Central Administrative Tribunal - Ahmedabad
Kirtibala Y Purani vs Central Excise And Customs on 10 June, 2025
::1 :: O.A.No.83/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O.A. No.83/2023
Dated this the 10th day of June, 2025
Reserved on: 08.05.2025
Pronounced on: 10.06.2025
CORAM:
Hon'ble Shri Jayesh V Bhairavia, Member (J)
Hon'ble, Dr. Hukum Singh Meena, Member (A)
1. KirtibalaYogeshkumar Purani,
Female, Aged 52 years,
Wife/Legal Heir of Late Shri Yogeshkumar
Sureshchandra Purani,
Superintendent of Customs (Group B),
Customs, Ahmedabad,
Residing at B-1/86, Shivanjali Society,
B/h. Yash Complex, Gotri Road,
Vadodara.
2. Hiral Yogeshkumar Purani,
Female, Aged 28 years,
Daughter/Legal Heir of Late Shri Yogeshkumar
Sureshchandra Purani,
Superintendent of Customs (Group B),
Customs, Ahmedabad,
Residing at B-1/86, Shivanjali Society,
B/h. Yash Complex, Gotri Road,
Vadodara.
3. Pranav Yogeshkumar Purani,
Male, Aged 23 years,
Son/Legal Heir of Late Shri Yogeshkumar
Sureshchandra Purani,
Superintendent of Customs (Group B),
Customs, Ahmedabad,
Residing at B-1/86, Shivanjali Society,
B/h. Yash Complex, Gotri Road,
Vadodara.
..........Applicant
(By Advocate: Ms. Rachna Pastore)
Versus
::2 :: O.A.No.83/2023
1. Union of India
Notice to be served through:
Secretary, Revenue,
Ministry of Finance,
North Block, New Delhi - 110001.
2. Central Board of Indirect Taxes,
Notice to be served through:
The Chairman, CBIC,
Ministry of Finance, Department of Revenue,
New Delhi 110001.
3. Chief Commissioner of Customs, Gujarat Zone,
Custom House, Nr. All India Radio, Navrangpura,
Ahmedabad - 380009.
4. Principal Commissioner of Customs, Ahmedabad,
Custom House, Nr. All India Radio, Navrangpura,
Ahmedabad - 380009.
5. Customs Division Surat,
Customs House,
4th Floor, Near SML Ward Office,
At Than-Bhimrad Road,
At Than, Surat- 395007.
..........Respondents
( By Advocate : H.D Shukla )
ORDER
Per : Hon'ble Shri Jayesh V. Bhairavia, Member (Judicial) The applicant(s) are legal heirs of Late Shri Yogesh Kumar Purani (ex-Superintendent) who passed away while working as Superintendent on 23.09.2009. In terms of notification dated 21.11.2008 issued by the respondents (Annexure A/5) on completion of requisite four year of service in Grade Pay 4800/- (correspondence to pre-revised scale of Rs. 7500-12000/-) said Shri Yogesh Kumar Purani was granted Grade Pay of Rs. 5400/- and accordingly his pay fixation order in GP 5400/- was issued on 18.12.2008 (Annexure A/6 refer). However, the applicants were given ::3 :: O.A.No.83/2023 legitimate family pension on the basis of GP 4800/-. Subsequently, the applicants came to know that based on order passed by different Judicial forum respondents had granted the said Grade Pay of Rs. 5400/- to other similarly placed employees and had also extended the benefit of family pension to their legal heirs. Therefore, the applicants herein had submitted their representation and requested to extend the similar benefit of grant of Grade Pay Rs. 5400/- to Late Shri Yogesh Purani (ex-Superintendent) and also revise the PPO accordingly. However, the said claim/representation of the applicant(s) has not been acceded to by the respondents on the ground that no such Court/Judicial forum order has been issued in favour of Late Shri. Yogesh Kumar Purani (Ex- Superintendent), hence, being aggrieved the applicant(s) herein have filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs:-
VIII) Prayers:
The applicants most respectfully pray that this Hon'ble Tribunal:
(A) Admit and allow the present application.
