Central Administrative Tribunal - Delhi
All India Esic Officers Fedration vs M/O Labour on 29 May, 2025
1
Item No. 48/C-V
V O.A. No. 2126/2018 with O.A. No. 1213/2022
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2126/2018
with
O.A. No. 1213/2022
Reserved on:
on:- 07.05.2025
Pronounced on:
on:- 29.05.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
O.A. No. 2126/2018
1. All India ESIC Officer(s) Federation
Through its. Secretary General,
Sh. Pranay Sinha
S/o Late Sh. Ajay K Sinha
R/o Flat No. - 02, Type-04,
ESIC Colony Sector-12,
Sector
Rohini, Delhi-85
Delhi
Office At-
At ESIC,
Headquarters Office No. 215,
Panchdeep Bhawan,
CIG Road, New Delhi-110002
Delhi 110002
2. Sh. Yogesh Saini
S/o Sh. Yash Pal
R/o B-20
B Fateh Nagar,
New Delhi.
Office At-
At ESIC, Headquarters,
Panchdeep Bhawan,
CIG Road, New Delhi-110002
Delhi 110002
Aged about 44-years
(Group ' C ')
(Social Security Officers in ESIC)
..Applicants
(Through Advocate: Mr. Ajesh Luthra)
VERSUS
1. Employees State Insurance Corporation
Through its Director General
Panchdeep Bhawan,
CIG Road, New Delhi-110002
Delhi
2
Item No. 48/C-V
V O.A. No. 2126/2018 with O.A. No. 1213/2022
2. Employees State Insurance Corporation
Through its Asstt. Director
Panchdeep Bhawan,
CIG Road, New Delhi-110002
Delhi
3. Union of India
Through its Secretary,
Ministry of Labour and Employment
Govt. of India,
Shram Shakti Bhawan,
Rafi Marg, New Delhi - 110001
01
...Respondents
(Through Advocate: Ms. Devyani Ashra with
Mr. Utkarsh Kaushik for ESIC
Mr. R K Jain for R
R-2)
O.A. No. 1213/2022
1. All India ESIC Officers Federation
Through its Astt. Secretary General, (West)
Sh. Rajshekhar Singh
S/o Late Sh. U.P. Singh
Office At-
At ESIC, Panchdeep Bhawan,
CIG Road, New Delhi-110002
Delhi 110002
2. Sh. Ashutosh Giri
S/o Sh. Brija Giri
Office At-
At ESIC, Regional Office,
Lower Pawel,
Mumbai - 400013
Aged about 47-years
47
(Group ' A ')
(Deputy Director.)
Grade -A
..Applicants
(Through Advocate: Mr. Ajesh Luthra)
VERSUS
1. Employees State Insurance Corporation
Through its Director General
Panchdeep Bhawan,
CIG Road, New Delhi-110002
Delhi
2. Union of India
3
Item No. 48/C-V
V O.A. No. 2126/2018 with O.A. No. 1213/2022
Through its Secretary,
Ministry of Labour and Employment
Govt. of India,
Shram Shakti Bhawan,
Rafi Marg, New Delhi - 110001
...Respondents
(Through Advocate: Ms. Devyani Ashra with
Mr. Utkarsh Kaushik for ESIC
Mr. R K Jain for R
R-2)
ORDER
Hon'ble Mr. Manish Garg, Member (J) :
Learned counsel c for the respondents has filed M.A. No. 1027/2025 in O.A. No. 2126/2018, stating that the associated Original Application (O.A.) is identical to O.A. Nos. 174/2015, 1058/2013, 291/2015, 312/2017, 337/2018, 349/2018, 325/2018, 520/2018, and 518/2018. These cases were e dismissed by a Coordinate Bench of this Tribunal at Ernakulam vide order dated 08.03.2023. Subsequently, the he applicants in those cases have challenged the Tribunal's order dated 08.03.2023 before the Hon'ble High Court of Kerala in OP (CAT) No. 111/2023 and the issue is now pending before the Hon'ble on'ble High Court. Accordingly, vide the aforesaid M.A., learned counsel for the respondents has prayed for a direction to the respondents to examine and dispose of the claims of the applicants in O.A. No. 2126/201 2126/2018 based on the final outcome of the matter pending before 4 Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 the Hon'ble High Court of Kerala in OP (CAT) No. 111 of 2023.
