Union of India and Director General, Assam Rifles v Symon T. T. and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943** ## **WA NO. 1672 OF 2016** **AGAINST THE JUDGMENT IN WPC 22407/2015 DATED 03.08.2015 AS CORRECTED, AS PER ORDER DATED 07.07.2016 IN I.A NO.10028/2016 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENTS:** - **1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI - 110 001.** - **2 THE DIRECTOR GENERAL ASSAM RIFLES, MAHANIDESHALAYA, (THE DIRECTORATE GENERAL OF ASSAM RIFLES, SHILLONG, MEGHALAYA - 793 011.** **BY ADV SRI.JAISHANKAR V.NAIR, CGC** ## **SRI.S.MANU, ASGI** ## **RESPONDENTS/PETITIONERS:** - **1 SYMON T.T. AGED 51 YEARS, THOZHUTHUKARA HOUSE, PANATHADY, RAJAPURAM, KASARAGOD DISTRICT PIN- 671 532, KERALA.** - **2 PRADEEPAN K.P** - **VADAKKEDATH KANDY HOUSE, KARUVISSERY P.O., CALICUT DISTRICT, KERALA.** - **3 RAMESHAN M MATHANDY HOUSE, KILUR P.O., PAYYOLI, CALICUT DISTRICT, KERALA.** - **4 PAVITHRAKUMAR K NARAYANA VILASAM, MARIKUNNU P.O., CALICUT DISTRICT, KERALA.** W.A No.1672 of 2016 2 - **5 TEEMON THOMAS MALITHURUTHEL HOUSE, NEERICADU P.O., AYARKUNNAM, KOTTAYAM DISTRICT, KERALA.** - **6 RATNA KUMAR M.S RETNALAYAM, CHENNEERKARA P.O., KULANADA, PATHANAMTHITTA DISTRICT, KERALA.** - **7 K.J.JOSEPH KOLLAKKUNEL HOUSE, ERAVUCHIRA P.O., KOTTAYAM DISTRICT, KERALA.** - **8 PRASANNAN R KALLUVILAYIL HOUSE, THAMARAKULAM P.O., ALLAPPY DISTRICT, KERALA.** - **9 K.K.RAVEENDRAN ACHARY KANNAMMALAVADAKECHARIVIL, ATTACHAKKAL P.O., KONNI, PATHANAMTHITTA DISTRICT, KERALA.** - **10 AROMAL K.K THUNDIPARAMBIL HOSUE, MANJUMMEL P.O., ELOOR, UDOYGAMANDAL, ERNAKULAM DISTRICT, KERALA.** - **11 BHADRAN S VALIYAVEETTIL, PUTHUPALLY, KAYAMKULAM, ALLEPPY DISTRICT, KERALA.** - **12 RADHAKRISHNA PILLAI R MANNARAPALLIL HOUSE, PADA NORTH, KARUNAGAPALLY, KOLLAM DISTRICT, KERALA.** - **13 BALAGOPALAN K THRITHALAYAM HOUSE, KOMMERI P.O., CALICUT DISTRICT, KERALA.** - **14 C.RAGHUTHAMAN ASHTAMI HOUSE, KODASSERYTHAZHAM, PERUVAYAL P.O., CALICUT DISTRICT, KERALA.** - **15 M.D.NAIR SAFALLYAM, VIVEKANANDA LANE, NETTAYAM P.O., NETTAYAM, THIRUVANANTHAPURAM DISTRICT, KERALA.** W.A No.1672 of 2016 3 **16 GOPAKUMAR K GOKULAM, CONVENT ROAD, NEMOM P.O., THIRUVANANTHAPURAM DISTRICT, KERALA.** **17 JOSEPH M.Y MATTAPPALLIL HOUSE, PADANAD NORTH P.O., KALLISSERY VIA, ALLAPPUZHA DISTRICT, KERALA.** **18 MURALEEDHARAN KURUPP K CHANDRAVILASAM, PARAKKARA P.O., THATTAYIL, PATHANAMTHITTA DISTRICT, KERALA. 19 CHANDRAN K.V ARATHIL HOUSE, PARAPPANAGADI P.O., MALAPPURAM DISTRICT, KERALA** - **20 BIJU T.S VRINDAVAN, KARIPOOR P.O, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT, KERALA.** - **21 SATHEESH BABU G LAKSHMI SADANAM, THOKKAD P.O., VADASSERIKONAM, VARKALA, THIRUVANANTHAPURAM DISTRICT, KERALA.** **22 HARIHARAN NAIR K AMBUJA SADANAM, VALICODE, PANAKAL, NEDUMANGAD P.O., THIRUVANANTHAPURAM DISTRICT, KERALA.** - **23 SHAJUKUMAR P POOMANGALATH THEEKKETHIL, ULLANNOOR P.O., KULANADA, PATHANAMTHITTA DISTRICT, KERALA.** **BY ADVS. SRI.P.P.BIJU SANTHOSH MATHEW** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.1672 of 2016 4 # **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **=================================** ## **W.A No.1672 of 2016** [ _arising out of the judgment in W.P(C) No.22407/2015 dated 03.08.2015_ ] **=================================** Dated this the 14[th] day of March, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The judgment under challenge in the instant writ appeal, is the one rendered by the learned Single Judge on 03.08.2015 in W.P(C) No.22407/2015. 2. The prayers in the instant Writ Petition (Civil) No.22407/2015 are as follows : - _“i. Issue a writ of mandamus or such other writ or direction directing Respondents to give notional appropriate rank and pay scale to the petitioners as per the recommendations of the 5[th] pay commission._ - _ii. Issue a writ of mandamus or such other writ or direction directing Respondents, taking note of the directions and findings in Exhibits-P1 and P3 judgments and release the monetary benefits due to the petitioners consequent to the implementation of the directions in Exhibit-P1 judgment._ - _iii. Grand such other writ or direction as this Hon'ble Court may deem fit and proper to the facts and circumstances of the case.”