OP(CAT) No.321 of 2012 (Z)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 30TH DAY OF SEPTEMBER 2019 / 8TH ASWINA, 1941** # **OP (CAT).No.321 OF 2012(Z)** **AGAINST THE ORDER IN OA 636/2008 DATED 06-01-2011 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/RESPONDENTS 2 TO 4 IN O.A.:** - **1 THE ADMINISTRATOR,** - **UNION TERRITORY OF LAKSHADWEEP, KAVARATTI.** - **2 THE DIRECTOR OF EDUCATION,** **UNION TERRITORY OF LAKSHADWEEP, KAVARATTI.** - **3 THE HEADMASTER, JB SCHOOL CENTRE UTL, AGATTI.** **BY ADVS. SRI.MANU.S, SC, ADMINISTRATION OF THE UNION TERRITORY OF LA.** ## **RESPONDENTS/ APPLICANT & 1ST RESPONDENT IN O.A:** - **1 A.C.NADER KOYA, AGED 62 YEARS, S/O.K.C.SIKHANDER, HEAD MASTER (RETD), JUNIOR BASIC SCHOOL CENTRE, AGATTI; AND RESIDING AT ATHANA ILLAM, CHETTA HOUSE, AGATTI-682 553.** - **2 UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, DEPARTMENT OF EDUCATION, NEW DELHI-110 001.** **R1 BY ADV. SRI.N. UNNIKRISHNAN R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** ## **OTHER PRESENT:** **SRI.T.V.VINU, SC, LAKSHADWEEP ADMINISTRATOR.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 30.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **OP(CAT) No.321 of 2012** **K.Vinod Chandran & V.G.Arun, JJ. ---------------------------------------O.P(CAT) No.321 of 2012-Z ---------------------------------------Dated this the 30[th] day of September, 2019** ## **JUDGMENT** ## **K. Vinod Chandran,J:** **The 1[st] respondent, applicant in the O.A., is a retired Headmaster of a Primary School under the petitioners. Before the Tribunal, the claim of the 1[st] respondent was that he is entitled to Selection Scale with effect from 23.01.1993, since he has completed 18 years on 23.01.1987. The 1[st] respondent, admittedly, was initially appointed as a Primary School Teacher on 23.01.1969.** **2. On 01.01.1986, the Fourth Pay Commission recommendations were implemented. We also see from Annexure A2 dated 12.08.1987 that in implementation of the Fourth Pay Commission recommendations, the Ministry of Finance (Department of Expenditure) had issued notifications dated 13.09.1986 and 22.09.1986. It was in partial modification of the said notification that Annexure A2 was introduced. Annexure A2 provided for two upgradations for Primary School Teachers – Senior Scale and Selection Scale respectively – both on completion of 12 years in the respective scales. This was one of the recommendations of the Fourth Pay Commission. The Selection Scale is entitled** **- 3 -** **OP(CAT) No.321 of 2012** **after 12 years of service in the Senior Scale, as per Annexure A2, only if the teacher attains the qualifications laid down for Trained Graduate Teachers [“TGTs” for brevity]. This is further clarified in paragraph 3(v) of Annexure A2, which indicates that acquiring of higher qualification [TGT] would be only for the purpose of entitlement to the Selection Scale and there would be no requirement to shift the teacher to an institution of higher level. Later, a clarification was issued as per Annexure A3 dated 03.11.1987. Presumably, the Government, considering the representations filed by the teachers having long service, introduced a provision which mandated that for teachers who have already completed 18 years of service, the requirement of acquiring higher qualification be waived. The question that arose in the O.A. was as to whether the 1[st] respondent was entitled for such waiver considering his date of appointment. The bone of contention was the date on which 18 years service is reckoned to have been completed.** **3. The Central Government had issued a further clarification as per Annexure R2(a) [as produced in the O.A.]. It was clarified that the period of 18 years will be counted as on 01.01.1986. The Tribunal had found that the order issued at Annexure R2(a) is at best an opinion** **- 4 -** **OP(CAT) No.321 of 2012** **rendered by the Under Secretary. Obviously, the finding was that it is not an order under the orders of the President.** **4. The Standing Counsel appearing for the Lakshadweep Administration would specifically refer to the notification of the Central Government dated 03.11.1958, wherein Rules have been issued by the President, called “The Authentication (Orders and other Instruments) Rules, 1958”. Reference is also made to Article 77(2) of the Constitution of India. It is the submission of the learned Standing Counsel that the Rules of 1958 specifically provided that Orders and other Instruments made and executed in the name of the President shall be authenticated,** _**inter alia**_ **, by an Under Secretary to the Government of India. It is also argued that Article 77(2) specifically prohibits any challenge against the validity of an order which is so authenticated.