Central Administrative Tribunal - Ernakulam
Sumesh Francis vs The Flag Officer Commanding In Chief ... on 27 June, 2025
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/00610/2018
Friday, this the 27th day of June, 2025
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mrs. V.RAMA MATHEW, ADMINISTRATIVE MEMBER
Sumesh Francis, T. No.3162, Machinist (SK), INS Garuda
Southern Naval Command, Naval Base P.O., Kochi-682 004.
- Applicant
[By Advocates: Mr. P.K.Madhusoodanan, Mr.Binoy Krishna P.M.]
Versus
1. The Flag Officer Commanding-in-Chief, Head Quarters,
Southern Naval Command, Naval Base P.O., Kochi-682 004.
2. The Commanding Officer, INS Garuda, Southern Naval Command
Naval Base P.O., Kochi-682 004.
3. The Union of India, Represented by the Secretary to Government of
India, Ministry of Defence, New Delhi-110 001.
- Respondents
[By Advocate: Mrs. Mini R Menon, ACGSC]
The application having been heard on 05.06.2025, the Tribunal on
27.06.2025 delivered the following order:
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O.A.No.610/2018 2
ORDER
Justice K.Haripal, Judicial Member M.A.No. 920/2018, application for condoning delay, is allowed.
2. Applicant is a Machinist (SK) in INS Garuda under respondents 1 and 2. He had commenced service as Machinist (SK) in the Army Base Workshop, Bangalore on 08.11.2002, was promoted as Machinist (HS-II) on 07.11.2005. While so, he applied for transfer on compassionate grounds, as seen in Annexure-A1 dated 19.01.2007. Ultimately, by order dated 25.11.2013, Annexure-A3, he was transferred from Army Base Workshop, Bangalore to NSRY, Kochi as Machinist (SK). On getting movement order, Annexure-A4, he was relieved from Bangalore and joined Kochi office on 06.01.2014. The grievance of the applicant is that, at the time when he was working in Bangalore, he was in the scale of pay of Rs.4000-6000 (PB-1, Rs.5200-20200+ grade pay Rs.2400/-) with effect from 07.11.2005, the date on which he was promoted as Machinist (HS-II). It is submitted that the respondents are bound to protect his pay which includes grade pay of Rs.2,400/-.
DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 3 Annexure-A4 shows that he was drawing basic pay of Rs.10,120/- in the scale of pay of Rs.5200-20200 with grade pay of Rs.2,400/-. But when the pay was fixed in the new post, the grade pay has been reduced to Rs.1,900/-, though basic pay is protected. Aggrieved by such a unilateral action truncating the grade pay to Rs.1,900/- he made Annexure-A6 representation before the 1st respondent. However, that has been rejected through Annexure-A7 order dated 04.05.2017 on the following lines.
"2. Representation dated 20 Feb 17 submitted by Shri Sumesh Francis, Machinist (SK) received vide your letter ibid has been examined and the position is explained hereunder:-
(a) In accordance with the provisions of CPRO 82/80 and clarification issued vide DOP&T OM No. F.No. 16/6/2001-Estt Pay I dated 14 Feb 06 and OM No. 13/9/2009-Estts (Pay 1) dated 21 Oct 09, the pay on compassionate ground transfer is to be regulated as under :-
"In cases of appointment of Govt servants to posts carrying lower grade pay under FR 15(a) on their own request the service rendered prior to such posting/transfer will be treated as continuous and DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 4 the pay band of the Govt servant will be fixed at a stage equal to the pay band drawn by him prior to his appointment against the lower post. However, he will be granted grade pay of lower post. Further, in all cases, he will continue to draw his increments based on his pay in the pay band + grade pay (lower)"
In this regard para 10(b) of the transfer order issued by Army Headquarters vide letter 15984/Nov/2013/MP-4 (Civ)(b) dated 25 Nov 13 is relevant.
(b) The case of reversion of the individual has been processed strictly in accordance with the extant Government orders and the individual had expressed his willingness to accept the post for want of transfer from 515 ABW, Bangalore to Southern Naval Command, Kochi.
3. In view of the above, it is intimated that the request for protection of higher Grade Pay drawn by the individual prior to his transfer on compassionate grounds is not feasible."
