O.P. (CAT) No. 112 of 2023, In the High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 22[ND] DAY OF AUGUST 2023 / 31ST SRAVANA, 1945 OP (CAT) NO. 112 OF 2023** **AGAINST THE ORDER IN OA 504/2019 OF CENTRAL ADMINISTRATIVE** ## **TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS 2 & 3 IN THE O.A.:** 1 THE ADMINISTRATOR OF LAKSHADWEEP UNION TERRITORY OF LAKSHADWEEP, KAVARATTI ISLAND, PIN - 682555 2 THE DIRECTOR, DEPARTMENT OF ART & CULTURE, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI ISLAND, PIN - 682555 BY ADV SAJITH KUMAR V. ## **RESPONDENTS/APPLICANT & 1ST RESPONDENT IN O.A.:** 1 T.C. KIDAVE, AGED 68 YEARS, S/O. LATE. ABDURAHIMAN HAJI, RETD. LIBRARY & INFORMATION ASSISTANT, PUBLIC LIBRARY AMINI ISLAND, DEPARTMENT OF ART & CULTURE, ANZAAF MAHAL HOUSE, AMINI ISLAND , UNION TERRITORY OF LAKSHADWEEP, PIN - 682552 2 UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF PERSONAL, PUBLIC GRIEVANCES AND PENSIONS, (DEPARTMENT OF PERSONAL AND TRAINING), NEW DELHI, PIN - 110003 BY ADVS. AASHIQUE AKTHAR HAJJIGOTHI AMINA AKTHAR(K/000552/2017) P.M.MOHAMMED SALIH(K/711/2014) ## **OTHER PRESENT:** BY SRI. AASHIQUE AKTAR HAJJIGOTHI-R1, SRI.S.MANU-DSGI **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 22.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. ---------------------------------------------------------------------------** ## O.P.(CAT) No. 112 of 2023 _[arising out of the order dated 15.09.2022 in O.A.No. 504/2019 on the files of the CAT, Ernakulam Bench ]_ **----------------------------------------------------------------------** Dated this the 22[nd] day of August, 2023 ## **J U D G M E N T** ## **Alexander Thomas, J.** This original petition, filed under Article 226 and 227 of Constitution of India, is directed against the impugned Ext.P1 final order dated 15.09.2022, rendered by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.504/2019, whereby the main pleas in the O.A., has been allowed. The petitioners herein are the respondents 2 & 3 in the O.A., R1 herein is the sole Original Applicant and R2 herein (Union Government) is R1 in the O.A. **2.** Heard, Sri. V. Sajith Kumar, learned Standing Counsel for the Lakshadweep Administration, appearing for the petitioners, Sri.Aashique Akthar Hajjigothi, learned counsel appearing for R1 herein/original applicant and Sri. S.Manu, learned Deputy Solicitor General of India appearing for R2 herein. O.P.(CAT)No.112/2023 -: 2 :- **3.** The prayers in the instant Ext.P2 Original Application, O.A.No. 504/2019, filed by the petitioner R1 herein, before the CAT, Ernakulam Bench, are as follows: i) Set aside Annexure A4 communication of the 3rd respondent. ii) Issue appropriate directions or orders directing the respondent to grant one increment for the period from 01.07.2009 to 30.06.2010 for the purpose of pensionary benefits and refix the pensionary benefits accordingly within a stipulated time period prescribed by this Hon'ble Tribunal in the interest of justice. iii) And pass appropriate such other orders as this Hon'ble Tribunal shall deem just in the facts and circumstances. iv) Grant such other reliefs that this Hon'ble Tribunal deem fit to grant under the facts and circumstances of the case. v) Grand the cost of the Original Application. **4.** The Tribunal, after hearing both sides, has rendered the impugned Ext.P1 final order dated 15/09/2022, disposing of the above O.A., by granting the main prayers therein, by ordering that the respondents therein shall grant one increment for the period from 01/07/2009 to 30/06/2010, for the purpose of pensionary benefits and re-fixing the pensionary benefits within the time limit, even though the petitioner has retired from service on 30/06/2010. The Tribunal, in Ext. P1, has mainly placed reliance on the verdict O.P.(CAT)No.112/2023 -: 3 :- rendered by the Madras High Court, as per judgment dated 21/03/2017, in WP(C) No. 15732/2017, which has allowed the pleas of the petitioner therein, by reversing the impugned verdict of the Central Administrative Tribunal, Madras Bench in O.A. No. 917/2015. The Tribunal has thus, followed the dictum laid by the Madras High Court in the aforesaid W.P.(C)No. 15732/2017, by holding that, even if the employee concerned has retired from service on 30[th] June of the year, the increment should be taken into account, for the purpose of pentionary benefits, etc., even if the increment becomes due only on the next day, namely the 1[st] July of the year concerned. **5.** Being aggrieved by the impugned Ext. P1 verdict of the Tribunal, respondents 1 & 2 in the O.A, has preferred the instant O.P., before this Court, by placing reliance on the judgment of a Division Bench of this Court in **Union of India v. Pavithran K.