Union of India and Others v. G. Rajendran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 OP (CAT) NO. 192 OF 2016** **ORDER IN OA 909/2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, KOCHI** ## **- PETITIONERS/RESPONDENTS 1 5 IN OA:** 1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI 110 001. 2 CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S PRESS ROAD, COCHIN 682 018. 3 COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S PRESS ROAD, COCHIN 682 018. 4 COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE BHAWAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM 695 001. 5 PAY AND ACCOUNTS OFFICER, CENTRAL EXCISE BHAWAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM 695 001. BY ADV SHRI.T.V.VINU, CGC OP (CAT) NO. 192 OF 2016 ..2.. ## **RESPONDENT/APPLICANT IN OA:** G RAJENDRAN NAIR, SUPERINTENDENT CENTRAL EXCISE (RETD), KARTHIKA, KAITHA SOUTH, CHETTIKULANGARA P.O, MAVELIKARA690 016. BY ADVS. SRI.C.S.GOPALAKRISHNAN NAIR C.S.GOPALAKRISHNAN NAIR THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT) NO. 192 OF 2016 ..3.. ## **JUDGMENT** ## A. MUHAMED MUSTAQUE, J. The Union of India, in this original petition, questions an order passed by the Central Administrative Tribunal (for short, “the Tribunal”). 2. Brief facts involved in this case are as follows; Sri.G.Rajendran Nair, the respondent/ applicant, entered the service of the Central Excise as Lower Division Clerk (LDC) on 20.05.1970 and he was promoted as Inspector on 17.08.1978. His junior, Sri.Koruth Jacob, was appointed as Inspector by direct appointment on 05.10.1978. The respondent was promoted as Superintendent on 30.09.1996. Sri.Koruth Jacob could not be promoted and he was stagnated in the post of Inspector for a long period. Therefore, he was given the benefit of Assured OP (CAT) NO. 192 OF 2016 **==> picture [31 x 8] intentionally omitted <==** Career Progression Scheme (for short, “ACP scheme”). Thereafter, he was again granted the benefit of Modified Assured Career Progression Scheme (for short, “MACP scheme”). ACP scheme was for 24 years' stagnation and MACP scheme was for 30 years' stagnation. The respondent approached the Tribunal after his retirement to step up his pay on par with his junior, Sri.Koruth Jacob, with effect from 01.05.2003 and again with effect from 01.05.2010. The Tribunal allowed stepping up of his pay on par with his junior, Sri.Koruth Jacob, but, restricted claiming of arrears of pay and allowances for a period beyond three years from the date of filing of the original application. The Union of India questions the order of the Tribunal before this Court. 3. Learned Central Government Counsel submits that ACP scheme was granted to Sri.Koruth Jacob taking note of stagnation and is OP (CAT) NO. 192 OF 2016 **==> picture [31 x 8] intentionally omitted <==** peculiar to the employee and the ACP scheme itself states that the financial upgradation under the ACP scheme shall be purely personal to the employee and shall have no relevance to the seniority position. It is further submitted that same is the case in MACP scheme, wherein also, it was specifically stated that the benefit given to the employee shall be purely personal and shall have no relevance to the seniority position. Learned Central Government Counsel points out that there is a further stipulation in the schemes that there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay/grade pay under the ACP or MACP schemes. 4. Learned counsel for the respondent has drawn our attention to a decision of the apex court in **Union of India & Others** v. **C.R.Madhava** OP (CAT) NO. 192 OF 2016 **==> picture [31 x 8] intentionally omitted <==** **Murthy & Another** [(2022) 6 SCC 183] and particularly, to paragraph No.6 of the judgment, which reads thus: “6. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale, which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for.” It is submitted that looking at the above judgment itself, it can easily be concluded that the respondent is entitled to the benefit and the claim cannot be denied. 5. Learned Central Government Counsel, _per contra_ , submits that the decision of the apex court is covering only to the extent of ACP scheme and it cannot be extended to any claim relatable to MACP scheme. 