2. Since a common question of facts and law arise in the present O.A.s, they are being disposed of through this common order. However, for the sake of brevity, the facts are primarily being extracted from O.A. No. 2126/2018 with the consent of the learned counsel for the parties.
2.1 O.A. No. 2126/2018 has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985, seeking following reliefs ::-
"8. (a) Quash and set aside the impugned order dated 21/03/2018 (Annexure A/1) and
(b) Direct the respondents to allow the SSOs/applicants /members to enjoy the existing fixational benefits in the previous scale of Rs. 7,450 - 11,500/- (revised pay band II) of Rs. 9,300-34,800/-
9,300 with Grade Pay of Rs.
4,600/ from their actual date of promotion to the said 4,600/-
post of SSO.
(c) Accord all consequential benefits.
(d) Award costs of the proceedings; and
(e) Pass any order-relief/direction(s) order f/direction(s) as this Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicants."
2.2 Highlighting the facts of the case, learned co counsel for the applicants submitted that the applicants in O.A. No. 2126/2018 were promoted as Social Security Officers in ESIC between the period 01.01.2006 and 31.08.2008.
He added that this this aspect is important insofar as the fact 5 Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 is concerned that 6th CPC came into existence w.e.f.
01.01.2006. Prior to implementation of the recommenda recommendation of the 6th CPC, the ESIC Corporation in its 140th meeting held on 11.10.2007 upgraded the pay scale of SSO from Rs. 5500-9000 5500 9000 to Rs. 6500 6500-10500, 10500, notionally w.e.f. 21.04.2004. The said upgradation was dehors the recommendation of 6th CPC.
2.3 Learned
Learned counsel for the applicant
applicants further
submit
submitted that it is the case of the applicant applicants that when the 6th CPC recommendation were accepted and implemented in general, there was a merger of pay scales of Rs. 5000-8000, 5000 5500-9000 000 and 6500 6500-10500 and these were merged m and placed in Pay Band -2 with Grade Pay of Rs. 4200/-.
4200/ 2.4 Learned counsel for the applicant further submitted that by virtue of the implementation of 6th CPC, the pay band of Rs. 5000-8000, 5000 0, pertaining to Assistants was also accorded grade pay of Rs. 4800/ 4800/-, as a result of merger which nullifies the upgradation upgradation of the year 2007. He contend contended that subordinate level posts as well as hierarchical erarchical post in higher grade have been merged.
6Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 2.5 Learned counsel for the applicant applicants highlighted the Office Memorandum dated 08.12.2009 (Annexure (Annexure-A/5), which reads as under:-
under:
"Sub: Grant of revised pay structure of grade pay of Rs.4600 in the pay band PB PB-2 to the posts of Insurance Inspectors/Manager Gr.II/Office Superintendent.
Approval of the Director General is hereby communicated for the grant of grade pay of Rs.4600 in the pay band PB PB-2 to the posts of Insurance Inspectors/Manager Gr.II/Office Superintendent, in ESI Corporation, consequent upon the grant of grade pay of Rs.4600 in th the Pay Band PB-2 2 to posts in Central Government that existed in the pre-revised revised scale of RS.6500 RS.6500- 10500 as on 1--1-2006 2006 and which were granted the normal replacement grade pay of RS.4200 in the pay band PB-2 2 w.e.f. 1 1-1-2006 as conveyed by Government of India Ministry of Finance, Department of Expenditure, Implementation Cell, vide their OM No.F.No.1/1/2008 No.F.No.1/1/2008-IC dated 13- 11-2009(copy enclosed).
The notional date of implementation for the grant of grade pay of Rs. 4500/ 4500/- will be 1.1.2006.