Aggrieved by the same, the applicant has approached the Tribunal for setting aside Annexure-A7 and to issue necessary directions to the respondents to re-fix the basic pay protecting his last pay drawn, without amputing/reducing the grade pay from the date of his transfer to Naval DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 5 Ship Repair Yard, Kochi and to grant and disburse all monetary benefits arising therefrom in accordance with law including monetary arrears within a time frame.
3. According to the applicant, Rule 3(8) of the CCS((RP)Rules, 2008 defines 'basic pay' in the revised pay structure as the pay drawn in the prescribed pay band plus the applicable grade pay. Since Rule 3(8) says that pay includes grade pay, any order reducing the grade pay will be violative of the existing rules. He has also relied on the decision of this Tribunal in O.A.461/2011 dated 25.11.2011 and said that the purpose of imposing certain conditions on inter-regional transfer is to protect the interest of the employees in the transferred office rather than saving certain money for the Government by squeezing out as much as possible from an employee. Respondents are not entitled to such unintended advantage. Therefore, they cannot truncate the grade pay and thus Annexure-A7 is bad in law.
4. On behalf of the respondents, the Chief Staff Officer (P&A), Southern Naval Command, Kochi filed a reply opposing the contentions DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 6 of the applicant. According to the respondents, the applicant was initially appointed as Machinist (SK) at the Army Base Workshop, Bangalore on 08.11.2002 in the pay scale of Rs.3050-4590. Thereafter, he was promoted to the post of Machinist (HS-II) on 07.11.2005 in the pay scale of Rs.4000-100-6000. On the implementation of the 6 th CPC the pay of the applicant was revised with effect from 01.01.2006 under CCS(RP)Rules and his pay was fixed in the pay scale of PB-1 at Rs.5200- 20200 with grade pay of Rs.2,400/-. It is apparent that the applicant was granted pay of the promotional grade of HS-I with effect from 01.01.2006. He was transferred to INS Garuda under the 1 st respondent on 06.01.2014 on compassionate grounds. The respondents have also relied on Annexure-R2 undertaking given by the applicant and according to them, now he cannot turn around and say that the reduction in grade pay is illegal. The respondents are bound to protect only the basic pay, which has been done. Moreover, they have relied on Annexure-R3 clarification OM dated 21.10.2009, which guides fixation of pay in case of employees getting transfer to a lower post under FR 15(a). So, the DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 7 respondents have sought for dismissing the O.A.
5. The applicant filed a rejoinder producing a copy of the order of this Tribunal in O.A.461/2011 as Annexure-A9 and submitted that the facts of that case are identical to the case advanced by the applicant. There the Tribunal had found that arbitrary reduction of grade pay was illegal. Such an order has become final.
6. We heard Sri.Binoy Krishna, learned counsel for the applicant and Smt.Mini R Menon, learned Additional Central Government Standing Counsel for the respondents.
7. Sri.Benoy Krishna has emphatically submitted that the reduction in grade pay is illegal and against clause 10(a) of Annexure- A3/R1 order of transfer. According to him, the applicant was drawing a basic pay of Rs.10,120/- with grade pay of Rs.2,400/-, which is not liable to be truncated. Rule 3(8) of CCS(RP) Rules has an overriding effect on Rule 15(a) of Fundamental Rules. Therefore, he said that what is applicable is clause 10(a) of Annexure-A3/R1. The trade and grade of the applicant has been retained and therefore Rule 10(b) cannot override DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 8 CCS(RP) Rules. The learned counsel also produced copy of order of this Tribunal in O.A.799/2018 in which one of us, Haripal,J was a party, which has been confirmed by the Hon'ble High Court in OP(CAT) No.179/2024 on 03.03.2025.
8. On the other hand, learned Standing Counsel has submitted that what is applicable is clause 10(b) of Annexure-A3/R1. This is in tune with Annexure-R3 O.M. In Annexure-R2 the applicant had clearly accepted the terms and conditions and therefore, now he cannot go back and say that he is entitled to get the grade pay of Rs.2,400/- protected.
