OP (CAT) No.4708/13 & 14/15 (OA 100/2012) and OP (CAT) No.14/2015, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** **OP (CAT).No. 4708 of 2013** **OA 100/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 25-07-2013** ## **PETITIONERS/APPLICANTS:** **1 SIVASANKARAN P. AGED 76 YEARS S/O.LATE MADHAVAN NAIR.R, RETD.ELC/B/PGT, SREEHARI, PARAMESH NAGAR, PLAVAKKODE, PALAKKAD678 002.** - **2 M.KESAVANUNNI AGED 79 YEARS RETD.ELC/PGT/RLY, SARANG, ALOOR, THIRUVALATHOOR(PO), KODUMBA, PALAKKAD.** - **3 P.N.RAMANATHAN AGED 77 YEARS RETD. ELC/PGT/RLY, PALAKEESHIL SREEVIHAR, AMBAT LANE, CHITTUR, PALAKKAD-678 101.** ## **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS/RESPONDENTS:** - **1 THE GENERAL MANAGER SOUTHERN RAILWAY, PARK TOWN, CHENNAI-600 103.** - **2 THE DIVISIONAL RAILWAYS MANAGER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD678 002.** **OP(CAT).4708/13 & 14/15** 2 - **3 THE SENIOR DIVISIONAL FINANCE MANAGER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD678 002.** - **4 THE SECRETARY DEPARTMENT OF PERSONNEL & TRAINING, NORTH BLOCK, NEW DELHI-110 001.** **BY ADVS. SRI.C.S.DIAS,SC, RAILWAYS SMT.SUMATHY DANDAPANI (SR.) SRI.C.S.DIASSC RAILWAYS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.09.2018, ALONG WITH OP (CAT).14/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP(CAT).4708/13 & 14/15** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** ## **OP (CAT).No. 14 of 2015** **OA 100/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS:** - **1 GENERAL MANAGER, SOUTHERN RAILWAY PARK TOWN, CHENNAI - 600 103.** - **2 THE DIVISIONAL RAILWAYS MANAGER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD - 678 002.** - **3 THE SENIOR DIVISIONAL FINANCE MANAGER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD - 678 002.** - **4 THE SECRETARY DEPARTMENT OF PERSONNEL & TRAINING, NORTH BLOCK, NEW DELHI - 110 001.** **BY ADV. SRI.C.S.DIAS,SC, RAILWAYS** ## **RESPONDENTS:** - **1 SIVASANKARAN P., 76 YEARS, RETD. ELC/B/PGT, SREEHARI, PARAMESH NAGAR, OLAVAKKAODE, PALAKKAD - 678 002.** - **2 M.KESAVANUNNI, AGED 79 YEARS ELC/PGT/RLY SARANG ALOOR, THIRUVALATHOOR P.O., KODUMBU, PALAKKAD.** - **3 P.N.RAMANATHAN, 77 YEARS, ELC/PGT/RLY, PALAKEESHIL SREEVIHAR, AMBAT LANE, CHITTUR, PALAKKAD - 678 101.** **OP(CAT).4708/13 & 14/15** 4 ## **BY ADV. SRI.U.BALAGANGADHARAN** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.09.2018, ALONG WITH OP (CAT).4708/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP(CAT).4708/13 & 14/15** 5 ## **JUDGMENT** Ravikumar, J 1.Both the captioned Original Petitions arise from the order dated 25.7.2013 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.100/2012. OP(CAT).4708/2013 is filed by the applicants in the said OA and OP(CAT).14/2015 is filed by the official respondents therein. Both the original petitions were heard together and are being disposed of by this common judgment. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance with their rank and status in the OA. - 2.The applicants were working as Electrical Chargman-B in the southern railway. They retired from service on 31.8.1995, 31.3.1992 and 31.5.1993 respectively. After their retirement, the 5[th] Central Pay Commission ('CPC' for short) made certain recommendations and the Railway Administration accepted the **OP(CAT).4708/13 & 14/15** 6 recommendations as can be seen from Annexure-A1 in Ext.P3, referred as such in OP(CAT).4708/2013. Pursuant to the acceptance of the recommendations, it issued Railway Services (Revised Pay) Rules, 1997 on 18[th] October, 1997. At the time of retirement of the applicants, they were actually drawing pay in the pre-revised scale of Rs.1400 - 2300. Taking into such aspects after their retirement they were granted pension and pensionery benefits. The contention of the applicants is that the recommendation of the 5[th] CPC was accepted by the Railways and consequently the post of Electrical Chargeman-B was renamed as Junior Engineer and the scale of pay attached to that post was revised to Rs 5000-8000. Later as per Annexure-R7 series the pension of the applicants were revised taking into account the revised scale of pay of Rs 5000 - 8000. Subsequently, the 6[th] CPC report was also accepted by the Railways and in implementation of the decision of the Government on the recommendation of the 6[th] CPC, the Ministry of **OP(CAT).4708/13 & 14/15** 7 Railways ordered revision of pension of the pensioners who retired prior to 2006 under Annexure-A4 in Ext.P3 dated 8.9.2008. Though the benefits flowing from the acceptance of the 5[th] CPC was granted, the applicants were not granted benefits flowing from the acceptance of the 5[th] CPC. It was initially granted to the 1[st] applicant. However, that order granting such benefit was subsequently