However, monetary benefi benefit on account of grant of Grade pay of Rs. 4600/ 4600/- will be from 1.10.2007. The manner of fixation of pay con account of the revision of the grade pay is to be done in the same manner as circulated vide this office OM No. A-27/17/1/6 27/17/1/6th CPC/2008-E-III dated 3.3.2009.
This issues with the concurrence of Finance & Accounts."
2.6 Learned counsel further submitted that in the present O.A., the applicants have impugned the Office Memorandum dated 21.03.2018 (Annexure (Annexure-A/1), which reads as under:-
under:
"Sub: Manner of fixation ixation of pay in respect of SSO promoted between 01.01.2006 and 31.08.2008 7 Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 The under signed is directed to refer to the Hqrs Office memorandum vide this office letter No. AA- 27/17/6th CPC/5/2008-E E-III dated 16.03.2012 and 17.06.2013 on the subject cited. In this regard a petition, OA.No.310/525/2015, (Sh. Francis Ryall Vs ESIC) was filed before Hon'ble CAT Chennai wherein the petitioner had. demanded fixation of pay in the pre pre-revised scale of Rs.7450-11500.
Upon examination of records, it was found that fixation ixation of pay in the pre pre-revised scale of Rs.7450-11500 11500 in respect of SSOs has not been duly considered & approved by the ESI Corporation. Instead, the ESI Corporation in its 140th meeting held on 11.10.2007 had upgraded pay scale of SSO from Rs.5500 Rs.5500-9000 to Rs.6500-10500 10500 only and not to the Rs.7450 Rs.7450- 11500 scale. Therefore fixation of pay, if any, in the pre-revised revised scale of Rs.7450 Rs.7450-11500 is invalid.
Accordingly, the following actions are to be taken immediately.
a) Re-fix fix the pay in the pay band in accordancence with Clause (A) (1) and (ii) of Rule 7 of CCS (RP) Rules, 2008 and as clarified in OM F. No. 1/1/2008 1/1/2008-IC dated 30.08.2008, wherever applicable. The Grade pay of Rs. 4600 shall be payable in addition.
b) Necessary action may be taken for recovery of excessess amount drawn wherever the pay has been fixed in the pre-revised revised scale of Rs.7450 Rs.7450-11500 in respect of SSOs promoted between 01.01.2006 and 31.08.2008 and in subsequent cases of stepping up of pay, if any.
This issues with the approval of the Director General."
Highlighting the aforesaid, learned counsel for the applicants argued that it it is the ma manner of pay fixation, which is subject matter of challenge in the present matter, as it is not in dispute that the applicants are entitled to Grade Gra Pay of Rs. 4600/ 00/-.
8Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 2.7 Learned counsel further highlight highlighted the record of proceedings dated 25.05.2018, which is reiterated herein below:--
"Heard.
2. Issue notice to the respondents. Sh. Satish Kumar accepts notice on behalf of respondent no. 2.
3. Learned counsel for the applicants drew our attention to page No. 53 which is an order dated 10.04.2018 passed by Ernakulam Bench in OA No. 337/2018; page No. 56, which is an order dated 06.04.2018 passed by Ernakulam Bench in OA No. 325/2018 and page No. 58, orderr dated 27.04.2018 passed by Hyderabad Bench in OA No. 435/2018. Learned counsel for the applicants states that in all these three matters, interim order dated 21.03.2018 has been stayed till further orders. He prays that similar order may be passed by tthis Tribunal in this OA as it is similar in nature.
4. Considering that the prayer of the applicant is justified, we direct the respondents not to give any effect to order dated 21.03.2018 until further orders. List the matter on 16.07.2018.
5. The respondents espondents are granted four weeks time for filing reply and they are also at liberty to file application for vacation of stay, if they are directed to do so.
6. Learned counsel for the applicant is directed to serve dasti notice on respondent no. 1.
Order Dasti."