9. After giving our anxious considerations to the rival contentions, we are of the view that the applicant is bound to fail. It is the settled proposition that the transfer of the applicant is controlled by the agreement reached between the parties, the transferer and transferee, before transfer. As a matter of fact, the official profile of the applicant is not in dispute. He had commenced service as Machinist (SK) on 08.11.2002 in Army Base Workshop in Bangalore. It is the admitted DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 9 case that he was promoted as Machinist (HS-II) on 07.11.2005 which holds a grade pay of Rs.2400/-. While so, he applied for transfer on compassionate grounds which was allowed after ascertaining availability of vacancy in NSRY, Kochi. Thus, under Annexure-A3/R1 he was transferred. However, before Annexure-A3/R1 transfer was effected, the applicant was reverted and his grade was brought down to Machinist (SK), his initial post, and posted as such in NSRY, Kochi. In this connection, it is relevant to quote clauses 4 and 10 of Annexure-A3/R1:
"4. Posting on compassionate grounds is to be carried out only against: (a) post/grade in which direct recruitment is made and; (b) grade which is not higher than the existing grade of the transferee. The receiving unit will, therefore, confirm availability of vacancy to relieving unit only after ascertaining availability of vacancy in the direct recruitment quota of the concerned trade/grade and also after ascertaining (from the dispatching unit) that the transferee meets the QRs laid down in the relevant Recruitment Rules. The receiving Unit will thereafter advise availability of vacancy to the unit concerned without awaiting a formal communication from them. The individual will be dispatched to the new Unit only after receipt of confirmation regarding availability of vacancy DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 10 from the receiving unit and the grade pay of the post.
xxxxxx xxxxxxx xxxxxxx xxxxxx
10. The pay of the individual will be fixed in accordance with the following provisions of CPRO 82/80 and clarification issued vide DOP&T OM No. F No. 16/6/2001-Estt Pay I dated 14 Feb 2006 and OM No. 13/9/2009-Estt (Pay 1) dated 21 Oct 2009:-
(a) In cases where posting/transfer involves no change in trade/grade, the service rendered prior to such posting/transfer will be treated as continuous and the individuals may be allowed to draw the last pay drawn.
(b) In cases of appointment of Govt servants to posts carrying lower grade pay under FR 15(a) on their own request the service rendered prior to such posting/transfer will be treated as continuous and the pay in the pay band of the Govt servant will be fixed at a stage equal to the pay in the pay band drawn by him prior to his appointment against the lower post. However, he will be granted grade pay of lower post. Further, in all cases, he will continue to draw his increments based on his pay in the pay band + grade pay (lower)."
10. For our purpose, clause-10 is more important. While the learned counsel for the applicant submitted that clause-10 (a) is relevant in the case, in such a situation what is important is to protect the last pay DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 11 drawn which includes grade pay of Rs.2,400/-. On the other hand, according to the learned Standing Counsel, what is important is clause- 10(b). But in our assessment Annexure-A3/R1 does not reflect the post actually held by the applicant at the time of effecting transfer on 25.11.2013. It is the admitted case that till that day he was Machinist (HS-II) getting a higher grade pay of Rs.2,400/-. For the purpose of effecting this inter-regional transfer, he was brought back to the post of Machinist (SK) and then posted as such in Kochi. If we take this aspect into consideration, what would be applicable is clause 10(b) of Annexure-A3/R1. If clause 10(b) is adopted, then the basic pay of the applicant as Machinist should be Rs.10,120/- plus grade pay of Rs.1,900/-.
11. In this connection, we cannot take a view on the subject ignoring Annexure-R3, which is a clarification issued by the Department of Personnel and Training as to how to fix the pay of an employee, who seeks transfer to a lower post under FR-15(a). It reads thus:
"The undersigned is directed to refer to instructions issued vide this Department's OM NO. 16/6/2001-Estt(Pay-I) dated DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 12 14.2.2006 on the above subject. It was clarified therein that on transfer to the lower post/scale under FR 15(a), the pay of a Government servant holding a post on regular basis will be fixed at a stage equal to the pay drawn by him in the higher grade. If no such stage is available, the pay will be fixed at the stage next below the pay drawn by him in the higher post and the difference may be granted as personal pay to be absorbed in future increments. If the maximum of the pay scale of the lower post is less than the pay drawn by him in the higher post, his pay may be restricted to the maximum under FR 22(a)(a)(3).
