Central Administrative Tribunal - Madras
S Periasamy vs D/O Posts on 27 January, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA No. 310/00087 of 2024, OA No. 310/00086 of 2024,
OA No. 310/00422 of 2024, O.A. No.310/00423 of 2024,
OA No. 310/00305 of 2024, OA No. 310/00316 of 2024,
OA No. 310/00317 of 2024 & OA No. 310/00318 of 2024
DATED MONDAY, THE 27th DAY OF JANUARY, TWO THOUSAND AND TWENTY FIVE
CORAM :
HON'BLE MS. VEENA KOTHAVALE, MEMBER (J)
HON'BLE MR. SISIR KUMAR RATHO, MEMBER(A)
1. P.S. Ramasamy,
Sr. Postmaster, T.Nagar HO (Retired)
Residing at: Flat No F-1, J. V.Villa,
Plot No 3, Jagadhambal Street,
Vijayalakshmipuram,
Ambattur, Chennai 600 053.
.....Applicant in O.A. 87/2024
2. T. Amudha Ganesan
Dy. Divisional Manager (PLI) (Retired)
O/o Chief Postmaster General
Tamilnadu Circle, Chennai-600 002
Now Residing at 6/1, Lakshmi Nivas
Kamaraj Street, Rajaji Nagar,
Villivakkam, Chennai -600049.
.....Applicant in O.A. 86/2024
3. T. Baskar,
Sr. Supdt. of Post Offices,
Kovilapatti Division (Retired)
Residing at : 54, Gandhi Nagar Main Raod,
IRUGUR, Coimbatore- 641103.
.....Applicant in O.A. 422/2024
4. L. Chandrasekaran,
Superintendent of Post Offices,
Tiruvannamalai Division (Retired),
Residing at : 209, MIG, Phase-2, TNHB
Tirupattur- 635 601.
.....Applicant in O.A. 423/2024
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5. T. Sakthivel Murugan (Age 63)
S/o.Thirumurthi,
SSPO's Erode Division (Retired)
Residing at
No 45 B, Sivanandhapuram 3rd Street,
Saravanampatti
Coimbatore- 641035.
.....Applicant in O.A.305/2024
6. S. Periasamy (Age 64)
S/o. M. Sellamuthu,
SPOS, Viruthachalam Division (Retired),
Residing at
132, Parijatham Poo Street, Periyar Nagar,
South. Viruthachalam 606001;
.....Applicant in O.A.316/2024
7. N.Azhagupandian(Age 66)
S/o. K. Natarasan,
SSPOs, Dindigul Division, (Retired)
3/204, Thirukkan, Nallamanar Kottai,
Dindigul 624005;
.....Applicant in O.A.317/2024
8. A.K. Mahaboob Ali (Age 68)
S/o. V.M. Abdul Kareem,
SP, PSD, Tirunelveli (Retired)
Residing at
S12A, 'D' Block, Ruby gate way, Vetrinagar Road,
Mudichur main road, West Tambaram,
Chennai 600045.
.....Applicant in O.A.318/2024
(Advocates:M/s.P.Satyanarayanan in O.A. Nos.87,86,422& 423/2024
& M/s. M. Mohanarangam in O.A. 305, 316, 317 & 318/2024)
Versus
Union of India Rep by:
1. The Secretary
Department of Posts
Dak Bhavan, New Delhi 110001;
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2. The Secretary,
Department of Expenditure,
Ministry of Finance
New Delhi-110001;
3 Chief Postmaster General,
Tamilnadu Circle,
Chennai 600002;
....Respondents in O.A. Nos. 87, 86, 422 & 423 of 2024)
1. Union of India
Rep by the Secretary
Department of Posts
Dak Bhavan
New Delhi 110001;
2. Chief Postmaster General,
Tamilnadu Circle
Chennai -600002.
