Kerala High Court
Tribunal vs Director Cmfri
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
MONDAY, THE 18TH DAY OF SEPTEMBER 2017/27TH BHADRA, 1939
OP (CAT).No. 3829 of 2012 (Z)
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AGAINST THE ORDER/JUDGMENT IN OA 882/2010 of CENTRALADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH
PETITIONER
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1. DIRECTOR CMFRI
CENTRAL MARINE FISHERIES RESEARCH INSTITUTE, (INDIAN COUNCIL OF
AGRICULTURAL RESEARCH), PB NO.1603, ERNAKULAM NORTH P.O.,
COCHIN - 18.
2. THE SECRETARY,
INDIAN COUNCIL OFAGRICULTURAL RESEARCH, KRISHI BHAVAN, NEW
DELHI - 110 114.
BYADVS.SRI.P.JACOB VARGHESE (SR.)
SRI.VIVEK VARGHESE P.J.
SRI.VARUGHESE M EASO
SRI.XAVIER CHERIAN
SMT.ELECTAPAUL
RESPONDENT
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1. SHRI.S.HAJA NAJEEMUDEEN
TECHNICAL OFFICER (T-6), CENTRAL MARINE FISHERIES RESEARCH
INSTITUTE, ERNAKULAM NORTH P.O., COCHIN - 18.
2. UNION OF INDIA,
REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, KRISHI BHAVAN,
NEW DELHI - 110 114.
R2 BYADV.SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
R1 BYADV.SRI.P.K.MADHUSOODANAN
R1 BYADV.SRI.P.M.BINOY KRISHNA
R2 BYADV.SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18-09-2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No. 3829 of 2012 (Z)
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APPENDIX
PETITIONERS EXHIBITS
EXT.P1 COPY OF THE ORIGINALAPPLICATION OA NO.882/2010 OF CAT
ERNAKULAM BENCH
EXT.P2 COPY OF THE REPLY STATEMENT FILED BY PETITIONERS IN O.A.
NO.882/2010 BEFORE CAT ERNAKULAM BENCH
EXT.P3 COPY OF THE REJOINDER FILED BY THE APPLICANT.
EXT.P4 COPY OF THE REPLY TO THE REJOINDER FILED BY THE
PETITIONERS
EXT.P5 COPY OF the ORDER DATED 7.3.2012 IN O.A. NO.882/2010 OF THE CAT,
ERNAKULAM BENCH.
RESPONDENTS EXHIBITS NIL
TRUE COPY
P.A TO JUDGE
SMM
P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.
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O.P(CAT)No.3829 of 2012
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Dated this the 18th day of September, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Ext.P5 order passed by the Tribunal in O.A.No.882/2010 is under challenge, at the instance of the respondents 1 and 2 in the O.A.
2. The grievance is that undue benefit has been extended to the applicant, ordering fixation in a higher pay scale, despite the fact that the applicant did not have such a claim in the earlier round of litigation.
3. Heard the learned Standing Counsel for the petitioners as well as the learned Counsel appearing for the first respondent.
4. The factual matrix reveals that the first respondent/applicant joined the service of the CMFRI Cochin as 'Computor' on 10.2.1975 in the scale of O.P(CAT)No.3829/2012 2 Rs.425-700 in T-II-3- Grade (Computor) with effect from 1.10.1975. He was granted promotion to T4 Grade on 1.7.1981 and thereafter he was promoted to T5 Grade on 1.1.1987. Later, three advance increments were granted in T5 grade on 1.7.1992 and he was given promotion as Technicial Officer (T6 Grade) with effect from 1.1.1999.
5. With regard to the engagement of officials in the Institutes of the ICAR and also those who were working directly in ICAR, it is to be noted that the Computors who are working in various institutes of ICAR were given only the pay scale of Rs.330-560; whereas in the case of the latter group designated as Senior Computors, they were granted a higher pay scale of Rs.425-600. There was a claim to have the higher pay scale extended to the Computors working in various Institutes, which came to be upheld. The appeal preferred therefrom and the subsequent proceedings also came to be dismissed, whereby the fitment of a Computor in the establishments of the ICAR came to be finalised as to be in the scale of O.P(CAT)No.3829/2012 3 pay of Rs.425-600 from 1.1.1973 onwards.
6. By the passage of time, the ICAR constituted Agricultural Research Service (ARS) and Technical Services (TS) with effect from 1.10.1975. In the case of Post Graduates Scientists working in the ARS, they were given the pay scale of Rs.550-900, whereas the graduate Technical Assistants were given only a lower scale of Rs.425-700 with effect from 1.10.1975, although both were stated as doing the same job. This led to a dispute which was resolved by the Industrial Tribunal concerned and an Award was passed on 4.2.1988 in I.D.NO.9/1982 holding that the Graduate Technical Assistants were entitled to the scale of pay of Rs.550-900 with effect from 1.10.1975, as drawn by their counter parts in the ARS.
