Kerala High Court
Devadas Chulliyil vs The Union Of India on 3 November, 2021
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
OP (CAT) NO. 83 OF 2017
AGAINST THE ORDER/JUDGMENT IN OA 255/2013 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH, ERNAKULAM
PETITIONER/S:
DEVADAS CHULLIYIL
AGED:47 YEARS, S/O C.K.KELU, TECHNICAL POSTAL ASSISTANT
O/O THE POSTMASTER GENERAL, NORTHERN REGION, CALICUT-
673011, RESIDING AT CHULLIYIL HOUSE, MALLISERRY,
PALLIKUNNU.P.O., KAMBLAKKAD, WYNADU
BY ADVS.
SRI.C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
POST/DIRECTOR GENERAL, POSTS, MINISTRY OF
COMMUNICATIONS, NEW DELHI-110001
2 THE CHIEF POSTMASTER GENERAL
KERALA CIRCLE, TRIVANDRUM-695001
BY ADVS.
SRI.T.V.VINU, CGC
ASSISTANT SOLICITOR GENERAL
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 03.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT) NO. 83 OF 2017
2
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
===================================
O.P.(CAT). No. 83 Of 2017
(arising out of the final Order in O.A. (EKM) No.255/2013 dated 08.04.2016 of the KAT,
TVM. Bench)
=========================================
Dated this the 3rd of November, 2021
JUDGMENT
Alexander Thomas, J.
The petitioner herein has instituted Ext.P1 O.A. No.255/2015 before the Central Administrative Tribunal, Ernakulam, with the following prayers.
"(I) To call for the records relating to Annexure A-1 to A12 and to quash A-1 being illegal & arbitrary.
(ii) To declare that the applicant is entitled to the higher scale of pay of Rs.4000-6000/- on redesignation and re-deployment as per A-4 and is also entitled for the grade pay of Rs.2800/- in PBI of Rs.5200-20200/- on placement in the higher grade under TBOP scheme:
(iii) To direct the respondents to grant all consequential benefits as per the above declaration;
(iv) To pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
(V) To award costs of this proceedings."
2. The Tribunal after hearing both sides has rendered the impugned Ext.P5 final order dated 08.04.2016 dismissing the said O.A. No.255/2013 on the ground that the plea of the petitioner that he is entitled for a grade pay of Rs.2800/- is not tenable and that he is eligible only for a grade pay of Rs.2000/-.
3. Being aggrieved by Ext.P5 final verdict of the Tribunal in OP (CAT) NO. 83 OF 2017 3 the said O.A., the applicant has instituted the afore captioned Original Petition under Articles 226 and 227 of the Constitution of India with the following prayers.
"(I) To set aside Ext.P5 order in O.A.NO.255/2013 of the Central Administrative Tribunal and to allow the Original Application with costs.
(ii) Issue such other order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case.
4. Heard Sri.C.S.Manilal, learned counsel appearing for the petitioner in the O.P./applicant in the O.A. and Sri.T.V.Vinu, learned Central Government Counsel appearing for the respondents in the O.P./respondents in the O.A.
5. The petitioner herein, as mentioned herein above, was the applicant before the Central Administrative Tribunal in the instant O.A. No.255 of 2013 and before the Tribunal, he has challenged impugned Annexure A1 order dated 04.12.2012 issued by the Director of Postal Services, Kerala Circle by which the Grade Pay of the petitioner was re-fixed and reducing the same from Rs.2800/- to Rs.2000/- by reducing his Grade pay in the pay band of Rs.5200- 20,200/- which effect from 07.01.2008. The respondents have also sought recovery of the difference in Grade pay. It was under these circumstances that the Original Application was instituted before the Tribunal by the Petitioner herein. The case of the petitioner is that the OP (CAT) NO. 83 OF 2017 4 respondents have defended the case by filing Ext.P2 reply statement dated 11.07.2013 before the Tribunal, justifying the stand as regards the issuance of the impugned Annexure A1 order. It is the case of the petitioner that the Tribunal has withdrawn his rival contentions and that thereby dismissing the O.A. which requires interference and directions of this Court. It may be pertinent to refer to some of the crucial factual aspects stated by the applicant.
6. The Applicant was appointed as Postal Machine Assistant (Grade II), (PMA II for short) on 28-12-1991 as per Annexure A-2 appointment order, in the Pay Scale of Rs.260-400 according to 3rd Central Pay Commission (CPC) recommendation which was later enhanced to the Pay Scale of Rs.950-1500/- in accordance with the implementation of 4th CPC recommendations. On 01-01-1996, as of the recommendation of the 5th CPC, the Pay Scale corresponding to Rs.950-1500/- was enhanced to Pay Scale of Rs.3050-4590/-.