2.8 Learned counsel further drew attention to a table under CCS Revised Pay Rules, 2008 in Pre Pre-revised scale S-13, 13, Revised Pay Band + Grade Pay PB PB-2 Rs. 9300- 34800+4600, which reads as under:
under:-
Pre-revised revised Revised Pay 9 Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 Basic Pay Pay in the Pay Grade Pay Revised Basic Band Pay (B) (C) (B+C) (A) 7450 13860 4600 18460 2.9 Learned counsel also drew our attention to CCS Revised Pay Rules, 2008 in pre-revised scale S-12, Revised Pay Band + Grade Pay PB PB-2 Rs. 9300-
34800+4200, which reads as under:
under:-
Pre-revised revised Revised Pay Basic Pay Pay in the Pay Grade Pay Revised Basic Band Pay (A) (B) (C) (B+C) 6500 12090 4200 16290 2.10 Highlighting the afore-quoted afore- table, learned counsel, contended that, therefore therefore, as per the above table the applicants are entitled to a grade pay of Rs. 4600/-
in terms of S-13.
S 2.11 Adding to his arguments, learned counsel submitted that the applicants are to be governed by Rule 11 of the CCS, Revised Pension Rules, instead of Rul Rule 7, which hich has been wrongly applied in the facts of the present case for which he placed reliance upon the decision rendered in the matter of Neeraj Kumar Srivastava, which was challenged before the Hon'ble Srivastava, 10 Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 High Court of Allahabad against the decision taken by a coordinate Bench of this Tribunal at Allahabad on 16.05.2012 in O.A. NO. 293/2011. The Hon'ble High Court of Allahabad had dismissed the Writ Petition No. 13860/2013. Thereafter, an SLP was preferred on 22.08.2023, the same was dismissed and a Review was also dismissed by the Hon'ble Apex Court in the matter of Neeraj Kumar Srivastava & Ors.
2.12 Learned counsel further argued that even if it is assumed for the sake of the arguments that the assumed respondents have restored pay fixation and re respondents re-fixation order, an opportunity of hearing by way of show cause notice be given in terms of B Bhagwan Kumar Shukla decision. He distinguished the present case from the decision taken by the Ernakulam Bench of this Tribunal by stating that a crucial document pertaining to the respondents opposing the nodal ministry has not been brought to the notice.
2.13 Learned counsel contended ed that similarly situated PAs/SSOs s/SSOs promoted between 01.01.2006 to 31 31.08.2008, have been accorded benefit(s) which have not been withdrawn.
withdrawn. To substantiate his arguments, he highlighted the following:-
following 11 Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 "Sub: Fixation of pay of Pas/SSos of ESIC promoted between 01/01/2006 to 31/08/2008 corresponding to pre-revised revised scale of Rs. 7450 7450- 11500 and stepping up of pay to Senior Pas/SSOs on the basis of Govt. of India DOPT OM dated 22/12/2010-reg.
reg.
Sir, I am directed to refer to copy of ESIC's letter dt. 04/10/2016 received by fax on 15/02/2017 in the Ministry on the above subject.
2. ESIC is requested to take necessary action for fixation of Pay of PAs / SSOs in accordance with similarly situated PAs/Asstt. Of CSS as per specimen pay fixation order issued by Admin Division of the Ministry (copy enclosed)."
3. Opposing the grant of relief, learned counsel for th the respondents relied upon the averments contained in the counter affidavit.