....Respondents in O.A. Nos. 305, 316, 317 & 318 of 2024)
(Advocates: Mr. Su. Srinivasan, Sr. CGSC in O.A.87, 86, 305,422 &
423/2024 &
Mr. M. Kishore Kumar in O.A. 316,317 & 318 of 2024)
CAV ON : 06.01.2025
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ORDER
(Hon'ble Ms. Veena Kothavale, Member(J) These OAs are filed under section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
in O.A.No.86/2024, O.A.No.87/2024, O.A.No.422/2024 & O.A. No. 423/2024:
'To call for records relating to O.M.No.2-25/2019-PCC dated 08.06.2021 issued by Department of Posts and the impugned order No. STC/1-6/NF Grade/digs/2021 dated 09.08.2021 passed by the third respondent; and
(a) quash the O.M. No.2-25/2019-PCC dated 08.06.2021 issued by the Department of Posts as arbitrary and unconstitutional as it is violative of the accepted recommendations of the 6 th CPC as notified in GOI, Resolution No 1/1/2008 - 1C dated 29.08.2008 and also is violative of CCS(RP) Rules, 2008 and
(b) consequently, quash the impugned order No. STC/1-6/NF Grade/dlgs/2021 dated 09.08.2021 passed by the third respondent as arbitrary and illegal and direct the respondents to grant the applicant Nonfunctional Upgradation (NFUG) to Grade Pay of Rs. 5400/- from the date when the applicant had completed 4 years of regular service in Grade Pay of Rs. 4800/- in PB-2 along with arrears of pay and allowances and all other consequential benefits like refixation of pension and pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case and thus render justice.'.
5 of 21 In O.A.No.305/2024, O.A.No.316/2024, O.A.No.317/2024 &O.A.No.318/ 2024:
'(1) To call for the records of the 2nd Respondent pertaining to his orders in STC/1-6/NF Grade/Dlgs/2021 dated 09.08.2021 and quash and set aside the same;
(2) To direct the Respondents to grant the Grade pay of Rs 5400 in PB 2 on non-functional basis to the applicant on the completion of 4 years of regular service in the grade of Rs 4800/-
in accordance with the Government of India Resolution (A1)and the relief granted to the applicants in OA No. 1273/2013, and 106/2016 of this Hon'ble Tribunal and implementation orders letter No 2- 16/2019 dated 23.10.2019 issued by the Respondent No 2 and implemented by the 2 nd Respondent vide his memo no STA/34-8617/CAT/13 dated 13.02.2020 with all consequential benefits and refix his pension.
(3) To pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstance of the case.'.
2. The facts arising in all these OAs are similar in nature and the issue involved therein is also similar. Hence, all these OAs are heard analogously and being disposed of by this common order.
3. The claim made by the applicants in these OAs is that they were initially appointed as Postal Assistant and were subsequently promoted as Inspector of Posts. Thereafter they were promoted as Assistant Superintendent of Posts and were granted 6 of 21 MACP-III in the Grade pay of Rs 4800/- in PB-2 on completion of 30 years of service. They were subsequently promoted to Postal Services Gr. B / Superintendent of posts in the same Grade Pay of Rs. 4800/- on regular basis. Thus, they all have completed 4 years of regular service in the grade pay of Rs.4800/- in PB-2 and are eligible for grant of Grade Pay of Rs.5400/- as per the GOI Resolution No.1/1/2008- 1C as notified by the Government of India in the Gazette of India dated 29-08-2008, after accepting the recommendations of the Sixth Pay Commission.
4. Now, this issue has come to be settled by several judgements, and in particular, the judgement of the Hon'ble High Court of Madras dated 06/09/2010 passed in W.P No.13225/2010 in the case of M. Subramaniam Vs UOI and the judgement of the Apex Court in C.A No.8883/2017 (arising from SLP (C) No.17576/2010) dismissing the challenge to the judgement of the Hon'ble High Court of Madras in W.P No.13225/2010. The said order has since become final and implemented by the respondents.
5. The applicants submit that in an identical case in OA 106 of 2016 in the case of Shri. D. Raghupathi Vs. Union of India, the order passed by this Tribunal on 08.11.2016 has been upheld by the Hon'ble High Court of Madras in its order dated 09.09.2019 passed in W.P. No. 25799/2019. The said order has also been implemented by the respondents.
