filed by them. It was contended therein that the post of Junior Hindi Translator under the second petitioner Department was in the pay scale of Rs.5000-150-8000 till 31.12.2005 and not in the pay scale of Rs.6500-10500. The pay scale of Rs.6500-10500 was granted to the post of Junior Hindi Teacher w.e.f 1.1.2006 as per Annexure-A4 with O.P.(CAT).467/12 9 corresponding PB-2 + G.P of Rs.4200/-. According to them, the post of Junior Hindi Translator could not be treated as having carried the pay scale of Rs.6500-10500 prior to 1.1.2006. Yet another contention raised therein was that the second situation in Annexure-A5 O.M. dated 13.11.2009 pertain to the grant of the grade pay of Rs.4200/- to the pre-revised pay scale of Rs.6500-10500 and not to the pay scale of Rs.5000-8000. The respondent had filed rejoinder along with a number of OMs and the petitioners had filed additional reply affidavit, essentially to support their respective contentions. In fact, after the conclusion of the arguments, the respondent had produced before the Tribunal copy of the extract of the audit report along with a Miscellaneous Application carrying advice of the internal audit to the petitioners to fix the pay of the respondent under the 2nd and 3rd MACP with grade pay of Rs.4800-5400/-. In the second additional reply filed thereafter, the petitioners took up the contention that the remarks or recommendations of the internal audit which was not yet finalised by them could not lend any support to the claim of the O.P.(CAT).467/12 10 respondent.
7. After considering the rival claims and contentions and perusing the records, the Tribunal set aside Annexures-A1 and A2 and issued specific directions to the petitioners to pass suitable orders refixing the pay of the respondent in the manner set out in the order and to pay arrears arising from such fixation.
8. In the context of the contentions, clause 5 of the MACP Scheme assumes relevance and it reads thus:-
"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 O.P.(CAT).467/12 11 Rs.5000-8000 and who did not get a promotion even after 25 years of service prior to 01.01.2006, 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., 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 & Rs.6500-10500 during this period.
In the case of both (a) and (b) above, the promotions/financial upgradations granted under ACP to the pre-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."
9. Obviously, the Tribunal considered the applicability of clause 5 of the MACP Scheme extracted above in the case of the O.P.(CAT).467/12 12 respondent giving due regard to her service particulars and the impact of introduction of the MACP. During the course of such consideration, it was held that with respect to the respondent's service particulars as also up to the stage of revision of the pay scale viz., replacement of the pay scale of Rs.7450-11500 by the Revised Pay Scale (PB-2) of Rs.9300-34800 with a grade pay of Rs.4600/-, there was no factual dispute. The Tribunal had, thereupon, considered the indisputable fact of merger of the three pay scales viz., Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 pursuant to the recommendation of the 6th Central Pay Commission and the consequential replacement of the said scales of pay in Pay Band 2 with the scale of pay of Rs.9300- 34800 with grade pay of Rs.4200/-. The contention of the respondent to ignore the financial upgradation granted from Rs.5000-8000 to Rs.5500-9000 in 2003 was considered in the said circumstances and in the light of clause 5 of the MACP. Essentially, the contention of the respondent was that in view of such circumstances, she was to be treated as remaining in the initial grade without any financial O.P.(CAT).467/12 13 upgradation and thereby, entitled to get two financial upgradations on introduction of the MACP Scheme after taking into consideration of the fact that by then, she was drawing the grade pay of Rs.4600/- In other words, in such circumstances, the respondent claimed first financial upgradation with the grade pay of Rs.4800/- w.e.f. 1.9.2008 and the second financial upgradation with grade pay of Rs.5400/- w.e.f. 30.3.2010.
10. Juxtaposed with factual and legal situations as aforesaid, the Tribunal considered the applicability of the MACP Scheme, particularly, paragraph 5 thereunder in the case of the respondent with reference to her service particulars. The key wordings in paragraph 5 of the Scheme "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." and the O.P.(CAT).467/12 14 fact that after the recommendations of the Sixth Pay Commission in respect of grant of financial upgradations under MACP Scheme, it is the grade pay that would undergo an upward revision and not the pay scale, were given due consideration by the Tribunal. For ascertaining the entitlement of the respondent, the revised pay structure and corresponding grade pay in the erstwhile pay scale of Rs.5000- 8000 and Rs.5500-9000 was also looked into. The tabular column containing the details given in paragraph 13 of the order of the Tribunal would undoubtedly show that the revised pay in Pay Band 2 of Rs.5000-8000 and Rs.5500-9000 is 9300-34800 and that the said erstwhile scales of pay even after the revision carried only the same grade pay of Rs.4200/-. The Tribunal found that the pay band as well as grade pay remain the same in this case. There was merger of two pay scales into a single pay scale. Taking into account the said factual circumstances obtained in this case, the Tribunal arrived at the conclusion that clause 5 of the Scheme applies to the case of the respondent and as such, for the purpose of financial upgradations O.P.(CAT).467/12 15 under the MACP Scheme, the earlier upgradation granted under the ACP Scheme has to be ignored. It was based on such finding that the Tribunal held that the financial upgradation obtained by the respondent under the ACP Scheme had to be ignored. On such evaluation of the claims of the respondent, the Tribunal found that the first financial upgradation should fetch the respondent the grade pay of Rs.4800/- w.e.f. 1.9.2008 and the second financial upgradation should fetch her the grade pay Rs.5400/- w.e.f. 30.3.2010, in the pay scale Rs.9300-34800. According to the Tribunal, such entitlement of the respondent is not based on application of the pay scales of the Central Secretarial Services but based on the fact that her case falls squarely within the ambit and scope of the provisions of the MACP Scheme, more particularly, paragraph 5 of the Scheme. Consequential directions as mentioned above have been issued in the said circumstances.
