OP (CAT) NO. 297 OF 2016

``` OP (CAT) NO. 297 OF 2016 ``` -1- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE S.V.BHATTI & ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 ``` ``` OP (CAT) NO. 297 OF 2016 ``` ``` OA 1020/2013 OF CAT,EKM BENCH ``` ## **`PETITIONER/S:`** ``` KANAKAMANI,AGED 51 YEARS, SENIOR S.S.A (TBP), BHAVISHYA NIDHI BHAVAN, SUB REGIONAL OFFICE, KOZHIKODE, KERALA STATE, PIN. 678 006. ``` ``` BY ADVS.SRI.C.RAJENDRAN SRI.C.P.ANIL RAJ/SRI.D.SAJEEV ``` ## **`RESPONDENT/S:`** - `1 GOVERNMENT OF INDIA, REP. BY THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF LABOUR AND EMPLOYMENT, NEW DELHI-110 001.` - `2 THE EMPLOYEES PROVIDENT FUND ORGANIZATION (MINISTRY OF LABOUR AD EMPLOYMENT, GOVERNMENT OF INDIA), BHAVISHIYANIDHI BHAVAN, 14-BHIKAIJI CAMA PLACE, NEW DELHI-110 066.` - `3 THE REGIONAL PROVIDENT FUND COMMISSIONER REGIONAL OFFICE, BHAVISHIYANIDHI BHAVAN, PATTAM, THIRUVANANTHAPURAM, KERALA STATE -695 004.` ``` BY ADV SRI.M.L.SURESH KUMAR, CGC ``` ``` SMT. NITA. N. S - FOR R2 & R3 ``` ``` THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (CAT) NO. 297 OF 2016 ``` -2- # **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **OP (CAT) NO. 297 OF 2016** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT (Dated this the 3[rd] day of March 2023) Basant Balaji J., The petitioner was the applicant and the respondents were the respondents in O.A.No.1020 of 2013 before the Central Administrative Tribunal, Ernakulam Bench. 2. The O.A. was filed for quashing Annex.A4 to A6 and A8 to the extent of fixing 31.3.2003 as the cut off date for the benefit of the enhanced scale of pay with respect to Time Bound Promotion (for short ‘TBP’). 3. A few facts necessary for the disposal of this O.P. are stated thus: ``` OP (CAT) NO. 297 OF 2016 ``` -3- The petitioner, on 28.4.1987, entered the service of the first respondent as Lower Division Clerk (LDC). She was promoted to the post of Upper Division Clerk(UDC)/Social Security Assistant (SSA) and was granted TBP and was placed on the scale of 5000-150-8000. The first respondent issued a notification stating that the revised pay scale of 5500-9000 is to be given to the time bound promotees, who have been promoted as SSA till 31.3.2004 and those promoted as SSA after 31.3.2004 will be in the pay scale of Rs.5000-150-8000. The petitioner submitted several repre- sentations before the third respondent to bring the pay scale of employees who got time bound promotions in the year 2004 at par with those who have been given time bound pro- motions in the revised scale of Rs.5500-9000. Since the representations were rejected, they approached the Tribunal. ``` OP (CAT) NO. 297 OF 2016 ``` -4- 4. The respondents filed a reply affidavit contending as follows:-The entry cadre in the organisation was LDC with promotion to UDC, section supervisor, and so on. Due to stagnation in the cadre of UDC, TBP scheme was introduced in 1992 in which the UDCs with 17 years of clerical service were entitled to a scale of Rs.1400-2300 on non functional basis subject to fitness. The applicant was appointed as LDC with effect from 28.4.1987. She was promoted to the post of UDC on adhoc basis during 1996 and later promoted as UDC on regular basis with effect from 28.5.2002. In 2004 a new cadre of SSA was introduced at the entry level of clerical service as part of cadre restructuring carrying the same pay scale as UDC. Thereafter, all persons holding the post of UDC on regular basis were re-designated as SSA in relaxation of eligibility conditions. The