High Court of KeralaDivision Bench2023-07-10Original Petition allowed; Ext.P12 order set as...

G. Somasekhar IPS (Retd) v. Union of India & Others

Case / Petition Number:OP (CAT) No.75/2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas
C. Jayachandran
Judgment Date: 2023-07-10
Court Decision / Holding: Original Petition allowed with observations and directions. Ext.P12 cannot stand; the matter is remitted to the CAT for fresh consideration in accordance with law, taking into account the Somarajan principle and applicable amendments to IPS Pay Rules.
Final Disposition: Original Petition allowed; Ext.P12 order set aside; remitted to the Tribunal for fresh consideration in accordance with this judgment and within the framework of the Somarajan principle and IPS Pay Rules amendments.

Parties to the Case

Appellants / Petitioners

G. Somasekhar IPS (Retd)

Respondents

Union of India
The State of Kerala
The State Police Chief
The Accountant General (A&E)
Secretary, Department of Expenditure, Ministry of Finance

Legal Representation & Advocates

Counsels for Petitioners

• V. Jayadhar Hafy
• Punthala Wilson
• G. Pradeep Kumar

Counsels for Respondents

• S. Manu (Deputy Solicitor General of India)
• K. P. Harish (Government Pleader)

Case Synopsis & Summary

This Kerala High Court OP (CAT) arises from Ext.P12, the Central Administrative Tribunal (CAT) order dated 07.11.2022 in MA 484/2020 in OA 923/2014, challenging fixation of the petitioner’s pay on his promotion from Kerala Police Service to the Indian Police Service (IPS). The petitioner, a retired IPS officer, contends that his pay fixation was fixed lower than his state-service scale, contrary to the principle laid down in Union of India v. T.M. Somarajan & Ors. (2010) 1 SCC 129, and the amended IPS (Pay) Rules 2007 as well as subsequent notifications. The CAT, in Ext.P1/M.A.3, accepted the Somarajan principle and directed fixations incorporating amendments to the IPS/IFS (Pay) Rules, 2007, with arrears. However, Ext.P12 (the CAT’s final order) upheld compliance with Ext.P1, a position challenged by the petitioner. The State Government, Accountant General, and Government pleaders argued that, as a result of a 2004 pay revision and subsequent DA mergers, deductions and different pay matrices apply, potentially placing the applicant at a higher Level-13 or beyond the JAG ceiling. The Kerala High Court finds the CAT order cannot stand and remits the matter to the CAT for fresh consideration in light of the Somarajan doctrine and 2007/2010 amendments, emphasizing that pay should not be reduced on induction to IPS and that arrears may be due. The petition is allowed with observations and directions.

Provisions of Law Cited

IPS (Pay) Rules, 2007 (including Rule 5 and Schedule I)IPS (Pay) Rules, 1954 (Schedule II – Sections I & III; Clause (vi) of Schedule II)Sub-rule (3) of Rule 5, IPS (Pay) Rules, 2007GAzette Notification (e.g., 03.03.2010)Central Pay Commission references (5th and 6th CPC)G.O.(Rt) No.2394/2020/GAD (Kerala) implementing pay fixation under Somarajan principlesPay fixation principles under T.M. Somarajan (2010) SCC 129

Legal Doctrines & Maxims

Pay protection on induction to IPS – no reduction of promoted officer’s pay
Doctrine of pay fixation consistent with Somarajan; protection of state-cadre pay in IPS
Res judicata (as discussed in Ext.P2)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits pay fixation should follow the Somarajan principle (as upheld by the CAT and later reaffirmed by the Supreme Court) and the amendments to IPS (Pay) Rules, 2007 and the 2010 amendments. He contends that induction into IPS should not reduce pay and that the fixation must be in line with the higher state-cadre level (Level-13/Selection Grade, as applicable) with arrears from 2013 onward. The petitioner challenges Ext.P12 as not in accordance with Ext.P1 and seeks compliant fixation with arrears; he argues that DA adjustments should not negate the Somarajan principle and that the Tribunal’s exclusive reliance on the 2016 MA3 order requires reconsideration in light of subsequent amendments and the Court’s position in Somarajan.

