Union Of India And Another vs Sri Shashi Kant Saran (Since Dead) .... ... on 5 October, 2021

[Cites 9, Cited by 1]

Orissa High Court

Union Of India And Another vs Sri Shashi Kant Saran (Since Dead) .... ... on 5 October, 2021

1. The challenge in the present writ petition is to the impugned order dated 6th August, 2015 of the Central Administrative Tribunal, Cuttack Bench, Cuttack (CAT, Cuttack) passed in O.A. No.959 of 2013 by the Union of India through the Ministry of Textiles and the Secretary, Central Silk Board (CSB) at Karnataka.

W.P. (C) No.19614 of 2015 Page 1 of 16

2. It may be noted at the outset that while directing notice to be issued to the Opposite Parties on 25th February 2016, this Court stayed the further proceedings in Contempt Petition (Civil) No.50 of 2015, pending before the CAT. Two of the Opposite Parties viz., Opposite Party Nos.16 and 1 died during pendency of the present proceedings. They were substituted by their respective legal representatives by orders dated 21st August 2018 and 25th April, 2019. On 16th May, 2019, while formally admitting the writ petition, the impugned order of the CAT was stayed by this Court.

3. When the case was heard on 16th July 2021, Mr. N. C. Mishra, learned counsel for the Opposite Parties pointed out that many of them had superannuated. He submitted that they were entitled to the same relief granted to similarly placed persons who had served the CSB elsewhere as regards implementation of the Flexible Complementing Scheme (FCS), which is a non-vacancy based in-situ promotion from one scale to the next higher scale. Reliance was placed on the judgment of the Supreme Court in State of Karnataka v. C. Lalitha (2006) 2 SCC 747. The case was then adjourned to 15th September, 2021 at the request of the learned Assistant Solicitor General of India, Mr. P. K. Parhi, appearing for the Petitioners. Thereafter, final arguments were heard on 15th September, 2021 and orders were reserved. Parties were permitted to file written submissions within four weeks. The Opposite Parties have filed their written submissions on 28th September, 2021.

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4. The background facts are that FCS is a non-vacancy based in- situ promotion from one scale to the next higher scale prevailing in the Scientific and Technological (S & T) Organisations of the Government of India.' By an Office Memorandum (OM) dated 22nd September, 2000, the Ministry of Textiles (MoT) (Petitioner No.1) sent a proposal to the Ministry of Science and Technology (MST) for recognition of the CSB as a scientific organisation so that the FCS could be extended to scientists of the CSB.

5. Pursuant to the said proposal, the MST vide OM dated 30th July, 2001 sent its recommendations to the MoT recognising CSB as an S & T organisation. It recommended implementation of the FCS to the scientists of CSB after due approval of the Department of Personnel and Training (DoPT) as well as the Ministry of Finance (MoF).

6. Further to the above OM, the MoT advised CSB to submit a proposal for implementation of the recommendations contained in the said OM based upon the instructions of the DoPT and MoF. Accordingly, the CSB submitted a proposal on 24th October, 2001 to the MoT seeking approval for the extension of the FCS to CSB scientists. Based on the representations submitted by the Directors of CSB and other scientists, a revised proposal was sent on 11th April, 2005 by the CSB to the MoT.

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7. The MoT examined the proposal and with the concurrence of the DoPT and MoF, issued a letter to the CSB sanctioning the FCS for scientists working in CSB with effect from 30th August, 2006 i.e. the date of the said letter.

8. According to the MoT, all the scientists accepted the benefits of the Scheme from 2006. However, 16 of the officers filed O.A. No.75 of 2008 before the CAT, Patna Bench (Ranchi Circuit) seeking FCS benefits from 1998 i.e. the date of the OM extending FCS to specified S&T organisations.

9. The CAT, Patna Bench passed order dated 13th January, 2009 granting the FCS to the scientists in CSB and its research institutes with effect from 30th July 2001, the date on which the MST made its recommendations to the MoT for implementation of FCS for CSB scientists, with all consequential benefits.