6. It is to be noted that the provision in the ACP and MACP schemes stipulating that such OP (CAT) NO. 192 OF 2016 **==> picture [31 x 8] intentionally omitted <==** claim cannot be claimed by senior, is one and same and is only a matter of interpretation of the relevant provision. In this context, it is appropriate to extract the relevant provision in both schemes. The relevant provision in ACP ## scheme reads as follows; “8. The financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay-scale under the ACP Scheme;” The relevant provision in MACP scheme reads as follows; “20. Financial upgradation under the MACPS shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employees on the ground that the junior employee in the grade has got higher pay/grade pay under the MACPS.” We do not find any distinction between both schemes as far as the stipulation repelling such claim of senior is concerned. **==> picture [415 x 12] intentionally omitted <==** OP (CAT) NO. 192 OF 2016 **==> picture [31 x 8] intentionally omitted <==** there is anomaly when the junior is allowed to draw more pay. Even looking from the angle of Article 14 of the Constitution of India, a person, who is holding same cadre, cannot expect to have different emoluments or allowances merely for the reason of stagnation of a junior in that cadre for a long period. 8. At this juncture, learned Central Government Counsel submits that the claim under MACP scheme is pending consideration of the apex court. In view of the foregoing discussion, we find no scope for interference. Accordingly, the original petition stands dismissed. Sd/- ## **A. MUHAMED MUSTAQUE** ## **JUDGE** Sd/- ## **SHOBA ANNAMMA EAPEN** ## **JUDGE** bka/- OP (CAT) NO. 192 OF 2016 ..9.. ## **APPENDIX OF OP (CAT) 192/2016** PETITIONER ANNEXURES |ANNEXURE A12|TRUE COPY OF THE LETTER| |---|---| ||C.NO.II/24/8/2013 DATED 11.10.2013| ||ISSUED BY THE ASSISTANT COMMISSIONER| ||IN THE 4TH RESPONDENT'S OFFICE.| |ANNEXURE A1|TRUE COPY OF THE PROMOTION ORDER| ||NO.185/2004 DATED 2.11.2004 ISSUED BY| ||THE 3RD RESPONDENT.| |ANNEXURE A2|TRUE COPY OF THE SENIORITY LIST DATED| ||13.2.2004 OF SUPERINTENDENT OF CENTRAL| ||EXCISE AS ON 1.1.2004.| |ANNEXURE A3|TRUE COPY OF THE PAY FIXATION| ||STATEMENT OF SHRI KORUTH JACOB ISSUED| ||FROM FILE C.NO.II/24/1/2003 DATED| ||21.6.2004 BY THE ASSISTANT| ||COMMISSIONER, KOTTAYAM DIVISION.| |ANNEXURE A4|TRUE COPY OF THE ORDER NO.36/2010| ||DATED 13.4.2010.| |ANNEXURE A5|TRUE COPY OF THE PAY FIXATION| ||STATEMENT C.NO.II/243/2009 DATED| ||5.5.2010 ISSUED BY THE ASSISTANT| ||COMMISSIONER, KOLLAM DIVISION.| |ANNEXURE A6|TRUE COPY OF THE JUDGMENT OF THE| ||HON'BLE PUNJAB & HARYANA HIGH COURT IN| ||CWP NO.12894/10 ON 23.07.2010.| |ANNEXURE A7|TRUE COPY OF THE ORDER DATED 2.3.2012| ||IN OA NO.1063-JK OF 2011.| |ANNEXURE A8|TRUE COPY OF THE ORDER DATED 5.6.2013| ||IN OA NOS.1097 AND 1100 OF 2011.| OP (CAT) NO. 192 OF 2016 ..10.. ANNEXURE A9 TRUE COPY OF REPRESENTATION DATED 21.3.2013. ANNEXURE A10 TRUE COPY OF THE REMINDER DATED 30.4.2013. ANNEXURE A11 TRUE COPY OF REPRESENTATION DATED 6.7.2013 SUBMITTED TO THE 2ND RESPONDENT. ANNEXURE R1 COPY OF CIRCULAR F.NO.A.32.11/6/2010AD.IIA DATED 28.7.2011. Annexure A A TRUE PHOTOCOPY OF THE OFFICE MEMORANDUM NO.35034/3/2008-ESTT.(D) DATED 19.05.2009 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, GOVERNMENT OF INDIA PERTAINING TO THE MODIFIED ASSURED CAREER PROGRESSION SCHEME ("MACP SCHEME") Annexure B A TRUE PHOTOCOPY OF THE OFFICE MEMORANDUM NO.35034/1/97-ESTT.(D) DATED 9.08.1999 PERTAINING TO THE ASSURED CAREER PROGRESSION SCHEME ("ACP SCHEME") AND ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, GOVERNMENT OF INDIA Annexure C A TRUE COPY OF THE ORDER IN CIVIL APPEAL NO.2016 OF 2020 (ARISING OUT OF SLP(C) NO. 21803 OF 2014) TITLED UNION OF INDIA AND OTHERS VS. M. V. MOHANAN NAIR [REPORTED IN 2020 KHC 6261: 2020 (5) SCC 421] HAS ISSUED ORDER DATED 05.03.2020 IN HON'BLE SUPREME COURT OF INDIA OP (CAT) NO. 192 OF 2016 ..11.. EXHIBIT P1 COPY OF AMENDED OA NO 909/2013 FILED BY SHRI RAJENDRAN NAIR BEFORE THE HON'BLE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P2 COPY OF REPLY STATEMENT IN OA NO 909/2013 EXHIBIT P3 COPY OF REJOINDER FILED BY THE APPLICANT IN THE O.A EXHIBIT P4 COPY OF ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS IN THE OA EXHIBIT P5 COPY OF ADDITIONAL REJOINDER FILED BY THE APPLICANT IN THE OA. EXHIBIT P6 COPY OF ORDER DATED 02-03-2016 OF HON'BLE CAT ERNAKULAM BENCH, IN THE OA.