7. By the year 1998, the cadre of Postal Machinist became irrelevant with the induction of new technology in various postal operations. However, the Postal Machine Assistants were sent for special training, so as to effectively utilize the personnel for the Department. The training programme for the Postal Machine Assistants was concluded on 24-12-1998. As per Annexure A-4 dated OP (CAT) NO. 83 OF 2017 5 06-01-1999, all the then existing Postal Machine Assistants, i.e., PMA I and PMA II, were re-designated as "Technical Postal Assistants". Since it was a re-designation of posts, no separate Pay Scale was prescribed for Technical Postal Assistants. The officials who were re- designated as "Technical Postal Assistants" were allowed to draw the Pay Scale which was being drawn by them prior to the re-designation.
8. Sanction for redeployment of three posts in the cadre of Technical Postal Assistants was accorded by the Chief Post Master General of Kerala circle on 08-06-1999 as per Annexure A-5 .Posting of Technical Postal Assistants in Kerala circle was completed as per annexure A-6 order dated 11-06-1999.
9. The applicant completed 16 years of service Time Bound One Promotion (TBOP) on 17-01-2008. TBOP is to be granted to the next Higher Grade, i.e., from Rs. 260-400/- to Rs.380-560/- in accordance with the 3rd CPC as per Annexure -A appended to the TBOP Scheme. The next Higher Grade in the scale of pay of Rs.380- 560/- in accordance with 3rd CPC corresponds to Rs.4000-100-6000/- in 5th CPC, which in turn, corresponds to the Pay Scale of Rs.5200- 20200/- of the then newly implemented 6th CPC. The concept of Grade Pay was introduced in the Union Government service for the first time from 01-01-2006 onwards consequent to the implementation of the 6th OP (CAT) NO. 83 OF 2017 6 Central Pay Commission. The 6th CPC Pay Band and Grade Pay corresponding to Rs.380-560/- of 3rd CPC is Rs.5200-20200/- with Grade Pay of Rs.2400/-. Annexure A-9 order dated 10-10-2008 was issued by the Office of Chief Post Master General granting TBOP to the applicant on completion of 16 years' service with effect from 17-01- 2008.
10. Later, on 20-07-2009, when an Internal Audit Party inspection was conducted, it was doubted that the applicant was wrongly treated as a Postal Assistant in the scale of Rs.5200-20200/- with Grade Pay of Rs.2400/- instead of Technical Postal Assistant in the scale of Rs.5200-20200/- with Grade Pay of Rs.1900/- and was granted TBOP in the next hierarchical Grade Pay of Rs.2800/- instead of Rs.2000/-. Subsequently, the case was referred to the Circle Internal Finance Advisor (CIFA) who found out that, upon financial upgradation under TBOP, the applicant was eligible for Grade Pay of Rs.2000/- only.
11. On 11-10-2011, as per Annexure A 10, the applicant was served with a notice under FR-31 A proposing to re-fix his Grade Pay from Rs.280o/- to Rs.2000/- and was given an opportunity to represent against the above said notice. The applicant submitted his representation as per Annexure A-11 dated 21-10-2011 against the OP (CAT) NO. 83 OF 2017 7 proposal to reduce the Grade Pay to Rs.2000/- and it was considered by the competent authority. Later, the competent authority after considering the representation of the applicant, re-fixed the Pay Scale of the applicant as Rs.5200-20200/- with Grade Pay of Rs.2000/- as per Annexure A1 order dated 04-12-2012 [see page number 19 of the OP(CAT)]. Aggrieved by Annexure A1 order, the applicant had filed Ext.P1 - O.A No.255 of 2013 before the Central Administrative Tribunal Ernakulam Bench which was dismissed by the Tribunal by Ext. P-5 order dated 08-04-2016. The afore captioned OP, OP(CAT) No.83 of 2017 is filed by the applicant challenging the Ext. P-5 order of the Central Administrative Tribunal, Ernakulam Bench.