Contentions of Respondents

The respondents contend that the Somarajan principle cannot be mechanically applied due to post-2004 pay revisions and lack of equivalence between state and central pay structures. They argue for deduction of excess DA merged at state pay revision and fixation in Level-13 only if justified by the government orders (e.g., GO No.2394/2020). They submit that the CAT’s Ext.P1 order, while accepted earlier, cannot override subsequent amendments and that the petition should be resolved by adjusting pay within the revised framework. They maintain that the belated contentions to prorata pay fixation are not to be entertained and seek dismissal or modification of Ext.P12 accordingly.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Union of India v. T.M.Somarajan & Ors.	2010 (1) SCC 129	Positive	The judgment relies on the Somarajan principle for pay fixation of IPS officers; the tribunals and higher courts accepted its doctrine, and the Supreme Court affirmed it. The decision treats Somarajan as controlling law rather than overruling it.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against G. Somasekhar IPS (Retd) v. Union of India & Others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 10[TH] DAY OF JULY 2023/19TH ASHADHA, 1945 OP (CAT) NO.75 OF 2022** **AGAINST THE ORDER/JUDGMENT DATED 07.11.2022 IN MA 484/2020 IN OA NO.18/2020 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **PETITIONER/APPLICANT:** **G. SOMASEKHAR IPS (RTD), AGED 64 YEARS, S/O. K. GOVINDA PILLAI, EX-SUPERINTENDENT OF POLICE, DISTRICT POLICE CHIEF, PALAKKAD. NOW RETIRED AND RESIDING AT DEVAPURAM, THANNIPPOIKA, CHITTAZHA, VATTAPPARA, THIRUVANANTHAPURAM, KERALA, PIN: 695028.** **BY ADVS. V.JAYADHAR HAFY PUNTHALA WILSON G.PRADEEP KUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, ROOM NO.59, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI110003.** **2 THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN: 695028.** - **3 THE STATE POLICE CHIEF, POLICE HEADQUARTERS, VELLAYAMBALAM, THIRUVANANTHAPURAM, KERALA, PIN: 695010.** OP (CAT) No.75/2022 -: 2 :- **4 THE ACCOUNTANT GENERAL (A & E), M.G. ROAD, THIRUVANANTHAPURAM, KERALA, PIN: 695039.** **5 THE SECRETARY, DEPARTMENT OF EXPENDITURE, MINISTRY OF FINANCE, NEW DELHI, PIN: 110001.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS & C.JAYACHANDRAN, JJ. ------------------------------------------------------------------OP (CAT) No.75 of 2022** **-------------------------------------------------------------------** Dated this the 10[th] day of July, 2023 ## **JUDGMENT** ## **C.Jayachandran, J.** Ext.P12 order of the Central Adminstrative Tribunal dated 07.11.2022, rendered in Miscellaneous Application No.484/2020 in O.A. No.923/2014, is under challenge in this Original Petition. The said Original Application was premised on the ground that the petitioner's pay, pursuant to his promotion from the Kerala Police Service to the Indian Police Service, was fixed on a scale lower than the one he was drawing in the State service. As per Ext.P1 Order dated 07.01.2016, the Tribunal held that the petitioner is entitled to have his pay fixed in accord with the principle laid down in _**Union of India v. T.M.Somarajan & Ors.**_ **[2010 (1) SCC 129]** and directed the respondents to fix the pay accordingly, taking into account the amended rules as well. However, the pay scale fixed in compliance of Ext.P1 order was also lower than his previous scale in the State service. The 4[th] respondent Accountant General contended that his total emoluments is, however, more than what he received in the State OP (CAT) No.75/2022 2 service. The Tribunal, vide the impugned Ext.P12 Order, accepted the above compliance of Ext.P1 order, challenging which, the petitioner is before us in the afore captioned Original Petition. ## 2. The facts: The following list of days will unfurl the facts which led to the impugned Order: ||Sl. No.||Date||Event||Ext.No.| |---|---|---|---|---|---|---|---| ||1|16.08.2013||Petitioner, who was working as Superintendent in the Kerala Police Service (KPS) was promoted to the Indian Police Service (IPS) as per G.O.(Rt) No. 6708/13/GAD dated 16.08.2013. Note :Petitioner's scale of pay in KPS was Rs.42,640 – 55,640 and his pay was Rs.50,840/-. However, upon promotion, his basic pay was fixed at Rs.36,950/-, with a grade pay of Rs.7,600/-.