OP(CAT).133 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **WEDNESDAY, THE 27TH DAY OF JULY 2022 / 6TH SRAVANA, 1944 OP (CAT) NO. 133 OF 2020 AGAINST THE ORDER IN OA 387/2015 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS:** 1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, CHENNAI 600 003 2 FINANCE ADVISOR & CHIEF ACCOUNTS OFFICER, SOUTHERN RAILWAY, CHENNAI 600 003 (NOW RESIGNATED AS) PRINCIPAL FINANCIAL ADVISOR, SOUTHERN RAILWAY, CHENNAI 600 003 3 THE SENIOR DIVISIONAL FINANCE MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM 695 014 BY ADVS. SRI.A.DINESH RAO, SC, RAILWAYS VINU T.V. ## **RESPONDENTS/APPLICANTS:** 1 M.S.UNNIKRISHNAN NAIR AGED 53 YEARS S/O. MOHANDAS, WORKING AS SENIOR SECTION OFFICER(ACCOUNTS) SOUTHERN RAILWAY, TRIVANDRUM DIVISION, RESIDING AT TC 51/3118(6), INDUSTRIAL ESTATE P.O, THIRUVANANTHAPURAM 695 019 2 AMBIKA VELAYUDHAN, AGED 49 YEARS W/O. VELAYUDHAN, WORKING AS SENIOR SECTION OFFICER (ACCOUNTS) SOUTHERN RAILWAY, TRIVANDRUM DIVISION, RESIDING AT PRANAVAM, TSGRA 137, THYCAUD P.O, THIRUVANANTHAPURAM 695 014 OP(CAT).133 of 2020 **==> picture [13 x 9] intentionally omitted <==** 3 S.R.VIJAYAN AGED 61 YEARS (RETD), S/O RAJASEKHARAN, ACCOUNTS ASSISTANT, TRIVANDRUM DIVISION, RESIDING AT KALLUVARAMBU VEEDU, ARUMANA P.O, KANYAKUMARI DISTRICT. BY ADV SRI.MARTIN G.THOTTAN THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON 27.7.2022 DELIVERED THE FOLLOWING: OP(CAT).133 of 2020 :3: ## **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **------------------------------------------------------------------** OP(CAT).133 of 2020 -------------------------------------------Dated this the 27[th] day of July, 2022 ## **JUDGMENT** ## Mohammed Nias.C.P. J. The Union of India and the officials of the Southern Railway have filed the original petition being aggrieved by the order of the Central Administrative Tribunal (CAT), Ernakulam, which allowed the Original application filed by the respondents/applicants directing to provide the upgraded pay scales with effect from 1.1.1996 on actual basis instead of 19.2.2003 fixed as per the decision of the Government dated 7.3.2003. 2. The brief facts leading to the original petition are as follows:- Pursuant to the recommendations of the Fifth Central Pay Commission, the account staff in the Railways were granted normal replacement scales. The Government later on, revised the scales with effect from 1.9.1996 notionally but granted the benefits only from 19.2.2003. This was challenged before the Tribunal wherein relying on the orders earlier passed by the CAT, Ernakulam, the judgment of this Court as well as that of the Patna High Court both of which were not interfered with by OP(CAT).133 of 2020 :4: Supreme Court of India, allowed the application. The applicants have contended that they were appointed in the various grades in the accounts department of the Southern Railway, whose grades were upgraded by Annexure A1 dated 7.3.2003 with a rider that the revised pay scale shall be notional from 1.1.1996 and actual payment will be made only on 19.2.2003. Aggrieved by the denial of the higher pay scale from 1.1.1996 itself on par with the other categories including in the same department to get higher scale, the original application was filed. They also relied on the judgment of the Patna High Court, Annexure A6 apart from Annexure A2 order of the Tribunal and Annexure A3 of this Court, the SLP filed against which was rejected as per Annexure A4 order of the Supreme Court. 3. The respondents contended that there are contradictory orders passed pointing out that the principal Bench had rejected a similar claim and though the Supreme Court confirmed the orders of this Court and that of the Patna High Court, the question of law was left open and therefore, the applicants cannot take advantage of those judgments. The Tribunal, however did not accept the contentions of the appellant in the original petition and allowed the original application, by the order impugned holding that similarly situated persons were granted the benefits by the Tribunal the same was upheld by this Court and Supreme Court and there was no reason to treat the applicants who are similarly situated differently and accordingly allowed the application. OP(CAT).133 of 2020 :5: 4. Heard Sri.Vinu, the learned Central Government counsel for the appellants and Sri.Martin G.Thottam, the learned counsel for the respondents and perused the records 5. The learned counsel for the petitioners argued that the applicants contentions were solely based on the earlier orders of the Tribunal, the High Court and the Supreme Court and since the question of law was left open, the applicants cannot rely on the same. He argues that no claim can be based on negative equality. We are not in a position to accept