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6. Despite the issue being settled thus, the respondents have rejected the claim of applicants for grant of Grade Pay of Rs.5400/- on the ground that the order was implemented in personam. Therefore, the applicants have approached this Tribunal for the relief afore stated.
7. After notice, the respondents have appeared through their counsels and filed reply statement contending that as per the Directorate letter No. 1-14/2008-PCC dated 04.11.2008, PS Group B officers in PB-2 with initial GP₹4800/- who have completed 4 years of service only are eligible for grant of GP5400/- in PB-2. Accordingly, the representations of the applicants were disposed of vide letter No. STC/1-6/NF Grade/Dlgs/2021 dated 09.08.2021 stating that grant of NFUG is applicable only for the PS Group B officers and not for ASPcadre officers. Consequent on the implementation of 7 th CPC, the concept of NFUG was nullified as the initial pay of PS Group B cadre officers was upgraded to Rs.5400/- w.e.f. 01.01.2016 and the same was reiterated vide Directorate's order No.4-3/2018-PCC dated 06/08/2019. The applicants have also been informed that the orders of Hon'ble CAT in the cases of Shri. M. Mohanarangam in OA 1273/2013 & Shri Raghupathy in OA106/2016 were implemented in personam, and Directorate has clearly instructed that the implementation in the said cases should not be treated as a precedent for other cases. The Directorate vide its order No. 2-25/2019-PCC dated 08.06.2021 has intimated that Department of Expenditure vide ID Note No. 6 (3)/E.III (B)/2018 8 of 21 dated 13.04.2021 has not agreed to extend the benefit of Level-9 corresponding to Grade Pay of Rs. 5400/- on Non-Functional basis to all similarly placed Group B Officers of Department of Posts. Hence, the request for grant of NFUG in the Grade Pay of Rs. 5400/ after rendering 4 years of service in the Grade Pay of Rs. 4800/- in ASP cadre, could not be considered. Stating that the claim of applicants is not tenable, they have prayed for dismissal of O.As.
8. The learned counsels for the applicants submitted that in clause 1 (x) (e) of the Government of India Resolution dated 29-08-2008, it is provided as under:
"Group B officers of Departments of Posts, Revenue, etc., will be granted Grade Pay of Rs.5,400/- in PB-2 on non-functional basis after 4 years of regular service in the Grade Pay of Rs.4,800/- in PB-2.".
It is submitted that the applicants have completed 4 years of Regular service in the Grade pay of Rs.4800/- in PB-2 as Group 'B' officers, but they were not granted the benefits of Non-functional Upgradation to the Grade Pay of Rs.5400/- in PB-2. The applicants therefore submitted individual representations to the competent authority among the respondents seeking grant of Non-Functional Upgradation to Grade Pay of Rs. 5400/- in PB 2 with effect from the date of their entitlement as per the Government of India Resolution dated 29.08.2008 and verdicts of the courts as so settled. However, by individual letters bearing No. STC/1-6/NF Grade/Dlgs/ 2021 dated 09.08.2021, respondent has rejected the claim of the applicants by a non-
9 of 21 speaking order based on the instructions issued by the first respondent in letter No. 2- 25/ 2019- PCC dated 08.06.2021 which is once again based upon I.D. Note No.6(3).E.III(B)/2018 dated 13.04.2021 issued by Department of Expenditure.