10. The CSB challenged the above order of the CAT, Patna Bench (Ranchi Circuit) in the Jharkhand High Court in W.P. No.2503 of 2009. The Jharkhand High Court, Ranchi dismissed the said writ petition on 27th March, 2012. SLP (Civil) No.11219 of 2012 filed by the CSB against the above order was dismissed by the Supreme Court by order dated 10th April, 2013. The Supreme Court however clarified that the order of the CAT as affirmed by the Jharkhand High Court was only in respect of those scientists who were before the CAT Patna Bench (Ranchi Circuit) as W.P. (C) No.19614 of 2015 Page 4 of 16 applicants (who were Respondents in the SLP). The questions of law raised by the CSB were left open to be agitated in an appropriate case.

11. It is stated that one of the 16 applicants before the CAT Patna Bench (Ranchi Circuit) was found not eligible for the FCS as per DoPT guidelines. He was accordingly reverted to the Statistics cadre. As a result, the benefit of the FCS was extended to 15 of the scientists of the CSB with the approval of the MoT.

12. Aggrieved by the selective implementation of the FCS, identically placed scientific personnel of the CSB filed applications before the various CAT Benches at Bangalore, Kolkata, Guwahati, Cuttack and the principal Bench at Delhi seeking identical benefits.

13. The CAT, Bangalore held that the decision of the Supreme Court in SLP (Civil) No.11219 of 2012 was 'in-personam'. It termed the Applicants before it, i.e. the scientists of the CSB, as 'fence sitters'. It held that the OA was barred by limitation. An identical view was held by the CAT, Kolkata Bench, which decided OA No.1521 of 2013 filed by 51 scientists of the CSB.

14. Representations were filed before the CSB by some of the scientists including those who approached the CAT, Cuttack Bench for implementation of FCS from 30th July, 2001 at par with W.P. (C) No.19614 of 2015 Page 5 of 16 the scientists who had approach the CAT, Patna Bench (Ranchi Circuit). When the CSB did not respond to the representations of the Odisha scientists, they filed O.A. No.627 of 2013 before the CAT, Cuttack. By an order dated 12th September, 2013, the CAT, Cuttack disposed of the application directing the CSB to dispose of the representations of the scientists keeping in view the orders passed by the CAT, Patna Bench (Ranchi Circuit), the Jharkhand High Court as well as the Supreme Court.

15. On 11th November, 2013, the CSB passed an order holding that the applicants before it were not entitled for the benefit of FCS in view of the order passed by the Supreme Court which confined that benefit only to those, who had applied to the CAT, Patna Bench (Ranchi Circuit).

16. The CSB scientists then again approached the CAT, Cuttack by filing O.A. No.959 of 2013 seeking parity with those who had filed O.A. No.75 of 2008 before the CAT, Patna Bench (Ranchi Circuit). By the impugned order dated 6th August, 2015, the CAT, Cuttack allowed the said O.A., quashed the order dated 11th November, 2013 passed by the CSB. It directed that the Applicants before it should be granted the same benefits as had been extended to the applicants in O.A. No.75 of 2008 before the CAT, Patna Bench (Ranchi Circuit), as upheld by the Jharkhand High Court and the Supreme Court of India, within a period of 120 days.

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17. It may be mentioned here that as far as the CAT, Bangalore was concerned, initially it had dismissed the plea of the similarly placed scientists on the ground of limitation. Two scientists then approached the High Court of Karnataka. The High Court set aside the order of the CAT, Bangalore and remanded it to the CAT, Bangalore directing it to consider the limitation aspect. Para 11 of the order of the Karnakata High Court dated 12th July, 2017 reads thus:

"Whenever any party is confronted with delay, more particularly, when the right of parties is similar situation is crystallized until the highest court, the Court of the Tribunal would undertake a wider approach and further examine the delay, objectively keeping in view two aspects: one, is that real cause for the litigation should not be frustrated, but at the same time, one who has slept over the right should not be allowed to earn any undue benefit for the period during which delay has been caused. There are various ways of examining delay keeping in view equitable considerations. Second is that, if the Tribunal is satisfied that there is entitlement as concluded by the highest Court, the Tribunal may further examine as to whether grant of benefit can be considered by excluding the period during which delay has occurred on account of no appropriate action taken by the applicants before the Tribunal. Further, the Tribunal may also consider the aspect as to whether delay should result into throwing away real cause or not. The Tribunal while balancing both aspects may exercise judicial discretion by moulding the relief and if required may also award appropriate cost for the respondents by way of compensation of the delay. It is true that by operation of the law of limitation, the right is not taken away, but limitation only bars the remedy. But at the same time, the real cause which W.P. (C) No.19614 of 2015 Page 7 of 16 otherwise is entitled for relief, should not be allowed to be frustrated and the relief has to be granted, by appropriate moulding of the relief by taking care of interest of both sides".

18. Para 13 of the High Court order states that:

"....In our view, the aforesaid are some of the facets for dealing with delay, when the Tribunal has to consider the matter of the genuine cause for entitlement which is upheld until the highest Court. We leave it at that."

19. On remand, the CAT, Bangalore examined the case again and on limitation held as under:

"As would be evident from the above, between the period from January 2009 till the order of the Hon'ble Supreme Court in April, 2013 followed by representation and rejection of the same in Sept. 2013, there was no scope for applicants to approach the Tribunal. If at all there is a delay, it was limited to the period prior to the order passed by the Tribunal in January, 2009. We note that there were representations of the scientists to the authority in July, 2006, July, 2007 and Nov., 2007 but the same has not been responded to. Thereafter the applicants could have approached the Tribunal may be same time in 2008. Therefore the delay would only be for the period prior to the judgment passed by the Patna Bench and can be few months only which cannot be termed as inordinate delay. As soon as Patna Bench passed an order which was in their favour, there was no scope for the applicants to agitate the matter once again because they were already covered by the said order. Therefore, the claim of the respondents that applicants are fence sitters and approached the Tribunal after a delay of 7 years does not appear to us as justified in the background of the above facts. After the order passed by the Tribunal in January 2009, the applicants could not have come to this Tribunal till final order of Supreme Court which limited the benefit W.P. (C) No.19614 of 2015 Page 8 of 16 to the applicants before the Patna Bench of the Tribunal and subsequent rejection of the representations of the applicants by the respondents. Therefore, considering the issue of delay in overall perspective, we are of the view that the period of delay highlighted by the respondents is not justified and the submission made by the applicants appears reasonable. Hench, we condone the delay on the part of the applicants in approaching the Tribunal."

20. Reliance is also placed by the Opposite Parties on the decision in C. Lalitha (supra) where inter alia it was observed as under:

"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well-settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I Post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to.

xxx xxx xxx

32. Justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates. Moreover, at the end of the day, the Respondent has got what could be given to her in law. As of now, she had already been enjoying a higher scale of pay than what she would have got if she was to join the post of Assistant Controller. We, therefore, are of the opinion that interest of justice would be sub-served if she W.P. (C) No.19614 of 2015 Page 9 of 16 is allowed to continue in her post and direct the Appellant to consider her seniority in the Administrative Service in terms of the order of this Court dated 15-3-1994 that she would be the last in the seniority list of the appointees in the post of Category I Assistant Commissioner (Karnataka Administrative Service)."

21. On behalf of the Union of India, it was sought to be argued that the order passed by the Supreme Court in SLP (Civil) No.11219 of 2012 is an order 'in-personam' and was confined only to the Applicants who had approached the CAT, Patna Bench (Ranchi Circuit). It is stated that the implementation of the FCS cannot be ante-dated to a date that it was mooted but has to be only from the date it is actually extended and that the CAT's interference with such policy is illegal. It is further submitted that there was a bar in giving effect to the FCS from a retrospective date in terms of an OM dated 17th July, 2002. It is stated that a policy decision was taken by the Government of India to extend FCS to all the Boards uniformly i.e. Coffee Board, Spices Board, Rubber Board and the CSB. It was argued that if the impugned order is implemented, si0milar demands would emanate from scientists similarly placed as the Opposite Parties in the CSB. It is stated that the Petitioners i.e. the CSB would be saddled with a severe financial burden of a recurring in nature. For CSB, the annual expenditure would be about Rs.50 crores and that diversion of such a huge amount, on account of the limited resources of the CSB, would adversely affect the implementation of various important research and developmental (R & D) projects W.P. (C) No.19614 of 2015 Page 10 of 16 and hamper the development of sericulture industry in the country.