(B) Be pleased to Direct the Respondent Authority to pass necessary orders to extend, to the deceased employee herein, the benefit of fixation of Grade Pay of Rs. 5400/-
upon completion of 4 years of regular service in the Grade Pay of Rs. 4800/- in Pay Band-2 as granted to the Private Respondent in Civil Appeal No. 8883 of 2011 alongwith all consequential and incidental benefits thereto and revise and refix the family pension accordingly.
(C) Be pleased to direct the Respondents herein to pay to the present applicants any and all arrears of pay and other pay related benefits accruing to the Deceased Employee as per Prayer (B) above, in their capacity as Legal Heirs of the said deceased employee along with 12 % interest. (D) Be pleased to Pass appropriate Orders imposing suitable Costs on the present Respondents for their arbitrary actions as well as for needlessly causing a situation wherein the present applicants were constrained to approach this Hon'ble Tribunal.
(E) Be pleased to pass any further order or directions as the Hon'ble Tribunal may deem fit in the interest of justice.
::4 :: O.A.No.83/20232. Brief facts of the case are as under:-
2.1 This applicants herein are legal heirs of the deceased employee Late Shri Yogesh Kumar Purani who expired on 23.09.2009 while serving as Superintendent with the respondents (Annexure A/1 refer).
The deceased employee was appointed as Inspector on temporary basis vide memorandum dated 09.03.1992 (Annexure A/2) issued by the office of the Collector of Customs & Central Excise, Vadodara, Gujarat in the Pay Scale of 1640-60-2600-EB-75-2900.
2.2 Thereafter, vide Estt. Order: 153/2024 dated 02.07.2004 said Shri Yogesh Kumar Purani was granted 1st Financial Up-gradation in the Pay Scale of Rs.6500-200-10500 with effect from his due date of completion of 12 years i.e. upto 24.04.2004. Thereafter, vide said order dated 02.07.2004 (Annexure A/3) he had been given revised Pay Scale of Rs. 7500-250-12000 (correspondence to Grade Pay Rs. 4800/-) w.e.f. 24.04.2004 (Annexure A/3 refer).
2.3 Further, in terms of Order No. 142/2007 dated 15.10.2007 issued vide File No. 3/29/2007-Estt. the office of the Assistant Commissioner, Central Excise & Custom Division, Halol, Vadodara-II Commissionerate vide communication dated 26.10.2007 conveyed to the Additional Commissioner (P&V), Central Excise and Customs, Vadodara II that said Mr. Yogesh Kumar Purani has been promoted to the post of Superintendent and he has been relieved w.e.f. 26.10.2007 A.N. to join his new place of posting (Annexure A/4 refer).
::5 :: O.A.No.83/20232.4 Thereafter, vide letter dated 21stNovember, 2008 (Annexure A/5) a clarification was issued by the Deputy Secretary, Ministry of Finance to all the Chief Commissioners/Directors General under CBEC and to all the Commissioners in-charge of the Directorates under CBEC wherein it was stipulated that Superintendents, Appraisers etc. (Customs & Central Excise) (Who are in the pre-revised scale of Rs. 7500-12,000) shall be granted Grade Pay of Rs. 5400 in PB-2 (corresponding to pre- revised scale of Rs. 8000-13,500), after four years of service.
Further, it was clarified in the said letter that the period of four years is to be counted w.e.f. the date on which an officer is placed in the pay scale of Rs. 7500-12000 (pre-revised). Thus, if an officer has completed four years on 01.01.2006 or earlier, he will be given the non-functional upgradation w.e.f. 01.01.2006 and if the officer completes four years on a date after 01.01.2006, he will be given non-functional upgradation from such date on which he completes four years in the pay scale of Rs. 7500-12000 (pre-revised).
2.5 Thereafter, vide order dated 18.12.2008 (Annexure A/6), the pay of the said Shri. Y. S. Purani, Superintendent was re-fixed by replacing the GP of Rs. 4800/- with Rs.
