Kerala High Court
D.Pradeep Kumar vs The Director General
Author: Dama Seshadri Naidu
Bench: P.R.Ramachandra Menon, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
MONDAY,THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938
WP(C).No. 28699 of 2009 (Z)
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OA 151/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER(S):
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D.PRADEEP KUMAR, AGED 48 YEARS,
S/O.K.DAMODARAN, PROGRAMME EXECUTIVE,
ALL INDIA RADIO, THRISSUR, RESIDING AT, 'KRISHNA GEETHA',
EAST HILL, CALICUT.
BY ADVS.SRI.P.K.IBRAHIM
SRI.C.N.GOPAKUMAR
RESPONDENT(S):
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1. THE DIRECTOR GENERAL,
ALL INDIA RADIO, AKASAVANI BHAVAN,
PARLIAMENT STREET, NEW DELHI - 1.
2. THE STATION DIRECTOR,
ALL INDIA RADIO, CALICUT.
R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
R1 & R2 BY ADVS.SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA
SRI.P.J.PHILIP, C.G.C
SRI.N.NAGARESH, ASSISTANT SOLICITOR
GENERAL OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2016,
ALONG WITH WPC. 17664/2010, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
DG
WP(C).No. 28699 of 2009 (Z)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE ORIGINAL APPLICATION NO.151/08 DATED 8.3.08
WITH ITS ANNEXURES FILED BY THE PETITIONER BEFORE
THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.
EXT.P2: COPY OF THE REPLY STATEMENT DATED 16.1.09 FILED BY THE
RESPONDENTS BEFORE THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM.
EXT.P3: COPY OF THE REJOINDER DATED 2.1.09 SUBMITTED BY THE
PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM.
EXT.P4: COPY OF THE MISCELLANEOUS APPLICATION DATED 2.2.09 BY
THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM.
EXT.P5: COPY OF THE JUDGMENT IN O.A.NO.151/08 DATED 24.7.09 OF
THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.
EXT.P6: COPY OF THE REVIEW APPLICATION NO.41/09 DATED 19.08.09
FILED BY THE PETITIONER BEFORE THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM.
EXT.P7: COPY OF THE JUDGMENT IN R.A.NO.41/09 DATED 11.09.2009
OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.
RESPONDENT'S EXHIBITS: NIL
TRUE COPY
P.A TO JUDGE
P.R. RAMACHANDRA MENON &
DAMA SESHADRI NAIDU, JJ.
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W.P.C.No.28699 of 2009
&
W.P.C.No.17664 of 2010
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Dated this the 19th day of September, 2016
J U D G M E N T
P.R.Ramachandra Menon, J.
The issue involved in both these cases is in respect of a common cause of action. It relates to the pay fixation anomaly, which was sought to be resolved by approaching the Tribunal, by the concerned applicants. We find that the learned counsel who is appearing for the petitioner in W.P.(C).No.28699 of 2009 (arising from O.A.No.151 of 2008) was appearing himself on behalf of the applicant in O.A.No.150 of 2008 as well, who happens to be the respondent in W.P.(C).No.17664 of 2010. The learned counsel submits that he is taking notice on behalf the said respondent and as such both the matters are taken up and heard together as agreed by the parties.
2. The sequence of events and the parties/proceedings are referred to, as given in W.P.(C).No.28699 of 2009, which is treated as the lead case, except where separate reference is W.P.C.Nos.28699 of 2009, 17664 of 2010 2 made depending upon the context.
3. Writ petition No.28699 of 2009 has been filed by the applicant in O.A.No.151 of 2008, whereas the other case has been preferred by the Government/Department on being aggrieved by the direction given by the Tribunal in O.A.No.150 of 2008.
4. The prayers raised by the applicants were almost similar. For convenience of reference, we extract the reliefs sought for in O.A.No.151 of 2008 which read as follows:
"i) Call for the records leading to annexure A6 and quash the same finding that annexure A6 is bad and illegal;
ii) Issue a declaration declaring that the applicant is entitled to get his pay anomaly cured with reference to his juniors M.Rajeev Kumar and other similar staffs of the respondents;
iii) Issue a direction directing the respondents to fix the basic scale of the applicant at Rs.9000 as on 1-1-96 and pay the salary arrears with interest at the rate of 15%;
iv) Pass such other order or direction as may be deemed just, fit and necessary in the facts and circumstance of the case."
5. The reliefs sought for by the applicants before the Tribunal were strongly opposed from the part of the Department, W.P.C.Nos.28699 of 2009, 17664 of 2010 3 mainly pointing out that the applicants were not entitled to have the benefits sought for and further that they had only sought for same benefit which was wrongly given to the persons named therein. The version of the applicants was sought to be asserted by filing a rejoinder. After hearing both the sides, both the matters were disposed of as per a common verdict dated 24.07.2009, the operative portion of which is extracted below:
"(i) The respondents are directed to publish the combined seniority list of Programme Executives (direct recruits vis-a-vis promotees) as on 1.1.1996."