22. The Court is unable to accept the plea of the Petitioners essentially because within the same organisation and in the same cadre of scientists, there cannot be discrimination. The questions of law in SLP (Civil) No.11219 of 2012 were left open for consideration in an appropriate case. The plea of limitation raised by the Petitioners vis-à-vis the claim of other similarly placed scientists cannot be countenanced for the simple fact that the legal position regarding the correctness of the decision of the CAT, Patna Bench (Ranchi Circuit) became clear only after the aforementioned order of the Supreme Court.

23. This is the reason why the Karnataka High Court remanded the matter to the CAT. The reasoning put forth by the CAT, Bangalore on remand, negativing the plea of limitation, appears to be the correct position in law. Consequently, the Court rejects the plea of the present Petitioners that the CAT, Cuttack Bench ought to have rejected the plea of the Opposite Parties on the ground of limitation. Importantly, when the CAT directed consideration of the representations of the Petitioners by the CSB, no plea of limitation was raised by the CSB at that stage.

24. It appears that in the case of CSB itself, a similar issue was raised in relation to certain other employees in Maharaj Krishna W.P. (C) No.19614 of 2015 Page 11 of 16 Bhat v. State of J & K (2008) 9 SCC 24. It was held by the Supreme Court that the authorities concerned ought to have accepted the relief granted to one set of similarly placed employees by the Supreme Court of India and should have extended it to all others similarly situated. In M.R. Gupta v. Union of India, (1995) 5 SCC 628, regarding one set of employees of CSB, the question was whether the relief could be denied only because the Petitioners were not parties to an earlier judgment of the Andhra Pradesh High Court. It was observed by the Supreme Court in the said case as under:

"In the present case, this court is witnessing shocking state of Affairs going on in the Central Silk Board. The Central Silk Board wants each and every employee to be dragged to the Central Administrative Tribunal even if there is a judgment delivered in respect of a class of employees. The Central Silk Board cannot be permitted to act in the manner and matter in which it has acted in the present case, once the judgment has attained finality in respect of a particular post all the employees are certainly entitled for higher pay scale of Rs.5,000/- to Rs.8,000/- with effect from 1.1.1996."

25. In this context, the observations of the Supreme Court in Dr. (Mrs.) Santosh Kumari v. Union of India (1994) 7 SCC 565 read as under:

"a more deserving candidate may not have the means to approach the court, should he be denied the benefit which has been granted to those who dared the department with court orders........." the action of the respondent to deny the same relief to the similarly situated persons is per se illegal, arbitrary and in W.P. (C) No.19614 of 2015 Page 12 of 16 defiance of Articles 14 & 16 of the Constitution of India."

26. This very case of scientists of the CSB was dealt with elaborately by the Karnakata High Court recently in its judgment dated 4th February, 2021 in W.P. No.31831 of 2019 (S-CAT) (The Central Silk Board v. C. H. Ramanna ). The facts of the said case were that employees belonging to Senior Research Assistants, Senior Research Officers, Hindi Translators were granted the higher pay scale of Rs.5,500-9,000/- with effect from 1st January, 1996. However, there was no up-gradation in respect of grant of higher pay scale on the basis of the recommendation of 5th Pay Commission in respect of Technical Assistants.

27. Some of the Technical Assistants approached the High Court of Andhra Pradesh with W.P. No.4769 of 2003 claiming higher pay scale of Rs.5,000-8,000/- with effect from 1st January, 1996. The High Court of Andhra Pradesh allowed the said writ petition granting the benefits. The CSB then challenged the order of the Andhra Pradesh High Court in a writ appeal. The Division Bench of the Andhra Pradesh High Court dismissed the writ appeal.

