Union Of India vs P.K. Karunakaran Nair on 27 January, 2025

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Kerala High Court

Union Of India vs P.K. Karunakaran Nair on 27 January, 2025

Respondents-applicants aggrieved of the Annexure A4 order dated 12.11.2018, withdrawing the benefit granted to them vide order dated 24.08.2016 Annexure A1, approached the tribunal on the ground that the said benefit had been only given to the persons who had approached the various tribunals. The fact remains, all the applicants - respondents were aggrieved of the action of the respondents in not exceeding the benefit of the scale pay of Rs.7500 - 12000/- with effect from 01.01.1996 though they were, as per the order dated 24.08.2016 Annexure A1, enlisted for extended the benefits and were placed in the Annexure A2 list also.

2. Learned tribunal noticing all these facts allowed the claim that on the basis of the seniority, the higher pay scale of Rs.7500-12000/- was eligible to as many as 931 posts in 1996-97, in which the applicants - respondents also figured. The tribunal passed the OP (CAT) NO. 165 OF 2024 -6- 2025:KER:8606 order dated 12.07.2023 Ext.P6, where, in paragraph Nos.16 and 17, held as under:

"16. We have carefully considered the above contentions. At the outset, we are of the opinion that in the absence of any alternative indication by the respondents as to why they had proceeded to collect the information vide Annexure A-1, Annexure A-2 and Annexure A-3 and also in the absence of any denial regarding the same, it does appear, prima facie, that the respondent/CPWD had decided once again to actively consider extending the enhanced scale of pay to the retired A.Es of CPWD with effect from their due dates ie., in the case of the applicants herein from 01.01.1996 in the scale of pay of Rs.7500-12000. This contention of the applicants has not been controverted by the respondents in both their reply statements. On the other hand, the entire blame for non grant of the scale is put on the Department of Expenditure, a sister Department of the Government of India, who were not even made a party in the case by either side. It is not for us to speculate on the reasons for this but to go by the given facts and circumstances. Hence, taking into account all the details at hand as provided, we feel that the applicants have been able to build a strong case, in terms of the cited cases above in relation to clear and overt OP (CAT) NO. 165 OF 2024 -7- 2025:KER:8606 discrimination on the applicants vis-a-vis similarly situated employees. The reasons have been brought out earlier and the orders of the Principal Bench of the Tribunal in the case of C.L.Sharma (supra) and H.K.Garg (supra) in Ο.Α.Νο.2120/2004 and O.A.No.1751/2007 respectively are relevant in this regard. Given this, we feel that the applicants have established their right to be given the scale of pay of Rs.7500-12000 with effect from 01.01.1996 on the main ground that there has been discrimination against them in relation to their peers as well as juniors. Further, we note the orders of the Principal Bench in O.A.No.1658/2013 had only directed a consideration of the representation of the applicant therein. However, the facts in this case as analyzed above have encouraged us to make a more positive direction. Further since, as per the respondents, the Department of Expenditure has also only responded to orders of courts/Tribunals, we are further encouraged in our decision.

17. In view of the above, the O.A is allowed to the following extent. The respondents are directed to notionally grant the pay scale of Rs.7500-12000 with effect from 01.01.1996 to the applicants. However, the arrears of pension so calculated may be released to the applicants only with effect from the date of the Office OP (CAT) NO. 165 OF 2024 -8- 2025:KER:8606 Order produced at Annexure A-1, viz., 24.08.2016. The retirement benefits may be refixed on the basis of the notional grant of the scale of Rs.7500-12000 from 01.01.1996 and any arrears in this regard also released to the applicants. All action in this regard may be completed by the respondents within a period of three months from the date of receipt of a copy of this order. No order as to costs"

3. Counsel for the petitioners submitted that the stand of the petitioners was justified in not granting the benefit by restricting it only to persons who approached the tribunal as it would have lead to a financial contingency much less in not impleading the department of finance in the O.A.

4. On the other hand, learned counsel appearing on behalf of the respondents opposed the aforementioned prayers and submitted that no such plea was taken therefore deemed to have been forgone even the Department of Expenditure was not impleaded but were impleaded during the pendency of the O.A. as noticed in the order of the tribunal under challenge.