_ 3. The main issue raised in this Writ Appeal and the Writ Petition (Civil) is covered by the common judgment dated 05.06.2015 rendered by a learned Single Judge in six W.P(C)s, viz., W.P(C) Nos.23361, 24695, 24735, W.A No.1672 of 2016 5 26353, 30020 & 30022 of 2013. The main plea sought for by the present writ petitioners, covered by the impugned judgment dated 03.08.2015 rendered by the learned Single Judge as well as the other writ petitioners covered by the judgment dated 05.06.2015 rendered by the learned Single Judge in the said six W.P(C)s, is for the implementation of the directions and orders passed by a Division Bench of the Guwahati High Court on 22.09.2011 in W.A No.50 (SH) of 2010, produced as Ext.P-1 in the six writ petitions covered by the common judgment dated 05.06.2015 rendered by the learned Single Judge. As a matter of fact, the benefit of the judgment dated 22.09.2011 rendered by the Guwahati High Court in W.A No.50(SH) of 2010, was in turn on the basis of the judgment rendered by the Apex Court in _**Union of India** v._ _**K.K.Dinesan**_ [(2008) 1 SCC 586]. The writ petitioner in the matter decided by the Guwahati High Court in W.A No.50(SH) of 2010, was also a Operator Radio and Lines (ORL) in the Assam Rifles. By the said judgment in W.A No.50/2010, the Division Bench of the Guwahati High Court had directed the respondents therein/respondents herein to give appropriate rank and pay scale to the said petitioner therein, as per the recommendation of the 5[th] Pay Commission and O.M dated 22.01.1998, etc. It is also common ground that the abovesaid judgment dated 22.09.2011 rendered by the Division Bench W.A No.1672 of 2016 6 of the Guwahati High Court in W.A No.50(SH) of 2010, has been confirmed by the order dated 02.07.2012 rendered by the Apex Court, dismissing SLP (Civil) No.6241/2012 preferred by the Union of India and others, as against the said judgment of the Guwahati High Court. So also, there is no dispute that thereafter, the respondents have implemented the said judgment of the Guwahati High Court in W.A No.50(SH) of 2010 in the case of similarly situated ORL Assam Rifles. It is in the light of these undisputed facts, that the learned Single Judge had rendered the earlier judgment on 05.06.2015 in W.P(C) No.24695/2013 and five other connected writ petitions, with the following directions : _“Therefore, they are entitled to the benefit of the judgment and hence to be redesignated with replacement scale of pay in the scale of ₹3200-85-4900. As all of them have retired from service, they are entitled to get their retirement benefits re-fixed on the basis of the pay fixed on such upgradation along with arrears of pensionary benefits. Seeking the benefit of the judgment the petitioners have already approached the 2[nd] respondent. In the light of the declarations, the 2[nd] respondent shall consider the representations of each of the petitioners and grant them all benefits on the basis of the upgradation/restructuring and replacement of the scale of pay of the post from which they retired, by re-fixation of their pay and pensionary benefits. They shall be granted the arrears of pensionary benefits, on the basis of such re-fixation of pay and pension, along with all other monetary benefits, within a period of 4 months from the date of receipt of a copy of the judgment.”_ 4. The abovesaid judgment was rendered by the learned Single Judge on 05.06.2015 in W.P(C) No.24695/2013 and five other connected W.P(C)s. Later, after about a year, the learned Single Judge has passed a W.A No.1672 of 2016 7 common order dated 02.06.2016 correcting the pay scale of Rs.3,200-854,900/- mentioned in the final paragraph of the common judgment dated 05.06.2015 in those six writ petitions, by deleting the said pay scale. The correction carried out as per order dated 02.06.2016 in the six W.P(C)s, reads as follows: _“The words and figures “_ _**in the scale of ₹3200-85-4900** ” occurring in the last portion of the first sentence of the last paragraph at page 17 of the common judgment dated 5.6.2015 in W.P.