Central Administrative Tribunal - Bangalore
Shiji Varkey vs Employees State Insurance Corporation ... on 27 April, 2026
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OA.No.170/00438/2025 and
connected matters/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00438/2025,
ORIGINAL APPLICATION NO.170/00440/2025,
ORIGINAL APPLICATION NO.170/00439/2025,
ORIGINAL APPLICATION NO.170/00430/2025,
ORIGINAL APPLICATION NO.170/00431/2025,
ORIGINAL APPLICATION NO.170/00432/2025,
ORIGINAL APPLICATION NO.170/00433/2025,
ORIGINAL APPLICATION NO.170/00434/2025
AND
ORIGINAL APPLICATION NO.170/00435/2025
ORDER RESERVED ON 20.04.2026
DATE OF ORDER: 27.04.2026
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
ORIGINAL APPLICATION NO.170/00438/2025
Smt. Shiji Varkey
D/o T.K. Varkey
Aged about 31 years
Working as Nursing Officer
ESIC Hospital, Rajajinagar
Bangalore 560 010
Residing at Old No. 2, New No. 59
Kanakakrishna Krupa, 4th Block
Rajajinagar, Bangalore 560 010
.... Applicant in OA No. 438/2025
KAVYA SHREE K
CAT, Bangalore
2026.04.27 17:24:53+05'30'
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OA.No.170/00438/2025 and
connected matters/CAT/BANGALORE
ORIGINAL APPLICATION NO.170/00440/2025
Smt. V.L. Vishnupriya
D/o B. Venugopal
Aged about 37 years
Working as Nursing Officer
ESIC Medical College and Hospital
Gnana Ganga, Kalaburagi 585 106
Residing at No. 305, Type 4 Quarters
ESIC MCH, Kalaburagi 585 106
.... Applicant in OA No. 440/2025
ORIGINAL APPLICATION NO.170/00439/2025
Smt. Anusha M.C.,
D/o Bharathan M.C.,
Aged about 35 years
Working as Nursing Officer
ESIC Medical College and Hospital
Gnana Ganga, Kalaburagi 585 106
Residing at No. 303, Type 4 Quarters
ESIC MCH, Kalaburagi 585 106
.... Applicant in OA No. 439/2025
ORIGINAL APPLICATION NO.170/00430/2025
Smt. Majida Farsana U.P,
D/o Kunhabdulla
Aged about 32 years
Working as Nursing Officer, ESIC PGIMSR
Gnana Ganga, Kalaburagi 585 106
Residing at No. 601, Type 4 Quarters
ESIC MCH, Kalaburagi 585 106
.... Applicant in OA No. 430/2025
ORIGINAL APPLICATION NO.170/00431/2025
Smt. Deepthi V.P.,
W/o Maneesh C.K.,
Aged about 33 years
Working as Nursing Officer,
KAVYA SHREE K
CAT, Bangalore
2026.04.27 17:24:53+05'30'
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OA.No.170/00438/2025 and
connected matters/CAT/BANGALORE
ESIC Hospital
Rajajinagar, Bangalore 560 010
Residing at No. 50/1, 2nd Main Road
Rajajinagar, Bangalore 560 010
.... Applicant in OA No. 431/2025
ORIGINAL APPLICATION NO.170/00432/2025
Sri Prasanth P
S/o Radhakrishnan P
Aged about 37 years
Working as Nursing Officer
ESIC Hospital, Rajajinagar, Bangalore 560 010
Residing at No. 333, Chitramala Apartment, Byrasandra,
Jaynagar 1st Block, Bangalore 560 011
.... Applicant in OA No. 432/2025
ORIGINAL APPLICATION NO.170/00433/2025
Smt. Madhumathi A
D/o Ashok Kumar P
Aged about 39 years
Working as Nursing Officer
ESIC Hospital
Rajajinagar, Bangalore 560 010
Residing at No. 63A, 2nd Main
2nd Phase, Manjunath Nagar
Rajajinagar, Bangalore 560 010
.... Applicant in OA No. 433/2025
ORIGINAL APPLICATION NO.170/00434/2025
Smt. Soumya Anandan
D/o P.A. Budhanandan
Aged about 37 years
Working as Nursing Officer
ESIC Hospital, Peenya
Yeshwanthpur, Bangalore 560 022
Residing at No. 3A308, Vaishnavi Serene
Yelahanka, Bangalore 560 064
.... Applicant in OA No. 434/2025
KAVYA SHREE K
CAT, Bangalore
2026.04.27 17:24:53+05'30'
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OA.No.170/00438/2025 and
connected matters/CAT/BANGALORE
ORIGINAL APPLICATION NO.170/00435/2025
Smt. Shruti S. Pillai
D/o Somanathan Pillai N.C.,
Aged about 36 years
Working as Nursing Officer,
ESIC Medical College
And Hospital
Gnana Ganga, Kalaburagi 585 106
Residing at No. 302, Type 4 Quarters
ESIC MCH, Kalaburagi 585 106
.... Applicant in OA No. 435/2025
(By Shri Prithveesh M.K, Advocate for the applicants)
Vs.
