Central Administrative Tribunal - Cuttack
Ms C T M Suguna vs Dopt on 29 April, 2022
O.A. No.194 of 2019 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH No. OA 194 of 2019 Present: Hon'ble Mr.Swarup Kumar Mishra, Judicial Member Ms. CTM Suguna, IAS (Retd.), aged about 61 years, D/o Late CT Marudhachalam, Former Principal Secretary-cum- Commissioner Consolidation, Odisha, residing At Plot No. 98/3130, Kalinga Nagar, Ghatikia, Bhubaneswar - 751003.
......Applicant VERSUS
1. Union of India, represented through its Secretary to Govt. of India, Ministry of Personnel, PG & Pensions, Department of Personnel and Training, New Delhi - 110001.
2. The Secretary to Govt. of India, Ministry of Finance, Department of Expenditure, New Delhi - 110001.
3. The Chief Secretary to Government of Odisha, Secretariat, Bhubaneswar, Dist Khurda - 751001.
4. The Accountant General (A&E), Odisha, Bhubaneswar - 751001.
......Respondents
For the applicant : Mr. D. K. Mohanty, Counsel
For the respondents: Mr. J. K. Nayak, counsel
Mr. J. Pal, Counsel.
Heard & reserved on : 22.04.2022 Order on : 29.04.2022
O R D E R
Per Mr.Swarup Kumar Mishra, J.M.
The applicant a retired IAS Officer aggrieved by rejection of her representation vide order dated 19.06.2019 for grant of benefit of merger of 50% of Dearness Allowance with Basic Pay as Dearness Pay w.e.f. 01.04.2004 has filed this OA under Section 19 of the Administrative Tribunals' Act, 1985 with the following prayers :
O.A. No.194 of 20192
a) To quash the order 19.06.2019 under Annexure A/8;
b) To hold and declare that non extension of benefit of merger of 50% of Dearness Allowance with Basic Pay w.e.f. 01.04.2004 to the applicant, is violative under Articles 14, 16, 21 and 30 A of the Constitution of India and thereby;
c) To direct the Respondents especially Respondent No. 3 to forthwith extend the benefits of merger of 50% of Dearness Allowance with Basic Pay w.e.f. 01.04.2004 to the Applicant and accordingly pay him the arrears on salary, pension and pensionary benefits with 18% interest;
d) To pass any other order/orders as deemed fit and proper for ends of justice.
2. It is inter alia submitted by the applicant in the OA that while working as Principal Secretary, Consolidation, Govt. of Odisha she had retired from service on 31.01.2018 on attaining the age of superannuation. It is submitted that on the basis of recommendation of Ministry of Finance vide OM dated 01.03.2004 merging 50% of Dearness Allowance with basic pay was made effective from 01.04.2004. It was also made clear that the basic pay shall be shown distinctly as Dearness Pay (DP) which would be counted for the purpose like payment of allowances, transfer grant, retirement benefits and contribution of GPF etc. The applicant submitted that vide letter dated 31.03.2004, Ministry of Personnel, PG and Pensions had issued instruction to the Chief Secretaries of all the State Governments and Union Territories for payment of the benefit of the 50% merger to the Members of All India Services working under the jurisdiction of various State Government/Union Territories. The applicant further submitted that she had requested vide her representation dated 11.01.2019 (Annexure A/7) for granting the said benefits but the same was rejected by the respondents vide order dated 19.06.2019 (Annexure A/8). The applicant submitted that similarly places officers had approached this Tribunal earlier and on order of Tribunal, Govt. of Odisha has extended the benefit to them. Hence the OA. O.A. No.194 of 2019 3
3. Respondent No. 3 in their counter submitted that the State Govt. have implemented the benefits of merger of 50% DA in case of AIS officers with effect from 01.04.2006 and in compliance to the orders of this Tribunal the State Govt. have allowed the benefit w.e.f. 01.04.2004 to those specific officers. The respondents submitted that there is no provision or policy of the State Govt to accommodate the All India Service Officers for disbursement of the benefit of merger of 50% of Dearness Allowance with basic pay w.e.f. 01.04.2004. Hence the representation of the applicant was rejected. The respondents specifically pointed out that there is no provision or policy of the State Government to pay the interest and none of the officers of All India Service of Odisha cadre has been paid the interest. Accordingly they have prayed for dismissal of the OA.