5. We have examined the relevant portion OP (CAT) NO. 165 OF 2024 -9- 2025:KER:8606 of the order extracted supra; though found to be correct but before according approval it is worth to extract the contents of Annexure A1, which reads as under:

"In continuation to office order No.4/10/97- DIR(S&D)/3185-3671, dated 13.05.1998, the Competent Authority has modified the distribution of posts of Assistant Engineer (Civil), assistant Engineer (Electrical) and Assistant Director (Horticulture) year wise for below mentioned years in the scale of Rs.6500-

10500 and Rs.7500-12000/- as under.


        Sl. Year       Scale of Pay                No. of Posts
        No.                                AE(C) AE(E) Asst.Dir(H)
             1996-97   Rs.6500-10500        931      353          30
        1.             Rs.7500-12000/-      931      353          30
             1997-98   Rs.6500-10500        931      353          30
        2.             Rs.7500-12000/-      931      353          30
        3.   1998-99    Rs.6500-10500       935      354          30
                       Rs.7500-12000/-      935      354          30
        4.   1999-00   Rs.6500-10500        958      354          30
                       Rs.7500-12000/-      958      354          30
        5.   2000-01   Rs.6500-10500        977      356          30
                       Rs.7500-12000/-      977      356          30
        6.   2001-02   Rs.6500-10500        976      355          30
                       Rs.7500-12000/-      976      355          30
        7.   2002-03   Rs.6500-10500        1000     358          30
                       Rs.7500-12000/-      1000     358          30
                                                                        "

6.     On     perusal          of   Annexure          A1       respondents
 OP (CAT) NO. 165 OF 2024              -10-

                                                               2025:KER:8606

applicants were placed in the list Annexure A2 eligible for higher pay scale of Rs.7500-12000/-. However, the impugned decision of the petitioners Annexure A4, dated 12.11.2018, is worth extraction, the same reads as follows:

"The undersigned is directed to refer to this Directorate's Office order No.4/10/97- DW(S&D)/3185-3671 dated 13.05.1998 vide which the pay scale of Rs 7500-12000 was sanctioned to 50% senior most Assistant Engineers & Assistant Director(Horticulture) in CPWD. In continuation of the said Office order, the competent authority vide Office Order dated 4/10/2016-S&D/689 dated 24.08.2016 has modified the distribution of posts in the grade of Assistant Engineers & Assistant Director (Horticulture) year wise.

2. Now, in compliance of the Office order dated 4/10/2016-S&D/689 dated 24.08.2016, it has been decided to grant the pay scale of Rs 7500- 12000 to those Assistant Engineers/Executive Engineers who were the applicants in various court cases from the date mentioned against their name as per the details given at Annexure. They will be paid arrears with fixation of pay accordingly. Earlier they have been declared OP (CAT) NO. 165 OF 2024 -11- 2025:KER:8606 ineligible, as they were not covered in senior most 50% of the posts as per the relevant seniority lists. However, now after modification in the distribution of posts in the grade of Assistant Engineers vide Office Order dated 4/10/2016-S&D/689 dated 24.08.2016, their claim have been re-examined and they have been found eligible for grant of the pay scale of Rs. 7500-12000 as per the details given at Annexure."

7. It is wholly unfathomable as to how and under what circumstances the competent authority had issued the communication by according the benefit only to the persons who had been before the courts. In fact, a number of litigations at the instance of the affected parties have resulted against the department. The department should have, in order to obviate the grievance of the other similar situated persons, granted the benefit to all and not in the manner and mode as indicated in Annexure A4.

8. We are of the view that the said action is wholly aberrative, fallacious and rightly held to be unjustifiable and illegal. We do not find any illegality OP (CAT) NO. 165 OF 2024 -12- 2025:KER:8606 and perversity in the order impugned. O.P.(CAT) stands dismissed.