(C) No.23361/2013 and connected cases are deleted vide order dated 2.6.2016 in IA.No.6135/2016 in WP(C)No.23361/2013_ .” Hence, after such correction and deletion made by the learned Single Judge on 02.06.2016, in respect of the directions issued as per the common judgment dated 05.06.2015, the relevant direction appearing in the first sentence of the last paragraph of the said common judgment would be “therefore, they are entitled to the benefit of the judgment and hence to be redesignated with replacement scale of pay”, instead of the earlier sentence, “therefore, they are entitled to the benefit of the judgment and hence to be redesignated with replacement scale of pay in the scale of _₹_ 3,200-854,900/-”. Hence, by the said correction made subsequently on 02.06.2016 by the learned Single Judge in the said common judgment in relation to the said six W.P(C)s, the specific scale of pay was omitted to be mentioned. 5. The present W.P(C) No.22407/2015 came up before another learned Single Judge for final hearing on 03.08.2015. As on that day, the W.A No.1672 of 2016 8 uncorrected version of the common judgment dated 05.06.2015 in W.P (C) No.24695/2013 and five other connected matters were in vogue. Hence, the learned Single Judge finally disposed of the instant W.P(C) No.22407/2015, by following the directions issued by the learned Single Judge as to the common judgment dated 05.06.2015 in W.P (C) No.24695/2013 and five other W.P(C)s, as it stood then. The present judgment dated 03.08.2015 in the instant W.P(C) No.22407/2015, reads as follows : “ _The issue involved in the writ petition is squarely covered in favour of the petitioners by Ext.P3 judgment of this Court. Accordingly, the petitioners are entitled to the benefit of the said judgment and entitled to be redesignated with replacement scale of pay in the scale of Rs.3200-85-4900. As all of them have retired from service, they are entitled to get their retirement benefits re-fixed on the basis of the pay fixed on such upgradation along with arrears of pensionary benefits. The 2nd respondent shall consider the representations of the petitioners and grant them all benefits on the basis of the upgradation/restructuring and replacement of the scale of pay of the post from which they retired, by re-fixing their pay and pensionary benefits. The arrears of pensionary benefits, on the basis of such re-fixation of pay and pension, along with all other monetary benefits, shall be paid to the petitioners within a period of four months from the date of receipt of a copy of this judgment.”_ 6. Later, on 07.07.2016, the learned Single Judge ordered for a correction in the instant judgment dated 03.08.2015 in the instant W.P(C) No.22407/2015 by ordering that the pay scale of Rs.3200-85-4900/occurring in the fifth line of the judgment dated 03.08.2015 in W.P(C) No.22407/2015 will stand corrected and substituted as Rs.4000-100- W.A No.1672 of 2016 9 6000/-, etc. The corrected order dated 07.07.2016 in the instant W.P(C) No.22407/2015 reads as follows : “The pay scale “ _**Rs.3200-85-4900**_ ” occurring in the fifth line of the judgment dated 03/08/2015 in W.P.(C).No.22407/2015 is corrected and substituted as “ _**Rs.4000-100-6000**_ ” as per order dated 07/07/2016 in I.A.No.10028/2016 in W.P.(C).No.22407/2015” 7. Hence, it appears that in the instant W.P(C), instead of correcting and deleting the pay scale altogether, the learned Single Judge in the instant W.P(C) No.22407/2015, has corrected the scale of pay of Rs.3,200-85-4,900/- and substituted the same with another pay scale, viz. “Rs.4000-100-6000/-”. 8. The common judgment dated 05.06.2015 rendered by the learned Single Judge in the aforementioned six W.P(C)s as well as the instant judgment dated 03.08.2015 rendered by the learned Single Judge in the instant W.P(C) No.22407/2015, were challenged by the Union of India and others, by filing seven separate writ appeals. The writ appeal arising out of the instant W.P(C) No.22407/2015, is the instant Writ Appeal, W.A No.1672/2016. The six other writ appeals are W.A Nos.1671/2016, 1602/2017, 2055/2016, 2060/2016, 2073/2016 & 2099/2016, arising out of the six W.P(C)s covered by the earlier judgment dated 05.06.2015 rendered by the learned Single Judge in the said corresponding W.P(C)s mentioned hereinabove. All the seven writ appeals including the instant W.A No.1672 of 2016 10 Writ Appeal No.1672/2016 were finally disposed of by a common judgment dated 19.07.2019, wherein the Division Bench has clearly recorded that the appellants therein (Union of India & others), have absolutely no objection in extending the benefit of the judgment referred to therein as Ext.P-1 to the respondents in the writ appeal/writ petitioners concerned. The said Ext.P-1 judgment referred to therein is the earlier referred judgment dated 22.09.2011 rendered by the Division Bench of the Guwahati High Court in W.A No.50(SH) of 2010, which was affirmed by the Apex Court by the dismissal of SLP (Civil) No.6241/2012 on 02.07.2012. 