cancelled. Consequently, orders revising the pension of the 1[st] applicant was issued. Needless to say that as regards applicants 2 and 3, the benefits of revision of pension of pre-2006 pensioners were not granted. In such circumstances seeking for the benefit flowing from the acceptance of the 6[th] CPC report, the applicants represented the matter before the authority. During its consideration, it was found that there occurred a mistake in the revision of pension of the applicants effected based on Annexure-A5. Consequently the pension fixed as per Annexure-A5 were again revised and consequently Annexures A5(a), A6 and A7 orders **OP(CAT).4708/13 & 14/15** 8 were issued. The pension of the applicants, once revised in the scale of pay of Rs 5000 - 8000 was consequently re-revised taking the scale of pay as Rs 4500 - 7000. Based on such revision, recovery was also sought to be effected. In the said circumstances applicants approached the Tribunal by filing O.A.559/2012. The said OA was disposed of as per Annexure-R1 in Ext.P4. As per the same, the pending representations submitted by the applicants were directed to be considered within the time stipulated thereunder. In compliance with the directions therein, those representations were considered and consequently Annexure-A8 in Ext.P3 order dated 16.9.2011 was passed holding that the revision of pension effected as per Annexures-A5(a), A6 and A7 requires no reconsideration. It is in the said circumstances that challenging AnnexureA8 OA.100/2012 was filed. The OA was dismissed and at the same time the Tribunal ordered that no recovery of excess pension paid to the applicants from 1.1.1996 to 31.12.2005 be made. **OP(CAT).4708/13 & 14/15** 9 It is in the circumstances OA.4708/2013 was filed challenging the order of dismissal of the OA by the applicants and the OP(CAT).14/2015 was filed by the respondents feeling aggrieved by the denial of the right to effect recovery. - 3.We have heard the learned counsel appearing for the applicants/petitioners herein and the learned counsel for the respondents. - 4.As noticed hereinbefore, the crux of the contention of the applicants is that they retired from the post of Electrical Chargeman-B and it is that post which was renamed as Junior Engineer-II. It is the pay attached to that post which was revised to Rs 5000 - 80000. According to them, in such circumstances, despite the fact that they had retired from services as Chargeman Grade-B, they are entitled to get the benefit of the revision effected pursuant to the acceptance of the 5[th] CPC. According to them, no error had crept in the revision of pension effected as per **OP(CAT).4708/13 & 14/15** 10 ## Annexure-A5. 5.On the contrary, the learned senior counsel Smt.Sumathy Dandapani appearing for the respondents in the former Original Petition contended that the post of Electrical Chargeman-B was re-designated as Junior Engineer Grade-II long later to the retirement of the applicants and it is further submitted that since the applicants were not possessing the entry level qualification for the said post of Junior Engineer they are not entitled to claim the benefit of the revision effected pursuant to the 5[th] CPC. The learned counsel for the applicants submitted that the impugned Annexure-A8 order would reveal that such a reason was not assigned therein. At the same time, the learned senior counsel contended that specific contention in that regard was taken in the reply statement filed by the official respondents before the Tribunal and that contention was specifically taken note of by the Tribunal as can be seen from the impugned **OP(CAT).4708/13 & 14/15** 11 order. It is submitted by the learned senior counsel that the 1[st] and 2[nd] applicants had passed the SSLC examination and the 3[rd] applicant had failed in passing the same. In such circumstances, they were not entitled to get the revised pension pursuant to the revision of scale of pay attached to the post of Junior Engineer as Rs 5000 - 8000. It is the further submission that in such circumstances they are entitled only to get the replacement scale of Rs 4500 - 7000 with effect from 1.1.1996 and that exactly what was granted as per Annexures A5(a), A6 and A7. A perusal of the impugned order would reveal that the Tribunal accepted the contentions raised by the official respondents and held that Annexures A5(a), A6 and A7 invite no interference. At the same time, as can be seen from the impugned order, the respondents were also refrained from recovering the excess pension paid to the applicants from 1.1.1996 to 31.12.2005. 