** **5. We are of the opinion, looking at Annexure R2(a), that the same cannot be said to be one authenticated by the Under Secretary to Government of India. It is a communication issued by the Under Secretary to the Director of Education, Delhi Administration, which clarified that the period of 18 years will be counted as on 01.01.1986. Even otherwise, if it be an order authenticated by the Under Secretary in the name of the President also, the same** **- 5 -** **OP(CAT) No.321 of 2012** **falls for consideration before us as to its sustainability.** **6. Annexure A2, as we see from the recitals itself, is a modification of the earlier notifications issued by the Finance Ministry. It is in Annexure A2 that a specific condition was brought in, that the Selection Scale would be entitled to a person continuing in Senior Scale for 12 years, only on attainment of qualifications laid down for a TGT. It is this condition which was watered down by a clarification at Annexure A3. Annexure A3 provided that any person who has continued for 18 years would be entitled to a waiver from the rigour of acquiring a higher qualification. The question is, as to whether the clarification has to commence from the date of Annexure A2, i.e., 12.08.1987 or from the date on which the Fourth Pay Commission benefits are implemented, which was on 01.01.1986.** **7. The learned Standing Counsel has a contention that as per paragraph 4 of Annexure A2, the revised pay scales, teaching allowance and special allowance will be applicable with effect from 01.01.1986. In such circumstances, the 18 years service also relate back to 01.01.1986, is the contention.** **8. We cannot accept the said contention especially looking at the manner in which the Fourth Pay Commission** **- 6 -** **OP(CAT) No.321 of 2012** **was implemented. The Fourth Pay Commission, obviously, had only recommended replacement of scales on completion of the required years and not a condition for acquiring the higher qualification.** ## **9. The Central Government, through its Ministry of** **Finance, had issued notifications dated 13.09.1986 and 20.09.1986 implementing the recommendations of the Pay Commission. It was later, Annexure A2 dated 12.08.1987 was issued in partial modification of the earlier notifications. It was in Annexure A2 that a condition was prescribed for attainment of qualifications laid down for PGTs, in addition to the 12 years service in Senior Scale, for being entitled to the Selection Scale. Hence, the condition has been specifically brought in by the Central Government through the Ministry of Human Resources Department through Annexure A2. When a clarification is issued with respect to waiver of attainment of higher qualification for persons who have completed 18 years of service, the said clarification has to be related back to the date on which the condition was incorporated by Annexure A2 dated 12.08.1987. It cannot be said that the clarification would apply from 01.01.1986 onwards. When such a clarification has been made by the Government of India, it will apply to all those persons on whom the** **- 7 -** **OP(CAT) No.321 of 2012** ## **condition was insisted as per Annexure A2.** **10. We find that Annexure R2(a) if at all an order issued under the Rules of 1958, cannot be upheld since the effect given from 01.01.1986, the date of implementation of the Fourth Pay Commission, cannot be the right position as per the interpretation given by us. We cannot also accept the contention that Annexure A2 makes the revised pay scales applicable with effect from 01.01.1986 and this would lead to Annexure R2(a) being sustained. The applicability with effect from 01.01.1986 is insofar as the implementation of the Fourth Pay Commission is concerned. However, the attainment of higher qualification for Selection Scale was brought in by the Government of India as per Annexure A2, which condition stands waived for persons who have completed 18 years, as per Annexure A3. The completion of 18 years should be on or before Annexure A2 was issued.