Kerala High Court
S.Ashoka Narayanan vs Union Of India on 26 September, 2010
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 8TH DAYOF DECEMBER 2016/17TH AGRAHAYANA, 1938
OP (CAT).No. 276 of 2010 (Z)
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AGAINST THE ORDER IN OA 151/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH DATED 26.09.2010
PETITIONER: -
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S.ASHOKA NARAYANAN, AGED 43 YEARS,
S/O.N.SUBRAMONIAN POTTI,
SUPERINTENDENT OF CENTRAL EXCISE, AUDIT SECTION,
O/O.THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS,
I.S.PRESS ROAD, COCHIN-18, PERMANENTLYRESIDING AT
"THALAYATTUMALA NARAYANAM", K.V. NAGAR, PEYAD P.O.,
THIRUVANANTHAPURAM.
BY ADV.SRI.M.A.SHAFIK
RESPONDENTS : -
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1. UNION OF INDIA, REPRESENTED BY SECRETARY,
DEPARTMENT OF REVENUE, MINISTRYOF FINANCE, NEW DELHI.
2. THE CHAIRMAN, CENTRAL BOARD OF EXCISE & CUSTOMS,
NORTH BLOCK, NEW DELHI.
3. THE CHIEF COMMISSIONER OF CENTRAL EXCISE,
CUSTOMS & SERVICE TAX, KERALA ZONE,
CENTRAL REVENUE BUILDING, I.S.PRESS ROAD,, COCHIN-682 018.
4. THE COMMISSIONER OF CENTRAL EXCISE,
CUSTOMS & SERVICE TAX, CENTRAL REVENUE BUILDING,
I.S.PRESS ROAD, COCHIN-682 018.
R1 BY ADV.SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
R-1 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA
R1-R4 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R1-R4 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, CB EX
R1-R4 BY ADV. SRI.JAISHANKAR V.NAIR, CGC
BY ADV.SRI.T.V.VINU
THIS OP (CAT) HAVING BEEN FINALLYHEARD ON 08-12-2016,
THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
OP (CAT).No. 276 of 2010 (Z)
APPENDIX
PETITIONER'S EXHIBITS :
EXHIBIT P1 : TRUE COPY OF THE ORDER DATED26.9.2010 OF THE C.A.T. IN O.A.
No. 151/2009.
EXHIBIT P2 : TRUE COPY OF THE ORIGINAL APPLICATION No. 151/2009 FILED
BEFORE THE C.A.T.
EXHIBIT P3 : TRUE COPY OF THE REPLYSTATEMENT FILED BY THE
RESPONDENTS IN OA 151/2009 BEFORE THE C.A.T.
EXHIBIT P4 : TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN
O.A. 151/2009 BEFORE THE C.A.T.
EXHIBIT P5 : TRUE COPY OF THE ORDER F.No.A26017/98/2008 DATED 17.12.2009.
EXHIBIT P6 : COPY OF THE CERTIFIED COPY OF THE JUDGMENT DATED6.9.2010
IN W.P.No. 13225/2010 OF THE HIGH COURT OF MADRAS.
RESPONDENTS' EXHIBITS :
EXHIBIT R1(a) : TRUE EXTRACT OF PROVISION IN PART C, SECTION II OF
THE CCS (REVISED PAY)RULES, 2008 UNDER THE HEADING
'MINISTRYOF FINANCE', DEPARTMENT OF REVENUE @ Sl.
No. 9.
// TRUE COPY //
P.A.TO JUDGE
DMR/-
P.R. RAMACHANDRA MENON
&
P. SOMARAJAN, JJ.
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O.P. (CAT) No. 276 of 2010
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Dated this the 08th day of December, 2016
J U D G M E N T
P.R. Ramachandra Menon, J.
The correctness and sustainability of Exhibit P1 order passed by the Tribunal in O.A. No.151/2009 preferred by the petitioner (challenging Annexure A1 and A2) declining interference, is the subject matter of challenge in this original petition.
2. The petitioner was working as an Inspector of Central Excise from 15.01.1992. While so, ACP Scheme (Assured Career Progression Scheme) was introduced by the Government pursuant to recommendation of the 5th CPC providing for granting benefit at two different levels, firstly, on completion of 12 years and secondly, on completion of 24 years. It was accordingly, that the petitioner was granted the benefit of the first higher level with effect from 01.01.2004, which was as stated as the scale of pay in the next level in the hierarchy of posts, i.e. the Superintendent. A fixation was given as borne by Annexure A5. The said O.P. (CAT) No. 276 of 2010 2 benefit flowing from Annexure A5 dated 29.08.2008 issued by the Ministry of Finance also specified under clause (x) (e) that, Group B officers of Departments of Posts, Revenue, etc will be granted Grade Pay of Rs.5400/- in PB-2 on non- functional basis, after 4 years of regular service in the grade pay of Rs.4800/- in PB-2. There arose some confusion/ doubt expressed from different corners, as to how the benefit of Annexure A5 was to be given. The matter was considered by the Ministry of Finance, who issued Annexure A6 dated 21.11.2008, by way of clarification, the last paragraph of which reads as follows:
"3. The Department of Expenditure have now clarified that the 4-year period is to be counted w.e.f. the date on which an officer is placed in the pay scale of Rs.7,500-12,000 (pre-revised). Thus, if an officer has completed 4 years on 01.01.2006 or earlier, he will be given the non-functional upgradation w.e.f. 01.01.2006. If the officer completes 4 years on a date after 01.01.2006, he will be given non- functional upgradation from such date on which he completes 4 years in the pay scale of Rs.7,500- 12,000 (pre-revised)."