5,400/- in terms of Ministry's letter F.No.A.26017/98/2008-Ad.II.A, dated 21.11.2008, as he had completed four years in the pay scale of Rs. 7500- 250-1200(correspondence to Grade Pay of Rs. 4800/-) on 23.04.2008. Accordingly, the pay of Said Shri Y.S. Purani was fixed in Grade Pay of Rs. 5400/- with effect from 24.04.2008 (Annexure A/6 refer).
::6 :: O.A.No.83/20232.6 It is stated that said Shri Y.S. Purani expired on 23.09.2009 while working as Superintendent, till then he was granted Grade Pay of Rs. 5400/-. In this regard, the applicants has placed reliance on the Pay Slip of August, 2009 wherein the said deceased Y.S. Purani was granted Grade Pay 5400/- and in the month of August 2009 was Rs. 22800/- (including GP Rs.5400/-) (Annexure A/15 refer).
2.7 However, after the death of the employee while issuing PPO (Annexure A/14)for grant of pension & other retirement benefits, the respondents have considered the Grade Pay of 4800/- instead of Grade Pay of Rs. 5400/- and consequently, the applicants herein (legal heirs of the deceased employee) are receiving pension in terms of the said PPO.
The applicants submitted that the even in the pay slip of the deceased employee for the month of August, 2009 (Annexure A/15), it is stated that he was drawing pay as per the Grade Pay of 5400/- than on what grounds the respondents have prepared the PPO by taking Grade Pay of Rs. 4800/- into account.
2.8The respondents, by relying on the clarification issued by the Under Secretary, Ministry of Finance dated 11.02.2009 (Annexure A/7) to all the Chief Commissioners/Directors General under CBEC and to all the Commissioners in-charge of Directorates under CBEC regarding grant of non-functional upgradation to Group B Officers, have clarified that the officers who got the pre-revised pay-scale of Rs.7500-12000 (corresponding to grade pay of Rs.4800) by virtue of financial upgradation under ACP will not be entitled to the benefit of further non-functional upgradation to the ::7 :: O.A.No.83/2023 pre-revised pay-scale of Rs.8000-13500 (corresponding to grade pay of Rs.5400), on completion of four years in the pre-revised pay scale of Rs.7500-12000.
2.9 Thereafter, the same issue came up before the Hon'ble Madras High Court in case of M.Subramanian Vs. Union of India wherein vide order dated 06.09.2010, the respondents therein were directed to extend the benefit of Grade Pay of Rs.5400/- on completion of four years of continuous service in the GP of Rs.4800/- irrespective of whether the GP of Rs. 4800/- was gained by way of promotion or ACP/MACP.
Being aggrieved with the aforesaid, the respondents therein by way of filing Civil Appeal No. 8883/2011 approached the Hon'ble Supreme Court. The Hon'ble Apex Court dismissed the said appeal and upheld the decision of the Hon'ble High Court of Madras.
Thereafter, the respondents filed Review Petition (Civil) No. 2512/2018 with regard to order passed by the Hon'ble Supreme Court on 10.10.2017, which was dismissed on merits as well as on delay. Thus, the decision of extending the benefit of Grade Pay of Rs.5400/- on completion of four years of continuous service in the GP of Rs.4800/- irrespective of whether the GP of Rs. 4800/- was gained by way of promotion or ACP/MACP, has attained finality.
2.10 The applicants submitted that some officers from the respondents department where the deceased employee was working had approached this Tribunal by way of filing OA.310/2017 and dissatisfied with the order of this Tribunal had approached the Hon'ble High Court of Gujarat by way of SCA/346/2018. The Hon'ble High Court vide judgment dated 10.04.2018 allowed the said ::8 :: O.A.No.83/2023 SCA and directed the respondents to implement the decision of the Hon'ble Madras High Court in case of M. Subramanyam passed in W.P. No13225/2010 which is confirmed by the Hon'ble Apex Court.
The employees in the said order of Hon'ble High Court of Gujarat were similarly situated as the deceased employee.