|||| OP (CAT) No.75/2022 3 |2|22.10.2014|Petitioner filed O.A.923 of 2014 before the CAT, Ernakulam Bench, claiming: i) The benefit of the decision of the Honourable Supreme Court in **_Union_** **_of_** **_India_** **_v._** **_T.M.Somarajan & Ors._**[2010 (1) SCC 129]; and ii) Fixation of basic pay above Rs.50,840/- w.e.f from 17.08.2013, along with arrears.|Ext.P11| |---|---|---|---| |3|07.01.2016|The CAT, Ernakulam allowed Ext.P11 O.A, along with connected matters, holding that the principle laid down in Somarajan (supra) is applicable to the promoted applicants, including the petitioner and directing the respondents to fix the pay accordingly, taking into account the amendments to the IPS/IFS (Pay) Rules, 2007.|Annexure MA3 in Ext.P1| |4|31.05.2018|The petitioner retired from service.|Decipherable from Annexure- M.A.10 in Ext.P4| OP (CAT) No.75/2022 4 |5|26.06.2019|OP (CAT) No. 285/2016 preferred by the respondent State was dismissed by the High Court, however, clarifying as under: _“we clarify that the 1st_ _respondent – G.Somasekhar – is_ _not entitled to any more benefits_ _than that is granted in_**_Union of_** **_India v. T.M.Somarajan &_** **_Ors._**_[2010 (1) SCC 129]”_.|Annexure M.A.2 in Ext.P2| |---|---|---|---| |6|10.01.2020|The petitioner filed M.A No. 38/2020 in O.A 923/2014 alleging non-compliance of Annexure-MA3 order of CAT dated 07.01.2016 and seeking implementation of the same, together with interest @ Rs.12% per annum on the arrears.|Ext.P2| |7|30.07.2020|The Government issued G.O.(Rt) No.2394/2020/GAD ordering re- fixation of the initial pay of the petitioner as per the principles laid down in **_T.M.Somarajan_** (supra) and disbursal of all consequential benefits to the applicants, including arrears, for which purpose, the Accountant General was directed to issue revised pay slip.|Annexure M.A.4 in Ext.P1| OP (CAT) No.75/2022 5 |8|20.08.2020|The CAT, Ernakulam disposed of Ext.P2 M.A, taking stock of Annexure-M.A.4 G.O, however, reserving permission to the applicant to approach the Tribunal again, if so advised.|Ext.P3| |---|---|---|---| |9|21.08.2020|The Accountant General issued a pay/salary slip fixing the petitioner's pay at Rs.44,700, with a grade pay of Rs.7,600/-, thus totaling to Rs.53,300/-.|Annexure- M.A.5 in Ext.P1| |10|07.09.2020|The petitioner filed M.A No.484/2020 in O.A 923/2014 alleging that the pay fixed vide Annexuere-M.A.6 is not in compliance of Annexure-M.A.3 order and that no scale of pay is indicated in Annexure– M.A.6.The petitioner sought for issuance of a corrected order in accord with M.A.3 order of the Tribunal.|Ext.P1| |11|17.09.2020|The 4threspondent, AG issued: i) revised pension/family pension pay order, ii) commutation pay order; and iii) verification report.|Annexures M.A8, M.A9, M.A10 in Ext.P4| |12|05.10.2020|The petitioner filed M.A No.592/2020 in M.A No.482/ 2020 producing the above three orders of R4/A.G.|Ext.P4| OP (CAT) No.75/2022 6 |13|13.01.2021|R4/A.G issued a letter expressing difficulty in implementing M.A.3 order of the Tribunal. Note 1 : It was pointed out that in **_T.M.Somarajan_**(supra), the question of deduction of excess D.A did not arise, since the pay drawn by the Officer in the State service – based on 1992 State pay revision – was equivalent to the Central Pay (IV CPC). Note 2 : In the petitioner's case, the excess D.A. merged had to be deducted in order to avoid successive addition of D.A. rates with reference to the Central Government rates. Note 3 : The A.G therefore sought clarification to the Principal Secretary as to how the pay and pay scale of the petitioner has to be fixed in compliance of Annexuere-M.A3 order of the Tribunal.|Annexure R2(a) in Ext.P5| |---|---|---|---| OP (CAT) No.75/2022 7 |14|26.03.2021|The Chief Secretary issued reply to Annexure-R2(a) letter of the A.G indicating that the petitioner is entitled to get his pay fixed in Level 13 (Selection Grade), since the State scale drawn by the petitioner exceeded the maximum pay band of Junior Administrative Grade, after deduction of D.A. The letter also directed protection of his pay in the State service. The A.G. was directed to fix the pay accordingly.|Annexure- R2(b) to Ext.P5| |---|---|---|---| |15|31.03.2021|R2/State filed reply statement in M.A. No.484/2020 raising contentions based on Annexures- R2(a) and R2(b) afore-referred and seeking dismissal of the M.A.|Ext.P5| |16|24.06.2021|Applicant filed rejoinder to the reply statement of the 2nd respondent.