6.As noticed hereinbefore, the contention of the **OP(CAT).4708/13 & 14/15** 12 applicants is that they retired from the post of Electrical Chargeman B and it is that post which was renamed as Junior Engineer Grade-II. The further contentions raised by the applicants are as follows :- But for their retirement prior to the redesignation of the post of Electrical Chargeman B as Junior Engineer II, they would have been re-designated as Junior Engineer Grade-II. Annexure-R9 series would reveal that a conscious decision was taken by the Railway authorities to grant the higher scale of pay of Rs 5000 – 8000 to the applicants and since the applicants had been drawing pension at that revised scale for a number of years there was no justification to scale it down. They relied on the provisions under Rule 90 of Railway Services Pension Rules in support of the said contentions. 7.In the light of the aforesaid rival contentions, the question to be considered in the former Original Petition is whether there **OP(CAT).4708/13 & 14/15** 13 is any substance in the contention of the applicants that they were entitled to get their pension revised taking into account the revision of pay attached to the post of Junior Engineer Grade-II and it was rightly granted to them earlier. From the contentions it is evident that the very foundation of the claims of the applicants for revised pension taking into account the revision of scale of pay of Junior Engineer II as Rs 5000 – 8000 is that it is the post of Electrical Chargman B that was re-designated as Junior Engineer II. In the contextual situation it is relevant to note that in the reply affidavit filed by the official respondents they had taken up a specific contention that none of the applicants possess the entry level qualification for appointment to the post of Junior Engineer II. We will also consider the question whether there is any substance in the contention of the applicants that this reason was not at all assigned in Annexure-A8. **OP(CAT).4708/13 & 14/15** 14 8.Admittedly the entry level qualification for Junior Engineer II is Diploma in engineering. The Tribunal, taking into account the said contention, evidently considered the said aspect as can be seen from the impugned order. The Tribunal, after considering the academic qualification of the applicants and also the fact that none of them possess the entry level qualification of Diploma in engineering, held that they were not entitled to draw pension taking into account the revision of scale of pay attached to the post of Junior Engineer II. Further, the Tribunal held that the applicants are entitled to draw pension only in the corresponding scale as on 1.1.1996 for the scale of pay held by them. There is no dispute with respect to the fact that at the time of their retirement the applicants were drawing pay in the scale of pay of 1400 – 2300 in the post of Electrical Charge man B. Though this subsequent contention taken by the respondents were taken into consideration by the Tribunal and accepted by the Tribunal for entering into **OP(CAT).4708/13 & 14/15** 15 a conclusion based on the same, it is a fact that no specific challenge was made by the applicants in OP(CAT).4708/2013 against the said finding. There is nothing on record to show that the applicants were in possession of Diploma in Engineering which is an entry level qualification for Junior Engineer II. True that the learned counsel for the applicants submitted that the said qualification is prescribed as a qualification for effecting direct recruitment and such a qualification is not required for getting a promotion. However, there is absence of materials to support the said fact. The fact is that applicants 1 and 2 possess only SSLC as their educational qualification and the 3[rd] applicant is a failed candidate in the SSLC examination. When the educational qualification of the applicants is not in dispute, the applicants could not claim that they are entitled to get their pension revised taking into the account the higher revised scale of Rs 5000 – 8000 instead of Rs 4500 – 8000. A perusal of Annexure-A8 would **OP(CAT).4708/13 & 14/15** 16 reveal that for rejecting the claim of the applicants, a specific reason was not at all assigned. However, a perusal of the reply statement of the respondents disclosed the following reason for rejecting the representation submitted by the applicants :- “It is also to be informed that at the time of their retirement, they were in scale of `1400-22300 in IV PC. On implementation of V PC the replacement Scale is `4500-7000, which is further replaced to `5200-20200 with GP 2800 as per VI PC vide OM No.38/37/08-P&PW(A) dated 14.10.2008. The above stand has also been reiterated through RBE 24/2010 communicated under PBC No.39/10.” 