9. It is further submitted that the clarificatory letter speaks about extension of benefit of Seventh CPC pay Scale of Level 9 (corresponding to Grade Pay of Rs. 5400/- of 6th CPC Pay Band) on Non-Functional basis to all similarly placed Group 'B' officers of Department of Posts. But as per the accepted recommendation of 6 th CPC, Group B officers of Departments of Posts, Revenue, etc. are to be granted Grade Pay of Rs.5,400/- in PB-2 on nonfunctional basis after 4 years of regular service in the Grade Pay of Rs.4,800/- in PB-2 and the applicants, having completed 4 years of regular service in Grade Pay of Rs. 4800/- are entitled to the benefit of Non-Functional Upgradation to Grade Pay of Rs. 5400/- with effect from respective dates of their entitlement and the same has been arbitrarily denied by the respondents, despite the issue having been settled by several judgements, including finality given by the Apex Court to the judgement dated 06.09.2010 of Hon'ble High Court of Madras in W.P. No.13225/2010 in the case of M. Subramaniam Vs. UOI, which is implemented by the respondents. The applicants who are similarly placed are denied the same benefit on the ground that the said order is 'in personam'. Hence the applicants have approached this Hon'ble Tribunal for the redressal of their grievances and prayed for allowing these O.As.
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10. The learned counsels for the applicants have relied on following judgements in support of their case: -
"(i) Order dated 06.09.2010 of Hon'ble Madras High Court in W.PNo. 13225/2010.
(ii) Order dated 10.10.2017 of Hon'ble Supreme Court in SLP No. CC 15627/2018 (converted into CA No. 8883/2011);
(iii) Order dated 23.08.2018 of Hon'ble Supreme Court in Review Petition (Civil) No. 2512/2018.
(iv) Order dated 11.04.2018 of Hon'ble Principal Bench, New Delhi in OANo. 1707 of 2016."
11. Per Contra, the learned counsels for the respondents submitted that the Directorate vide letter No.2-25/2019-PCC dated 30.08.2022 has informed that the 6 th CPC had not made any recommendations for grant of NFU in GP5400 to the under mentioned posts in Department of Revenue and Posts. However, this benefit was extended by the Government to Group 'B' Supervisors of Departments of Revenue and Posts at the time of implementation of 6th CPC recommendations to ensure parity with their administrative counterparts. Nonfunctional upgradation for grant of Grade Pay 5400/- can be granted only after the promotion to the next level but not by virtue of the benefits under ACP Scheme. Applicants were in the pay scale of 6500-200- 10500 and by virtue of grant of MACP III, they were in the grade pay of Rs. 4800/-. The superintendent (Posts) in the pay scale of 7500-12000 with grade pay of Rs.4800/- alone are entitled to Grade Pay of Rs.5400/- on completion of 4 years. The Grade Pay of Rs.5400 was an integral part of the dual pay attached with the 11 of 21 supervisory posts in Department of Revenue and Posts. Contrary to this, the High Court order resulted in the grant of non- functional grade pay of Rs.5400 to such non- eligible officers who were / are holding the substantive posts of Inspector and equivalent in Department of Revenue and Assistant Superintendent of Posts Officer in Department of Posts for which this benefit was never intended as per the provisions of CCS (RP) Rules, 2008. The resolution of the Government of India on the 6th CPC is an administrative decision meant to guide and implement the recommendations of the 6th CPC. As it is not issued under Article 309 of the Constitution of India, it does not have statutory force. In case of conflict, the CCS (RP) Rules, 2008, being statutory in nature, will prevail over the resolution. The term "regular service," used in this Resolution must be interpreted strictly.
12. The learned counsels for the respondents further submitted that in the Ministry of Finance's OM F.No.A.26017/98/ 2008-Ad II Adated 21.11.2008, it is clarified that Group B officers of the Department of Posts, Revenue etc., will be granted Grade Pay of Rs 5400 in PB2 on non-functional basis after 4 years of regular service in the Grade Pay of Rs 4800 in PB-2. It is clearly mentioned that the 4 years period is to be counted w.e.f the date on which an officer is placed in the pay scale of Rs 7500-12000(pre-revised). If an officer has completed 4 years on 01.01.2006 or earlier in the pre-revised pay scale 7500-12000, he will be given the non-functional upgradation w.e.f 01.01.2006. The applicants were Assistant Superintendent of Post 12 of 21 Officers on 01.01.2006 in the pay scale of 6500-200-10500 which was revised as 7450-11500 only, and had never been in the pay scale 7500-12000 in the pre-revised scale. Hence, they are not eligible for the non-functional upgradation as claimed.