|Ext.P6| |17|27.10.2021|The 4th respondent filed additional reply statement to Ext.P6 rejoinder of the petitioner.|Ext.P7| OP (CAT) No.75/2022 8 |18|07.12.2021|The petitioner filed a further rejoinder to Ext.P7 additional reply statement of the 4th respondent. Note 1 : Although the petitioner questioned the direction in R2(b) letter of the Chief Secretary to fix the petitioner's pay in Level-13 in Ext.P6 rejoinder, he would contend in Ext.P8 rejoinder that the directions in Ext.R2(b) (produced as Annexure-M.A.11 to Ext.P8 rejoinder) is perfectly in line with the dictum of the Apex Court and M.A.3 order of the Tribunal. Note 2 : In paragraph no.9, the petitioner also contended that his total pay in the promoted Cadre is Rs.46,700/- only, as against the pay of Rs.50,840/- drawn by him in the Kerala Cadre.|Ext.P8| |---|---|---|---| |19|24.02.2022 & 12.07.2022|In the Video Conference held on 15.02.2022, pursuant to the directions of the Tribunal, the petitioner filed a statement and R4 filed an additional reply statement.|Exts.P9 & P10| OP (CAT) No.75/2022 9 |20|07.11.2022|The Tribunal dismissed M.A.No. 484/2020 holding that M.A.3 order in O.A.No.923/2014 stands complied with.|Ext.P12| |---|---|---|---| 3. Heard Sri.Jayadhar.V, learned counsel appearing for the petitioner, Sri.S.Manu, learned Deputy Solicitor General of India and Sri.K.P.Harish, learned Government Pleader appearing for respondents 2 to 5. Perused the records. 4. For a correct appreciation of the issue involved in this case, the first aspect to be taken note of is the ambit and scope of the original common order of the Central Administrative Tribunal (Annexure-M.A.3 to Ext.P1), which allowed O.A. No.923/2014 preferred by the petitioner herein. The relevant findings are extracted herein below: _“Therefore, IAS (Pay) Rules, 2007 as amended by Gazelle Notification dated 15.4.2000 and IPS (Pay) Rules as amended by notification dated 3.3.2010 would leave no doubt that the pay of a promoted officer shall not in any case be fixed below the minimum of the Senior Time Scale. Since the amendments referred to above made the position clear, there can be no doubt that the principle laid down in Somarajan's case is equally applicable to all the officers of State Police service promoted to Indian Police Service (IPS)_ OP (CAT) No.75/2022 10 _and the non-State Civil Service officers promoted to Indian Administrative Service (IAS). The respondents shall accordingly fix the pay of the applicants taking note of the 2007 amendment and the subsequent amendments and government notifications referred to in the preceding paragraphs and the arrears be paid within three months from the date of receipt of a copy of this order.”_ 5. It could thus be seen that the case of the original applicant to have his pay fixed in accordance with the principle laid down in _**T.M.Somarajan**_ (supra) has been accepted by the Tribunal. The Tribunal also took stock of the amendment to the IPS/IFS (Pay) Rules, 2007, as also, the amendment to the same as per a subsequent notification dated 03.03.2010. Accordingly, the Tribunal directed the pay to be fixed as per the principle laid down in _**T.M.Somarajan**_ (supra), after taking note of the 2007 amendment and the subsequent amendments. Although the respondents carried a review before the Tribunal, the same was dismissed. The State of Kerala and the State Police Chief filed an Original Petition before this Court O.P.(CAT) No.285/2016 challenging Ext.P1 order of the Tribunal, which was dismissed vide Ext.P2 judgment on the technical ground that the petitioner failed to challenge the orders in all original applications, forming part of the common order in Ext.P1 and therefore, such orders OP (CAT) No.75/2022 11 which are not challenged, operates as _res judicata_ , disabling the court from entertaining the Original Petition only from O.A. Nos.512/2013 and 923/2013 (preferred by the petitioner herein). However, the Division Bench clarified in Ext.P2 judgment as follows: _“3. We clarify that the first respondent – G.Somasekhar – is not entitled to any more benefits than that was granted in Union of India v. T.M.Somarajan & Ors. [2010 (1) SCC 129]”_ The Special Leave Petitions preferred challenging Ext.P2 judgment was also dismissed. It could thus be seen that what was essentially granted to the petitioner vide Exts.P1 and P2 is fixation of pay in accord with the principle laid down in _**T.M.Somarajan**_ (supra). 