M.K. Balachandran Pillai v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 30TH DAY OF MAY 2014/9TH JYAISHTA, 1936** **WP(C).No. 18720 of 2009 (Z)** **---------------------------OA NO. 417/2008 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 11-03-2009** **....** ## **PETITIONER:** **--------------------------** **M.K.BALACHANDRAN PILLAI, S/O.LATE SRI.K.KRISHNA PANICKER,AGED 53 YEARS, SECTION OFFICER/COURT OFFICER, CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, NOW WORKING AS DEPUTY REGISTRAR, CENTRAL ADMINISTRATIVE TRIBUNAL, AHAMMEDABAD BENCH, RESIDING AT KRISHNANJALI, 28/2903, PONNETH SOUTH ROAD, KADAVANTHRA, ERNAKULAM.** **BY SRI.M.K. BALACHANDRAN PILLAI(PARTY-IN-PERSON)** **RESPONDENTS:** **----------------------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL AND PUBLIC GRIEVANCES AND PENSIONS, NEW DELHI.** ## **2. THE REGISTRAR CENTRAL ADMINISTRATIVE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI.** **3. THE REGISTRAR CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, ERNAKULAM.** **BY SRI.P.PARAMESWARAN NAIR,ASST.S.G.OF INDIA BY ADV. SRI.A.SUDHI VASUDEVAN, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2014, THE COURT ON 30/05/2014 DELIVERED THE FOLLOWING:** **Kss** ## **WP(C)NO.18720/2009 (Z)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE FINALS ORDER DATED 11/03/2009 IN O.A.NO.417/2008 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH.** **EXT.P2: TRUE COPY OF THE FINALS ORDER DATED 18/04/2001 IN O.A.NO.160/2000 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXT.P3: TRUE COPY OF THE RELEVANT PORTION OF THE FINAL SENIORITY LIST OF UDCs IN THE CENTRAL ADMINISTRATIVE TRIBUNAL, AS ON 1/11/1989 ISSUED ON 5/11/2003. EXT.P4: TRUE COPY OF THE ORDER DATED 6/11/2003 IN MA 672/2003 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXT.P5: TRUE COPY OF THE ORDER NO.PB/4/1/2004-H DATED 11/02/2004.** **EXT.P6: TRUE COPY OF THE ORDER DATED 24/02/2004 IN CP(C)6/2004 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXT.P7: TRUE COPY OF THE REPRESENTATION DATED 24/03/2004.** **EXT.P8: TRUE COPY OF THE RELEVANT PORTION OF THE REVISED SENIORITY LIST OF UDCs AS ON 1/11/1989.** **EXT.P9: TRUE COPY OF THE RELEVANT PORTION OF THE OFFICE ORDER NO.F NO.PB 1/16/2005 ESTT TO II DATED 29/09/2005 ISSUED FOR THE 2ND RESPONDENT.** **EXT.P10: TRUE COPY OF THE REPRESENTATION DATED 17/07/2006.** **EXT.P11: TRUE COPY OF THE REVISED FINAL SENIORITY LIST OF ASSISTANTS AS ON 1/1/1991 ISSUED FOR THE 2ND RESPONDENT.** **EXT.P12: TRUE COPY OF THE ORDER DATED 6/06/2007 ISSUED FRO THE 2ND RESPONDENT ALONG WITH CORRIGENDUM DTD. 9/10/2007.** ## **EXT.P13: TRUE COPY OF THE REPRESENTATION DATEDC 22/11/2007.** **EXT.P14: TRUE COPY OF THE MEMO NO.4/13(3)/86-ADMIN DATED 10/06/2008 ISSUED FOR THE 3RD RESPONDENT.** **EXT.P15: TRUE COPY OF THE ORIGINAL APPLICATION NO.417/2008 WITHOUT DOCUMENTS FILED BY THE PETITIONER BEFORE THE TRIBUNAL.** **Kss** **..2/-** **..2....** ## **WPC.NO.18720/2009 (Z)** **EXT.P16: TRUE COPY OF THE REPLY STATEMENT WITH DOCUMENTS FILED ON BEHALF OF THE RESPONDENT 1 TO 3.** **EXT.P17: TRUE COPY OF THE REJOINDER DATED 24/01/2009 FILED BY THE PETITIONER.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1(a): TRUE COPY OF THE PROCEEDINGS DATED 30/06/2009 ISSUED BY THE UNDER SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF PERSONAL AND TRAINING, MINISTRY OF PERSONAL, PUBLIC GRIEVANCE & PENSIONS.** **EXT.R1(b): TRUE COPY OF THE COMMUNICATION DATED 12/08/09 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## THOTTATHIL B.RADHAKRISHNAN & ## A.MUHAMED MUSTAQUE, JJ. ---------------------------------------------------- W.P.