Shibi T. Manjooran v. Union of India & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY, THE 31ST DAY OF JANUARY 2018 / 11TH MAGHA, 1939 **OP (CAT).No. 19 of 2018** AGAINST THE ORDER OF THE CAT DATED 18.11.2017 IN MA.NO.985 OF 2015 IN O.A.NO.379/2008 PETITIONER(S)/APPLICANT. SHIBI.T.MANJOORAN AGED 47 YEARS, D/O THOMAS J. MANJOORAN, HINDI OFFICER, O/O THE PRINCIPAL ACCOUNTANT GENERAL(G& SSA), TAMILNADU AND PONDICHERRY, 361, ANNASALAI, TEYNAMPET, CHENNAI 600O18, PERMANENT RESIDENT OF 'MANJOORAN HOUSE', POTTAYIL LANE, MG ROAD, THRISSUR.680004. BY ADVS.SRI.P.V.SALEEM SRI.M.A.SHAFIK SMT.S.LAKSHMY RESPONDENTS/RESPONDENTS: 1. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, NEW DELHI. 2. THE COMPTROLLER AND AUDITOR GENERAL OF INDIA, 10, BAHADURSHAH ZAFAR MARG, INDRAPRASTHA HPO, NEW DELHI. 3. THE ACCOUNTANT GENERAL (AUDIT) STATE OF KERALA, THIRUVANANTHAPURAM. 4. THE PRINCIPAL ACCOUNTANT GENERAL (AUDIT) KERALA, BRANCH THRISSUR. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY SRI.K.I.MAYANKUTTY MATHER THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 31-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 19 of 2018 (Z) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 16.9.2009 IN O.A 379/2008 OF C.A.T EXHIBIT P2 TRUE COPY OF THE MISC.APPLICATION NO.180/985/2015 IN O.A 379/2008. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN THE MA. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 17.2.2016 OF THIS HON'BLE COURT IN OP.(CAT) NO.63/2016. EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 23.2.2016 OF THE C.A.T IN MA NO.985/2015. EXHIBIT P6 TRUE COPY OF THE MA NO.327/2016 FILED BY THE RESPONDENTS BEFORE THE C.A.T EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED 17.5.2016 OF THE C.A.T IN MA NO.985/2015. EXHIBIT P8 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN M.A NO.985/2015. EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER DATED 25.9.2017 IN MA 180/907 IN M.A NO.180/985/2015 OF THE C.A.T EXHIBIT P10 TRUE COPY OF THE ADDL.REPLY STATEMENT FILED BY THE RESPONDENTS IN M.A NO.180/985/2015 BEFORE THE C.A.T EXHIBIT P11 TRUE COPY OF THE ORDER DATED 18.11.2017 OF THE C.A.T IN M.A NO.180/985/2015. EXHIBIT P12 TRUE COPY OF THE OM NO.13035/3/95-OL(P& C) DATED 22.7.2004 ISSUED BY THE DEPARTMENT OF OFFICIAL LANGUAGES, MINISTRY OF HOME AFFAIRS. /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & R. NARAYANA PISHARADI, JJ.** .............................................................................. **O.P(CAT)No.19 OF 2018** ......................................................................... **Dated this the 31[st] January, 2018** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The petitioner, who was the applicant in the O.A., is before this Court, being mainly aggrieved of the dismissal of M.A. 985 of 2015, as per Ext.P11 order, though it has been observed that it would be open for the petitioner to move the Tribunal by way of appropriate proceedings , if any subsisting grievance is there. 2. The sequence of events revealed from the proceedings is that the petitioner herein joined the service as a Senior Hindi Translator in the year 1999. She was subsequently promoted as Hindi Officer w.e.f. 01.04.2004 and was continuing in service as above. While so, the scale of pay was revised in the year 2003, which however was restricted only to the members of the Central Secretariat Official Language Services (CSOLS) as clarified by the Ministry of Expenditure, in turn denying the same to other similarly situated persons. This was the subject matter of challenge in various proceedings filed by the aggrieved parties before the different Tribunals all over the country. Ultimately, the **O.P(CAT)No.19 OF 2018** **2** issue was answered in favour of the applicants by declaring the eligibility to get the revised benefit, as per the orders of the Calcutta Bench of the Tribunal, which came to be upheld by the Calcutta High Court. Similar verdicts were passed by the Chandigar Bench and such other Benches of the Central Administrative Tribunal. It is pointed out that the matter was taken up by the Department before the Apex Court and when the SLP was pending, the petitioner herein moved the Tribunal by filing the O.A. with the following prayers: _“i) to call for the records leading to Annexure A5 & A6 orders and quash the same._ _ii) to declare that the Annexure A6. O.M.No.F.No. 70/5/2003-IC dated 29.03.2004 is illegal, arbitrary and violative of Article 14 & 16 of the Constitution of India._ _Iii) to direct the respondent to implement the upgradation in the scale of pay to the post of Hindi Officer under the respondents based upon the recommendations of the 5[th] Central Pay Commission and consequential orders issued by the Government of India._ _iv) Declare that the applicant is entitled for the revised scale of pay of Rs.7500-250-12000 with effect from 01.04.2003 in the post of Hindi Officer under the