4. The applicant has filed rejoinder reiterating the stand taken in the OA.
5. The applicant has also filed MA No. 258/2019 for condonation of delay in filing the OA and the respondents have filed objection to the same.
6. Heard both sides on OA & MA, perused the records and citations relied upon by them.
7. Coming to point of condonation of delay, In State of U.P. v. Aravind Kumar Srivastava 2015 (1) SCC 347 the Apex Court held as follows:
"22. The legal principles which emerge from the reading of the aforesaid judgments cited both by the appellants as well as the respondents can be summed up as under.
22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated O.A. No.194 of 2019 4 persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well- recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject- matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C.Sharma v. Union of India (1997) 6 SCC 721: 1998 SCC (L&S) 226]).
On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
8. This Tribunal while deciding similar matter of granting benefit of merging 50% DA in OA No. 557/2006 vide its order dated 16.10.2006 had held as under:
"13. We do not find any justification in the denial of the benefit of OMs dated 01.03.04 and 31.3.04 to the members of all India Services, including the applicant from 1.3.04 when the pay and allowances, in particular the DA of the applicant, was regulated by All India Services (DA) Rules, 1951. As a member of All India Services, the applicant was entitled to the benefit arising out of the Memorandum dated 31.3.04 from a date it was granted by the Central Government. As he has been denied on unreasonable ground it is contrary to rules and cannot be upheld.
14. Moreover the learned counsel for the applicant has submitted that the OMs dated 01.03.2004 and 31.3.2004 have been implemented w.e.f. 01.04.2004 in respect of members of All India Services by all the State Government except the Government of Orissa which is arbitrary and discriminatory. This claim has not been rebutted on behalf of the respondent State of Orissa. We do not find any good reason for discrimination between O.A. No.194 of 2019 5 members of all India Service working under one State Government and the other, or under the Central Government, for that matter, in the matter of pay and allowances determined by the Central Government. For this reason also the decision of the Government of Orissa for extending benefit of OMs dated 01.03.2004 and 31.03.2004 to members of All India Service w.e.f. 01.04.2006 instead of 01.04.2004 cannot be legally upheld as it will violate the principles of equality before law between same class of persons. There cannot be equality before law between same class of persons. There cannot be inequality among equals otherwise it will be violative of principle of equality before law enshrined in Article 14 of the Constitution of India.
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16. The respondent, Government of Orissa is directed to extend the benefit of OMs dated 01.03.2004 and 31.3.2004, above mentioned to the applicant w.e.f. 01.04.2004 and release the differential pay and allowances as well as pension, pensionary/retiral dues to the applicant within a period of four months from the date in which copy of this order is received by it. Parties shall bear their own cost."
9. The aforesaid order in OA 557/2005 was cited by this Tribunal while allowing similar claims in OA No. 923/2012, OA 173/2014 & OA 832/2014. State Govt. in compliance of the order of this Tribunal in same OAs had extended the benefit to the applicants in the OA. It is seen from the order dated 16.10.2006 in OA 557/2005, this Tribunal had held that the decision of State Govt. of Orissa in extending the benefit to members of All India Service w.e.f. 01.04.2006 instead of 01.04.2004 cannot be legally upheld as it will violate the principles of equality before law between same class of persons. Therefore, this Tribunal feels that the said decision is a decision in rem instead of personam and the applicant should have been extended the benefit. The respondents not deciding to do so forced the applicant to approach this Tribunal and hence point of limitation would not apply. It is also seen that the matter relates to fixation of pay, affecting the pension of the applicant, which is a continuous cause of action and also since no third O.A. No.194 of 2019 6 party interest is going to be affected or any settled matter is going to become unsettled, this Tribunal in the interest of justice, condones the delay.
10. In view of the settled position of law, we do not find any justification in the denial of benefits of OMs dated 01.03.2004 and 31.03.2004 to the applicant. Accordingly it is directed that the Respondents are to extend the benefit of the same to the applicant w.e.f. 01.04.2004 and release the differential pay and allowances as well as pension, pensionary/retiral dues to the applicant within a period of three months from the date of receipt of copy of this order. However, we are not inclined to pass any order as relates to payment of interest on the said dues since the respondents have claimed that there is no policy for doing the same.
15. The OA is accordingly allowed. But in the circumstances without any order to cost.
(SWARUP KUMAR MISHRA) MEMBER (J)