3.1 Learned counsel contended ed that the applicants have wrongly ly interpreted the OM dated ted 13.11.2009 (Annexure (Annexure-
A4) as the pre revised pay scale of Rs. 7450 7450-11500 was never extended to the applicant applicants. Learned counsel further contended that there was never a post which was required to be upgraded to the pay scale of Rs. 6500 6500- 10500, which would have been merged with a pay scale of 7450-11500, 7450 11500, as apparent from the para 3 of the OM dated 13.11.2009. The said O.M. is reads as under:
under:-
"Subject: Grant of the revised pay structure of grade pay of Rs.4600 in the pay band PB PB-2 to posts that existed in the pre pre-revised scale of Rs.6500-10500 10500 as on 1.1.2006 and which were granted the normal replace replacement pay structure of grade pay of Rs.4200 in the pay band PBPB-2.12
Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 Sixth Pay Commission recommended merger of the three pre-revised revised scales of Rs.5000 Rs.5000-8000, Rs.5500-9000 9000 and Rs.6500 Rs.6500-10500 and replaced them by the revised pay structure of grade pay of Rs.4200 in the pay band PB PB-2. Vide para 2.2.21 (v) of its Report, the Commission recommended that on account of the merger of these 3 scales, some posts which constituted feeder and promotion grades would come to lie in an identical grade. The Commission gave specific ific recommendations in its Report granting higher grade pay of Rs.4600 to some categories of these posts. As regards the other posts, the Commission recommended that it should first be seen if the posts in these 3 scales can be merged without any function functional disturbance and if possible, the same should be done. Further, the Commission recommended that in case it is not feasible to merge the posts in these pay scales on functional consideration, the posts in the scale of Rs.5000-80008000 and Rs.5500 Rs.5500-9000 should be merged with the posts in the scale of Rs.6500-10500 10500 being upgraded to the next higher grade in the pay band PB PB-2 with grade pay of Rs.4600 corresponding to the pre pre-revised scale of Rs.7450-11500.
11500. In case a post already exists in the scale of Rs.7450 Rs.7450-11500, the post being upgraded from the scale of Rs.6500 Rs.6500- 10500 should be merged with the post in the scale of Rs.7450-11500.
2. The above recommendation of the Sixth Pay Commission were notified vide para (ii), Section I in Parts B and C of the First Schedule to the CCS (RP) Rules, 2008. While Part B of the First Schedule to the CCS (RP) Rules relates to revised pay scales for common categories of staff, Part C notifies revised pay structure for certain posts in Ministries, Departments and Union Territories.
The he above provisions of the Rules specifically mentioned that upgradations in terms of para (ii) Section 1 may be done in consultation with Department of Expenditure, Ministry of Finance.
3 Consequent upon the Notification of CCS (RP) Rules, 2008, Departmentt of Expenditure has received a large number of references from administrative ministries/departments proposing upgradation of the posts which were in the pre-revised revised scale of Rs.6500 Rs.6500-10500 as on 1.1.2006 by granting them grade pay of Rs.4600 in the pay band nd PB PB-2. The matter has been considered and it has now been decided that the posts which were in the pre pre-revised scale of Rs.6500-10500 10500 as on 1.1.2006 and 13 Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 which were granted the normal replacement pay structure of grade pay of Rs.4200 in the pay band PB-2, will be granted grade pay of Rs.4600 in the pay band PB PB-2 corresponding to the pre-revised revised scale of Rs.7450 Rs.7450-11500 w.e.f.
1.1.2006. Further, in terms of the aforementioned provisions of CCS (RP) Rules, 2008, in case a post already existed in the pre pre-
revised scale of Rs.7450-11500, 11500, the posts being upgraded from the scale of Rs.6500Rs.6500-10500 should be merged with the post in the scale of Rs.7450-11500.
4. Accordingly, in terms of Rule 6 of CCS (RP) Rules, 2008, revised pay of Government servants in the pre-revis revised scale of Rs.6500- 10500 who were earlier granted grade pay of Rs.4200 and who have already exercised their option for drawal of pay in the revised pay structure in the format prescribed in the Second Schedule to the Rules, will be fixed again in accordance ce with illustration 4A annexed to CCS (RP) Rules, 2008.
5. In case of all such Government servants in the pre-revised revised scale of Rs.6500 Rs.6500-10500 who were earlier granted grade pay of Rs.4200 and who had opted to have their pay fixed under CCS (RP) Rules, 2008,, action as prescribed in this Department's O.M. of even number dated 30th August, 2008 will be taken. In case a Government servant desires to revise his earlier option for coming over to the revised pay structure, he may be permitted to do so without makingng any reference to this Department.
6. On account of pay fixation in the revised pay structure of grade pay of Rs.4600 in the pay band PB-2,2, arrears of pay will be recalculated and difference of arrears in respect of the entire amount will be paid immedia immediately. The manner of drawal of arrears has already been indicated in this Department's O.M. of even number dated 30.8.2008.