28. The SLP filed by the CSB was dismissed by the Supreme Court on 16th December, 2013. The review petition was also dismissed by the Supreme Court on 26th February, 2014. On the strength of the above order of the Andhra Pradesh High Court, Technical Assistants in Karnataka filed O.A. No.170 of 2018 in W.P. (C) No.19614 of 2015 Page 13 of 16 the CAT, Bangalore, which allowed it by an order dated 28th February, 2018. This was then challenged before the Karnataka High Court. The same plea that the judgment of the Andhra Pradesh High Court 'in-personam' was rejected by the Karnataka High Court. It was reasoned as under:

"12. In case the arguments canvassed by the learned counsel for the petitioners is accepted, there would be two class of employees working in one organization i.e., Central Silk Board which is certainly violative of Articles 14 , 16 and 21 of Constitution of India. All the employees in the class Technical Assistants are to be treated as equal and are to be given a uniform pay scale in the entire organization and therefore, the argument canvassed by the learned counsel is repelled. Another ground raised by the learned counsel for the petitioners is that the claim of the respondents is hopelessly barred by limitation.

13. It is a settled preposition of law, the claim relating to salary, claim relating to grant of annual increment are having recurring cause of action and the respondents cannot be denied the reliefs only because they were not party to the judgment delivered by the High Court of Andhra Pradesh. In the considered opinion of this court, the pleas raised by the present petitioners organization are hyper technical and the Tribunal was justified in extending the benefit of higher pay scale with effect from 1.1.1996 i.e., from Rs.5,000-8,000/- to the applicants before the Tribunal. Resultantly, this court does not have any reason to interfere with the order of the Central Administrative Tribunal [See: M.R. Gupta Vs. Union of India reported in (1995) 5 SCC 628]"

14. In the present case, this court is witnessing shocking state of affairs going on in the Central Silk W.P. (C) No.19614 of 2015 Page 14 of 16 Board. The Central Silk Board wants each and every employee to be dragged to the Central Administrative Tribunal even if there is a judgment delivered in respect of a class of employees. The Central Silk Board cannot be permitted to act in the manner and matter in which it has acted in the present case, once the judgment has attained finality in respect of a particular post, all the employees are certainly entitled for higher pay scale of Rs.5,000/- to Rs.8,000/- with effect from 1.1.1996.

15. Resultantly, the Writ Petition is not only dismissed but it is dismissed with a cost of Rs.1,00,000/- [Rupees One lakh only] to be paid to the Karnataka State Legal Services Authority within a period of thirty days from the date of receipt of this order."

29. In the present case still the Court sees no reason why within the same cadre of scientists there should be discrimination between one set of employees and the others identical placed. The plea of financial difficulties in such type of cases cannot be countenanced. In All India IMAM Organization v. Union of India, (1993) 3 SCC 584, the Supreme Court held that financial difficulties cannot override the fundamental right and to be treated on equal basis.

30. A similar view was taken by the Madras High Court in its judgment dated 19th April, 2011 in W.P. No.8207 of 2011 (D. Poongavanam v. Government of Tamil Nadu), where it was held as under:

"From the analysis of the judgments cited above, it is beyond doubt and clear that once the point is decided W.P. (C) No.19614 of 2015 Page 15 of 16 in favour of a group of person, there is no further point in waiting for each and every person to file petition and pray for the same relief. As held by the Honourable Supreme Court, the benefit of the judgment is equally applicable to similarly placed persons to do complete and substantial justice."

31. The legal position is clear viz., that if one set of employees is granted a benefit, it cannot be denied to another set identically placed as the former category.

32. For all of the aforementioned reasons, the Court sees no merit in the present petition and it is dismissed as such. The interim order passed earlier stands vacated. However, there shall be no order as to costs.

(S. Muralidhar) Chief Justice (B.P. Routray) Judge M. Panda W.P. (C) No.19614 of 2015 Page 16 of 16

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