3. It was accordingly, that the benefit was given, reckoning the service of 4 years from 01.01.2004; in turn O.P. (CAT) No. 276 of 2010 3 giving the Grade Pay of Rs.5400/- as given Annexure A7 fixation issued in December 2008 and the petitioner was drawing the same uninterruptedly.
4. Now comes Annexure A2, as a 'Bolt from the Blue', without any notice, whereby some instructions have been given by the Ministry in the form of a clarification that "non-functional upgradation to the Grade Pay of Rs.5,400/- in the pay band PB-2 can be given on completion of 4 years of regular service in the Grade Pay of Rs.4,800/- in Pay Band-2 (pre-revised scale of Rs.7500-12000) after regular promotion and not on account of financial upgradation due to ACP". Based on the so-called clarification, Annexure A1, dated 25.02.2009 was issued by the Joint Commissioner, whereby the higher Grade Pay of Rs.5,400 sanctioned to the petitioner as per Annexure A7 (based on Annexure A5 and A6) was quite unceremoniously withdrawn; even without affording an opportunity of hearing and simultaneously ordering recovery of the alleged excess payment. This made the petitioner feel aggrieved, who approached the Tribunal by filing O.A. No.151/2009 challenging Annexure A1 and A2. Initially, an interim order of stay was granted O.P. (CAT) No. 276 of 2010 4 and after filing reply statement by the Department, the matter was considered and Exhibit P1 final verdict was passed holding that there was no merit in the O.A. (in view of Annexure A2), which made the petitioner to approach this Court.
5. Heard the learned counsel for the petitioner as well as the learned Standing Counsel for the respondents.
6. The learned counsel for the petitioner points out that the challenge raised by the petitioner before the Tribunal was not specifically adverted to by the Tribunal while declining the relief. Violation of the principles of natural justice was also projected, which though appeared to be satisfactory to the Tribunal, it was observed in paragraph 9, that the Tribunal did not find it appropriate to cause it to be reconsidered after issuance of a notice, as Annexure A2 was quite explicit. It was accordingly, that interference was declined and the O.A. was dismissed.
7. During the course of hearing before this Court, despite the specific query raised by this Court, no proper explanation is coming from the part of the respondents as to how the Ministry came to issue Annexure A2 with O.P. (CAT) No. 276 of 2010 5 reference to the Clause contained in Annexure A5 as to the eligibility. To put it more clear, scope of the relevant clause in Annexure A5 was clarified by the very same Ministry as per Annexure A6, dated 21.11.2008. Having issued the said clarification, what made the Ministry to take a 'U-turn' or say something contrary to the terms of Annexure A6, by way of Annexure A2, remains to be a matter of mystery. Obviously, no reference is made anywhere in Annexure A2, to Annexure A6. Whether existence of Annexure A6 clarification issued by the very same Ministry was brought to its notice, when Annexure A2 was issued, is not known. Apparently, Annexure A6 virtually stands contrary to Annexure A2, in so far as the interpretation or clarification sought to be given as to the scope of the relevant clause in Annexure A5, is concerned. In so far as Annexure A2 is not issued in supersession of Annexure A6 and to the extent Annexure A6 survives (having not been recalled or cancelled or modified), this Court is of the view that the adverse result pointed out by the petitioner ought not to have been resulted under any circumstance. Non issuance of notice to the petitioner gathers momentum in the said context. Had O.P. (CAT) No. 276 of 2010 6 the petitioner been given a notice at appropriate time, before implementing the reduction and ordering recovery, the correct factual position could have been brought to the notice of the authorities concerned then and there, which unfortunately has not happened in the instant case. Nothing is stated in the reply statement as to how Annexure A6 clarification issued by the Ministry on 21.11.2008 came to be varied by the said Ministry by issuing Annexure A2. This aspect has been omitted to be considered by the Tribunal as well.
8. During the course of submissions, the learned counsel for the petitioner submitted that exactly similar issue was pending consideration before the Central Administrative Tribunal, Chennai, in O.A. No. 167/2009 and accepting the version put forth by the respondents (similar to the version as put forth in the present way as well), interference was declined and O.A. was dismissed by the Tribunal. Challenging the said verdict, the aggrieved applicant approached the High Court of Madras by filing W.P. (C) No.13225/2010. After hearing both the sides, the challenge was upheld and the verdict passed by the Tribunal O.P. (CAT) No. 276 of 2010 7 was set aside, directing the respondents/Department to extend the benefit of Grade Pay of Rs.5400/- to the petitioner with effect from the relevant date as mentioned therein.
9. We find that the view expressed by the Madras High Court is similar to the view expressed by us in the preceding paragraphs. There is no case for the respondents that they have challenged Exhibit P6 verdict passed by the High Court of Madras in W.P. (C) No.13225/2010, by way of appropriate proceedings before the Apex Court and hence, it has to be reasonably presumed that the said verdict has become final. We find that the course pursued by the Department in having reduced the Grade Pay of the petitioner (fixed as per Annexure A7 based on Annexure A5 as Rs.5400/-) to Rs.4800/- by placing reliance on Annexure A2; at the same time without making a reference to the earlier clarification issued by the very same Ministry as per Annexure A6 is not correct or sustainable.
Accordingly, we set aside Exhibit P1 verdict passed by the Tribunal. We also set aside Annexure A1 and A2 to the extent, the petitioner is concerned and hold that the O.P. (CAT) No. 276 of 2010 8 petitioner will stand governed by Annexure A5, A6 and A7. The Original petition is allowed, virtually allowing the O.A. filed by the petitioner. The parties will suffer their costs.
P.R. RAMACHANDRA MENON JUDGE P. SOMARAJAN JUDGE DMR/-