respondent and grant all consequential benefits including re-fixation of pay, arrears of pay etc within a time limit fixed by this Hon'ble Tribunal._ _v. Any other appropriate order or direction as this Hon'ble_ **O.P(CAT)No.19 OF 2018** **3** _Tribunal may deem fit in the interest of justice. “_ 3. The claim was resisted from the part of the Department with reference to the pendency of the matter before the Apex Court. However, taking note of the available materials on record, the O.A. was allowed by the Tribunal as per Ext.P1 verdict making it clear that it will be subject to the outcome of the SLP pending before the Apex Court. This was in the year 2009. In the due course, the matter pending before the Apex Court was considered and the case came to be dismissed in the year 2013. Thus, Ext.P1 verdict passed in favour of the petitioner became final. Since the benefits flowing from Ext.P1 were never extended to the petitioner, despite attaining finality, the petitioner moved the Tribunal by way of Ext.P2 M.A. seeking for implementation of Ext.P1. 4. The respondents put up a contention before the Tribunal that the claim putforth through the M.A. was something wider than the relief sought for in the O.A. and was not liable to be entertained. It was after considering the rival contentions as above, that the Tribunal passed Ext.P11 order, whereby the M.A. was closed, holding that the subsisting grievance, if at all any, **O.P(CAT)No.19 OF 2018** **4** like granting of pay scales of higher post of Assistant Director (OL), could be pursued by the applicant filing appropriate legal proceedings separately. The operative portion of the said verdict and the manner in which the issue has been dealt with by the Tribunal are discernible from paragraphs 10 and 11 of the order under challenge, which are extracted below: _“10. The relief claimed by the applicant in the O.A. was to “declare that she is entitled for the revised scale of pay of Rs.7,500-250-12,000/- with effect from 1.4.2003 in the post of Hindi Officer under the respondent and to grant all consequential benefits including re-fixation of pay, arrears of pay etc., within the time limit prescribed by the Tribunal”. Vide Annexure MA-1 order the OA was allowed following the earlier decisions of the co-ordinate benches of the Tribunal which were at that point of time pending before the apex court in different SLPs mentioned above. Therefore, this Tribunal in Annexure MA-1 order directed that the implementation of the order shall be subject to the outcome of the SLPs pending before the apex Court. The SLPs were dismissed on 25.07.2013 vide Annexure MA-2 order. Therefore, the Tribunal's Annexure MA-1 order has become enforceable. Though the miscellaneous respondents filed OP(CAT)No.63/2016 before the Kerala High Court against Annexure MA-1 order, the same also was dismissed. Therefore, the aforequoted prayer granted by Annexure MA-1 order requires to be implemented with effect from 1.4.2003 till the date of actual payment of the arrears and consequential benefits. From the statement of arrears presented by the respondents in a tabulated form in the additional reply_ **O.P(CAT)No.19 OF 2018** **5** _statement filed on 18.10.2017, it appears to this Tribunal that the miscellaneous applicant has been paid arrears upto 31.5.2016._ _11. It is contended by the miscellaneous applicant that she is entitled to scale of pay of the Director (OL). We feel that such a prayer cannot be granted at this stage in this miscellaneous application because we are concerned with the implementation of Annexure MA-1 order which, it appears that, the miscellaneous respondents have complied with as shown in the due-drawn statement tabulated in the additional reply statement. The remaining relief like grant of pay scales of higher post of Assistant Director (OL) she needs to file an appropriate legal proceedings separately. She is permitted to do so, if advised. “_ 5. The learned counsel appearing for the petitioner submits that the Tribunal has not properly appreciated the nature of grievance projected by the petitioner/applicant in the MA. The very first prayer seeking to set aside Annexure A5 and A6 was with reference to the denial of extension of similar benefits to the petitioner and in confining such benefits only to the members of the CSOLS. By virtue of the law declared by the Calcutta Bench of the Tribunal, as upheld by the Calcutta High Court and on dismissal of the SLP filed by the Department as per the verdict passed in the year 2013, the issue as to the eligibility of the **O.P(CAT)No.19 OF 2018** **6** petitioner has become final as per Ext.P1 and what remains is only the computation of benefits flowing from Ext.P1. 