(C) No.18720 of 2009 ---------------------------------------------------Dated this the 30[th] day of May, 2014 ## JUDGMENT ## Muhamed Mustaque, J. - 1.This writ petition is filed challenging the order passed by the Central Administrative Tribunal, Ernakulam Bench. - 2.The petitioner approached the Central Administrative Tribunal feeling aggrieved by the refusal on the part of respondents to step up his pay at par with junior and also on account of denial of the arrears of pay and allowances consequent upon retrospective promotions granted to him due to revision of seniority. - 3.The petitioner joined on deputation in the Central Administrative Tribunal (CAT) in 1986 as Lower Division Clerk (LDC) and he was regularly absorbed as Upper Division Clerk W.P.(C) No.18720 of 2009 2 (UDC) in the CAT with effect from 1.11.1989 and promoted as Assistant with effect from 31.5.1994 and, thereafter, as Section Officer on ad hoc basis with effect from 16.2.2002 and on regular basis with effect from 19.2.2003. He moved the Tribunal on several occasions with regard to the anomalies in the seniority list and, as a consequence thereof, his promotion as Assistant was antedated from 31.5.1994 to 1.10.1990, notionally. The final seniority list of Assistant was also published and the date of promotion of the petitioner as Section Officer was antedated with effect from 1.10.1998. - 4.The petitioner's present plea is that the fixation of pay as the Assistant and the Section Officer with reference to his junior Sri.V.K.Sreevastava and to pay, the pay and allowances with arrears of such promotion. The present claim, essentially, emanates out of the order passed by the Tribunal in O.A.No.160 of 2000 dated 18.4.2001, in which, the Tribunal directed the respondents to grant monetary benefits, if any, within a period of three months, consequent upon the revision of seniority. W.P.(C) No.18720 of 2009 3 - 5.The crux of the issue in earlier round of litigation was on account of refusal to reckon the seniority of the petitioner in the post held by him in the parent department. The Hon'ble Supreme Court in M.Ramachandran v. Govind Ballabh [(1999) 8 SCC 592], held that the seniority should be reckoned taking into account the analogous or highest post held in the parent department. The petitioner commenced his service as Routine Grade Assistant in the High Court of Allahabad , the said post is equivalent to the post of LDC in the Central Government. Thereafter, the petitioner was promoted to the post of Lower Division Assistant, a post analogous to the post of UDC. This was in the year 1983. - 6.The Tribunal, following the judgments of the Hon'ble Supreme Court in Union of India v. R. Swaminathan [(1997) 7 SCC 690], Union of India v. M.Suryanarayana Rao [(1998) 6 SCC 400] and Kerala State Electricity Board v. Saratchandran P. [(2008) 9 SCC 396], turned down the claim of the petitioner inrespect of his prayer for step up the pay at par with his junior Sreevastava. We also find that there is no reason for interfering W.P.(C) No.18720 of 2009 4 with such finding, especially, when the facts and circumstances of the case reveal that Sreevastava was promoted as Assistant, prior to the petitioner, on the basis of the then existing Bench-wise seniority list of UDCs. The seniority list of UDCs was prepared on all India basis only from 1989. - 7.The next prayer sought by the petitioner is for arrears of pay and allowances consequent upon the retrospective promotion granted to him. Both sides have cited various decisions of the Hon'ble Supreme Court in support of their arguments. We do not find any reason to refer to those judgments, as there is an inter party binding judgment of the Tribunal in O.A.No.160 of 2000, produced as Ext.P2 in the writ petition. It is ordered in the above judgment that the petitioner is entitled to revision of seniority along with monetary benefits, if any, and the same shall be given within a period of three months from the date of receipt of a copy of that order. It is argued by the petitioner that the question regarding entitlement of monetary benefits has become final and what is left to the decision of the establishment is the quantification of such monetary benefits, W.P.