6. We will now look at the facts and the dictum/principle laid down in _**T.M.Somarajan**_ (supra), since the instant case is to be governed by that dictum. The 1[st] respondent in that case, who was the member of State Police service, was inducted to the Indian Police Service with effect from 09.12.1995. His basic pay in the State cadre at the time of such induction was Rs.4,650/- per month, plus a special pay of Rs.100/-. However, after his entry into IPS, his pay was refixed at Rs.4,250/-, plus special pay of Rs.200/-, thereby, occasioning a reduction in the pay OP (CAT) No.75/2022 12 scale. The Honourable Supreme court discussed the view taken by the Tribunal in paragraphs 6 onwards, which is extracted here below: _“6. The Tribunal had held that the pay of Respondent 1 could not be reduced from Rs.4650 to Rs.4250 particularly because of the Rules governing the pay scales of such State cadre police officers who were inducted into the IPS cadre. For that purpose, the Tribunal took stock of the IPS (Pay) Rules, 1954 and more particularly, Rule 4(5) thereof . The Tribunal also took into account Section III of Schedule II which is referred to in Rule 4(5). On reading of the same, the Tribunal correctly came to the conclusion that the pay of Respondent 1 should have been fixed at Rs.4900 and he was also entitled to a special pay of Rs.100._ _7. Besides this, the Tribunal also took into account Section I of Schedule II of the IPS (Pay) Rules, 1954. In para 8 of its order, the Tribunal explained as to how Respondent 1 was entitled to higher pay. Ultimately, it wrote a finding that Respondent 1 was entitled to get his initial pay in IPS cadre fixed at Rs.4900 p.m. in accordance with the proviso to clause (ii) Section I of Schedule II. It also came to the conclusion that the Central Government had the power to erase any anomaly caused in fixing the pay of the officer concerned who had been inducted into the IPS cadre._ _8. Ultimately, the Tribunal also referred to the peculiar anomaly caused in this case by a number of juniors of Respondent 1 getting more pay than that of Respondent 1 who, though was inducted into the IPS cadre earlier to his juniors, faced an anomaly of earning salary lower to his juniors and even lesser than what he earned as a State cadre police officer._ _9. The Tribunal ultimately issued five directions which are as under:_ _1. The impugned order, A-1 dated 2-9-1997 is set aside._ _2. The impugned order, A-2 dated 4-2-1998 which practically reiterates the interpretation of the Rules as given in A-2 and the conclusions drawn therein is set_ OP (CAT) No.75/2022 13 ## _aside._ _3. The impugned order, A-16 dated 22-5-2000 of the DoPT is set aside._ _4. We declare that the applicant is entitled to have his initial pay fixed in the IPS cadre on the basis of the pay drawn by him in the non-IPS cadre as a confirmed Superintendent of Police as on 9-12-1995 without applying the restrictive definition of the expression "higher scale of pay" occurring in definition clause (iii) of Schedule II of the Indian Police Service (Pay) Rules, 1954._ _We further declare that in the applicant's case the context requires such interpretation of the meaning of expression "higher scale of pay" that should not cause the anomalous situation of the applicant deriving less pay and allowance than his juniors some of whom were not even found fit to be promoted to IPS along with him and hence were considered for promotion on subsequent date or dates._ _We also declare that the anomaly in the applicant's initial pay fixation in IPS is to be necessarily removed by applying the provisions of clause (vi) of Schedule II of the Indian Police Service (Pay) Rules, 1954._ _The first respondent is directed to pass appropriate orders and ensure removal of the anomaly in the applicant's initial pay fixation in IPS by applying the provisions of clause (vi) and fixing the applicant's initial pay in IPS on the basis of his actual pay in the higher scale of the Superintendent of Police (non-IPS) as on the date of his promotion to IPS._ _5. The above orders and directions shall be carried out and the consequential benefits including arrears, if any, flowing therefrom be granted to the applicant at an early date and in any case, within a period of four months from the date of receipt of copy of this order."