7. When the matter was taken up before the Apex Court by way of SLP No.5204/1989, it ended up in dismissal on 6.2.1989, followed by the dismissal of the Review Petition on 27.10.1989. It is also to be noted that the issue had attracted attention of the Chandigarh Bench O.P(CAT)No.3829/2012 4 of the Central Administrative Tribunal in O.A.No.1084/HP/90 and as per order dated 7.9.1993, the CAT Chandigarh held that the applicant Technical Assistant was entitled to be placed in the scale of pay of Rs.550-900 with effect from 1.10.1975.
8. While so, the first respondent, joining hands with three others, had approached this Court challenging withdrawal of the placement already given to them in the scale of pay of Rs.425-700 with effect from 1.10.1975 and the subsequent promotion before they were made effective. O.A.No.642/2006 filed in this regard came to be allowed by the Tribunal as per order dated 5.12.2007 and the applicants were ordered to be extended the benefits accordingly. The order passed by the Tribunal was upheld by this Court in Writ Petition No.9674/2006, which was affirmed by the Apex Court as per the verdict dated 5.5.2009 in C.A.No.5234/2008.
9. The heart burn of the first respondent started again in view of the subsequent course and events O.P(CAT)No.3829/2012 5 whereby the claim to have a higher pay scale of Rs.550- 900 with effect from 1.10.1975, as given to the counter parts pursuant to the Award in I.D.No.9/1982 and the verdict passed by the CAT Chandigarh as mentioned above, was not extended to him. It was accordingly, that the first respondent approached the Tribunal by filing the Original Application seeking for extension of similar benefits pointing out that the verdict passed by the Industrial Tribunal and the affirmation given by the Apex Court was of 'declaratory in nature'; which ought to have been extended to all similarly situated persons.
10. The claim was resisted from the part of the Department pointing out that there was no provision in the Technical Service Rules and that no direction was ever given by the Apex Court to extend such benefit to other similarly situated persons as well, when C.A.No.4729/91 was finalised on 6.10.1994 or even when C.A.No.6673/97 was finalised on 26.9.1997.
11. After hearing both the sides, the Tribunal held O.P(CAT)No.3829/2012 6 that, by virtue of the law declared by the Supreme Court, when a declaratory verdict is passed, the benefit is liable to be extended to all similarly situated persons without any necessity to drive them to approach the Court/ Tribunal by pursuing independent litigations. The relevant observations of the Tribunal as contained in paragraph 12 of the verdict is extracted below, for convenience of reference:
"The respondent have no case that the applicant herein is not similarly placed as the applicant as the applicant in O.A.NOs.1084/HP/90 or 291/95 or 292/95 and other judgments of the Courts nor that the orders herein was not implemented. On implementation of the award of the Industrial Tribunal in I.D.No.09/1982, the respondents placed the Computers of IASRI in the scale of Rs.550-900 (T- 4 grade) with effect from 01.10.1975 and further assessed and placed in the next higher scale of Rs.650-1200 (T-5 grade) with effect from 1.7.1976 and thereafter followed Rule 5(1) of TSR. When a number of Court orders have been implemented notwithstanding the TSR, in the case of the applicant alone, the TSR becoming an isurmountable hurdle in granting the pay scale of Rs.550-900 and Rs.650-1200 is an argument that is unreasonable and unacceptable. When a Court gives a decision in a dispute, it lays down the law which overrides the Rule, the TSR in the instant case, if there is anything contrary in it. The award of the Industrial O.P(CAT)No.3829/2012 7 Tribunal, Delhi in I.D.No.09/1982 is a judicial decision in rem and confirmed by the Hon'ble Supreme Court on 16.2.1989 and was implemented by the respondents. In the light of judgment of CWJC NO.1732/2002 dated 3.3.2006 of Hon'ble Patna High Court and in S.L.PNo.10378/2006 dated 14.7.2006 and orders in O.A.No.1084/90 of Chandigarh Bench and O.A.NO.182/1991. O.A.No.291/1995, O.A.No.292/95 of the Cuttach Bench and so on and implemented by the respondents, the denial of benefits granted to similarly placed persons to the applicant alone cannot be justified."
12. After hearing both the sides, we are of the view that the finding and reasoning given by the Tribunal is based on the law declared by the Apex Court. No distinction with regard to the factual position is brought to the notice of this Court. There is a 'declaratory verdict', to the effect that persons similarly situated like the first respondent herein and working as Technical Assistants have been ordered to be given the higher pay scale of Rs.550-900, as paid in the ARS, taking note of the similarities in the duties performed. This being the position, extension of similar benefit to the applicant ie, the first respondent herein, as per Ext.P5, is not liable to O.P(CAT)No.3829/2012 8 be assailed under any circumstances. We do not find any tenable ground to call for interference.
The Original Petition fails and it is dismissed accordingly.
P.R. RAMACHANDRA MENON JUDGE SHIRCY.V JUDGE smm