2. Consequent upon implementation of the revised pay structure comprising grade pays and running Pay Bands, w.e.f. 1.1.2006 in cases of appointment of Government servants to posts carrying lower grade pay under FR 15(a) on their own request, the pay in the pay band of the Government servant will be fixed at a stage equal to the pay in the pay band drawn by him prior to his appointment against the lower post. However, he will be granted grade pay of lower post. Further, in all cases, he will continue to draw his increments based on his pay in the pay band +grade pay (lower).
3. Where transfer to a lower post is made subject to certain terms and conditions then the pay may be fixed according to such terms and conditions..............."
12. The applicant had joined duty in Kochi on 06.01.2014.
DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 13 Annexure-R2 undertaking given by him on 06.01.2014 reads thus:
"1. I Sumesh Francis willing to accept the appointment as Machinist (SK), in the scale of pay in Pay Band-I of Rs.5200- 20200 with grade pay of Rs.1900/- and to be posted to INS Garuda, a unit at Kochi under HQ SNC with zero seniority wef AM 06 Jan 2014..........."
That means, the applicant was conscious that while working as Machinist (HS-II) in Bangalore, he was brought down to the post of Machinist (SK) and then posted in NSRY, Kochi as a prelude to the appointment on compassionate grounds. It was acceptable to him to get the pay in grade pay of Rs.1,900/- , which is the grade pay drawn by him as Machinist (SK). After giving such an undertaking with open eyes, he cannot be heard to say that he is entitled to get the higher grade pay of Rs.2,400/-, which was being drawn by him in his capacity as Machinist (HS-II).
13. The learned counsel for the applicant has placed heavy reliance on Annexure-A9 order of the Tribunal in O.A.461/2011 and submitted that, there, the applicant who was an Upper Division Clerk was transferred inter-region and was posted as Lower Division Clerk and still his grade pay was retained. There also, Annexure-R3 was discussed.
DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 14 But, as we hinted earlier, such a transfer is always controlled by the terms and conditions under which the officials are transferred. From Annexure-A9 it is clear that there was a condition in the order of transfer that:
"4) He will be treated as a fresh recruit in the post of LDC in Region 'D' and junior most in the grade. However, the pay last drawn by him will be protected as per existing rules and his services will also counted for pensionary benefits etc."
(emphasis supplied) Here, once again we like to say that we cannot forget the fact that Annexure-A3 does not reflect the actual post held by the applicant at the time of effecting the transfer. At that time, he was a Machinist (HS-II) and then brought down to the original post of Machinist (SK) for effecting the transfer and therefore, in terms of Annexure-R3, the respondents have liability to protect only the last basic pay drawn by him in his capacity as Machinist (SK).
14. In terms of the condition quoted supra in Annexure-A9, the respondents in that O.A. were wrong in reducing his grade pay arbitrarily. But here, the respondents have liability to protect only his DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 15 last pay drawn in the post of Machinist (SK).
15. In our reading, the order of this Tribunal in O.A.799/2018 also will not support the case of the applicant. Paragraphs 3 and 4 of that order can be extracted for our purpose:
"3. The applicant submits that she had applied for an Inter Regional Transfer (IRT) to Kerala. The 3rd respondent, DG, ESIC had approved the same and she was transferred to the ESIC Hospital at Parippally, Kollam. In the transfer office order dated 19.04.2012 issued by ESIC, Head Quarters and produced at Annexure A-2, it has been indicated that her pay may be fixed as per instructions issued by Head-Quarters Office, vide letter No.A-33/19/OR/2003 E-II dated 16.03.2012 in accordance with the Department of Personnel & Training (DoPT) instructions No.13/9/2009-Estt (Pay-I) dated 21.10.2009. These two letters have been produced by the respondents along with their reply statement at Annexures R1(a) and R1(b). However, the applicant has not referred to them in the OA. Whatever be the case, the applicant joined duty on 26.04.2012 at the new place of posting after the relieving order dated 24.04.2012, produced at Annexure A-3, was issued. A condition specified in the relieving order (at point-2) was that the transferee would be ranked junior most to all the officials in the respective base cadre on the date of joining in the new place of posting. Further, DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 16 it was indicated in the Annexure A-3 relieving order which had followed the transfer order at Annexure A-2 that the post of the applicant would be changed from that of 'Nursing Sister' to that of 'Staff Nurse'.