_ 7. In this regard, we take note that the findings of the Tribunal was OP (CAT) No.75/2022 14 accepted by the High Court and the Original Petition challenging the order of the Tribunal was dismissed. By virtue of the observations in paragraph 14 in _**T.M.Somarajan**_ (supra), the Honourable Supreme Court concurred with the findings of the Tribunal, as affirmed by the High Court. Paragraph 14 of the judgment is extracted here below: _“14. We have considered the order of the Tribunal in detail. We are in agreement with the Tribunal's well-considered order as also of the High Court. In our opinion, after entering into the IPS cadre from the State Cadre Service, the pay of such an officer should not be reduced. With these observations, we feel that there is no infirmity in the orders of the Tribunal and the High Court. We do not see any merit in this appeal which is, accordingly, dismissed.”_ 8. It therefore follows that the above methodology accepted by the Tribunal in the matter of fixation of pay of the 1[st] respondent has to be followed in the instant facts as well, in as much as Exts.P1 and P2 orders have directed and clarified that the petitioner herein is entitled to benefits in terms of the principle laid down in _**T.M.Somarajan**_ (supra). 9. As a matter of fact, the Government had no contrary stand in the first M.A (Ext.P2) preferred by the petitioner seeking enforcement of the OP (CAT) No.75/2022 15 Annexure-M.A.3 order to Ext.P1 of the Tribunal. The Government produced Annexure-M.A.4 Government Order dated 30.07.2020, stating _inter alia_ that the Accountant General stands directed to take necessary steps to implement the orders of the Tribunal by issuing a revised pay slip on the basis of the dictum laid down in _**T.M.Somarajan**_ (supra), and to disburse all consequential benefits to the petitioner herein (including arrears). Based on this Government Order, the Tribunal closed Ext.P2 M.A.No.00038/2020 as per Ext.P3 Order dated 20.08.2020. However, the Accountant General sought for clarification to the Government vide Annexure-R2(a) dated 13.01.2021 (forming part of Ext.P5 reply statement in M.A. No.484/2020), essentially on the question of deduction of excess DA drawn by the petitioner. According to the Accountant General, the resultant pay, after deducting the D.A drawn in excess, is to be protected, which would result in reduction of basic pay, plus D.A. 10. In answer to Annexure-R2(a) clarification sought for by the Accountant General, the Chief Secretary issued Annexure-R2(b) to Ext.P5 letter - stating for the first time - that the petitioner is entitled to OP (CAT) No.75/2022 16 get his pay fixed in Level 13 (Selection Grade), since his scale exceeds the maximum pay band of Junior Administrative Grade, after deduction of the excess D.A. The Accountant General was directed to refix the pay accordingly vide Annexure-R2(b). The petitioner filed MA Nos.484/2020, to which the State filed a reply statement dated 31.03.2021 (Ext.P5) and also an additional reply statement dated 27.10.2021 (Ext.P7). Paragraph 7 of the additional reply statement is relevant and extracted here below: _7. The fixation of pay and allowances of the applicant was done in the same manner as in Somarajan's case keeping in view the principle followed for fixation of pay i.e. protection of pay drawn in the State Cadre and also in accordance with the existing rules governing pay regulation of All India Service Officers as explained below:-_ _While implementing the orders in Somarajan's case the pay was protected in the scale of Junior Administrative Grade (JAG scale) by fixing pay at the maximum of the time scale of pay and the difference as Personal Pay based on the revision of pay scales as ordered in 5th Central Pay Commission. In the case of the applicant, the pay drawn by him in the State Police Service will have to be protected as was done in the case of T.M.Somarajan. The applicant joined IPS cadre on 17.08.2013 i.e during the currency of pay revision as recommended by the 6th Central Pay Commission._ _The applicant was drawing a pay of Rs.50840 in the scale of pay of 42640-58640 prescribed by the State Govt. in Pay Revision Orders 2009. As per the said orders of Hon'ble Tribunal and the orders issued by the State Govt in pursuance of the judgment vide GO(Rt) No.2394/2020/ GAD dated 30.07.2020, his pay is to be protected in the JAG Scale on PB4 15600-39100+ GP of Rs.7600._ OP (CAT) No.75/2022 17 _The principles for initial fixation of pay of State Police Officers on their appointment to IPS are laid down in Sub rule (3) of Rule 5 read with Schedule