2.11 Thereafter, in the year 2019, the applicants were made known to the fact that the similarly placed employee with said Shri Y.S. Purani had been granted GP 5400/- by the respondents and challenge to it by the respondents has been rejected by the Hon'ble High Court and as such the legal heir of the beneficiary of the said GP 5400/- have been granted family pension accordingly, therefore, the applicants herein have filed an application dated 19.12.2019 (Annexure A/16) before the respondent no. 5 requesting that they may be granted payment of difference and revised pension as per the Grade Pay of Rs. 5400/- instead of Rs. 4800/- as the deceased employee has worked in the Pay Scale of 7500-250- 12000 (correspondence to the Grade Pay of Rs. 4800/-) from 24th April 2004 to 23rd April 2008. Meaning thereby that he had completed four years in the said grade pay and as such eligible for the benefit of Grade Pay of Rs. 5400/-.
2.12 Thereafter, the respondents vide order dated 30.12.2019 (Annexure A/17) rejected that claim of the applicants stating that the deceased employee was granted Grade pay of Rs. 5400/- vide order dated 18.12.2008 for which he was not eligible as he has not completed four years of service after promotion in the grade of Superintendent. Further, in the said communication by referring Letter F. ::9 :: O.A.No.83/2023 No. 26017/98/2008-Ad. IIA dated 19.09.2009 issued by the Government of India, it was clarified that the deceased employee was promoted to the grade of Superintendent on 15.10.2007 and therefore he would have become eligible for the grade of Rs. 5400/- on 15.10.2011 i.e. after completion of four years of service.
2.13 Being dissatisfied with the said reply dated 30.12.2019, the applicants again approached the respondents vide application dated 06.01.2021(Annexure A/18), by relying on the judgment passed by the Hon'ble High Court of Madras in W.P. No. 13225/2010 which was confirmed by the Hon'ble Supreme Court, the applicants again requested that they may be granted payment of difference and their pension may be revised as per the Grade Pay of Rs. 5400/-.
2.14 In response to the said letter dated 06.01.2021, the respondents vide communication dated 15.01.2021 (Annexure A/19), informed the applicants that some officers have approached the different judicial forum for grant of Grade Pay of Rs. 5400/- after completion of four years in the Grade Pay of Rs. 4800/- and on the basis of order passed by Court/Judicial forum, this office has granted grade pay of Rs. 5400/- after completion of four years in grade pay of Rs. 4800/- to those officers only. However, in your case, there is no such Court/Judicial forum order to grant such benefit as desired by you. Hence, your request for grant of grade pay of Rs. 5400/- after completion of four years in the grade pay of Rs. 4800/- can't be considered.
2.15 Being aggrieved, the applicants approached the Hon'ble High Court of Gujarat by way of filing SCA No. 19277/2022, however, after approaching Hon'ble High ::10 :: O.A.No.83/2023 Court the applicants came to know that the Hon'ble High Court is not an appropriate to seek relief. Therefore, the applicant sought permission to withdraw the said SCA with a liberty to approach this Tribunal.
Hence, this OA.
3. Ms. Rachna Pastore, learned counsel for the applicants mainly argued as under:-
3.1 The entire controversy related togrant of NFG in Grade Pay Rs. 5400/- is settled by the Hon'bleSupreme Court by dismissing the appeal preferred by the Respondents' Department challenging the direction to grant the Grade Pay of Rs. 5400/- to persons like the present applicant.
Further,it is submitted that in SCA No.346/2018, SCA No.19273/ 2018 and SCA No.102/ 2019 theHon'ble High Court of Gujarat has held that persons identically placed to the applicants therein could not be denied the benefit of Grade Pay of Rs. 5400/-. Thus, the legal issue involving the legality of grant of Grade Pay of Rs. 5400/- has already been settled and has attained finality. Therefore, denying benefit only on the ground that he doesn't have order of the Court of Law is highly condemnable and is required to be viewed very seriously by this Tribunal.
3.2 The conduct the Respondents' Department deserves to be strictly deprecated as the action on part of the Respondent Department to grant benefit only to the litigants, the same is in direct violation of the decision of the Hon'ble Supreme Court and the decision of the Ministry of Finance to extend the benefit to eligible Officers and which is so implemented. Thus, order extending benefit ::11 :: O.A.No.83/2023 passed in light of some instructions of the department can never be cancelled or withdrawn merely because applicant does not have any judicial order, which is not required at all.