(C) No.18720 of 2009 5 as the Tribunal left it to the discretion of the establishment by referring to the word, “if any”. We find considerable force in this argument. In State of Kerala and others v. E.K.Bhaskaran Pillai [2007 (2) KHC 972], it was held by the Hon'ble Supreme Court that there is no hard and fast rule can be laid down by courts in the matter of claim for back wages consequent upon the retrospective promotion. It was held that the principle of 'no work no pay' cannot be accepted as a rule of thumb. In the light of the above decision of the Hon'ble Supreme Court, we have to consider the direction of the Tribunal for grant of monetary benefits, if any. We conclude it by saying that a right is declared and that the quantification is alone left to the discretion of the establishment and, therefore, the establishment cannot turn down the right of the petitioner to claim arrears of pay and allowances. We see that no reason has been assigned while rejecting the claim of the petitioner for pay and arrears, as per Ext.P15, produced in the writ petition. Now, to what extent the arrears of pay can be claimed by the petitioner, is the question that arises for consideration. We notice that the petitioner is entitled to reckon service equivalent W.P.(C) No.18720 of 2009 6 to the post held by him in the parent department by virtue of the judgment in M.Ramachandran's case (supra). That judgment was rendered on 21.9.1999. Certainly, the establishment had an opportunity to comply with the decision of the Hon'ble Supreme Court for initiating steps to restore the seniority of the employee like the petitioner. It is to be noted that the petitioner was promoted as Section Officer on ad hoc basis with effect from 16.8.2002 and on regular basis with effect from 19.12.2003. The petitioner's promotion as Assistant was antedated from 31.5.1994 to 1.10.1990 and as a Section Officer with effect from 1.10.1998 consequent upon the judgment in O.A.No.160 of 2000. It is also to be noted that all these exercises were done granting promotion was only in the year 2007. If timely promotion was given to the petitioner consequent upon the declaration of law by the Hon'ble Supreme Court in Ramachandran's case (supra), the petitioner would have been in actual service as Section Officer in the year 1999 itself, instead of 2002. Therefore, we are of the view that the petitioner ought to have been given atleast arrears of pay as Section Officer from the date of the judgment of the Hon'ble W.P.(C) No.18720 of 2009 7 Supreme Court in Ramachandran's case (supra) dated 21.9.1999. 8.We, therefore, declare that the petitioner is entitled to pay the arrears of the Section Officer from 1.10.1999 till 31.1.2002. The request for the arrears of pay based on the antedated promotion as Section Officer from 1.10.1998 is rejected. The petitioner's claim for arrears of pay as Assistant from 1.10.1990 is also rejected. The respondent shall pay difference of salary and allowances due to the petitioner with effect from 1.10.1999 till 31.1.2002 together with simple interest at 12%. This shall be paid to the petitioner within a period of three months from the date of receipt of a copy of this judgment. Sd/- ## THOTTATHIL B.RADHAKRISHNAN, JUDGE Sd/A.MUHAMED MUSTAQUE, JUDGE ln /True copy/ P.A. to Judge