13. It is also submitted that the Government has the right to frame a policy and policy matters, as observed by the Supreme Court in the case of State of Tamil Nadu v. S. Arumugham (1998) 2 SCC 1988, the Tribunal cannot substitute its own views for the views of the Government or direct new policy based on the views of Tribunal. The Assured Career Progression and Modified Assured Career Progression Schemes were introduced to address stagnation by granting financial upgradation to employees who have not received promotions. No employee is entitled to any further financial upgradation beyond what is provided under the MACP scheme.
14. The learned counsel has filed written submissions contending that in the CCS (Revised Pay) Rules 2008 (in part C, Section II pertaining to Ministry of Communications & Information Technology, Department of Posts) the post of Assistant Superintendent of Post Office (ASPOs) shown at Sr No 4 is classified under the revised pay scale of ₹7450-11500 in PB-2 with Grade Pay (GP) of ₹4600. On the other hand, the post of Superintendent (Posts) at Sr No 5, which falls under the pay scales of ₹7500-12000 in PB-2, with the grade pay of ₹4800 alone are entitled to be placed in the pay scale of ₹8000-13,500 in the Grade Pay of ₹5400 after four years.
13 of 21 The applicant, having been granted GP ₹4800 under the III MACP, cannot claim the benefits available to a Superintendent of Posts, contrary to CCS (Revised Pay) Rules 2008.
15. The learned counsel further submitted that in M. Subramaniam v. Union of India (W.P. No.13225 of 2010, decided on 06.09.2010), the petitioner was drawing the pay scale of ₹7500-12000. Hence, the judgment is not applicable to the applicant's case, as the applicant never held the substantive pay scale of ₹7500- 12000. In this case, there was a clarification issued by Deputy Secretary, Government of India that 4 years' period has to be counted with effect from the date in which the official is placed in the pay scale of Rs 7500-12,000 (per revised), which was subsequently changed by the clarification of the Under Secretary. None of the judgements or orders have taken into consideration of CCS (Revised Pay) Rules 2008 which prescribes the grade Pay of 5400/-, which is attached with the post of Superintendents (Posts) in the pay scales of ₹7500- 12000. Therefore, the orders made ignoring the CCS (RP) Rules 2008, which provide another upgradation on non- functional basis, cannot be treated as law laid down on the issue. Hence, on the principle of Rule of sub silentio, such orders cannot have the binding precedent for future cases and those cases are to be treated 'in personum'. According, prayed for dismissal of OA.
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16. The learned counsels for the respondents also submitted that there is huge delay of several years between the cause of action and date of representation. Hence the application is not maintainable on the ground of delay and latches, even though applicants are similarly placed persons. The applicants being fence sitters are not entitled for any relief. Accordingly, prayed for dismissal of the OAs.
17. The learned counsels for the respondents have relied upon following judgements of the Hon'ble Supreme Court in support of their case: -
(i) 2015 (1) SCC 347 (State of U P Vs Arving Kumar Srivastava)
(ii) 2023 (15) SCC273 (Para 25, 30,32-34)
(iii) 2019 (4) SCC 479 (LIC Vs Shree Lal Meena)
(iv) 1996 (6) SCC 267 (State of Karnataka & Ors Vs S M Kotrayya)
(v) 2010 (2) SCC 59 (UOI VS M K Sarkar)
(vi) 2018 (16) SCC 721 (DCS Negi Vs UOI & Ors
(vii) 2010 (14) SCC 389 (UOI Vs A Durai Raj (Dead)
(viii) 2019 (15) SCC 633 (UOI Vs C Girija)
(ix) AIR 1959 SC 798 (Balakrishna Savalram Pujari Waghmore Vs Dhyaneshwar Maharaj Sansthan)
(x) (2008) 8 SCC 648 (Union of India & Ors. vs. Tarsem Singh).
18. We have given due consideration to the submissions made by the counsels of both sides and perused the pleadings and records.
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19. As regards the question of delay and latches is concerned, the Hon'ble Supreme Court in the case of Union of India & Ors. vs. Tarsem Singh [(2008) 8 SCC 648] has held as under:
"If the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied.".