12. Though the petitioner herein at the O.A. stage and at the initial institution of the O.P. has maintained that he is entitled for a Grade pay of Rs.2800/- and not Rs.2000/-, he has subsequently filed I.A. No.1 of 2021 in present O.P. on 16.09.2021, producing therewith Exts.P7 and P8 as additional documents and taking the stand that though he may not be entitled for Grade pay of Rs.2800/- as prayed by him in the O.A., he is certainly entitled for Grade Pay of Rs.2400/- and not Rs.2000/- in view of the matters borne out from Ext.P7 and P8 proceedings dated 17.12.1983 issued by the Director General of Posts & Telegraphs on behalf of the respondent Union Government. OP (CAT) NO. 83 OF 2017 8
13. Ext.P7 is the tabular statement giving the details of the pay scales after the 3rd, 4th, 5th, 6th and 7th Central Pay Commission (CPC), applicable in case of employees under the Union Government. The factual details in Ext.P7 is not in any manner seriously disputed by the respondents. Ext.P8 is the proceedings issued as early as on 17.12.1983 by the Director General of Post and Telegraph Department as a competent authority on behalf of the Union Government.
14. A reading of Ext.P8 proceedings dated 17.12.1983 would disclose that the issue of giving time bound one promotion (TBOP ) to regular employees in the operative cadres in the Posts & Telegraphs Department has been under the consideration of the Department Council and the Union Government has agreed to a time bound one promotion scheme in the basic operative cadres in the P&T Department. Further that an agreement on the scheme has thus been signed between the official side and the staff side in the P&B Department Council of Joint Consultative Machinery (JCM) on 30.11.1983. Paragraph 2 of Ext.P8 deals with the various instructions being issued by the Union Government in connection with the above said scheme of the P&T Department. Clauses I appended to para 2 of Ext.P8 alone may be really relevant and germaine for the present purpose in our case and the same reads as follows:
OP (CAT) NO. 83 OF 2017 9 "The scheme will come into effect from 30.11.1983. All officials belonging to basic grades in Group 'C' and Group 'D' to which there is direct recruitment either from outside and/or by means of limited competitive examination from lower cadres, and who have completed 16 years of service in that grade will be placed in the next higher grade. Officials belonging to operative cadres listed in the Annexe A-I to the agreement will be covered under the scheme."
15. Clause I of para 2 of Ext.P8 has mandated that all officials belonging to the basic grades of group C and group D to which there is direct recruitment either from the outside and/or by means of limited competitive examination from lower cadres and who have completed 16 years of service in that grade will be placed in the next higher grade and that officials belonging to the operative cadres listed in Annexure A1 to Ext.P8 will be covered under the scheme. Annexure-A1 to Ext.P8, appended in terms of Clause I of Ext.P8, would be relevant and the same reads as follows:
Cadres which will be covered under the Scheme Category Pay Scale Pay Scale of higher grade in which officials completing 16 years will be placed
1. Group 'D' Test Rs.196-232 Rs.210-270 category officials
2.Postman, Village Rs.210-270 Rs.260-350 Postman, Rail Guard
3. Postal Assistant, Rs.260-480 Rs.425-640 Sorting Assistant, Office Assistant, P.O.&H.M.S. Accountant (Postal OP (CAT) NO. 83 OF 2017 10 Assistant with special pay) of Rs.45/-p.m. Postal Assistant in RLO
4. Postal Machine Rs.260-400 RS.380-560 Assistant Gd.II
5. Postal Machine Rs.380-560 Rs.425-750 Assistant Gd.I
6. Departmental Stamp Rs.210-270 Rs.225-308 Vendors (Dying Cadre)
16. The post concerned in this case is covered by serial no.4 of Annexure A of Ext.P8. viz, Postal Machine Assistant Grade II, and it is stated that for the said post of Postal Machine Assistant (Grade II) contained as per Serial No.4 above, the pay scale is Rs.260-400/- and the pay scale of higher grade in which the officials completes 16 years will be placed is Rs.380-560/-. It has to be borne in mind that Clause I of para 2 of Ext.P8 mandates that the officials belonging to the basic cadres in Group C and Group D as the case may be, to which direct recruitment is resorted to, and who have completed 16 years of service in that Grade, will be placed in the next higher grade, and not the Grade Pay. So, for an incumbent like the applicant, who is covered by Serial No.4 of Annexure A2 of Ext.P8, who was then in the pay scale of 260-400/- will have to be placed in the next higher grade of Rs.380-560/-. The entire confusion has arisen in this case inasmuch as the concept of Grade Pay was OP (CAT) NO. 83 OF 2017 11 introduced in the Union Government Services for the first time from 01.01.2006 onwards, consequent to the implementation of 6th Central Pay Commission recommendations, scheme of which was issued on 29.08.2008, but though with retrospective effect from 01.01.2006. So the concept of Grade Pay which has come into force much after theined duty and 3 issuance of Ext.P8, rendered on 17.12.1983 cannot have any importance or relevance as far as Ext.P8 is concerned issued as early as on 17.12.1983, more particularly Clause I of Para 2 of Ext.P8 and Annexure thereto. Since an incumbent covered by Serial No.4 in the post of Postal Machine Assistant Grade II who was then in the scale of Rs.260-400/- will have to be placed in the next higher grade of Rs.380- 560/- in the then applicable TBOP scheme, the corresponding pay band and grade pay of such an incumbent will have to be determined in terms of the data in Ext.P7 tabular statement.
