C.K. Ramachandran v Union of India & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 30TH DAY OF NOVEMBER 2016/9TH AGRAHAYANA, 1938 OP (CAT).No. 967 of 2010 (S) ---------------------------------------AGAINST THE ORDER IN OA 589/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 29-01-2010 PETITIONER: - ---------------------- C.K.RAMACHANDRAN, AGED 60 YEARS, S/O.(LATE)K.KARUNAKARA KURUP, SUPERINTENDENT OF CENTRAL EXCISE, CALICUT COMMISSIONERATE, CALICUT, RESIDING AT HOUSE NO.29/2400 C, LAXMI PADMAM', PIPE LINE ROAD, KUTHIRAVATTOM POST, CALICUT - 673 016. BY ADVS.SRI.T.C.GOVINDA SWAMY SRIT.R.MOHANAKUMAR SRI.G.SHYAM RAJ RESPONDENTS : - --------------------------- 1. UNION OF INDIA, REP.BY THE SECRETARY TO THE GOVT.OF INDIA,, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI-1. 2. THE JOINT SECRETARY (ADMINISTRATION), CENTRAL BOARD OF EXCISE & CUSTOMS, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI-1. 3. THE CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, KOCHI-682 018. 4. THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CALICUT COMMISSIONERATE, CALICUT-673 001. 5. THE SECRETARY TO THE GOVENMENT OF INDIA, DEPARTMENT OF PERSONNEL & TRAINING, GOVERNMENT OF INDIA, NEW DELHI-1. R1 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R1-4 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX R1-R5 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 30-11-2016, ALONG WITH OPCAT. 1052/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 967 of 2010 (S) ## **APPENDIX** ## PETITIONER'S EXHIBIT : EXHIBIT P1 : ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN O.A. 589 OF 2008 DATED 29.1.2010. EXHIBIT P2 : COPY OF O.A. No. 589 OF 2008 ALONG WITH ITS ANNEXURES DATED 09.10.2008. - EXHIBIT P3 : COPY OF THE REPLY STATEMENT IN O.A. 589 OF 2008 DATED 28.04.2009 FILED BY THE RESPONDENTS. EXHIBIT P4 : COPY OF THE REJOINDER IN O.A. 591 OF 2008 DATED 21.08.2009. - EXHIBIT P5 : COPY OF THE ADDITIONAL REPLY STATEMENT IN O.A. 589 OF 2008 DATED 05.10.2009. RESPONDENTS' EXHIBIT : NIL. // TRUE COPY // ## P.A. TO JUDGE DMR/- ## **P.R. RAMACHANDRA MENON** ## ## **P. SOMARAJAN, JJ.** ---------------------------------------------------- ## **O.P. (CAT) No. 967 of 2010 &** ## **O.P. (CAT) No. 1052 of 2010** ---------------------------------------------------- Dated this the 30[th] day of November, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. The issues involved in these two cases are almost similar, which is in relation to the claim of the petitioners for having their pay stepped up with that of a junior, who was given Direct Recruitment as Inspector of Central Excise and conferred with the benefit of two financial up-gradations based on Annexure A1 ACP Scheme. 2. The crux of the contentions raised is that the petitioners are liable to be treated as having appointed directly to the post of Inspector, though they came from different feeder categories, pursuant to proving their credentials in competitive examinations limited to in-service candidates. 3. The factual matrix is as follows: The petitioner in O.P. (CAT) No.1052/2010 joined the service as an LDC on 29.06.1964. Thereafter, he was O.P. (CAT) Nos. 967 & 1052/10 2 promoted as UDC in the year 1972. By virtue of a separate channel provided to obtain promotion (other than the normal channel), a limited competitive examination was stipulated in respect of 25% of the vacancies earmarked for promotion. The petitioner participated in the said examination and on coming out successful, he was promoted as Inspector on 15.03.1975. About 18 years later, he was given further promotion to the post of Superintendent on 16.03.1993 and was continuing in the said post. 4. Coming to the petitioner in O.P. (CAT) No.967/2010, he commenced his service as a Stenographer on 21.09.1971. Thereafter, he was given promotion as Inspector on 15.3.1975, and later, as Superintendent on 17.03.1933. He was also continuing in service as above. 5. While so, the Central Government, pursuant to the implementation of the recommendation of the 5[th] CPC, introduced A1 ACP Scheme with effect from 09.08.1999. As per the said Scheme, every employee ought to have two financial up-gradations on completion of 12 years and 24 years respectively, subject to the condition that the O.P. (CAT) Nos. 967 & 1052/10 3 employee should not have obtained two promotions in the channel of promotions. The grievance of the petitioners was that juniors of the petitioners, who got appointment directly as Inspectors, were given the benefit of two financial up-gradations, whereas it was denied to the petitioners, with reference to the fact that they were given two promotions in the hierarchy of posts. They came across Annexure A6 judgment passed by the Supreme Court granting benefit to persons stated as similar to the petitioners and occupying the different levels of post in the Government of Haryana, based on an identical ACP Scheme. The Apex Court declared that as per the relevant norms in the Scheme, the financial up-gradation could not have been denied to the beneficiaries concerned and it was accordingly that the Government/Department was directed to extend the benefit of the said Scheme to the concerned litigants. The contention of the petitioners was that, they are also similarly situated and as such, entitled to have the benefit of the financial up-gradations as per Annexure A1 Scheme. They also contended that the appointment given to them as Inspector was equal to 'Direct appointment', having given O.P. (CAT) Nos. 967 & 1052/10 4 the said posting based on successful completion of the Test concerned, and hence it was never a normal channel of promotion. 