20. In so far as the issue involved in these OAs is concerned, the same has been considered by the Hon'ble Madras High Court in its judgement dated 06.09.2010 passed in W.P. No.13225/2010 in the case of M. Subramaniam Vs. UOI wherein it has held as under:
"6. It is not in dispute that the Government of India vide his resolution dated 29.08.2008 granted grade pay of Rs. 5400 in pay band 2 on nonfunctional basis to group-B officers of the department of posts, revenue etc. who completed 4 years regular service in grade pay of Rs, 4800 in pay band 2. According to the Petitioner, he has already reached the pay scale of Rs. 7500-250- 12000 by way of ACP scheme on 01.01.2004 which is corresponding to the pay scale of superintendent of central excise (Group B posts) and therefore on completion of 4 years he is entitled to the grade pay of Rs. 5400 with effect from 01.01.2008. In support of his claim, the Petitioner also relied upon the clarification by central board of excise and customs in letter No. A2601/98/2008- ADIIA, dated 21.11.2008 clarifying that the 4 16 of 21 years period is to be counted from the date on which an officer is placed in the pay scale of Rs. 7500-12000. However, the claim of the Petitioner was denied based on the clarification issued by the Central board of excise and customs, dated 11.02.2009, wherein, it was clarified that the officers who got the pre revised pay scale of Rs. 7500-12000 (corresponding to the grade pay of Rs. 4800) by virtue of financial upgradation under ACPwould not be entitled to the benefits of further non-functional upgradation to the pre revised pay scale of Rs. 8000-13500 (corresponding to grade pay of Rs. 5400) on completion of 4 years in the pre revised pay scale of Rs. 7500-12000.
7. We are unable to agree with the clarification given by the Under Secretary to Government of India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to the Government of India, it was clarified as to how the 4 years period is to be counted for the purpose of granting non-functional upgradation to Group B officers, i.e, whether the 4 years period is to be counted with effect from the date on which the officers is placed in the pay scale of Rs. 7500-12000 (Pre revised) or effect from 01.01.2006, i.e. the date on which the sixth CPC came in to force, It was clarified that the 4 years period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs.7500-12000 (pre revised).
8. Thus, if an officer has completed 4 years on 01.01.2006 or earlier, he will be given the non-functional upgradation with effect from 01.01.2006 and if the officer completes 4 years on 17 of 21 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. 7500-12000 (pre revised). Since the Petitioner admittedly completed 4 years period in the pay scale of Rs. 7500- 12000, as on 01.01.2008, he is entitled to grade pay of Rs. 5400. In fact, the Government of India having accepted the recommendations of the sixth pay commission, issued a resolution dated 29.08.2008 granting grade pay of Rs. 5400 to the group B officer in pay band of Rs.4800/- on non-functional basis after 4 years of regular service in grade pay of Rs. 4800 in pay Band 2. Therefore, denial of the same benefits to the Petitioner based on the clarification issued by the under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale, such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal.
9. Accordingly, the writ petition is allowed setting aside the order of tribunal, dated 10.04.2010 passed in 0.A. No. 167 of 2009, The Respondents are directed to extend the benefits of grade pay of Rs. 5400 to the Petitioner from 1.1,2008 as per the resolution dated 29.08.2010. No costs."
21. The issue involved in W.P. No.13225/2010 in the case of M. Subramaniam Vs. UOI and the issue involved in these cases are very much similar. The Hon'ble Madras High Court has rejected the arguments advanced by the 18 of 21 respondents that the officers who got the pre-revised pay scale of Rs. 7500-12000 (corresponding to the grade pay of Rs. 4800) by virtue of financial upgradation under ACP would not be entitled to the benefits of further nonfunctional upgradation to the pre revised pay scale of Rs. 8000-13500 (corresponding to grade pay of Rs.5400) on completion of 4 years in the prerevised pay scale of Rs. 7500-12000.