3.3 It is submitted that the respondents failed to consider the fact that the very issue about entitlement of receipt of NFG Grade Pay of Rs.5400/- to Group 'B' employees who have competed 4 years of service in Grade Pay Rs.4800/- irrespective of the said Grade Pay of Rs.4800 was granted by way of ACP/MACP Schemes had been considered by the Hon'ble Madras High Court which was affirmed by the Hon'ble Apex Court. Not only that subsequently, the Hon'ble High Court of Gujarat vide judgment dated 10.4.2018 in SCA No.346/2018 directed the respondents to grant the benefit of fixation of Grade Pay Rs.5400/- in PB-II considering the decision of the Hon'ble Madras High Court in the case of M. Subramanimum (supra) confirmed by the Hon'ble Apex Court with all consequential and ancillary benefits to the respective petitioners. Therefore, it is not open for the respondents to say that the judgment passed by the Hon'ble Madras High Court is not applicable in the case of the applicant.
3.4 Further, it is not correct on the part of the respondents to insist and demand separate order passed by the Court in favour of the applicant for the purpose of grant of NFG in Grade Pay Rs.5400/- in PB-II. As such, the said stand of the respondents runs contrary to the dicta laid down by the Hon'ble Supreme Court as well as Hon'ble various High Courts.
::12 :: O.A.No.83/20233.5 In this regard, learned counsel would also argue that the law laid down by the Hon'ble Apex Court with regard to decisions being considered to be 'in- rem' is quite clear and do not support the stand of the respondents, more particularly, in light of the judgment passed by the Hon'ble Supreme Court in M. Subraminimum's case (supra) and the same cannot be treated as decision in personam.
3.6 In support of the aforesaid submissions, learned counsel for the applicant has placed reliance upon the judgments passed by the Hon'ble Supreme Court dated 17.10.2014 in Civil Appeal No. 9849 of 2014, in the matter of State of Uttar Pradesh & Ors vs. Arvind Kumar Srivastava & Ors.,as also the judgment dated 1.9.2017 passed in SLP(C) No. 23742 of 2017 (Government of NCT Delhi & another vs. Somvir Rana (TGT ENG) & Others).
4. Per contra,the respondents have filed their reply and contended that said Shri Yogesh Kumar Purani while working as Inspector was granted 1st ACP financial upgradation in the revised pay scale of Rs. 7500-250- 12000/- with Grade Pay of Rs. 4800/- w.e.f. 24.04.2004 vide order dated 02nd July, 2004. Thereafter, vide order dated 15.10.2007 he was promoted as Superintendent in the Pay Scale 4800/-. It is stated that his pay fixation was carried out in GP Rs. 5400/- vide order dated 18.12.2008. However, in light of the instructions contained in CBEC letter dated 11.02.2009 benefit of grant of higher GP of Rs. 5400/- shall be given only after completion of four years on regular promotion in grade of Superintendent and as such no financial upgradation in GP of Rs. 5400/- was actually granted to the applicant in terms of CBEC letter dated 16.09.2009.
::13 :: O.A.No.83/20234.1 The representation of the applicant as per the instruction and clarification issued by CBEC from time to time in respect to grant of higher GP of Rs. 5400/- the representation of the applicant herein has not been acceded to. Since, the said Shri. Y.S. Purani had not completed four year of regular service as Superintendent and therefore, not eligible for grant of financial upgradation in GP Rs. 5400/-
5. The applicants have filed the rejoinder and deny the averments made in the counter reply. It is reiterated by the applicant that the deceased employee has as such completed four years of service in the GP of Rs. 4800/- in PB-2 and therefore, he was entitled to the GP of Rs. 5400/- on completion of four years of regular service in said GP of Rs. 4800/-. The stand taken by the respondents to deny the grant the benefit of GP Rs. 5400/- on the ground that the officer who have got GP of Rs. 4800/- based on financial upgradation under ACP Scheme is/was not entitled for higher GP of Rs. 5400/- and only on completion of four years of regular service to the higher post of Superintendent be given to the officer is concerned, the said stand had not been accepted by the Hon'ble High Court and as such the issue has been settled on dismissal of the SLP/Appeal filed before the Hon'ble Supreme Court by the respondents. Therefore, the issue has attained finality and is no more res-integra.