applicant was granted ``` OP (CAT) NO. 297 OF 2016 ``` -5- TBP upon her completion of 17 years of clerical service with effect from 28.4.2004. The Central Board of Trustees in a special meeting held on 28.4.2007 re-determined the pay scales of certain group B&C grades including Social Security Assistant with effect from 1.4.2004 notionally and monetary benefits from 1.9.2007. The revised scale of Rs.50008000 was granted after 60% of the combined strength of SSA and senior SSA replaced the existing TBP scheme with effect from 1.4.2004 as per a memorandum dated 14.11.2007. The TBP scheme was withdrawn from 8.10.2007. The Government of India has approved for grant of 5500-9000 from 1.4.2004 only for those Time Bound Promotees who were promoted upto 31.3.2004 treating them distinctively. As the applicant was granted TBP from 28.4.2004, ``` OP (CAT) NO. 297 OF 2016 ``` -6- she is not eligible for the benefit. Thus, the applicant is not entitled to get any relief in the OA. 5. The applicant filed a rejoinder stating that those who were discharging the same kind of duties, constituted one class and as such classifying them as violating Articles 14 and 16 of the Constitution of India. The classification is un- reasonable and therefore, prayed that the impugned orders are to be set aside. 6. The question to be decided is whether there is a reasonable classification or intelligible differentia between the employees who were enjoying TBP scheme upto 31.3.2004 with those who were enjoying the benefit from 1.4.2004 onwards. The Tribunal, on an appreciation of the facts and circumstances of the case, dismissed the petition. ``` OP (CAT) NO. 297 OF 2016 ``` -7- 7. As per Annex R3 dated 22.6.2004 all the regional Provident Commissioners were informed of the decisions of the Central Board of Trustees, EPF conveying the approval of deemed re-designation of all existing UDCs as on the date of notification as SSA as per the Recruitment Rules of SSA. The said clarification was made after detailed discussions or deliberations with the staff union and various field officers. 8. Annex.R4 clarified that the revised scale would be applicable with effect from 1.4.2004 notionally and the actual arrears is payable with effect from 1.9.2007. Through Annex.R5 circular dated 4.7.2008, it was clarified by the Employees Provident Fund Organisation that Group ‘C’ employees in the field offices were upgraded as per order dated 15.11.2007 and since certain doubts arose in some of the ``` OP (CAT) NO. 297 OF 2016 ``` -8- regional offices as to whether pay revision which is effective from 1.4.2004 with the approval of monetary benefits from 1.9.2007 would apply to all employees who were in service on or after 1.4.2004 and retired from their service before 1.9.2007. From Annex.R5 it is clear that due to the discontinuation of TBP scheme and the consequent restructuring of SSA grade, the benefit was allowed from 1.4.2004. The cir- culars and orders issued by the Government of India make it clear that the cut off date 1.4.2004 was fixed because of the restructuring of pay with effect from 1.4.2004. So there is rational nexus between the fixing of cut off date and there is no reasonable classification of employees of the same cadre because of the restructuring. The cut off date was fixed due to the effect of restructuring of pay. ``` OP (CAT) NO. 297 OF 2016 ``` -9- 9. The Apex Court **in Government of Andhra Pradesh v. N. Subbarayudu [(2008) 14 SCC 702]** , in paragraph Nos.5 to 9 held as follows:- “5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal.) 6. No doubt in D.S. Nakara v. Union of India; this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal. 7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has ``` OP (CAT) NO. 297 OF 2016 ``` -10- been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection. 