** [2022 (7) KHC 317 (DB) = 2023 (1) KLT 200], which had taken a contrary view to the above said verdict of the Madras High Court and it has been held therein that where the increment is due to the O.P.(CAT)No.112/2023 -: 4 :- employee/pensioner concerned only on the 1[st] of July of the year concerned, and he/she retires from service on the previous day (30[th] of June), then, there is no question of getting the above said benefit. **6.** Now, the matter in issue is covered fully in favour of R1 herein/original applicant, as per the dictum laid down by the Division Bench of this Court, as per common judgment dated 10.08.2023, in O.P.(CAT)Nos. 65, 67, 68, 71, 73, 84, 94, & 95 of 2023, wherein this Court has mainly placed reliance on the judgment dated 11.04.2023 rendered by the Apex Court in Civil Appeal No.2471/2023 (arising out of SLP(C)No.6185/2020) in the case in _**Director (Admn. and HR), KPTCL and others v. C.P. Mundinamani and others** [2023 SCC Online SC 401]_ . Construing a broadly similar provision in the service rules of the employer organization in _**C.P.Mundinamani's case (supra),**_ the Apex Court has held, in the judgment dated 11.04.2023 in the said Civil Appeal No.2471/2023, that where the increment has became due on 1st of the July in the year concerned and the employee concerned has retired from service on the previous day, ie., O.P.(CAT)No.112/2023 -: 5 :- 30.06.2023, still, the employee/pensioner is entitled to count the said increment for the purpose of pensionary and other retirement benefits. A purposive interpretation has been adopted by the Apex Court and the contrary view of certain High Courts, including the above said ruling of the Division Bench of this Court in the aforesaid _**Pavithran's case (supra)**_ , has been disapproved by the Apex Court. Following the above said verdict of the Apex Court in _**C.P.Mundinamani's case (supra)**_ , the Division Bench of this Court has rendered common judgment dated 10.08.2023 in O.P. (CAT).No. 65/2023 and connected cases, whereby the impugned verdict therein of the Tribunal, has been reversed by this Court and the benefit has been ordered to be given to the employees/pensioners concerned by following the dictum laid down in the Apex Court in _**C.P.Mundinamani's case (supra)**_ . In other words, the matter in issue is no longer resintegra and is fully covered in favour of the original applicant, as per the dictum laid down by the Division Bench of this Court in the common judgment dated 10.08.2023 in O.P.(CAT)No.65 /2023 and connected cases. O.P.(CAT)No.112/2023 -: 6 :- We are told that the provision of the Rules considered by the Division Bench in O.P.(CAT)No.65/2023 and the connected cases, is the same one involved in the present case. In other words, we are constrained to hold that, the present original petition, filed by the official respondents in the O.A., lacks merit and that the conclusion in the interim verdict of the Tribunal in this case is only to be upheld. **7.** In that view of the matter, it is ordered that no interference is called for, as regards the impugned verdict of the Central Administrative Tribunal, rendered as per Ext.P1 herein. The petition fails and accordingly, the original petition shall stand dismissed. However, it is ordered that the due benefits, as ordered by the Tribunal in terms of Ext.P1, shall be granted by the petitioners herein, to the original applicant, within two months from the date of receipt of a copy of the judgment. Moreover,we have also followed the dictum laid down by the Division Bench of this Court in O.P. (CAT)No.65/2023 and connected cases as well as the verdict of the Apex Court in _**C.P.Mundinamani's case (supra)**_ in the judgment rendered by us on 21.08.2023, in O.P.(CAT)No.110/2023 -: 7 :- O.P.(CAT)No.112/2023 in almost identical or similar situations. With these observations and directions the above original petition will stand dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **C. JAYACHANDRAN, JUDGE** TR2023 O.P.(CAT)No.112/2023 ## -: 8 :- ## **APPENDIX OF OP (CAT) 112/2023** PETITIONER ANNEXURES Annexure A1 THE PHOTOSTAT COPY OF THE ORDER DATED 15.09.2017 IN W.P.NO. 15732/2017 OF THE HON'BLE HIGH COURT OF MADRAS Annexure A2 THE COPY OF THE ORDER DATED 23.07.2018 OF THE HON'BLE SUPREME COURT IN SPECIAL LEAVE PETITION (CIVIL) NO. 22283/2018 Annexure A3 THE COPY OF THE REPRESENTATION DATED 27TH NOVEMBER 2018 SUBMITTED BY THE APPLICANT Annexure A4 THE COPY OF THE ORDER DATED 28.02.2019 ISSUED BY THE 3RD RESPONDENT. Annexure R2(a) TRUE COPY OF THE OM NO. 1/1/2008- 1C DATED 30.08.2008 Annexure R2(b) TRUE COPY OF THE CCS(RP) RULES,2008 Exhibit P1 A TRUE COPY OF THE ORDER DATED 15/09/2022 IN O.A. 504/2019 OF THE HON'BLE CAT Exhibit P2 A TRUE COPY OF THE ORIGINAL APPLICATION IN O.A. 504/2019 FILED BEFORE THE HON'BLE CAT Exhibit P3 A TRUE COPY OF THE REPLY STATEMENT