7. Hindi version will follow."
3.2 Learned counsel for the respondents placed reliance upon the counter affidavit filed in the connected O.A. No. 1213/2022 and drew attention to para 6 of the report of CAG, which reads as under:-
under:14
Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 "Para 6-Wrong Wrong pay fixation of SSOs/BMs/Office Superintendants.
Officials of Employees State Insurance Corporation in the different cadres of Insurance Inspectors /Manager Gr.II/Office Superintendant have been granted pay fixation in the 6th Pay Commission after considering merger of three pre-revised revised scales of Rs.5000 Rs.5000- Rs.8000, Res.5500-90009000 and Rs.6500 Rs.6500-10500 and granted revised pay fixation in the upgraded old scale of Rs.7450 Rs.7450-11500 in reference with OM No:1/1/2008 No:1/1/2008-IC, Government of India, Ministry of Finance, Department of Expenditure dated 13th November, 2009. It is mentioned herewith that the above mentioned OM along with OM No. F.No.1/1/2008 F.No.1/1/2008-IC, Government of India, Ministry of Finance, Department of Expenditure dated 16th November 2009, disclosed that the upgraded scale is meant only for "Four Headquarter Services, viz., Central Secretariat Service, Armed Forces Headquarters quarters Service, Indian Foreign Services "B" and Railway Board Secretariat Service and their counterpart Stenographer Services, but ESIC implemented the above mentioned OM and granted the pay fixation and also paid the arrear of pay fixation to their employees oyees in the revised old pay scale of Rs.7450-Rs.11500 Rs.11500 vide their office OM No. A A- 27/17/1/5/98/E.III dated 8.12.2009.
During examination, it has been noticed that approval for fixation of 5 SSOs in HQrs. ESIC has been accorded in prepre-revised pay scale of Rs.7450-11500 11500 as per Office Order No. 346 of 2012 dealt in file No. A/27/12/1/2011 A/27/12/1/2011-E-V dated 14.09.2012 with reference to the above provisions after merging of pre pre-revised pay scales of Rs.6500-10500 10500 and 7450 7450-11500.
This is in contravention of above OM No. F.No. 1/1/2008-ICIC dated 16th November, 2009 of Government of India, Ministry of Finance, and Department of Expenditure which applies to the Central Secretariat Services only. Illustrative due and drawn statement prepared in respect of one SSO showing overpayment payment of Rs.3. 66.250/ 66.250/- up to December, 2014 is placed as the provisions contained in OM dated 22/12/2010 in their sub sub-
offices vide their Memorandum No. A A-27/17/6 CPC/5/2008-E-IIIIII dated 16/3/2012 regarding fixation of pay of officials promoted between 01.01.2006 .01.2006 and 31.08.2008. ESIC may take immediate corrective action for identifying of 15 Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 such cases across all the sub sub-office under intimation to audit."
3.3 Learned counsel for the respondents submitted that the decision taken by the Ernakulam Bench has been passed in right perspective. He specifically relied upon para 24 of the decision rendered by a co co-ordinate Bench at Ernakulam in O.A. No. 180/00174/2015 (batch matter), in support of his case justifying the action taken by the respondents, which reads as under:-
"24. Besides these O.Ms of the Government of India, the respondents have also furnished at Annexure R-1(e) 1(e) a copy of the Audit Objection at Para No.6 of the CAG in the Audit Report of the ESIC for the year 2013-14 14 which had pointed out the wrong fixation ixation of pay of SSO/Branch Manager/Office Superintendent promoted between 01.01.2006 and 31.08.2008. The Audit Report clearly states that the ESIC has combined the O.M of 13.11.2009 along with O.M dated 16.11.2009 and had wrongly given the upgraded pay scale cale which was only meant for certain Central Secretariat Services. It was noted that the wrong pay fixation as well as release of arrears of pay fixation to their employees in the revised old pay scale of Rs.7450-11500/- had been done in different offices including Headquarters Office. It was indicated that this was in contravention of the O.M dated 16.11.2009 of the Department of Expenditure which applied to certain Central Secretariat Services only. It was directed that the ESIC should take immediate cor corrective action for identifying of all such cases across all the sub-offices offices under intimation to audit."