Learned counsel for the applicant would also argue that in another identical case, the Hon'ble High Court of Gujaratin the matter of Anil Kanawal Gidwani vs. Union of India (i.e. SCA No.102 of 2019)vide judgment dated 11.03.2019 by referring the judgment passed by the Hon'ble High Court of Judicature of Madras in W.P. No. 13225/2010 and the order passed by ::14 :: O.A.No.83/2023 the Hon'ble Apex Court in Civil Appeal No. 8883/2011 as well as the judgment passed by the Hon'ble High Court in SCA No. 346/2018 dated 10.04.2018 held that the petitioner therein are entitled for the benefit of GP of Rs. 5400/- and the respondents were directed to ensure that necessary steps are taken, appropriate modification in appropriate Pay Scale of the petitioner therein is given effect and the payment of arrears payable are also paid within a stipulated time (Annexure A/13 refer). Therefore, learned counsel for the applicant requests that the present OA may be allowed on the same terms.
6. Thereafter, the respondents have filed their sur-rejoinder therein by referring the judgment passed by the Hon'ble High Court of Judicature of Madras in W.P. No. 13225/2010 in the case of M. Subramaniam granting benefit of GP of Rs. 5400/- to the officers who had completed four years of regular service in GP of Rs. 4800/- even in the case of grant of financial upgradation of said GP of Rs. 4800/- and the judgment/order passed by various Benches of this Tribunal it has been stated that identical claim placed by the similar officer to avail the benefit of grant of GP of Rs. 5400/- in terms of the said judgment, the case/representation has been forwarded to the Board for further direction for compliance of the order passed by the Hon'ble High Court and Tribunal. 6.1 Further, in para 5 of the sur-rejoinder, the respondents have unequivocally accepted and admitted that the claim put forth by the legal heirs of Late Shri Yogesh Kumar Purani, Ex. Superintendent for grant of benefit of GP Rs. 5400/- to said Shri. Yogesh Kumar Purani is similar to the case covered in the order of Hon'ble High Court of ::15 :: O.A.No.83/2023 Madras dated 06.09.2010 in W.P. No.13225/2010 against which SLP was dismissed.
7. We have heard learned counsel for the parties and perused the pleadings and the judgments on which reliance has been placed.
8. At the outset, it is apt to mention that the issue involved in this case as to:-
(i) Whether the officers who had got the pre-reivsed pay scale of Rs. 7500-12,000/- (correspondence to Grade Pay of Rs. 4800/-) by virtue of financial upgradation under ACP will also be entitled to the benefit of further non-
functional upgradation in Grade Pay of Rs. 5400/- on completion of four years in the pre-revised Grade Pay of Rs. 4800, in terms of recommendation of the 6th CPC ?
(ii) Whether the Department of Revenue, Central Board of Excise and Custom's can restrict the said benefit of grant of NFG in Grade Pay of Rs.5400/- to such employees/officers(i.e.Customs Appraiser/Superintendent of Central Excise/Superintendent of Customs (P)?
The aforesaid issues in our considered opinion are no more res integra in view of the judgment passed by the Hon'ble High Court of Judicature of Madras in W.P. No. 13225/2010 (M. Subramaniam Vs. UoI& Ors.), and the appeal filed by respondents before the Hon'ble Apex Court being Civil Appeal No. 8883/2011 thereon was dismissed on 10.10.2017 as well as the Review Petition (Civil) No. 2512 of 2018 in Civil Appeal No. 8883 of 2011 (UoI& Ors. Vs. M. Subramaniam) along with another Review Petition (Civil) No. 2519/2018 in SLP (Civil) No. 17576/2017 was dismissed vide common order by the Hon'ble Apex Court on 23rd August, 2018.