8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad. Union of India v. Sudhir Kumar Jaiswal (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn. (vide SCC para 31). University Grants Commission v. Sadhana Chaudhary, etc. It follows, therefore, that even if no reason has been given in the counteraffidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result. 9. As has been held by this Court in Aravali Golf Club v. Chander Hass and in Govt. of A.P. v. P. Laxmi Devi the court must maintain judicial restraint in matters relating to the legislative or executive domain.” Thus, it can be held that the cut off date is neither arbitrary nor violative of Article 14 of the Constitution of India (See ``` OP (CAT) NO. 297 OF 2016 ``` -11- **Punjab State Coop. Milk Producers Federation Ltd., v. Balbir Kumar Walia [(2021) 8 SCC 784].** 10. We have gone through the order of the Tribunal in detail as well as the Annexures produced. We are of the considered opinion that the Tribunal was justified in dismissing the petition as there is reasonable nexus in fixing cut off date of pay revision between the employees who were enjoying TBP scheme upto 31.3.2004 and persons who got benefits from 1.4.2004 onwards. We do not find any grounds to interfere with the order of the Tribunal as the jurisdiction of the judicial review is very limited. Accordingly, the Original Petition fails and is dismissed. ## **Sd/-** **S.V.BHATTI, JUDGE** **Sd/BASANT BALAJI, JUDGE** _dl/_ ``` OP (CAT) NO. 297 OF 2016 ``` -12- ## **`APPENDIX OF OP (CAT) 297/2016`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 A TRUE PHOTOCOPY OF THE OA ALONG WITH THE ANNEXURES ``` ``` ANNEXURE A4 A TRUE PHOTOCOPY OF THE NOTIRICATION ``` ``` ANNEXURE A5 A TRUE PHOTOCOPY OF THE CIRUCLAR DATED 15.11.2007 ``` ``` ANNEXURE A6 A TRUE PHOTOCOPY OF THE CIRCULAR ``` ``` ANNEXURE A8 A TRUE PHOTOCOPY OF THE ORDER DATED 08.05.2011 ``` ``` ANNEXURE A1 A TRUE PHOTOCOPY OF THE OFFICE ORDER DATED 20.11.1989 ``` ``` ANNEXURE A2 A TRUE PHOTOCOPY OF THE ORDER DATED 30.09.1996 ``` ``` ANNEXURE A3 A TRUE PHOTOCOPY OF THE ORDER DATED 13.10.2004 ``` - `ANNEXURE A7 A TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT DATED 11.03.2013` ``` EXHIBIT P2 A TRUE PHOTO COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 2 AND 3 ``` ``` ANNEXURE R1 A TRUE PHOTOCOPY OF THE COMMUNICATION DATED 30.12.1991 ISSUED BY THE UNDER SECRETARY TO GOVERNMENT OF INDIA ``` ``` ANNEXURE R2 A TRUE COPY OF THE LETTER NO. P. IV3(9)/CADRE REVIEW/950/87 DATED 17.03.1992 ISSUED BY THE EPFO CENTRAL OFFICE, NEW DELHI ``` ``` OP (CAT) NO. 297 OF 2016 ``` ``` ANNEXURE R3 A TRUE COPY OF THE CLARIFICATION NO. HRD/4(12)2002/PETITIONER /17289 DATED 22.06.2004 ISSUED BY THE 1ST RESPONDENT ANNEXURE R4 A TRUE COPY OF THE OFFICE MEMORANDUM NO. HRD/1(9) PAY SCALE/PT II/60591 DATED 14.11.2007 ISSUED BY THE HEAD OFFICE, NEW DELHI. ``` ``` ANNEXURE R5 A TRUE COPY OF THE CIRCULAR DATED 04.07.2008 ISSUED BY THE MINISTRY OF LABOUR EMPLOYMENT, GOVT. OF INDIA ``` - `EXHIBIT P3 A TRUE PHOTOCOPY OF THE REJOINDER FILED BY THE PETITIONER TO THE REPLY AFFIDAVIT OF THE RESPONDENTS 2 AND 3` ``` EXHIBIT P4 A TRUE PHOTOCOPY OF THE ORDER OF CENTRAL ADMINISTRATIVE TRIBUNAL IN OA 1020/2013 DATED 18.08.2016 ```