6. The claim submitted by the petitioners came to be considered and rejected by the Department as per Annexure A4 dated 2.3.2007 issued in respect of the petitioner in O.P. (CAT) No.1052/2010 followed by Annexure A9 dated 04.01.2008, which is a common order as applicable to all concerned. The reason stated for rejection of the claim was that the Scheme sought to be relied on by the petitioners, which was prevailing in the State of Haryana, was entirely different and not applicable to the case of the petitioners. The petitioners sought to challenge the orders passed by the Department by filing O.A. No.589/08 and O.A. No.591/08 before the Tribunal. The claim was resisted from the part of the Department pointing out that there was black and white difference between the terms of the two Schemes and that the petitioners were not entitled to get any benefit. It was further pointed out that, the posting given as Inspector was only by way of promotion, which could never be considered as a Direct Recruitment so as to O.P. (CAT) Nos. 967 & 1052/10 5 hold that they had obtained only one promotion (to the post of Superintendent), to make them eligible for the benefit of the ACP Scheme. After hearing both the sides, the Tribunal declined interference holding that the Scheme dealt with by the Apex Court was entirely different and not applicable to the case in hand. It was accordingly, that both the O.As were dismissed, which is under challenge in these Original Petitions. 7. Heard Sri. T.C. Govindaswamy, the learned counsel appearing for the petitioners as well as the learned Assistant Solicitor General appearing on behalf of the respondents. 8. The learned counsel for the petitioners submitted that the verdict passed by the Apex Court has been followed by the Allahabad Bench of the Central Administrative Tribunal, which has been upheld by the High Court, though SLP is pending before the Supreme Court. It is further pointed out that a similar course was pursued by the Calcutta Bench of the CAT, which was upheld by the High Court of Calcutta in respect of same category and as such, the petitioners are also entitled to get the benefits. O.P. (CAT) Nos. 967 & 1052/10 6 9. Learned Assistant Solicitor General appearing for the respondents submits that the verdict passed by the Supreme Court by way of Annexure A6 is not a 'judgment _in rem',_ but a 'judgment _in personam',_ that too with reference to the relevant provisions of the Scheme prevailing in the State of Haryana. The terms of the Scheme, as borne by Annexure A1 introduced by the Central Government, are entirely different. It is also pointed out that the Central Government was never a party to the proceedings before the Supreme Court and as such, the law, if at all any, laid down by the Apex Court in respect of the said position with reference to the Rules/norms prevailing in the State of Haryana is not applicable to the Central Government. It is also pointed out that the appointment given to the petitioners originally was to the post of 'LDC' and 'Stenographer' respectively. They came to be promoted to the next higher levels and as such, the posting given as Inspectors, pursuant to the passing in the 'limited competitive examination' cannot be treated as a Direct Recruitment and that the idea and understanding of the petitioners is thoroughly wrong and misconceived. The so O.P. (CAT) Nos. 967 & 1052/10 7 called juniors who joined the Department, pursuant to the direct selection as Inspectors, were never given two promotions, to have denied the benefit of ACP Scheme and as it stands so, granting of benefit to the said persons is based on the relevant norms; which cannot be claimed as a matter of right by the petitioners, who were already given two promotions. The course pursued by the Department is perfectly in tune with the relevant provisions of law and that the provisions of the Scheme have not been subjected to challenge. By virtue of this, no interference is possible, submits the learned Assistant Solicitor General. 10. The contentions raised by the petitioners were sought to be resisted by the Department, as taken note of in paragraph 8 of the verdict passed by the Tribunal, which is reproduced below, to avoid repetition: “8. The respondents contested the O.A. The fact that there is a selection process prescribed by the recruitment rules for promotion to the post of Inspector will not make it akin to direct recruitment. The promotion of the applicants to the post of Inspector cannot be deemed to be a direct recruitment. As the applicants have already been given two promotions no benefit under the ACP O.P. (CAT) Nos. 967 & 1052/10 8 scheme will accrue to them. The applicants were promoted first as Inspector and then as Superintendent. The juniors of the applicants who got the benefit of the ACP scheme did not get two regular promotions from the grade in which they were appointed as direct recruits. The period of regular service for grant of the benefits under the ACP scheme is to be counted from the grade in which an employee was appointed as a direct recruit. The judgment of the Apex Court in Civil Appeal No.3250/2006 dated 2.8.2006 which held that persons like the applicants therein are entitled to have their pay stepped up in the higher scale at par with their juniors refers to the ACP scheme of the Haryana Govt. The respondents are following recruitment, seniority, promotion and all service conditions of the Central Govt. The ACP scheme formulated by the respondents is not in line with that formulated by the State Governments, the conditions, benefits, restrictions being different. The applicant is taking one part of the scheme in