3.4 Learned counsel for the respondents further highlighted para 15 of the O.A. No. 180/00174/2015 (batch matter) decided decided by the Ernakulam Bench Bench, which reads as under:-
under:16
Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 "15. Further justifying the steps now being taken, the respondents have also referred to the O.M dated 13.11.2009 at Annexure A A-2. They point out that it has been contended in the O.M that the pre-revised revised scales of pay of Rs.5000 Rs.5000-
8000/-, Rs.5500-9000/- and Rs.6500 Rs.6500-10500/-
have to be first considered if they can be merged together without any functional disturbances. It is only if that is possible the same should be done. They state, however, that in the ESIC there are posts corresponding to all these three pay scales with distinct functionalities. These posts were not therefore merged as suggested and continue to exist as separate posts even to this day. To clarify this point they have indicated in the reply statement that these posts had the following pay scales before and after the 6th CPC:
Name of the Scale of pay Grade Pay post before CPC 6th as per 6th CPC CPC
1. Assistant Rs.5000 Rs.5000-8000/- Grade Pay Rs.4200/-
2. SSO Rs.5500 Rs.5500-9000/- Grade Pay (Notional Rs.4600/-
upgradation Rs.6500 Rs.6500-10500/-
)
3. Assistant Rs.6500 Rs.6500-10500/- Grade Pay Director Rs.4800/-
It is submitted that when the posts could not be merged and were, therefore, not merged it is clear that the posts in the feeder and promotional cadre cannot and should not be granted the same pay scales. Further, it is also submitted now in the reply statement that the Annexure A-3 3 O.M of ESIC dated 08.12.2009 following the Annexure A A-2 O.M dated 13.11.2009 of the DoP&T was only with regard to grant of Grade Pay of Rs.4600/ Rs.4600/- and was not about fixation of pay corresponding to Rs.7450 Rs.7450- 11500/-.. In addition the respondents have referred to the 140th meeting of the ESIC which had upgraded pay scale of SSO from Rs.5500 Rs.5500- 9000/- to Rs.6500-10500/ 10500/- with effect from 21.04.2004 notionally, accruing the financial benefits from 01.10.2007. Thus it is submitted that the pay scale of SSO's had been upgraded from Rs 5500-9000/- to Rs.6500 Rs.6500-10500/- and not to Rs.7450-11500/- scale. Hence the claim of the applicants made in this regard is devoid of merit."
17Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 3.5 Learned counsel also placed reliance upon para 30 and 31 of the order passed by the Ernakulam Bench, which read as under:-
under:
"30. In addition to the above considerations, we note the directions of the Hon'ble Apex Court in Chandi Prasad Uniyal & Ors. vs.vs. State of Uttarakhand & Ors. (2012) 8 SCC 417 wherein the Hon'ble Supreme Court in paragraph 14 had expressed its concern with the excess payment of public money which is often described as "taxpayers' money" which belongs neither to the officers who have effected over over-payment nor to the recipients. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Hon'ble Supreme Court found that "any amount paid paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enric enrichment." Further, in Union of India & Ors. vs. Hiranmoy Sen & Ors., 2007 (8) Supreme 23 the Hon'ble Supreme Court has held that it is entirely on the Government and the authorities to fix the pay scales and to decide whether the pay scale of post B should b be increased or not. It was further held that pay fixation being purely executive function, Court cannot fix pay scales.