** **11. In the present case, the 1[st]** **respondent-applicant was appointed as Primary School Teacher on 23.01.1969. He completes 18 years on 23.01.1987, prior to Annexure A2 and, hence, he has to be deemed to be a person who is entitled to such exemption. We notice that the Original Petition has been admitted by order dated 23.02.2012 especially noticing the decisions of the Hon'ble** **- 8 -** **OP(CAT) No.321 of 2012** **Supreme Court in** _**Union of India and Others v**_ **.** _**Taresem Singh**_ **[** _**(2008) 8 SCC 648]**_ **and** _**State of Madhya Pradesh v**_ **.** _**Yogendra Srivasthava**_ **[** _**(2010) 12 SCC 538**_ **]. The interim stay of operation of the impugned judgment was insofar as the grant of relief for period more than three years from the date of institution of the Original Application. This order presumably was because of the contention of the petitioners that the claim is grossly delayed.** **12. The claim is raised on the basis of Annexures A2 and A3 orders, which were issued in 1987. The 1[st] respondent-applicant contends that he was posted in one of the Lakshadweep Islands and often the Government Orders are not communicated regularly to the employees. However, we have to notice that even in the O.A. the applicant states that as soon as he knew about Annexures A2 and A3, he made a representation dated 14.09.1999 to the 2[nd] respondent, Administrator; a copy of which was produced as Annexure A4. It was followed up with a representation dated 21.07.2002 (Annexure A5), an oral representation to the Director of Education when he visited the Island and ultimately yet another representation dated 16.10.2006 to the 1[st] respondent (Annexure A6). The representation dated 16.10.2006 was nine months after his retirement on** **31.01.2006. The O.A. itself was filed on 24.10.2008.** **OP(CAT) No.321 of 2012** ## **- 9 -** **13. The learned Counsel for the 1[st]** **respondent-applicant has a contention that in the O.A. the delay was condoned. The order in delay condonation was passed in a Miscellaneous Application [M.A.No.824 of 2010] filed by the applicant for condonation of delay of 425 days. This is the delay caused in moving an O.A. before the Tribunal pursuant to the last representation of 16.10.2006 (Annexure A6). The condonation of delay so occasioned cannot be seen as a permission to the applicant to revive a stale claim.** **14. As we noticed, as early as in 1999, the applicant made a representation which, if not considered the applicant ought to have approached the Tribunal. The learned Counsel for the 1[st] respondent has a contention that it was the bounden duty of the Department to implement the pay revision recommendations in accordance with the orders issued by the Government of India. We perfectly agree with that. But, if by some reason a benefit has not been granted to an employee, he should take it up responsibly, within a reasonable time from which he was entitled, to so assert his claim. The 1[st] respondent having known his entitlement in the year 1999, made a representation and followed it up with unrepresented memorials and he retired from service. It was nine months after his retirement and nine years from** **- 10 -** **OP(CAT) No.321 of 2012** **the alleged date of knowledge, that a fresh representation was proffered. The claim itself is related back to the implementation of the Pay Commission recommendations in 1986. We do not think that the applicant could have revived such a stale claim. However, it is submitted by the applicant that as per the interim order the benefit for the three years prior to retirement, as has been indicated in the decisions of the Hon'ble Supreme Court, have already been granted. In such circumstances, we think there should be no refund made from the applicant. Only for that purpose, we uphold the order of the Tribunal allowing the claim of the applicant, but, however, limited to the three years prior to his retirement.** **The Original Petition (CAT) is partly allowed. Parties are left to suffer their respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **Vku/-** **- 11 -** **OP(CAT) No.321 of 2012** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE OA NO.636/2008 FILED BY THE 1ST RESPONDENT ALONG WITH THE ANNEXURE.** **EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN OA 636/2008.** **EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE TRIBUNAL IN OA NO.636/2008 DATED 06/01/2011.** **EXHIBIT P4** **A TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN RA NO.66/2011 DATED 21/12/2011.** **[TRUE COPY]**