22. It is seen that the respondents had challenged the said decision of the Hon'ble Madras High Court dated 06.09.2010 before the Hon'ble Supreme Court by filing SLP (Civil) No.23513/2015, SLP (Civil) No.3189/2015 & SLP(Civil) No.17576/2017. The Hon'ble Supreme Court was pleased to grant leave to appeal and the said SLP was converted into CA No. 8883/2017. The Hon'ble Supreme Court, after considering the issue in question and hearing the arguments placed before it by the respondents, has dismissed the Civil appeal vide order dated 10.10.2017 holding as under:
"We have heard the learned counsel for the parties and perused the record.
We do not see any ground to interfere with the impugned order(s). The appeal and also the Special Leave Petitions filed by the Union of India are accordingly dismissed."
Since the said Civil Appeal was dismissed in 2017, it is to be presumed that all contentions raised by the respondents were heard, considered and rejected by the Hon'ble Supreme Court.
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23. Subsequently. the respondents also filed Review Petition No.2512/2018 in CA No.8883/2017 before the Hon'ble Supreme Court. The same was duly considered and dismissed on merits, holding as under:
"The challenge to the clarification issued by the Ministry of Finance clarifying that non-functional grade pay of Rs. 5400/- would not be granted to such of those officers who had got grade pay of Rs.4800/- on upgradation under ACP scheme was accepted by the High Court and the writ petition preferred by the respondent was allowed. While dismissing the special leave petitions filed at the instance of present review petition, this court did not find any ground to interfere.
We have gone through the review petition and this Court did not find any ground to interfere.
These review petitions are therefore dismissed both on the grounds of delay as well as merits.".
24. The Hon'ble Supreme Court has explained the effect of dismissal of the Civil Appeal by a non-speaking order in the case of Kunhayammed and Others v. State of Kerela and Another in Civil Appeal No.12309 of 1996(2000) 6 SCC 359) as under:
"If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of 20 of 21 this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court.".
25. In view of the above, the Doctrine of Merger is applicable to the judgement dated 06.09.2010 passed by the Hon'ble Madras High Court in W.P. No.13225/2010 in the case of M. Subramaniam Vs. UOI and the said decision has become final as the decision of the Hon'ble Supreme Court itself. Therefore, all grounds urged by the respondents before us fail. Moreover, in view of the settled legal position as above, Rule of Judicial Discipline is attracted and the said decision is binding on the respondents as well as this Tribunal.
26. The order dated 06.09.2010 of the Hon'ble High Court of Madras has been widely followed by different Benches of this Tribunal as well as other High Courts and affirmed by the Hon'ble Supreme Court. These orders have been implemented by the respondents. The denial of the same benefit to the applicants who are similarly placed is opposed to the underlying principles of Article 14 of the Constitution and the ratio of 'similarly placed persons' applied by the Hon'ble Supreme Court in many cases, including State of Karnataka Vs C Lalitha (2006) 2 SCC 747 and Inderpal Yadav & ors Vs UOI & ors. [1985 SCC (2) 648].
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27. The Learned counsel for the respondents brought out certain new facts in the written submissions which are not in the reply filed by them in the respective OAs and stated that these facts were not agitated or discussed by the Hon'ble High Court of Madras while passing the order in W.P. No.13225/2010 in the case of M. Subramaniam Vs. UOI. However, it is for the learned counsel for the respondents to agitate the same before the Hon'ble High Court Madras and not before this Tribunal. In view of the rule of Judicial discipline, we are bound by the order passed by the Hon'ble High Court of Madras which has attained the finality.
28. In the result, all Original Applications are allowed. The impugned orders No. STC/1-6/NF Grade/dlgs/2021 dated 09.08.2021 are hereby quashed and set aside. The respondents are directed to consider the claim of applicant for extending the benefit of grade pay of Rs.5400/- to the applicants from the date of their entitlement on completion of four years of regular service in the Grade Pay of Rs.4800/- with all consequential benefits. No order as to costs.
(Sisir Kumar Ratho) (Veena Kothavale)
Member(A) Member(J)
27 .01.2025
asvs