6. The learned counsel submits that the respondents took up a wrong contention before the Tribunal, as if the claim was for granting the Higher Scale attached to the post of Addl. Director, which was never sought to be given to the petitioner/applicant in any manner. The claim was only with regard to the replacement benefit to be given. Pursuant to finalisation of the matter, on dismissal of the SLP by the Supreme Court, the Department passed an order in partial compliance of the directions, whereby the pay scale came to be enhanced from Rs.6500/- to Rs.7500/- in the case of Hindi Officer from 01.04.2003. Pursuant to acceptance and implementation of the 6[th] CPC recommendations from 01.01.2006, the said scale had to be replaced to the pay band of Rs.15600-39100/- with a Grade pay of Rs.5400/-, which is still to be satisfied. 7. The other remaining grievance is that, by virtue of the declaration of rights to get the pay revision benefits, as made applicable to CSOLS, especially on dismissing the challenge raised by the Department before the Apex Court, the **O.P(CAT)No.19 OF 2018** **7** petitioner/applicant is entitled to get the scale of Rs.650010500/- in respect to the post of Senior Translator w.e.f. the date of entry, i.e. 20.10.1999, whereas she has been given only the lesser scale of pay of Rs.5500-9000/- which is a basic error and requires to be rectified. Since it is also a benefit flowing from the pleadings and prayers raised, particularly the prayer No.1, the relief ought not to have been restricted to the extent as now granted by the Department and hence the grievance. 8. The learned Standing Counsel for the Department submits that no specific prayer was incorporated as to the eligibility of the applicant to get the scale of Rs.6500-10500/w.e.f. the date of appointment. But the fact remains that the eligibility of the members of the Department to have uniform application based on the pay revision effected (which was originally denied as per Annexure-A6, confining it only to the members of the CSOLS based on the orders passed by the Ministry of Expenditure) stands conceded, since the orders which were standing against the extension of benefits have been set aside by the Calcutta Bench of the CAT and upheld by the Calcutta High Court. This became final by virtue of dismissal of **O.P(CAT)No.19 OF 2018** **8** the SLP preferred by the Department before the Apex Court and hence all consequential benefits flowing from such order ought to have been extended to the petitioner in all respects. 9. The learned Standing Counsel for the respondent submits that similar claim was putforth before the Tribunal by some other persons as well, who were similarly situated and the matters were disposed of by the Tribunal as per Annexure R1(a) (produced along with Ext.P3), whereby the respondent concerned was directed to re-consider the matter. It is stated that the matter is still to be finalised by the competent authority, pursuant to the said direction. 10. The learned counsel for the petitioner points out that in so far as the petitioner is concerned, the issue has become final as per Ext.P1 judgment, which cannot be watered down referring to some other proceedings passed by the Tribunal wherein the petitioner was not a party. 11. After hearing both the sides, this Court finds that Ext.P1 verdict has become final. The point to be considered is whether all the benefits flowing from Ext.P1 have been extended to the petitioner? The petitioner has sought to illustrate the **O.P(CAT)No.19 OF 2018** **9** position as to the benefits, which ought to have been extended to him, pursuant to finalisation of the matter by the Apex Court and the benefits already extended by the Department, as given in the form of table in paragraph '6' of the pleadings, which is reproduced below: |_Dates_|_Due as per court order_|_Drawn as fixed by the_<br>_Department._| |---|---|---| ||_Pay Scale_|_Pay Scale_| |_20.10.1999 onwards_<br>_(on appointment as_<br>_Sr.Hindi Translator)_|_Rs.6500-200-10500_|_Rs.5500-175-9000_| |_01.04.2003 onwards_<br>_(on promotion as Hindi_<br>_Officer)_|_Rs.7500-250-12000_|_Rs.6500-200-10500_| |_1.1.2006 onwards (on_<br>_6th CPC implementation_|_Pay Band 3 (Rs.15600-39100)_<br>_with grade pay Rs.5400/-_|_Pay Band 2 (Rs.9300-_<br>_34800) with Grade pay_<br>_Rs.4800/-_| 12. In the above circumstance, we find it appropriate to cause the matter to be considered by the second respondent herein, specifically adverting to the relevant facts and figures and also the outcome of the legal proceedings as above, particularly Ext.P1 and that of the Apex Court and pass a speaking order, after affording an opportunity of hearing to the petitioner, which shall be done at the earliest, at any rate within three months **10** ## **O.P(CAT)No.19 OF 2018** from the date of receipt of a copy of the judgment. This is more so, since the Tribunal while passing Ext.P11 order had already reserved the right of the petitioner to agitate the matter further by filing appropriate proceedings in accordance with law . **P.R. RAMACHANDRA MENON, JUDGE** **R. NARAYANA PISHARADI, JUDGE** lk