4. The applicant has produced at Annexure A-4 a copy of the IRT policy dated 21.10.2010 for nursing/paramedical staff. Her last pay certificate issued by ESI Hospital, Basaidarapur, New Delhi giving details of the pay drawn on proceeding on transfer from Basaidarapur to Parippally has also been produced at Annexure A-5. The certificate shows that her pay at the time of release was Rs.17,380/- with a grade pay of Rs.5400/- and that the posting now ordered was as 'Staff Nurse'. It is contended by the applicant that, without regard to the stipulations provided in Annexures A-3 and A-4, as well as ignoring the provisions of Rule 3(8) of the CCS (Revised Pay) Rules 2008, her pay was refixed with a reduced grade pay of Rs.4600/- after the IRT to Parippally. While the pay itself was protected at Rs.17,380/-, the grade pay was reduced from Rs.5400/- to Rs. 4600/-. It is submitted that neither in Annexure A-3 nor in Annexure A-4 had there been any stipulation justifying such reduction of grade pay to Rs.4600/-, on refixation of her pay as 'Staff Nurse'. She also contends that there has not been any such pay/grade pay reduction effected in the cases of Nursing Sisters/Staff Nurses, posted from New Delhi to other States except in Kerala. She submits that an undertaking dated 22.12.2011 given by her at DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 17 the time of her request for transfer had not contained any admission by her agreeing for a reduction in her pay or grade pay, while requesting the Inter Regional Transfer. A copy of the undertaking dated 22.12.2011 is produced at Annexure A-6."
That means, neither in Annexure-A3 nor in Annexure-A4 (of that OA), such a stipulation as found in Annexure-A3 of the instant case can be gathered and that order was rendered in such circumstance, basing on Annexure-A9.
16. On evaluation of these circumstances, we are of the opinion that the respondents can be justified in fixing the pay of the applicant in the new office with grade pay of Rs.1,900/-, which was his original pay when he was working as Machinist (SK) in Bangalore. The respondents are bound to protect only that grade pay along with the basic pay.
Resultantly, the Original Application lacks merits and is dismissed. No costs.
(Dated, this the 27th June, 2025)
V.RAMA MATHEW JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
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O.A.No.610/2018 18
List of Annexures
Annexure- A1 True copy of the representation dated 19.1.2007,
submitted to the Commandant & MD, 515 Army Base Workshop (ABW) Bangalore Annexure- A2 True copy of the letter dated 2.1.2013, of the first respondent to the Commandant & M.D., Bangalore Annexure- A3 True copy of the Order dated 25.11.2013 for Posting/ Transfer on compassionate grounds Annexure- A4 True copy of the movement order dated 4.11.2014 issued to the applicant pursuant to Annexure-A3 Annexure- A5 True copy of the pay slip for the month of February, 2014 Annexure- A6 True copy of the representation dated 20-2-2017 submitted to the first respondent Annexure-A7 True copy of the Letter No.C.S.2779/7 dated 4.5.2017 issued for the 1st respondent Annexure- A8 True copy of the letter dated 23.5.2017, of the Administrative Officer-II, of the Office of the 2nd Respondent Annexure-A9 True copy of the order in Ο.Α.Νο.461/2011 dated 25.11.2011 Annexure R-1 Copy of Transfer order 5984/Nov/2013/MP-4 (Civ) (b) dated 25 Nov 13 DEEPA S 2025.06.27 13:18:10+05'30' O.A.No.610/2018 19 Annexure R-2 Copy of Applicant's undertaking dated 06 Jan 14 Annexure R-3 Copy of GOI, Ministry of Personnel, Public Grievances and Pensions, DOPT F.No 13/9/2009-Estt (Pay-I) dated 21 Oct 09 ************ DEEPA S 2025.06.27 13:18:10+05'30'