31. In view of all the above, as we concluded earlier we do not find any merit in these O.As. In other words, we do not quash the Annexure Annexure AA-1 O.M of the ESIC in O.A.No.180/325/2018 also impugned in the related cases. On this basis it is held that the fixation of the employees of the ESIC in the posts of Insurance Inspectors (SSO)/Branch Manager Grade II/Office Superintendent in the pre-revised pre vised scale of pay of Rs.7450 Rs.7450-11500/- is not correct. The Corporation is allowed to continue its steps to cancel the same wherever it has been so given as well as undertake to recover from the employees concerned. However, this recovery is subject to, as o observed earlier, the provisions of law laid down by the Hon'ble Supreme Court in Rafiq Masih (supra) read with concerned O.M of DoP&T in this regard. As we have observed earlier we also note the assurance of the ESIC that the applicants will not get any amount amount which is less than that which is being given to the direct recruits appointed on or after 01.01.2006."18
Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022
4. In rejoinder to the arguments put for forth by the learned counsel for the respondents, learned counsel for the applicants applicant submitted that the case of the applicants is not of merger but upgradation.
5. Heard learned counsel for the respective parties and perused the records of the case.
6. ANALYSIS :
6.1 A perusal of the e pleadings available on record record, reveals s that contention urged by the lear learned counsel for the applicants to the effect that Rule 11 or 7 of the RP Rules ought to be applied, applied has not been taken in the present esent cases.
cases 6.2 The records reveal that all al along the case of the applicants the learned arned counsel for the applicants highlighted page ge No. 53 which is an order dated 10.04.2018 passed by Ernakulam Bench in OA No. 337/2018; page No. 56, which is an order dated 06.04.2018 passed by Ernakulam Bench in OA No. 325/2018 and page No. 58, order dated 27.04.2018 passed by Hyderabad Bench in OA No. 435/2018. Highlighting these orders, learned counsel submitted that in all these three matters, interim order 19 Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 dated 21.03.2018 were stayed till further orders and further prayed that similar order may be passed by this Tribunal in the O.A. No. 2126/2018 as it is similar in nature.
6.3 An endeavor has been made on behalf the learned counsel for the applicant(s) that the respondents counsel(s) in batch matters, referred to above, have not brought to the judicial judicial notice of the Co Co-ordinate Bench at Ernakulam that similarly situated PAs/SSOs promoted between 01.01.2006 to 31.08.2008 31.08.2008, i.e., (Annexure-A/10) have been accorded benefit(s) benefit(s) which have not been withdrawn and the said facts has resulted in dismissal of those cases.
6.4 We can only observe that we are unable to take a divergent view on this matter, as it has already been decided by a Coordinate Bench. Adopting a different stance would not only be contrary to established judicial principles but also result result in judicial impropriety.
6.5 The decision of Co-ordinate ordinate Bench of this Tribunal at Ernakulam is sub-judice before the Hon'ble High Court of Kerala in OP (CAT ) 111/2023 111/2023, wherein the Hon'ble High Court Court vide order dated 18.8.2023, observed as under :-
:20
Item No. 48/C-V V O.A. No. 2126/2018 with O.A. No. 1213/2022 "Admit the OP(CAT). Sri.T.V.Ajayakumar, learned Standing Counsel for the ESI Corporation, has taken notice for official respondents 1 to 3. Sri.S.Manu, learned Deputy Solicitor General of India, has taken notice for R4/Union of India. Registry will show th the names of the above said Advocates in the cause list. Service complete.
Having regard to the facts and circumstances of this case, it is ordered in the interest of justice that the recovery proceedings in pursuance of the impugned Annexure-A1A1 dated 21.3.2 21.3.2018, issued by respondents 1 to 3, will stand stayed and shall be kept in abeyance.
Hand over"
7. CONCLUSION :
7.1. Since the issue(s) issue(s) raised in the present O.A.s are judice,, sub-judice without prejudice to the rights and contentions of either of the parties which are urged herein, n, we dispose of the present O.A.s by directing the respondents to examine and dispose of the claims of the applicants in both the O.A.s based on the final outcome of the matter pending before the Hon'ble High Court of Kerala in OP (CAT) No. 111 of 2023. We also make it clear that recovery proceedings proceedings in the both the O.A.s shall remain stayed and the same shall also be subject to outcome of OP (CAT ) 111/2023.
7.2. Pending M.A.s, if any, shall stand disposed of. No costs.
(Dr. r. Anand S Khati) (Manish Garg) Member (A) Member (J) /SG/