the said argument. We do not find that the orders mentioned above in any way to be illegal for the principle of negative equality to step in. It is his further argument that the Government has the power to fix a cut off date while granting scales of pay or incentives and relies on the judgment of the Supreme Court in **Union of India v. Arun Jyoti Kundu and ors** [MANU/SC/7866/2007] to contend that the very right to their benefit arose because of the decision of the Government to extend to them a particular benefit not specified in the Fifth Pay Commission Report and therefore, it is not possible to postulate that the decision of the Government must be given retrospective effect and if no such effect is given, the tribunal or the court can interfere and direct the giving of such retrospective effect, which was in a case pertaining to the employees of the Railways in the Typist cadre. The learned counsel for the respondents contends that the issue as far as they are concerned is OP(CAT).133 of 2020 :6: squarely covered in their favour and no interference is called for. The Tribunal had considered all the above contentions and rightly granted the declaration sought for. 6. At the outset we note that the employees working in the very same department of the Railways had claimed very same benefits and the same was granted by the Tribunal. Though the Railways challenged the same before this court, the same was dismissed and SLP filed against the same was rejected by Annexure A7 dated 25.2.2013. 7. These judgments specifically held that there is no legal or valid grounds for interference accordingly it was dismissed. It is not in dispute that the applicants in the present case are similarly situated as that of the employees who had approached the Tribunal, which resulted in Annexure A2 judgment and confirmed by the High Court and the Supreme Court as mentioned above. We accordingly feel that the Tribunal cannot be faulted for following the said decisions and not taking a different stand with respect to the applicants herein. Since admittedly, the case of the applicants in the earlier cases are not different from that of the present application, there is no reason not to afford similar treatment to the applicants, herein as law does not allow the employer to apply rules differently in relation to persons who are similarly situated. We also note that the same view has been taken by the Supreme Court in the decisions in **Sadasivan Nair v. Cochin University of Science and** OP(CAT).133 of 2020 **==> picture [13 x 9] intentionally omitted <==** **Technology** [2021 (6) KLT 746 (SC)]) In such circumstances, we do not think that any interference is called for in the present case. The OP (CAT) fails and is accordingly dismissed. Sd/- ## **A.K.JAYASANKARAN NAMBIAR, JUDGE** Sd/- **MOHAMMED NIAS C.P., JUDGE** dlk 23.7.2022 OP(CAT).133 of 2020 :8: ## **APPENDIX OF OP (CAT) 133/2020** PETITIONERS ANNEXURES ANNEXURE P1(A1) TRUE COPY OF THE RAILWAYS BOARDS LETTER RBE NO. 48/2003 DATED 07-03-2003 ANNEXURE P1(A2) TRUE COPY OF THE ORDER DATED 30-06-2006 IN O.A NO. 671 OF 2003 ANNEXURE P1(A3) TRUE COPY OF THE JUDGMENT DATED 27-032012 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN W.P(C) NO. 22276 OF 2007(S) ANNEXURE P1(A4) TRUE COPY OF THE ORDER DATED 25-02-2013 IN CC 1997/2013 PASSED BY THE HON'BLE SUPREME COURT OF INDIA ANNEXURE P1(A5) TRUE COPY OF THE LETTER NO. P. 535/HQ/ADMN/COURT CASE/JOSE SEBASTIAN/CC DATED 03-01-2014 ANNEXURE P1(A6) TRUE COPY OF THE JUDGMENT OF THE HON'BLE PATNA HIGH COURT DATED 09-04-2010 IN WP NO. 11452/2005. ANNEXURE P1(A7) TRUE COPY OF THE ORDER DATED 07-07-2014 IN SLP(C) NO 1587-1588/2014 PASSED BY THE HON'BLE SUPREME COURT OF INDIA ANNEXURE P1(A8) TRUE COPY OF THE REPRESENTATION OF SUBMITTED BY THE ASSOCIATION IN WHICH THE APPLICANTS BELONG DATED 17-07-2014 TO THE HON'BLE MINISTER FOR RAILWAYS. ANNEXURE P2 (R1) TRUE COPY SHOWING PARAGRAPH 83.235 OF THE 5TH CENTRAL COMMISSION CONSIDERING THE ISSUE REGARDING PAY SCALE OF ACOUNT STAFF ANNEXURE P2(R2) TRUE COPY OF CABINET NOTE DATED 02-022003 ANNEXURE P2(R3) TRUE COPY OF APPROVAL OF THE UNION CABINET DATED 19-02-2003 ANNEXURE P2(R4) TRUE COPY OF ORDER OF THE HON'BLE SUPREME COURT DATED 27-08-2007 ANNEXURE P2(R5) TRUE COPY OF BOARDS LETTER DATED 24-111998 OP(CAT).133 of 2020 :9: ANNEXURE P2(R6) TRUE COPY OF BOARDS LETTER DATED 22-101999. ANNEXURE P2(R7) TRUE COPY OF THE ORDER DATED 15-09-2015 IN O.A NO. 527 OF 2015 AND OTHER CONNECTED OAS EXHIBIT P1 TRUE COPY OF O.A NO. 180/00387/2015 BEFORE THE CAT, ERENAKULAM BENCH WITH ANNEXURES EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURES EXHIBIT P3 TRUE COPY OF THE REJOINDER TO THE REPLY STATEMENT EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 13-11-2018 PASSED BY THE HON'BLE TRIBUNAL IN O.A NO. 387/2015.