I of IPS (Pay) Rules 2007. Nevertheless, as the maximum of the Pay Band is 39100, his pay could be fixed only at the maximum of the JAG scale w.e.f. 17.08.2013 (date of joining in IPS) as shown below:-_ |_State Police Service_|_State Police Service_|_IPS cadre_|_IPS cadre_| |---|---|---|---| |_Pay_|_50840_|_Pay+Grade_ _Pay_|_39100+7600=46700_| |_DA(63%)_|_32029_|_DA(90%)_|_42030_| |_Total_|_82869_|_Total_|_88730_| 11. Further, as could be seen from paragraph 6 of the impugned order, the Tribunal took stock of a statement filed by Deputy Accountant General (Pension), wherein the contention of the authorised officer representing the office of the Accountant General is seen recorded as follows: _“6. In reply to the contentions of the Counsel for the Applicant, this office informed that the dictum laid down in Somarajan's case (supra) could not be followed as such in the instant case as the circumstances in both the cases are not similar. It was pointed out that at the time of Induction to IPS (1995) of Shri Somarajan, there was equivalence in Central and State pay structures whereas after the 2004 State Pay Revision, there was no equivalence in the two pay structures necessitating deduction of DA merged at the time of State Pay Revision. It was also pointed out that the State Government in their letter dated 26.03.2021 while fixing in IPS also had instructed deduction of excess DA while fixing the pay of the applicant's pay in IPS._ OP (CAT) No.75/2022 18 _7. It was also pointed out that complying with the contentions of the applicant would be at variance with the directions of DoPT. As per clause (i) of Schedule I of IPS(Pay) Rules, "if the pay scales have been revised subsequent to the 1[st] day of January, 2006, the dearness allowance, dearness pay, interim or additional relief sanctioned by the State Government after the 1[st] day of January. 2006 and merged in the revised pay scales, shall be excluded."_ 12. Vide the impugned Order, the Tribunal accepted the stand of the respondents and observed in paragraph 9 that the respondent authorities, who are competent to give effect to the Order of the Tribunal had stated that the dictum laid down in _**T.M.Somarajan**_ (supra) could not be followed, since the facts are different. The Tribunal took note of the respondents' contention that at the time of induction of Somarajan to IPS, there was equivalence in central and pay structures, whereas after the State Pay Revision of the year 2004, there was no equivalence in the two structures, thus, ncessitating reduction of DA merged at the time of State Pay Revision. The Tribunal found fault with the applicant in not filing objection to the above claim of the respondents. 13. The Tribunal found that all what was held in _**T.M.Somarajan**_ (supra) is that pursuant to the induction to the IPS cadre, the pay should OP (CAT) No.75/2022 19 not be reduced to the prejudice of the officer so inducted and a relief to the effect that the basic pay at the time of entry to IPS to be fixed above to Rs.15,840/-, which was the basic pay in Kerala Service, as now sought for by the petitioner, was not granted by the Tribunal. In as much as the total emoluments of the petitioner has increased pursuant to his induction to IPS from Rs.82,869/- to Rs.90,231/-, there is protection of pay. The Tribunal ultimately accepted the reply statement of the 4[th] respondent dated 12.07.2022, wherein the above contentions are seen urged and dismissed the Miscellaneous Application. 14. We are afraid whether the course adopted by the Tribunal is legal and proper. We notice that there is no whisper in the reply statement filed by the Government to the first Miscellaneous Application preferred by the petitioner as regards the pay scale of the petitioner exceeding the maximum pay of Junior Administration Grade. There is no claim in that reply affidavit that the petitioner is only entitled to mere protection of pay, after fixing the scale at Level 13. It is only in the reply affidavit to the 2[nd] Miscellaneous Application and by virtue of additional reply affidavit that the above case is seen espoused. We are of the definite view that no OP (CAT) No.75/2022 20 principle, which was urged before the Tribunal culminating in AnnexureM.A.3 Order in Ext.P1, can be imported as a defence to the mode of compliance of that Order, in as much as the same had attained finality. The respondent Government had sought for a review of the said Annexure-M.A.3 Order and they also filed an Original Petition before this Court, as also, an S.L.P. before the Honourable Supreme Court. All attempts of the respondent Government to assail Annexure-M.A.3 order became unsuccessful. Annexure-M.A.3 order to Ext.P1 order, which thus became final, directed pay fixation in accord with the principle laid down in _**T.M.Somarajan**_ (supra). 