17. Clause VI(b) of Ext.P7 deals with the pay scale of Rs.260- 400/- for which the grade pay is Rs.1900/-, whereas Serial No.10 of Ext.P7 deals with pay scale of Rs.380-560/-(which is the same as the one covered by Serial No.4 of Annexure A of Ext.P8). In such a case, the payband is Rs.5200-20200/- and the applicable grade pay would be Rs.2400/-. In other words, the applicant is not certainly entitled for the grade pay of Rs.2800/- and the corresponding grade pay to that as claimed by him in the OA and the OP, but certainly there cannot be any OP (CAT) NO. 83 OF 2017 12 doubt that he is entitled for grade pay of Rs.2400/- in the corresponding pay band of which being Rs.5200-20200/-. Hence, the main plea of the petitioner that he is entitled for grade pay of Rs.2800/- and its corresponding pay band will have to be repelled and to that extent, the Tribunal is right. However, the Tribunal went wrong in not taking the above said view. But the Tribunal cannot be seriously faulted for the same inasmuch as the factual details based on Ext.P7 and P8 and the contentions thereon has not been advanced by the applicant before the Tribunal. Having said that, this Court would also state that the respondents in the OA also owed a duty to furnish these duties as it is in Ext.P7 and P8 before the Tribunal, inasmuch as Ext.P8 was issued as early as on 17.12.1983, which is the TBOP scheme and as mentioned herein above, the confusion arose in not keeping the prime distinction as between next higher grade as envisaged in Ext.P8 TBOP scheme which was issued on 17.12.1983 and the concept of grade pay which came into force only consequent to the 6th pay commission report, much later. If these materials had been made available before the Tribunal either by the Original Applicant or by the respondents in the OA, then the issue would have been easily resolved by the Tribunal. However, we are not inclined to remit this matter to the Tribunal on account of non- consideration of Exts.P7 and P8 for the simple reason that the matter has been kept pending for a very long time and interest of justice really OP (CAT) NO. 83 OF 2017 13 warrant that we exercise discretion in the facts and circumstances of this case. Hence it is ordered and declared that the petitioner is eligible and entitled to a grade pay of Rs.2400/- in the corresponding pay band of Rs.5200-20200/-. Consequently, the impugned Ext.P5 final verdict of the Tribunal rendered on 08/04/2016 in OA No.255/2013 will stand set aside. Consequently it is also ordered and declared that the impugned Annexure A1 proceedings dated 04.12.2012 issued by the Director of Postal Services, Kerala Circle, will stand modified and modulated as above. Consequential steps shall be taken by the competent Authority of the respondents herein to adjust the excess payments that may have received, inasmuch as earlier he was paid benefits as if he was entitled for a higher grade pay of 2800/-, whereas in fact, it is found he is entitled only for a grade pay of Rs.2400/-.
With these observations and directions, the above Original Petition stands disposed of.
Sd/-
ALEXANDER THOMAS JUDGE Sd/-
VIJU ABRAHAM JUDGE Nsd OP (CAT) NO. 83 OF 2017 14 APPENDIX OF OP (CAT) 83/2017 PETITIONER EXHIBITS P1 TRUE COPY OF THE OA NO. 255/2015 DATED 18/3/2015 P2 TRUE COPY OF THE REPLY STATEMENT 11/7/2013 P3 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 29/10/2013 P5 TRUE COPY OF THE ORDER IN OA 255/2013 DATED 8/4/2016 P6 TRUE COPY OF THE ORDER DATED 2/3/2016 Exhibit P7 TRUE COPY OF THE CENTRAL GOVT. PAY SCALE DATED NIL Exhibit P8 TRUE COPY OF THE ORDERS OF THE RELEVENT PAGES OF ORDERS OF THE DIRECTOR GENERAL OF POSTS DATED 176.12.1983.
//true copy// PA to Judge