1. The Union of India
Represented by its Secretary
Ministry of Labour & Employment
Shram Shakthi Bhavan, New Delhi 110 001
2. Employees' State Insurance Corporation
Represented by its Director General
Panchdeep Bhawan
CIG Marg, New Delhi 110 002
3. The Joint Director
Employees State Insurance Corporation
Regional Office, Karnataka
Binnypet, Bengaluru 560 023
4. Additional Commissioner &
Regional Director
Employees State Insurance Corporation
Regional Office, Karnataka
Binnypet, Bengaluru 560 023
.....Respondents in OA No.438/2025,
440/2025, 439/2025, 430/2025, 431/2025, 432/2025, 433/2025,
434/2025 & 435/2025.
(By Shri Siddaveer Chakki, Advocate for the respondents)
KAVYA SHREE K
CAT, Bangalore
2026.04.27 17:24:53+05'30'
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OA.No.170/00438/2025 and
connected matters/CAT/BANGALORE
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
Since common and akin issues are involved, these matters are clubbed, heard together and disposed of by this common order. For the sake of convenience, OA No. 438/2025 is taken as the lead case. The reliefs sought in these OAs are common and the same reads thus:
"(I) Call for records from the respondents; (II) Issue a writ or order quashing the impugned order dated 06.02.2025, bearing No. 53/A/27/20/3/2023/RO/Med Admn, issued by the 4th respondent (Annexure A8) and consequently direct the respondents to grant benefit of pay protection and counting of past service to the applicant, forthwith along with all consequential benefits, from the due date, to meet the ends of justice.
(III) Grant such other relief or reliefs as this Hon'ble Tribunal deems fit including the costs of this proceeding, in the interest of justice and equity."
2. Facts in brief are that the applicant in OA No. 438/2025 possessing B.Sc. in Nursing degree was appointed in Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh as Sister Grade II vide letter dated 13.06.2015, upon which she joined duty on 13.07.2015. Vide communication dated 01.05.2019, the applicant's probation came to be declared. Pursuant KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 6 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE to the Recruitment Notification issued by the 2nd respondent Corporation dated 21.12.2018, the applicant applied to the post of Staff Nurse. She was selected and given an offer of appointment on 08.08.2019. Upon receiving the said offer, the applicant tendered her technical resignation from PGIMER, Chandigarh, which came to be accepted on 25.11.2019. The applicant joined duty in the 2 nd respondent Corporation on 03.12.2019 in the post of Nursing Officer and is working till date. The benefit of pay protection was sought by the applicant by submitting the representation but of no avail, as such, she was constrained to approach this Tribunal, Principal Bench, in OA No. 1870/2023 along with other similarly situated persons, which came to be disposed of vide order dated 03.07.2023 directing the competent authority amongst the respondents therein to decide the pending representations in accordance with the rules and taking into consideration the facts and circumstances of the case. Things standing thus, Respondent No. 4 issued the impugned order dated 06.02.2025 which stated that the applicant is not entitled to pay protection for the reason that she was appointed to the post of Nursing Officer, erstwhile Staff Nurse, vide direct recruitment through open competitive examination, and as such, benefits cannot be extended to such appointments as per KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 7 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE office memorandum dated 07.08.1989 and 10.07.1998. Such orders were issued to the other applicants as well. Being aggrieved, the applicants have preferred the present OAs.