9. In para No.2 of the common judgment dated 19.07.2021 rendered by the Division Bench of this Court in the instant writ appeal and the six other writ appeals, it has been recorded that the main dispute is that the parties are in variance as to whether the benefit under the said Ext.P-1 judgment have already been extended to the writ petitioners or not and that the said matter is to be agitated in the proceedings for contempt, if any initiated and not in these writ appeals. Further, the Division Bench has also clarified that the deletion appearing in the concluding part of the judgment impugned, does not alter its basic fabric. All the seven writ appeals, including the instant W.A No.1672/2016, have thus been finally disposed of. The common judgment dated 19.07.2019 rendered by the W.A No.1672 of 2016 11 Division Bench of this Court in the said seven writ appeals, including the instant W.A No.1672/2016 reads as follows : “ _The benefits under the Office Memorandum dated 22.01.1998 as clarified in the Office Memorandum dated 03.03.1998 was awarded under Ext.P1 judgment. The principal prayer in the writ petition was for extending the benefit of Ext.P1 judgment to the writ petitioners. The same is extracted below:_ “ii. Issue a writ of mandamus or such other writ order or direction directing the respondents to consider Exhibit P2 request, taking note of the directions and findings in Exhibit P1 judgment and release the monetary benefits due to the petitioners consequent to the implementation of the directions in Exhibit P1 judgment.” _The appellants herein have absolutely no objection in extending the benefit of Ext.P1 judgment to the respondents/writ petitioners._ _2. The parties are at variance as to whether the benefits under Ext.P1 judgment have already been extended to the respondents or not. That is a matter to be agitated in the proceedings for contempt if any initiated and not in these writ appeals. We also make it clear that the deletion appearing in the concluding part of the judgment impugned does not alter its basic fabric._ _The writ appeals are disposed of. No costs.”_ 10. It is also common ground that the Union of India and others have not raised any challenge as against the common judgment of the Division Bench, referred to above in the six W.P(C)s, covered by the earlier judgment dated 05.06.2015 rendered by the learned Single Judge in W.P(C) No.24695/2013 and five other connected W.P(C)s. The only challenge that has been made by the Union of India and others is by filing an SLP (Civil), before the Apex Court as SLP No.470-471 of 2022. The only objection raised by the Union of India and others was against the Division W.A No.1672 of 2016 12 Bench judgment dated 03.08.2015 to the extent it related to W.A No.1672/2016, which in turn arose out of the later judgment dated 03.08.2015 rendered by the learned Single Judge in the instant W.P(C) No.22407/2015. Both sides have apprised us that no SLPs (Civil) have been preferred by the Union of India and others before the Apex Court to challenge the common judgment dated 19.07.2019 rendered by the Division Bench of this Court, to the extent that it related to the six other writ appeals, which in turn arose out of the earlier judgment dated 05.06.2015 rendered in W.P(C) No.24695/2013 and five other connected W.P(C)s. It appears that the objections raised by the Union of India and others, was that the mentioning of the specific pay scale in the corrected version of the instant judgment in W.P(C) No.22407/2015, is objected to by them, whereas in the connected six other W.P(C)s, the initial judgment after correction, altogether deleted the mention about the pay scale, for