(ii) Fix the pay of Direct Recruit Programme Executives like the applicant in O.A.150/08 at par with his juniors like Mrs.K.R.Indira and the applicant in O.A.151/08 at par with his juniors like Mr.Rajeev Kumar. While doing so, it should be ensured that the senior DR shall not drew pay less than the junior in the DR."
6. On being aggrieved by the said verdict, the applicant in O.A.No.151 of 2008 has approached this Court by filing W.P. (C).No.28699 of 2009. Obviously no challenge has been raised with reference to the said verdict from the part of the Department. In the other case (O.A.No.150 of 2008), the W.P.C.Nos.28699 of 2009, 17664 of 2010 4 Department has approached this Court as mentioned already, contending that the verdict passed by the Tribunal will only perpetuate the mistake, which does not reflect the correct legal position and hence the challenge.
7. Heard Sri.Ibrahim, the learned counsel for the applicants and Sri.N.Nagaresh, the learned Assistant Solicitor General of India, on behalf of the AIR/Department.
8. The grievance of the applicant in O.A.No.151 of 2008, as put forth by the learned counsel is that the applicant was appointed as Program Executive (Malayalam) in the All India Radio on 08.05.1992. Pursuant to the pay revision implemented by the Department, some anomaly was noted, as projected by the persons who came to be promoted to the post of Program Executives. In the said circumstances, Annexure A notice was issued by the Department to all concerned, including those who were occupying the chairs in the Direct Recruitment category, alerting them to point out the pay fixation anomaly, if any, with reference to the promotees. It was accordingly, that the applicant submitted representation with reference to the higher pay which was being drawn by one person namely, 'Rajeev W.P.C.Nos.28699 of 2009, 17664 of 2010 5 Kumar', at serial No.189, who was actually promoted to the post of Program Executive only on 29.10.1997, despite the fact that the applicants were occupying similar cadre right from 08.05.1992. The salary of one person by name 'Rajeev Kumar' was fixed as 9,000/- as on 01.01.1996; whereas it was fixed only as 8,500/- in the case of the applicant. The case projected by the applicants was that, similar wrong fixation was made by the Department in the case of several other persons as well; but by virtue of the opportunity given to the aggrieved parties, they found it proper to point out the relevant facts with reference to the junior Rajeev Kumar, in whose case, the difference was more higher. Two other cases were also referred to in the representation preferred by the applicant (persons by name Dakshinamoorthy at Sl.No.15, whose pay was fixed at 8,500/- and one Mr.Solanky at serial No.84, whose pay was fixed as 8,750/-). Considering the representation/grievance projected from the part of the applicant, the pay of the applicant was fixed as 8,500/- with reference to Dakshinamoorthy; instead of drawing analogy with the case of Rajeev Kumar. This made the applicant to feel aggrieved, who preferred Annexure A3 W.P.C.Nos.28699 of 2009, 17664 of 2010 6 representation pointing out that, in the case of another person who was also directly recruited (by name T.T.Prabhakaran) and who joined the service only on 04.08.1993, the pay was re-fixed with reference to the person by name Gopal, at serial No.59, at 9,000/-. It was accordingly, that O.A.No.436 of 2007 was filed which was disposed of as per Annexure A5 judgment directed the Department to have the same considered which however came to be rejected as per Annexure A6 order dated 13.12.2007. This led to O.A.No.151 of 2008.
9. It is brought to the notice of this Court that the stand of the Department, as revealed from the pleadings and proceedings before the Tribunal, was that 'Rajeev Kumar' was drawing a higher salary in the lower pay scale, than the applicant, who was a Direct Recruit and in such circumstance, there was no anomaly at all. This made the applicant to collect further particulars by resorting to the 'RTI Act' (Right to Information Act), which revealed that the person by name 'Rajeev Kumar' was drawing only a lessor salary, as on the relevant date, than the applicant. It was in the said circumstance, that the relief was sought to be moulded in W.P.C.Nos.28699 of 2009, 17664 of 2010 7 Annexure A3 representation, by making a reference to the person by name 'T.T.Prabhakaran', who was a junior Direct Recruit; who however was given fixation of 9,000/- with reference to the fixation given to the person by name Gopal, at serial No.59. This however was never answered in the reply statement filed from the part of the Department; nor was it dealt with by the Tribunal when the order under challenge was passed. This made the applicant to file a review application, which however came to be dismissed as per Ext.P7 order dated 11.09.2009, holding that there was no error apparent on the face of the record and as such there was no scope for any review. This in turn is under challenge in W.P.(C).No.28699 of 2009.