3. Learned counsel Shri Prithveesh M.K. representing the applicants argued that the impugned orders dated 06.02.2025 has been issued without any legal basis. Referring to two Office Memorandums i.e., (i) OM dated 10.07.1998 and (ii) OM dated 13.08.2020, learned counsel submitted that the Hon'ble High Court of Delhi in the case of Sanjog Kapoor vs. Union of India and Ors.1, held that the distinction sought to be drawn between candidates selected from non-government bodies through interview and those selected through open competitive examination is without justification. The said decision was challenged before the Hon'ble Apex Court in SLP (C) No. 8918/2008 and the Hon'ble Apex Court vide final order dated 31.03.2008, was pleased to dismiss the petition on the ground of delay, leaving the question of law open. Hence, the judgment of Sanjog Kapoor1, attained finality. Subsequently, the Hon'ble High Court of Delhi in Government of 1 Writ Petition (C) No. 5518/2004 (DD: 20.04.2007) KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 8 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE NCT of Delhi vs. Rakesh Semalty2, had the occasion to decide on the very issue at hand. It was held that OM dated 10.07.1998 infracts Articles 14 and 16 of the Constitution of India. Similarly, Principal Bench of this Tribunal in Shubam Pandey and Ors. vs. Union of India3 placing reliance on these judgments allowed the benefit of pay protection to the applicants therein and granted consequential benefits. The applicants herein are entitled to similar reliefs. Nextly, referring to the OM dated 13.08.2020, it was submitted that the same is not applicable to the present cases as the said OM was not in force at the time of the applicants joining the 2nd respondent corporation. Inviting the attention of this Bench to paragraph 5 of the reply statement, learned counsel pointed out that the respondent corporation has candidly admitted that the said OM dated 13.08.2020 is not applicable to the present applications. Further, it was contended that the applicants are entitled for counting of past service upon submission of technical resignation. The impugned orders and the OM dated 10.07.1998 are discriminatory and violative of Articles 14 and 16 of the Constitution.
2 Writ Petition (C) No. 7526/2017 (DD: 17.01.2025) 3 OA No. 1804/2023 (DD: 25.02.2025) KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 9 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE
4. Detailed reply statement has been filed on behalf of the respondents. Learned counsel Shri Siddaveer Chakki representing the respondents submitted that the applicants were selected through an open competitive written examination, not interview. DOPT OMs restrict pay protection to interview based selection only. The applicants are seeking to enforce a non-existent right. OMs issued by the DOPT constitute delegated legislation under Article 309 of the Constitution of India. OM dated 10.07.1998 reiterated and clarified the position regarding pay protection which states that the benefit of pay protection would be available to an officer coming from PSU etc., only if the officer has completed the period of probation successfully for being regularized/confirmed in the post in the parent organization and the said pay protection is available only if the selection is through interview and not through an open competitive examination. The rationale for restricting pay protection to interview based selection is based on sound administrative and policy considerations. It recognizes specific experience and domain expertise in a particular field. Pay protection is a recognition of the value of prior experience whereas examination based selection is based on performance in a competitive test open to all eligible candidates. Prior experience, if KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 10 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE any, is not the basis for selection. The candidates competes on equal footing with fresh graduates, hence, pay protection to such candidates would give an undue advantage to those with prior service over equally meritorious fresh candidates. The applicants herein were selected through open competitive written examination, not through interview. Hence, they are not eligible for pay protection. However, learned counsel fairly admitted that OM dated 13.08.2020 is not applicable to the facts of the present case.
5. Learned counsel for the respondents further contended that the judgments of Hon'ble High Court of Delhi have no binding precedential value. Moreover, the Hon'ble Apex Court has left the question of law open. The question whether the distinction between interview and examination is violative of Articles 14 and 16 remains open until the judgment attains finality. It cannot be treated as settled law. If every administrative authority were to ignore or deviate from statutory instructions merely because one High Court has taken a contrary view, it would lead to administrative chaos and indiscipline, financial irregularities and audit objections, violation of the rule of law discriminating among similarly situated employees in different states. Thus, justifying the distinction, KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 11 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE learned counsel placed reliance on the judgment of the Hon'ble Apex Court in Ram Krishna Dalmia vs Justice S.R. Tendolkar 4. It was argued that the request of the applicants for counting of past service is intrinsically linked to the grant of pay protection and cannot be granted independent of it.
6. We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
7. The core question that arises for our consideration is, whether the impugned orders dated 06.02.2025 issued by the ESIC rejecting the claim of the applicants for pay protection referring to the OMs dated 07.08.1989, 10.07.1998 and 13.08.2020 issued by the DOPT are valid and justifiable?