Sd/-

AMIT RAWAL JUDGE Sd/-

K. V. JAYAKUMAR JUDGE vv OP (CAT) NO. 165 OF 2024 -13- 2025:KER:8606 APPENDIX OF OP (CAT) 165/2024 PETITIONER ANNEXURES ANNEXURE A1 A TRUE COPY OF THE OFFICE ORDER NO.04/10/2016-(S&D)/689 DATED 24.08.2016 IN O.A ANNEXURE A2 A TRUE COPY OF THE OFFICE MEMORANDUM NO. 23/66/2011-EC.III(PART-2) DATED 06.01.2017 IN O.A. ALONG WITH TYPED COPY ANNEXURE A3 A TRUE COPY OF THE FILE NO.

8(12)/MYCD/2017-18/171(H) DATED 15.06.2017 OF THE EXECUTIVE ENGINEER, MYSORE CENTRAL DIVISION IN O.A ALONG WITH TYPED COPY ANNEXURE A4 A TRUE COPY OF THE OFFICE MEMORANDUM NO.23/66/2011/EC-III (VOL.II) DATED 12.11.2018 IN O.A ALONG WITH TYPED COPY ANNEXURE A5 A TRUE COPY OF THE REPRESENTATION DATED 07.12.2018 SUBMITTED BY THE 1ST APPLICANT IN O.A. ALONG WITHTYPED COPY ANNEXURE A6 A TRUE COPY OF THE REPRESENTATION DATED 27.08.2019 SUBMITTED BY THE 1ST APPLICANT IN O.A. ALONG WITH TYPED COPY ANNEXURE A7 A TRUE COPY OF THE LETTER DATED 06.09.2019 ISSUED BY THE DEPARTMENT OF PENSIONS AND PENSIONERS WELFARE IN O.A ANNEXURE A8 A TRUE COPY OF THE LETTER NO.

33/10/2019 EC-III DATED19.09.2019 ISSUED TO THE 1ST APPLICANT IN O.A. ALONG WITH TYPED COPY ANNEXURE A9 A TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE 2ND OP (CAT) NO. 165 OF 2024 -14- 2025:KER:8606 APPLICANT IN O.A ALONG WITH TYPED COPY ANNEXURE A10 A TRUE COPY OF THE LETTER DATED 06.09.2019 ISSUED BY THE DEPARTMENT OF PENSIONS AND PENSIONERS WELFARE IN O.A ALONG WITH TYPED COPY ANNEXURE A11 A TRUE COPY OF THE LETTER NO.

33/10/2019 EC-III DATED 19.09.2019 ISSUED TO THE 2ND APPLICANT IN THE O.A. ANNEXURE R1 A TRUE COPY OF THE ORDER NO. 4/10/97- DW(S&D)/3943-4453 DATED 19.06.1998 IN REPLY STATEMENT ANNEXURE R2 A TRUE COPY OF THE ORDER NO.

24021/2/94-EW.2/EW.1 DATED 21.07.2003 IN REPLY SATATEMENT ALONG WITH TYPED COPY ANNEXURE MA1 A TRUE COPY OF THE DEATH CERTIFICATE OF THE 9TH APPLICANT IN O.A. ALONG WITH TYPED COPY EXHIBIT P1 THE TRUE COPY OF THE OA NO. 351/2020 DATED 31.7.2020 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM EXHIBIT P2 THE TRUE COPY OF THE REPLY STATEMENT DATED 18.06.2022 FILED BY THE PETITIONERS HEREIN BEFORE THE CAT, ERNAKULAM BENCH ALONG WITH TYPED COPY OF THE PAGE 2 EXHIBIT P3 THE TRUE COPY OF THE REJOINDER TO THE REPLY DATED 18/10/22 FILED BY THE RESPONDENTS HEREIN BEFORE THE CAT, ERNAKULAM BENCH EXHIBIT P4 THE TRUE COPY OF THE REPLY TO REJOINDER DATED 28.3.2023 FILED BY THE PETITIONERS HEREIN BEFORE THE CAT, ERNAKULAM BENCH OP (CAT) NO. 165 OF 2024 -15- 2025:KER:8606 EXHIBIT P5 THE TRUE COPY OF THE MA NO.1/2022 IN O.A. N0. 351/2020 FILED BY THE RESPONDENTS HEREIN BEFORE THE CAT, ERNAKULAM BENCH EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 12.7.2023 IN OA NO. 351/2020 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM

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