9.True that this reason was not assigned in Annexure-A8. But at the same time it is to be noted that the petitioners are claiming that they are entitled to get the scale of pay of Rs 5000 – 8000 pursuant to the implementation of the 5[th] CPC. In such circumstances, we are of the view that when the applicants claim that they are entitled to get their pension revised taking into account the said scale of pay, it is their burden to establish that they are entitled to the same. True that once it was **OP(CAT).4708/13 & 14/15** 17 granted to them and it was revised under Annexures A5(a), A6 and A7. The applicants had challenged the same earlier by filing OA.559/2011 and the said OA was disposed of with a direction to consider the representation submitted by the applicants against Annexures A5(a), A6 and A7 and it is such consideration, in compliance with the directions in the said OA that culminated in Annexure-A8. 10. In the above circumstances we are of the view that the applicants cannot be heard to contend that it is not their burden to establish that they are entitled to get the scale of pay attached to the post of Junior Engineer Grade-II for the reason that they retired from the post of Electrical Charge man B. We find it very difficult to uphold the said contention of the petitioners in toto. It is a fact that after re-designating the post of Junior Engineer II, an entry level qualification was prescribed as Diploma in Engineering. When such a qualification was **OP(CAT).4708/13 & 14/15** 18 prescribed merely because the applicants were holding the post of Electrical Chargeman B and retired from it before such re-designation how the applicants would contend that they were entitled to get revised their pension taking into account the scale of pay attached to the post of Junior Engineer II even while admitting the fact that they were not possessing the entry level qualification of Diploma in Engineering. We have already taken note of the educational qualifications of the applicants. In such circumstances we do not find any reason to disagree with the findings of the Tribunal that subsequent to the acceptance of the recommendation of the 5[th] CPC the applicants were entitled only to get their pension revised taking into account the replacement scale of Rs 4500 – 7000. It is considering such aspects that the pension was revised as can be seen from Annexures A5(a), A6 and A7. Merely because this fact was not at all specifically stated in Annexure-A8, it cannot make the applicants automatically entitled to a scale of pay to **OP(CAT).4708/13 & 14/15** 19 which they are not legally entitled and also claim that they are entitled to get their pension revised taking into account that scale of pay attached to the post of Junior Engineer Grade-II to which they are not entitled to. In short, we do not find any reason to interfere with the conclusion arrived at by the Tribunal that the applicants are entitled only to get their pension revised taking into account the replacement scale of Rs 4500 – 7000 from 1.1.1996. At the same time, the impugned order would reveal that even after holding as above the Tribunal had declined to grant liberty to the respondents to effect recovery of excess pension from the applicants, from 1.1.1996 to 31.12.2005. In fact, it is the said disinclination that constrained the official respondents to file these Original petitions. 11. When O.P.(CAT).14/2015 taken up for consideration, the learned counsel appearing for the official respondents submitted that in the light of the decision in State of Punjab **OP(CAT).4708/13 & 14/15** 20 and Others v. Rafiq Masih (White Washer) and Others [(2015) 4 SCC 334], excess pension granted to the applicants could not be recovered. 12. In the result, both the Original Petitions are dismissed. Sd/- C.T.RAVIKUMAR Judge Sd/- A.M.BABU Judge **Mrcs/27.9.** **OP(CAT).4708/13 & 14/15** 21 ## **APPENDIX** **EXHIBITS:** **P1- RELEVANT PARAGRAPHS 83.211 TO 83.219 OF 5TH CENTRAL PAY COMMISSION REPORT.** **P2- TRUE COPY OF UO NOTE OF DEPARTMENT OF EXPENDITURE DATED 9.7.2009.** **P3- ORIGINAL APPLICATION DATED 30.1.2012 WITH ANNEXURES A1 TO A8 THERETO.** **P4- REPLY STATEMENT DATED 31.7.2012 FILED BY RESPONDENTS WITH ANNEXURES R1 TO R8 THERETO.** **P5- REJOINDER DATED 22.11.2012 FILED BY THE APPLICANTS WITH ANNEXURES A9 TO A10(J) THERETO.** **P6- TRUE COPY OF ADDITIONAL REPLY STATEMENT DATED 3/2013 FILED BY RESPONDENTS.** **P7- CERTIFIED COPY OF ORDER IN OA 100/2012 DATED 25.7.2013 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL.** **/True Copy/** **P.S.To Judge** **OP(CAT).4708/13 & 14/15** 22 ## **APPENDIX** **EXHIBITS:** **EXT.P1: TRUE COPY OF THE OA NO.100/2012 DATED 30.1.2012CAT/ERNAKULAM ALONG WITH ANNEXURES** **EXT.P2: TRUE COPY OF THE INDEX PAGE REPLY STATEMENT FILED BY THE PETITIONERS ALONG WITH ANNEXURE+S DATED 26.7.2012.** **True copy** **P.S.To Judge** **Mrcs/27.9.**