::16 :: O.A.No.83/20239. At this stage, it is profitable to mention that by referring the said dictum laid down by the Hon'ble High Court of Madras (as referred herein above), in identical case, the Hon'ble High Court of Gujarat in Shanti Swaroop S/o Bharatlal vs. UoI (SCA No. 346/2018) vide judgment dated 10.04.2018 held that now there is no impediment in the way of the department to grant benefit of fixation of GP of Rs. 5400/- and accordingly directed the respondents to grant the said benefit of fixation of GP Rs. 5400/- to the identically placed officers/employees along with all consequential and ancillary benefits.
9.1 Again, in another identical matter, in the case of Sundeep Yourajsingh Rajan vs. UoI (SCA NO. 19273/2018) vide judgment dated 26.12.2018 as well as the Oral Order dated 11.03.2019 passed in the matter of Anil Kanawal Gidwani vs. Union of India (i.e. SCA No.102 of 2019) the Hon'ble High Court of Gujaratheld that the petitioner therein who were granted financial upgradation in Grade Pay of Rs. 4800/- and on completion of four years of service in the said Grade Pay of Rs. 4800/- , the petitioners therein were held to be entitled for the grant of benefit of GP of Rs. 5400/-.
9.2 Further, by referring the said dicta, as well the order passed by the Principal Bench, New Delhi of the Tribunal in OA No. 1994/2016 dated 22.02.2023, this Tribunal (CAT Ahmedabad Bench) in the matter of Shanker Parmar vs. Union of India and others i.e. OA No.403/2022 decided on 22.3.2023 had allowed identical claim with the following observation and direction:-
"7.........the admissibility of the prayer is unambiguously established and the departmental procedure have to conform to the law so laid down ::17 :: O.A.No.83/2023 and discussed in the foregoing paragraphs. The respondents have not been able to bring to our notice any record to indicate that the law laid down by the Hon'ble Madras High Court and the position obtaining there from has undergone any change since then. Because of the fact that this order has attained finality, this has to be followed and accordingly, the OA has to be allowed. In particular when upon upgradation the pay fixation under FR- 22(1)(a)(1) is permitted, there is no reason to treat it differently on any pre-text; this becomes a promotion and service starting from the date of such fixation cannot but be counted as a regular service which would qualify for being counted towards four years of stipulated period whereupon the incumbent would become entitled to further upgradation as per the stipulation in the notification dated 29.8.2008 (Annexure A/2).
8. Accordingly, the OA is allowed and the respondents are directed to implement the grant of Grade Pay of Rs.5400/- in PB-2 w.e.f. the date the incumbent completed four years of service in the Grade of PB-2 + Grade Pay of Rs.4800/- irrespective of whether on promotion or MACP/ACP, within a period of three months from the date of receipt of a copy of this Order."
10. On the case on hand, as noted herein above, undisputedly the deceased employee namely Shri. Yogesh Kumar Purani had been granted GP of Rs.4800/- in PB-II by way of 1st financial upgradation under ACP Scheme w.e.f. 24.04.2004. Thereafter, on completion of continuous 4 years of service in GP of Rs.4800/-, his pay was fixed vide pay fixation order dated 18.12.2008 and accordingly he was granted benefit of NFG in GP of Rs.5400/- w.e.f. 23.04.2008 (Annexure A/6 refer).
::18 :: O.A.No.83/2023We do not find any legal infirmities in the said pay fixation order dated 18.12.2008(Annexure A/6) as the benefit of grant of NFG of Rs.5400/- in PB-IIhas been correctly extended in light of the judgments passed by the Hon'ble Madras High Court and other Hon'ble High Courts as well as this Tribunal as referred hereinabove.
11. So far submission of learned counsel for the respondents that the judgment passed by the Hon'ble High Court of Madras has been treated as in personum and had taken decision not to extend the benefits of the said judgment to other similarly placed employees in the department in light of instructions issued by the Respondents' Board vide letter dated 16.9.2009 is concerned, the same is not tenable in light of the aforesaid judgments as referred hereinabove. In other words, it is reiterated that the very said stand of the respondents to deny the benefits of NFG of Rs.5400/- was already held to be contrary to the mandate of recommendations of 6th CPC and as such the said submission of the respondents runs contrary to the judgment passed by the Hon'ble High Court of Madras which has attained finality and on the basis of the said judgments, various Courts/Tribunals have extended the similar benefits to the similarly situated employees.