11. As already noticed hereinbefore, the parties have virtually O.P.(CAT).467/12 16 reiterated their contentions raised before the Tribunal. The contention of the petitioners is that the Tribunal ought not to have found that the pay scale of Junior Hindi Translator was revised to Rs.7450-11500 w.e.f 1.1.2006 because the said pay scale is attached to the post of Senior Hindi Teacher and not to the post of Junior Hindi Translator. According to the petitioners, since grade pay of Rs.4600/- is attached to the post of Senior Hindi Translator, the Tribunal ought to have found that the respondent who is Junior Hindi Translator was only to be treated as continuing in the very initial grade pay of Rs.4200/- instead of in the grade pay of Rs.4600/-. According to them, the initial grade pay of the respondent could only be taken as Rs.4200/-. Based on same, it is contended that the respondent would be entitled to the first and second financial upgradations only with the grade pay of Rs.4600/- and Rs.4800/- respectively. It is their case that as the respondent was drawing the grade pay of Rs.4600/- from 1.1.2006 as a consequence of the first financial upgradation under ACP Scheme which was in force from 9.8.1999 till 31.8.2009, she is eligible only O.P.(CAT).467/12 17 for the second financial upgradation on completion of 20 years that too, only with the grade pay of Rs.4800/-. Essentially, the contentions of the petitioners would reveal that according to them, paragraph 5 of the OM dated 13.11.2009 is not applicable to the respondent. We have already adverted to the reasoning conclusions and findings of the Tribunal. They were adverted to in detail only to see whether they invite an interference. In our considered view, the Tribunal has carefully and correctly considered the circumstances that would make paragraph 5 of the MACP Scheme applicable in a given case. Bearing in mind the admitted factual position that on merger of the scales of pay of Rs.5000-8000 and Rs.5500-9000, the pay scales in the revised pay structure, the pay band as also the grade pay in respect of the said erstwhile scales of pay remained the same viz., Rs.9300- 34800, pay band 2 and Rs.4200/- respectively and on applying the policy under the scheme in the case of the respondent with reference to her service particulars, as taken note of hereinbefore, we find no reason to decline the eligibility of the respondent for financial O.P.(CAT).467/12 18 upgradation in view of clause 5 of the MACP. The said conclusions and findings of the Tribunal founded on factual findings cannot be disturbed unless it is shown that they are palpably perverse. We have carefully gone through the conclusions and findings of the Tribunal while upholding the entitlement of the respondent for the benefit available under clause 5 and consequential financial upgradation under MACP Scheme. We have no hesitation to hold that the petitioners have failed to bring out a case compelling us to exercise jurisdiction under Article 226/227 of the Constitution of India. In fact, the discussion made as above with reference to the MACP Scheme and the service particulars of the respondent would reveal that she is entitled to the benefit of paragraph 5 of the MACP Scheme. At the outset, we have also taken note of the fact that the claim of the respondent for financial upgradations, in the manner claimed, was virtually found in her favour in the Internal Audit Department Note. The Internal Audit Department Note virtually supports the respondent's claim.
O.P.(CAT).467/12 19
For the foregoing reasons, we find no jurisdictional or legal infirmity in the order passed by the Tribunal in holding the respondent entitled to first financial upgradation in the pay scale Rs.9300-34800 with the grade pay of Rs.4800/- w.e.f 1.9.2008 and grade pay of Rs.5400/- in the same pay scale w.e.f. 30.3.2010. Consequently, there is no reason for interfering with the order to grant arrears pursuant to such fixation of pay to the respondent as well. In the circumstances, this application is liable to fail. Accordingly, it is dismissed.
THOTTATHIL B. RADHAKRISHNAN (Judge) C.T. RAVIKUMAR (Judge) spc/ O.P.(CAT).467/12 20 C.T. RAVIKUMAR, J.
JUDGMENT
September, 2010
O.P.(CAT).467/12 21