10. The learned Assistant Solicitor General of India submits with reference to the facts and sequences of both the cases, that some mistake has occurred in the hands of the Department. The position is sought to be explained with reference to the situations from the year 1990, when some Engineering Assistants filed O.A.No.656 of 1989 before the Madras Bench of the Tribunal to revise their pay; which had nothing to do with any mistake in fixation or anomaly pursuant to W.P.C.Nos.28699 of 2009, 17664 of 2010 8 the implementation of the Pay Commission's recommendations. After considering the facts and figures, the Tribunal allowed the said Original Application and directed to revise the pay of the Engineering Assistants as '550-900' with effect from 01.01.1978 and as 2320/- with effect from 01.09.1998. It is admitted by the Department that the same was implemented in the year 1995.
11. Subsequently, some Transmission Assistants (which is a post situated) in lower pedestal than the post of Program Executives and which forms the feeder category to the promotion post of Program Executives) filed O.A.No.307 of 1995 before the Central Administrative Tribunal, Patna, seeking parity with the pay scale of Engineering Assistants. Finding that it was devoid of any merits, interference was declined and the O.A was dismissed as per Ext.P4, however, directing the anomaly if any to be considered by the 5th CPC (Central Pay Commission). The Department/All India Radio without any further direction or order from any Court or Tribunal, found it fit and proper to find analogy to the position; who accordingly found that the Transmission Assistants were eligible to get the benefit. It is stated that the benefits were given to the persons concerned W.P.C.Nos.28699 of 2009, 17664 of 2010 9 accordingly. 'Program Executives' were no where there in the scene at that point of time and based on the implementation of the 5th CPC with effect from 01.01.1996, their existing pay scale of 6000-10500 was revised as 7,500-12,000; whereas in the case of the lower post i.e., Transmission Assistants, it was revised from 5000-8000 to 6500-10500 as per Ext.P5. It was in the said circumstance, that O.A.No1489/1999 was preferred before the Patna Bench of the Tribunal, by some of the aggrieved Direct Recruits, projecting the anomaly and to have the same rectified. Ext.P6 order was passed by the Tribunal to have the issue considered by the Anomaly Committee. Committee was constituted, who considered the matter and the claim was rejected as per Ext.P7 dated 30.04.2004, holding that the applicants were not entitled to have the benefits.
12. In the mean while, two Direct Recruit Program Executives sought for the benefit of 'stepping up' of their pay with reference to one D.P.Bararjee who was a Direct Recruit. Case of the above persons by name 'Pramod Mehtha' and 'Gangopadyaya' was considered by the Department, who granted the benefit, making the same applicable to as many as 300 more W.P.C.Nos.28699 of 2009, 17664 of 2010 10 Program Executives throughout India. It is stated that the applicant in the instant case also got the benefits with reference to D.P.Barnerjee.
13. One Direct Recruit by name K.R.Indira, sought for extension of the benefit with reference to the benefit given to one Jhansi K.V. Kumari. This was considered by the Department and benefit was granted accordingly. This was cited as a precedent and the applicants concerned approached the Tribunal also with reference to the names of other persons as well, seeking for similar treatment. It was only at this point of time, that the Department realized the mistake, who wanted the same to be corrected. However, the Ministry of Information and Broadcasting sought for the version of the Department of Personnel and Training, as to whether the matter could be resolved by giving 'one time relaxation' by way of regularization of 'stepping up' wrongly given to the persons concerned. The Department of Personnel and Training sent a reply to the effect that the principles of 'stepping up' will not be attracted and accordingly' the same was rejected as per Office Memorandum dated 04.11.1993. It appears that there was some other W.P.C.Nos.28699 of 2009, 17664 of 2010 11 communications as well between various Ministries and Departments, also with the intervention of some Committees constituted in this regard. It is now submitted by the learned Assistant Solicitor General across the Bar, that the matter was considered by the new Committee constituted by the Department, who found that there was absolutely no legal basis and that Ext.P9 order was passed on 28.05.2015, which is produced along with I.A.No.8093 of 2016. It is also brought to the notice of this Court that an order has been passed on 07.04.2015 for causing re-fixation of the pay in all cases where mistakes were occurred and to recover the excess amount. The learned Assistant Solicitor General submits that these orders/proceedings issued by the Department have already been subjected to challenge by some of the aggrieved persons as per O.A.No.165 of 2015, where an order of interim stay has already been passed.