15. Of course, the Tribunal also directed to take note of the amendment of the year 2007 and the subsequent amendment to the I.P.S/I.FS (Pay) Rules. However, the said direction to note the Rules also could not be interpreted, so as to sideline the main declaration of law based on _**T.M.Somarajan**_ (supra) and the direction to fix the pay accordingly. The present fetter, as espoused by the respondents to the effect that petitioner's pay will exceed the maximum pay of Junior Administration Grade, is a totally new contention, which was neither OP (CAT) No.75/2022 21 urged, nor agitated before the Tribunal, or for that matter, before the High Court or even the Supreme Court. We do not intend to say that the respondents' contention to the effect the D.A. merged has to be deducted is without any merits or bonafides. However, such a contention at a belated stage cannot be given due credit of, unless and until AnnexureM.A.3 Order in Ext.P1 order is got modified by a process known to law. The respondents cannot be permitted to take recourse to any premise or ground, which would run contrary to the dictum laid down in _**T.M.Somarajan**_ (supra). The principle laid down in _**T.M.Somarajan**_ (supra), as also, the mode of working, has been narrated in detail in paragraphs 6 to 9 of the judgment of the Honourable Supreme Court, which we have already extracted above. Modification if any to the same, if inevitable, ought to have been sought before the Tribunal in the manner known to law, instead of arrogating itself to contend that _**Somarajan's**_ case cannot be followed in the instant facts. 16. We therefore find that the impugned Ext.P12 Order cannot be sustained in law and the same is therefore set aside. We remit the matter OP (CAT) No.75/2022 22 to the Tribunal for fresh consideration in accordance with law and the observations made in this judgment. In the absence of any modification sought for to Annexure M.A3 Order (produced in Ext.P1) dated 7-1-2016 of the Tribunal, we may opine that Ext.P8 rejoinder may guide the Tribunal in resolving the controversy, in as much as, the contention of the Chief Secretary in Annexuere-R2(b) reply to Ext.P5 that the scale of the petitioner is liable to be fixed at Level-13 is accepted by the petitioner in paragraph No.6 of Ext.P8 rejoinder. This Original Petition is allowed with the afore referred observations and directions. _Sd/-_ ## **ALEXANDER THOMAS, JUDGE** _Sd/-_ ## **C.JAYACHANDRAN, JUDGE** ww OP (CAT) No.75/2022 23 ## **APPENDIX OF OP (CAT) 75/2022** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE M. A. NO.484/2020 IN OA. NO. 923/2014 ALONG WITH ANNEXURES MA3 TO MA7.** **EXHIBIT P2 TRUE COPY OF THE MISCELLANEOUS APPLICATION MA NO.38/2020 IN OA NO.923/2014, ALONG WITH ANNEXURES MA1 AND MA2.** **EXHIBIT P3 TRUE COPY OF THE CAT ORDER DATED 20-08-2020 IN MA NO. 38/2020 OF OA NO.923/2014.** **EXHIBIT P4 THE TRUE COPY OF THE MA NO.592/2020 ALONG WITH ANNEXURE MA8 TO MA10.** **EXHIBIT P5 THE TRUE COPY OF THE REPLY STATEMENT DATED 31-03-2021, FILED BY 2ND RESPONDENT IN M.A. NO. 484/2020 ALONG WITH THE ANNEXURES R2(A) AND R2(B).** **EXHIBIT P6 TRUE COPY OF THE APPLICANT REJOINDER DATED 24-06-2021, FILED AGAINST THE REPLY STATEMENT OF THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE 4TH RESPONDENT ADDITIONAL REPLY STATEMENT DATED 27-10-2021.** **EXHIBIT P8 TRUE COPY OF THE APPLICANT REJOINDER FILED AGAINST THE REPLY STATEMENT DATED 07-12-2021 OF THE 4TH RESPONDENT ALONG WITH ANNEXURES MA11 TO MA17.** - **EXHIBIT P9 TRUE COPY OF THE STATEMENT DATED 24-02-2022, FILED BY THE COUNSEL OF THE APPLICANT ON THE PROCEEDINGS OF THE VIDEO CONFERENCE.** OP (CAT) No.75/2022 24 |**EXHIBIT10**|**THE TRUE COPY OF THE 4TH RESPONDENT**| |---|---| ||**ADDITIONAL REPLY STATEMENT, DATED 12-07-2022**| ||**ALONG WITH ANNEXURES R4(A) TO R4(D).**| |**EXHIBIT P11**|**COPY OF THE ORIGINAL APPLICATION OA**| ||**NO.923/2014 WITHOUT ANNEXURES THEREIN.**| |**EXHIBIT P12**|**THE COPY OF THE ORDER OF THE CAT DATED 07-**| ||**11-2022 IN MA. NO. 484/2020 OF OA NO.**| ||**923/2014.**|