8. Indisputedly, OM dated 13.08.2020 is not applicable to the present set of cases since the said OM will be effective from the date of its issuance but the applicants have joined ESIC much before the issuance of the said OM. Para 5 of the reply statement filed on behalf of the respondents would endorse that the said OM 4 AIR 1958 SC 538 KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 12 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE dated 13.08.2020 has prospective application only and is not applicable to the facts of the present cases. Insofar as the applicability of the OMs dated 07.08.1989 and 10.07.1998, the issue is no longer res integra in view of the judgment rendered by the Hon'ble High Court of Delhi in Sanjog Kapoor1. The relevant paragraph is extracted hereunder for ready reference:
15. In these circumstances, we hold that the distinction sought to be drawn between candidates selected from non government bodies through interview and those selected through open competitive examination is sans rationale justification.
Protecting the pay of one and not protecting the pay of the other set of candidates is completely arbitrary and illogical. The purpose behind grant of pay protection was to draw talent from organisations like PSUs. The best talent is drawn through the Civil Services Examination. Encouraging employees of PSUs to sit for such examination which is highly competitive is in line with the purpose behind the OM of 1989 of attracting the best talent. Even assuming that for the purposes of pay protection, the distinction between selection through interview and selection through open competitive examination does hold a rational nexus, the Civil Services Examination, through which the petitioner has been selected also comprises a comprehensive interview. Therefore denial of pay protection benefit to the petitioner is unjustified and illegal.
9. On further challenge, made by the Union of India, the Special Leave Petition is dismissed on the ground of delay, leaving the question of law open vide order dated 31.03.2008 in Special Leave Petition No. 8918/2008. Similar view is reiterated by the KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 13 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE Hon'ble High Court of Delhi in Rakesh Semalty2. The relevant paragraphs are extracted hereunder for ready reference:
"Analysis and Findings Respondent entitled to benefit of FR 22(I)(a)(1)
20. Having considered the issue from all its perspectives, we are ourselves in agreement with the Tribunal. FR 22(I)(a)(1) is directly applicable. The Rule deals with a situation in which a government servant, holding a post, is promoted or appointed to another post. The government servant may be holding the earlier, as well as the later, post, in any capacity; temporary, officiating or substantive. In the event that the later post to which the government servant is appointed carries higher duties and responsibilities, the government servant is entitled to have his initial pay, in the later post, fixed by protecting the pay drawn by him in the earlier post. The only condition to be satisfied is that the government servant must satisfy the eligibility conditions for appointment to the later post. xxxx OM dated 10 July 1998 cannot be termed a "clarification"
25. Significantly, the DOPT OM dated 10 July 1998, terms this as "clarification". It is settled law that a clarification cannot travel beyond the original executive instruction or rule or regulation, or take away a benefit available under the earlier executive instructions. As held by the Supreme Court in UOI v. N.R. Parmar5, a clarification " 'clarifies' an unclear, doubtful, inexplicit or ambiguous aspect of an instrument" and "cannot be in conflict with the instrument sought to be clarified." Thus understood, the OM dated 10 July 1998 was not a clarification at all, but a substantive revisitation and modification of the OM dated 7 August 1989 by substantially limiting its benefit and scope. While the OM dated 7 August 1989 granted pay protection in all cases of direct recruitment through selection, the OM dated 10 July 1998 denied the benefit to all cases 5 (2012) 13 SCC 340 KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 14 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE except direct recruitment by interview. By no means could this have been regarded as a clarification.
OM dated 10 July 1998 infracts Articles 14 and 16
26. That apart, the aforesaid distinction, carved out in the OM dated 10 July 1998 also infracts Articles 14 and 16 of the Constitution of India. There is no intelligible differentia between persons selected by direct recruitment through interview and persons selected by direct recruitment through an open competitive examination. If anything, the degree of objectivity in the case of persons selected by an open competitive examination is greater than in the case of persons selected by interview. There is, therefore, no reasonable basis whatsoever to grant pay protection to persons selected by interview and deny pay protection to persons selected by open competitive examination."
10. This judgment has attained finality. The arguments of the learned counsel for the respondents that the applicants cannot claim pay protection based on the Hon'ble High Court of Delhi judgments as the same is binding not binding on this Tribunal is trivial and appears to be an evasive response to the judicial orders as the genesis of these cases relates to the OA's filed initially before the Principal Bench, New Delhi. Indeed, the applicants have approached Principal Bench, New Delhi in OA No 1870/2023 jointly seeking the benefit of pay protection, which has been disposed of with a direction to the competent authority amongst the respondents to decide the pending representations of the applicants in accordance with rules and after taking into consideration the KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 15 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE facts and circumstances of the case. Sanjog Kapoor, supra, also originates from the order passed by this Tribunal, Principal Bench, New Delhi. It is trite that judicial discipline demands uniformity and consistency to be maintained in all the Benches of the Tribunal as the same is the hallmark of judicial propriety. Even accepting the binding nature of jurisdictional High Courts, the persuasive effect of the orders passed by the other Hon'ble High Courts cannot be ruled out. Indeed, the order in Sanjog Kapoor, supra, was subjected to judicial scrutiny before the Hon'ble Apex Court and the matter has been rejected leaving the question of law open. The verdict rendered by the Hon'ble High Court of Delhi in Rakesh Semalty, supra, has reached finality.