14. However, it is not clear whether the Department has already taken any action for re-fixation and recovery in respect of the person by name T.T. Prabakaran, whose name has been recited by the applicant to have the similar benefit extended to W.P.C.Nos.28699 of 2009, 17664 of 2010 12 him in O.A No. 151/2008 and the person by name Indira with whom analogy was sought to be drawn and ordered by the Tribunal as per the verdict passed in O.A No. 150 of 2008. Merely for the reason that some other aggrieved persons have subjected these orders passed by the Department to challenge by filing necessary proceedings before the Principal Bench or such other Benches, that by itself may not be sufficient to hold that the benefit already given to the persons aforesaid could also be withdrawn, unless it is done in a proper manner known to law, by issuing necessary proceedings/notice and giving an opportunity of being heard. If at all any such step has been taken by the Department, it is further not known whether the said persons by name Indira and Prabakaran have challenged the same. If appropriate proceedings have already issued in their case and they have not challenged the same; leaving the matter to have become final, it may be proper for the Department to take the proceedings to a logical conclusion making it applicable to the case of the applicants herein as well.
15. Yet another aspect to be noted is whether the benefit given to the persons concerned was on the basis of merit to have W.P.C.Nos.28699 of 2009, 17664 of 2010 13 it obtained by virtue of the relevant provisions of law or was it merely for the reason that similar benefit was extended to some other persons, who were actually not entitled to have the same. It is the settled law that, a writ of mandamus is not liable to be issued, unless the claim is established with reference to the individual merit. Merely for the reason that the benefit has been extended to some other person, that by itself is not liable to be extended to others, if they are legally not entitled to get it. This is the law declared by the Supreme Court as per the verdict reported in Chandigarh Administration and another v. Jagjit Singh & another and also Gursharan Singh v. New 1 Delhi Municipal Committee2 holding that equality is a positive concept and it is not to be enforced in negative terms. However, we are only making same general observation as to the settled position of law and we do not intend to express anything with regard to the merits of the case. This is more so since the issue is stated as pending consideration before the Principal Bench of the CAT and each case has to be considered on the basis of its facts and circumstances.
1 AIR 1995 SC 705 2 1996(2) SCC 459 W.P.C.Nos.28699 of 2009, 17664 of 2010 14
16. After hearing both the sides, we find that, in so far as the Department has not established any case in the reply statement with reference to the status and position of the person by name 'Prabakaran', whose name has been mentioned by the applicant in O.A. No. 151 of 2008 (in Annexure A3 representation), the benefit if legally sustainable in respect of 'Prabakaran', is liable to be extended to the said applicant as well. Accordingly, we substitute the name of 'Rajeev Kumar' given in relief No.2 of the verdict passed by the Tribunal in O.A.No. 151 of 2008 by the name 'T.T. Prabhakaran', who was a Direct Recruit Programme Executive appointed much after the appointment given to the applicant herein and who was given the benefit with reference to the person by name S. Gopal, at serial No. 59.
17. Coming to the case of the applicant in O.A. No. 150 of 2008, a similar exercise has to be done, as to the eligibility of 'Indira' to obtain benefits and whether the Department has taken any action against Indira, to have re-fixation pursuant to the common order dated 07.04.2015. If the said proceedings have become final, that is, Indira has not chosen to challenge the W.P.C.Nos.28699 of 2009, 17664 of 2010 15 said proceedings, it goes without saying that the Department may be justified in taking appropriate corrective measures. If any such challenge has been made by appropriate proceedings filed before the Tribunal (CAT, Ernakulam), the further course of action shall be based on such orders to be passed by the Tribunal.
18. The learned Assistant Solicitor General of India submits that no further action has been taken against the other similarly situated persons, because of the pendency of various OAs before the Principal Bench as mentioned already and that further action is intended to be pursued only on the basis of the outcome of the proceedings before the Principal Bench. This also is with intent to see that multiplicity of litigations could be avoided. In such circumstances, we make it clear that further course of action shall be depending upon the verdict to be passed by the Principal Bench in O.A. No. 165 of 2015 and connected cases. This is more so, since, it is still a matter to be considered whether the Department even if would be justified in taking appropriate action to have the salary re-fixed based on the order dated 07.04.2015, question may arise as to whether the W.P.C.Nos.28699 of 2009, 17664 of 2010 16 Department will be justified in resorting to the recovery proceedings in view of the recent ruling of the Supreme Court in State of Punjab and others v. Rafiq Masih and another3. With regard to this issue also, we are consciously avoiding to make any observation, as the facts of each case will have to be considered, so as to mould the relief.
Original Petitions are disposed of in the terms.
Sd/-
(P.R. RAMACHANDRA MENON, JUDGE) Sd/-
(DAMA SESHADRI NAIDU, JUDGE) TRUE COPY P.A TO JUDGE DG/RV 3 2015(4)SCC 334