isolation and quoting the Supreme Court judgment which is beneficial to them without reference to other conditions of the scheme. The ACP of the Central Govt. has no relation or co-relation with the Haryana Govt. ACP scheme. Therefore the said Supreme Court judgment will not have no impact in this case.” 11. The issues were considered and the Tribunal made specific observations as given in paragraph 12 and 13 O.P. (CAT) Nos. 967 & 1052/10 9 ## which are also reproduced below. “12. The applicants' contentions rely solely on the decision of the Apex Court in Civil Appeal No.3250/06. The Central Govt. was not a party in the case. It was not impleaded. It was not heard. It had no locus standi in the case. Therefore as far as the Central Government is concerned, it is a case specific concerning only the Govt. of Haryana. The Central Government is not bound by the decision of the Apex Court in the cited case. The applicants are different from the Haryana Govt. employees inasmuch as they are governed by different recruitment rules and service conditions. When the employees are recruited through different sources and have different conditions of service, they are not similarly placed and cannot seek equal treatment. 13. The ACP scheme of the Govt. of Haryana is different from the ACP scheme of the Government of India. The former was implemented with effect from 1.1.96. The latter from 9.8.1999. In the Haryana scheme the benefit of ACP is granted on completion of 10 years and 20 years whereas the same is available in the ACP scheme of the Govt. of India on completion of 12 years and 24 years. It is not the case of the applicants that they should be given the benefits of ACP scheme from 1.1.1996 or on completion of 10 and 20 years. They are asking for the benefit of stepping up to remove anomaly in the wake of granting ACP benefits to the Haryana O.P. (CAT) Nos. 967 & 1052/10 10 Govt. employees on the strength of a decision of the Apex Court. Stepping up is raising the pay of senior employee to the level of the pay of junior employee when the junior employee is receiving a higher salary than the senior. The applicants are picking and choosing whatever is favourable to them from a scheme not applicable to them. The applicants are governed by the ACP scheme of the Govt. of India. Relevant extracts from Annexure-1 to the ACP scheme of Govt. of India, are reproduced below:- “1. The ACP Scheme envisages merely placement in the higher pay scale/grant of financial benefits (through financial upgradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose,” “5.1 Two financial upgradations under the ACP Scheme in the entire Government service career of an employee shall be counted against regular a promotions (including in-situ promotion as fast-track promotion availed through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial upgradations under the ACP scheme shall be available only if no regular promotions during prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial upgradation only on completion of 24 yeas of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him,” O.P. (CAT) Nos. 967 & 1052/10 11 “5.2 Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted from the grade in which an employee was appointed as a direct-recruit,” “8. The financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay scale under the ACP Scheme; (emphasis supplied) 12. The finding of the Tribunal that there is vital difference between the Scheme formulated by the State of Haryana and Annexure A1 Scheme of the Central Government, has not been successfully rebutted by the petitioners. The eligibility norms, the requisite extent of years to be completed for granting the benefits, the date of commencement etc are also different and no analogy can be drawn with reference to the former Scheme. Even otherwise, the petitioners who are Central Government Servants, if at all are claiming any benefit under particular Scheme, they will have to confine themselves to the Central Scheme and it can't be with reference to any other Scheme prevailing elsewhere. The verdict passed by the Supreme Court by way of Annexure A6 with reference to the provisions of the Scheme prevailing in Haryana, that too O.P. (CAT) Nos. 967 & 1052/10 12 without the Central Government in the party array, cannot be stated as any declaration of law under Article 141 of the Constitution of India to be made applicable to the Central Government employees. The said verdict was passed by the Apex Court with reference to the facts and figures and the relevant provisions of law as applicable therein and cannot be attracted to the case in hand. The verdict passed by the Apex Court is having binding effect in so far as the situation prevailing in Haryana is concerned, whereas in respect of the situation under the Central Government, it cannot be treated as a declaration of law. Similarly, this Court is not persuaded by the verdict passed by the Allahabad and Calcutta Benches of the CAT and the High Courts of Calcutta and Allahabad. We have gone through the said verdicts. The relevant factors to grant the benefit of stepping up and the norms to be satisfied have been discussed elaborately by this Court in the verdict in **Union of India and Others v. M.S. Gopalakrishnan and Others** [2015 KHC 825] to which one of us [P.R.Ramachandra Menon, J] was a member. We find that claim raised by the petitioners is unfounded. The verdict O.P. (CAT) Nos. 967 & 1052/10 13 passed by the Tribunal dismissing the O.A. does not call for interference. The Original petitions fail and they are dismissed accordingly. **P.R. RAMACHANDRA MENON JUDGE** **P. SOMARAJAN JUDGE** DMR/-m