11. Even assuming the ruling of the Hon'ble High Court of Delhi has persuasive effect on this Tribunal, the same is binding on the respondents. Respondents cannot apply the discriminatory distinctions between persons directly recruited through open competitive examination and persons directly recruited through interview. The decision to restrict the benefit of pay protection only to persons selected through interview and to deny the same to persons selected through open competitive examination is declared KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 16 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE by the Hon'ble High Court of Delhi as arbitrary, resulting in invidious discrimination between persons similarly situated, the same having the binding effect on the respondents, the said ratio is required to be followed. By the OMs dated 07.08.1989 and 10.07.1998, two classes are created, i.e., one class eligible for pay protection and the second class, not eligible. Creating a class within a class is arbitrary. This artificial classification of pay protection based on the mode of selection would not pass the muster under Articles 14 and 16 of the Constitution to make it valid in the eye of law. The consistent rulings of the judicial forums cannot be ignored by the respondents on flimsy and hyper-technical grounds. We are of the considered opinion that the said distinction carved out in the OMs referred to supra, applied in the impugned orders infringes the rights of the applicants guaranteed under Articles 14 and 16 of the Constitution being arbitrary and discriminatory.
12. In Ram Krishna Dalmia4, the Hon'ble Apex Court held that Article 14 prohibits class legislation but allows for reasonable classification, provided that the classification is founded on intelligible differentia and has a rational nexus with the objective KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 17 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE sought to be achieved by the classification. If the distinction does not pass the reasonable classification test, it is invalid. Intelligible differentia is an important concept under Article 14 of the Indian Constitution. It is well-settled that two conditions that are required to be satisfied to pass the test of reasonable classification are, 1) Classification must be founded on an intelligible differentia that distinguish those that are grouped together from others. 2) The differentia must have a rational relation to the object sought to be achieved by the Act or Law.
13. There should be a proper nexus between the objective and basis of classification. As aforesaid, Article 14 prohibits class legislation which means discrimination of people for the benefit of a certain class of people based on an unreasonable or arbitrary selection. The issue involved herein is, the pay protection. The distinction is between persons selected by interview and persons selected through an open competitive examination. The applicants having rendered service in government department after their probation being declared, have been selected in ESIC, being qualified through open competitive examination. Open competitive examination is more competitive and the degree of objectivity in KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 18 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE the case of persons selected by an open competitive examination is greater than in the case of persons selected by interview as observed by the Hon'ble High Court of Delhi in Rakesh Semalty2. Hence, there is no reasonable basis for the aforesaid distinction.
14. It is apposite to refer to the judgment of the Hon'ble Apex Court in Union of India & Ors. vs. Atul Shukla and Ors. 6. The relevant paragraphs are extracted hereunder for reference:
"16. A long line of decisions of this Court that have explained the meaning of equality guaranteed by Articles 14 and 16 of the Constitution and laid down tests for determining the constitutional validity of a classification in a given case immediately assume importance. These pronouncements have by now authoritatively settled that Article 14 prohibits class legislation and not reasonable classification. Decisions starting with State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75) down to the very recent pronouncement of this Court in Dr. Subramanian Swamy v. CBI (AIR 2014 SC 2140) have extensively examined and elaborately explained that a classification passes the test of Article 14 only if (i) there is an intelligible differentia between those grouped together and others who are kept out of the group; and (ii) There exists a nexus between the differentia and the object of the legislation. xxxx
20. The content and the sweep of Article 14 of the Constitution was once more examined in E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3, wherein this Court laid bare a new dimension of Article 14 and described its activist magnitude as a guarantee against arbitrariness. Speaking for the Court, P.N. Bhagwati, J. as His Lordship then was said:6
(2014) 10 SCC 432 KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 19 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE "85. .....Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article
14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination.
.... Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16."
KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 20 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE xxxx
30. In Kamlakar and Ors. v. Union of India & Ors. (1999) 4 SCC 756, this Court was examining whether a distinction could be made between direct recruits and promotees as regards equal treatment in the matter of pay scales admissible to them. Rejecting the contention that such distinction would be justified this Court held that once officers are placed in one cadre the distinction between direct recruits and promotees disappears. The birthmarks have no relevance for classification of Data Processing Assistants who are directly recruited and others who are promoted. This Court observed:
"12......Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given is concerned. The birthmarks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale -- which were matters common to all of them before the impugned order of the Government of India was passed on 2-7- 1990, -- then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is not permissible. We, therefore, reject the respondents' contention....."
xxxx
46. Suffice it to say that the basis for classification in question for purposes of age of superannuation which the appellant has projected is much too tenuous to be accepted as a valid basis for giving to the Time Scale Officers a treatment different from the one given to the Select Officers. We are also of the view that concerns arising from a parity in the retirement age of Time Scale and Select Officers too are more perceptional than real. At any rate, such concerns remain to be substantiated on the basis of any empirical data. The upshot of the above discussion is that the classification made by the Government of India for purposes of different retirement age for Time Scale Officers and Select Officers does not stand scrutiny on the touchstone of Articles 14 and 16 of the Constitution as rightly held by the Tribunal."
KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 21 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE
15. Shubham Pandey & Ors.3, was challenged unsuccessfully by the Union of India before the Hon'ble High Court of Delhi. In the judgment dated 20.02.2026 (Union of India vs. Shubham Pandey and Ors.7), the Hon'ble High Court observed that the issue of grant of pay protection to officers recruited through UPSC from PSUs stands conclusively settled by a consistent line of judgment of the Hon'ble Court, including Sanjog Kapoor1, Nagendra Kumar Jha vs. Union of India and Anr. 8, Union of India vs. Abhay Kumar 9 and Union of India vs. Manjesh Porwal & Ors10. Pay protection is impermissible in cases of recruitment through open competitive examination has been expressly rejected, upholding the order of the CAT.
16. This Tribunal, Allahabad Bench (Circuit Sitting at Nainital) in Senthil Avoodai Krishna Raj vs. Union of India & Ors.11, considering the identical issue held thus:
"15. It has been contended by the respondents that the Hon'ble Supreme Court dismissed the S.L.P. (C) on the ground of delay leaving the question of law open and the Department of 7 WP (C) No. 1764/2026 (DD: 20.02.2026) 8 WP (C) No. 8660/2005 (DD: 06.01.2016) 9 WP (C) No. 3338/2022 (DD: 23.02.2022) 10 WP (C) No. 12475/2023 (DD: 22.09.2023) 11 OA No. 33/2015 (DD: 04.03.2016) KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 22 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE Revenue implemented the judgment in the case of petitioner only (Shri Sanjog Kapoor). As the question of law has been left open by the Hon'ble Apex Court in the matter, the legal position stated by the Hon'ble High Court has not been approved by the Hon'ble Supreme Court. Therefore, the order of Hon'ble High Court, Delhi is not final. Further, this order is qua the petitioner in that case and as such it is not a judgment in rem but judgment in personem. On the contrary, it is the contention of the applicant that the judgment of Hon'ble High Court, after the dismissal of S.L.P, has attained finality and there is no judgment contrary to the judgment of Hon'ble Delhi High Court, hence this judgment has attained finality. We are of the view that after the detailed order passed by the Hon'ble High Court, Delhi on the issue, it would not be open to this Tribunal to take any different view. This judgment is final for the purpose of determining the issue before us."
17. From the aforesaid judgments, it is crystal clear that the distinction carved out between the candidates appointed through open competitive examination and interview for extending pay protection is arbitrary and discriminatory and violative of Articles 14 & 16 of the Constitution of India. The impugned orders based on such artificial classification referring to the OMs dated 07.08.1989 and 10.07.1998 issued by the DOPT are illegal and unjustifiable.
18. For the reasons aforesaid, the impugned orders cannot be approved. Accordingly, the impugned orders dated 06.02.2025 issued by the Respondent No. 4 are set aside holding that the applicants are eligible for pay protection. Respondents are directed KAVYA SHREE K CAT, Bangalore 2026.04.27 17:24:53+05'30' 23 OA.No.170/00438/2025 and connected matters/CAT/BANGALORE to grant the benefit of pay protection to the applicants from their due dates with consequential benefits.
19. Compliance shall be made in an expedite manner, in any event not later than three months from the date of receipt of the certified copy of the order.
20. OAs stand allowed to the extent indicated above.
No order as to costs.
Sd/- Sd/-
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/
KAVYA SHREE K
CAT, Bangalore
2026.04.27 17:24:53+05'30'