12. At this stage, it is apt to mention that the Hon'bleSupreme Court in the case of State of Uttar Pradesh & Ors vs. Arvind Kumar Srivastava & Ors. (Civil Appeal No.9849/2014)decided on17.10.2014 observed that 'the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently'. The relevant portion of the same is produced as under:-
::19 :: O.A.No.83/2023"Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently."
(emphasis supplied) 12.2. The Hon'ble High Court of Gujarat in the matter of Vipulkumar Atmaram Parekh and others vs. State of Gujarat through Secretary and others (SCA No.1314/2009) decided on 24.3.2009 (reported in Gujarat Law Reporter Vol.50 (5) 3914) has ruled that :
"9.......The model employer is one who would not deny just claim of his employee and employees on any technical ground. Such model employer would not wait for any direction to be given to accept just claim of the employee/employees. It is further observed that once it is found that an employee is similarly situated the benefits flowing from a judgment in a case of other similarly situated employee, it should be given to other similarly situated employee and employee should not be driven to the Court for addressing just grievances...."
13. In the present case, as discussed hereinabove, since the Hon'ble High Court held that such officers are entitled to receive benefit of NFG in GP of Rs.5400/- in PB-II, and the said finding attained the finality, on dismissal of SLP and Review Petition filed by the respondents, it is not open to take contrary view by the respondents. As such, the respondents are under lawful obligation to extend the benefit of grant of NFG in Grade Pay of Rs.5400/- to the similarly placed officers even without insisting him/them to approach the Court/Tribunal and to obtain separate ::20 :: O.A.No.83/2023 order in light of law laid down by the Hon'ble Supreme Court and High Court as referred herein above.
14. Further, we are of the considered view that as per the dicta laid down by the Hon'ble Apex Court, Hon'ble High Courts and this Tribunal referred herein above, we reiterate that the deceased employee Late Shri Y.S. Purani, Ex-Superintendent, on completion of four years of regular service in Grade Pay of Rs. 4800/- i.e. on 23.04.2008, he became entitled for grant of NFG in GP of Rs.5400/- w.e.f. 24.04.2008. The denial of grant of said benefit to him is not tenable in light of what is discussed herein above.
Even otherwise, it can be seen that the respondents in their sur-rejoinder more particularly in para 5 admitted that the grievance raised by the applicants herein for grant of Grade Pay of Rs. 5400/- to said Late Shri Y.S. Purani, Ex-Superintendent is similar to the case covered in the order of the Hon'ble High Court of Madras dated 06.09.2010 passed in W.P. No. 13225/2010.
15. In the result, for the forgoing reasons, the present OA is allowed and the respondents are directed to:-
(i) pass necessary orders to extend the benefit of grant of Grade Pay of Rs.5400/- in P.B.-II w.e.f. 24.04.2008 i.e. the date of completion of four years of regular service in the Grade Pay of Rs.4800/- to the deceased employee Late Shri Y.S. Purani, Ex-Superintendent considering the dictum laid down by the Hon'ble High Court of Judicature at Madras in case of M. Subramaniam (supra) confirmed by the Hon'ble Supreme Court and pay all consequential and ancillary benefits to the applicants ::21 :: O.A.No.83/2023 herein who are legal heirs of the deceased employee Late Shri. Y.S. Purani, Ex-Superintendent.
(ii) Accordingly, the respondents are directed to prepare and issue revised PPO for grant of family pension to the applicant no. 1 herein by considering the revised Grade Pay of Rs. 5400/-.
(iii) It is directed that the aforesaid direction be complied with within 90 days from receipt of the certified copy of this order, failing which, the respondents are liable to pay applicable interest on the delayed payment payable to the applicant herein, till the said payable payment has been paid to the applicant(s).
16. There shall be no order as to costs.
(Dr.Hukum Singh Meena) (Jayesh V Bhairavia) Member (A) Member (J) / PV/