upgradation. Now, the Apex Court has passed final order disposing of the said SLP (C) Diary No.13864/2020, by granting special leave and condoning the delay. The Apex Court has specifically held in para No.8 of the said final order/judgment dated 10.01.2022 in the said civil appeal/SLP proceedings, which reads as follows : _“8 We find from the impugned judgment of the Division Bench of the High Court that the issue as to whether the Single Judge_ W.A No.1672 of 2016 13 _was justified in substituting the original pay scale, as contained in the order dated 3 August 2015, with the pay scale as modified on 7 July 2016, has not been analysed. The correctness of the pay scale, as modified to Rs 4000-100-6000, should, in this view, be reconsidered by the Division Bench for which purpose, we intend to remand the proceedings on this limited issue. We clarify that since the judgment of the High Court of Guwahati has attained finality, that does not form the subject matter of any dispute and cannot be reopened.”_ 11. Since the precise reasons for not only deleting the pay scale as Rs.3,200-85-4,900/- and substituting the same as “Rs.4000-100-6000/-” in the corrected version of the instant judgment in W.P(C) No. 22407/2015, was not forthcoming, the Apex Court has remitted the matter to the Division Bench of this Court in the present writ appeal, to decide on that issue. 12. A reading of the said judgment/final order dated 10.01.2022 rendered by the Apex Court in the said SLP proceedings/civil appeal, would make it clear that the only challenge therein was directed as against the judgment dated 03.08.2015 of the learned Single Judge in W.P(C) No. 22407/2015, especially in view of the subsequent correction ordered on 07.07.2016, regarding the deletion, correction and substitution of the pay scale, as above. 13. We are apprised by both sides that no challenge was mounted by filing an SLP as against the six other writ appeals covered by the common judgment dated 19.07.2019 rendered by the Division Bench. W.A No.1672 of 2016 14 14. We specifically queried to the appellants, as to whether their stand in the other appeals is that they have no objections in implementing the directions rendered by the Guwahati High Court in the judgment referred to as Ext.P-1 therein, etc. and the distinct impression that we could get is that the appellants do not have any such objections. Further that, the Apex Court has clearly declared and ordered in para No.8 of the abovesaid judgment dated 10.01.2022 that it is clarified that since the judgment of the Guwahati High Court has attained finality, that does not form the subject matter of any dispute and cannot be re-opened. Both sides have now apprised to us that the corrected version rendered by the learned Single Judge in respect of the earlier judgment dated 05.06.2015 in W.P(C) No.24695/2013 and five other W.P(C)s, may be ordered in this case as well, so that the mention about the pay scale may be deleted and no mention about the pay scale may be made at all. Hence, it is ordered that the subsequent corrected order dated 07.07.2016 in I.A No.10028/2016 in the instant W.P(C) No.22407/2015, will stand set aside and substituted as follows : _“The pay scale of Rs.3,200-85-4,900/- appearing in the fifth line of the judgment dated 03.08.2015 of the learned Single Judge in W.P(C) No.22407/2015, will stand deleted.”_ W.A No.1672 of 2016 15 15. We have so ordered, so that the deletion order as already carried out by the learned Single Judge in the earlier judgment dated 05.06.2015 based on the subsequent correction order dated 02.06.2016 in the other six W.P(C)s, will be applicable in the instant W.P(C) as well. Hence, it is for the appellants to ensure that the benefit of the judgment of the Guwahati High Court referred to as Ext.P-1 above, may be extended to the respondents/writ petitioners, without any further delay, preferably within a period of three months from the date of receipt of a certified copy of this judgment. No other orders or directions are called for. With these observations and directions, the above writ appeal will stand finally disposed of. **==> picture [147 x 16] intentionally omitted <==** ## **ALEXANDER THOMAS, JUDGE** **Sd/-** **VIJU ABRAHAM, JUDGE** vgd