Union of India and Others v. T. M. Chandy and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 WP(C).No. 6354 of 2007(S) ------------------------OA.122/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: ------------------- 1. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSION DEPARTMENT OF PERSONNEL & TRAINING, NORTH BLOCK, NEW DELHI. 2. THE DEPUTY DIRECTOR (ADMINISTRATION), CENTRAL BUREAU OF INVESTIGATION, C.G.O. COMPLEX, LODHI ROAD, BLOCK NO.3, NEW DELHI-110 003. 3. THE SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, SPECIAL POLICE ESTABLISHMENT, KERALA BRANCH, KOCHI-17. 4. THE SUPERINTENDENT OF POLICE - (ADMINISTRATION), SIC-III, C.B.I., NEW DELHI. BY ADV. SRI.TPM.IBRAHIM KHAN,SENIOR PANEL COUNSEL FOR CENTRAL GOVT. RESPONDENTS:: --------------- 1. T.M.CHANDY, SON OF SRI MICHAEL, AGED 63 YEARS, SENIOR PUBLIC PROSECUTOR (RETIRED), RESIDING AT 35/3046, SAMSKARA JUNCTION, PALARIVATTOM, KOCHI- 682 025. 2. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. M/S .SATHISH NINAN & SANTHOSH MATHEW . ## R2 BY GOVT. PLEADER SRI R.LAKSHMI NARAYAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/01/2010, ALONG WITH WPC NO. 12453 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX (WPC 6354/07) ## PETITIONER'S EXTS: EXT.P1: A PHOTOSTAT COPY OF THE ORDER DATED 29.5.2006 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN ORIGINAL APPLICATION NO.122 OF 2005. EXT.P2: A PHOTOSTAT COPY OF THE ORIGINAL APPLICATION NO.122 OF 2005 ALONG WITH ITS ANNEXURES FILED BY THE FIRST RESPONDENT/APPLICANT BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P3: A PHOTOSTAT COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENT IN ORIGINAL APPLICATION NO.122 OF 2005 ALONG WITH ITS ANNEXURES BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P4: A PHOTOSTAT COPY OF THE REJOINDER FILED BY THE FIRST RESPONDENT/APPLICANT IN ORIGINAL APPLICATION NO.122 OF 2005 ALONG WITH ITS ANNEXURES BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P5: A PHOTOSTAT COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENT IN ORIGINAL APPLICATION NO.122 OF 2005 ALONG WITH ITS ANNEXURES BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. //TRUE COPY// ## P.R. RAMAN & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = == = = = = W.P.(C) Nos. 6354 &12453 OF 2007 = = = = = = = = = = = = = = = = = = = DATED THIS, THE 19TH DAY OF JANUARY, 2010. _**J U D G M E N T**_ ## _**Raman, J.**_ While W.P.(C) 6354/2007 is filed by the Union of India and others,who are the respondents in O.A. 122 of 2005 on the file of the Central Administrative Tribunal, Ernakulam Bench, W.P.(C) 12453/2007 is filed by the applicant therein. 2. We shall refer to the status of the parties as in the Tribunal. The facts in brief are as follows: The applicant is a retired Senior Public Prosecutor. His pay was revised retrospectively with reference to his notional pay in the cadre of Additional Public Prosecutor in the Kerala State which took away the protection of actual pay as personal pay and consequential recovery issued as per Annexure A11 produced in the case before the Tribunal. This was impugned by him by filing the O.A. He sought various reliefs as extracted in Page 2 of the order of the Tribunal. He was appointed as an Assistant Public Prosecutor Grade II on 15.4.1974 in the Kerala State and his service was regularised with effect from 12.8.1977. He was sent on deputation as Public Prosecutor in the Central _**WP(C) 6354 & 12453/07**_ 2 Bureau of Investigation in th scale of pay of Rs. 2375-3500 by Annexure A1 order dated 12.8.1992. While so, his pay was re-fixed as on 1.12.1996 and he was drawing a basic pay of Rs. 3500, the maximum of the scale of pay for that post. Thereafter, he was appointed as a Senior Public Prosecutor which is a Group A Gazetted post in the CBI in the scale of Rs. 2200-4000/- by way of transfer, after consultation with the Union Public Service Commission and Director, Central Bureau of Investigation. On appointment, his pay was accordingly fixed as per Annexure A4 and A5 orders in the scale of pay attached to that post extending the benefit under FR 22(1) (a)(i) and giving the benefit of the pay revision as per the recommendation of the Vth Central Pay Commission. He continued to draw the pay with periodical increments. Then by Annexure A6 order, the respondent re-fixed his pay retrospectively, reducing his pay to Rs. 8,000/as against Rs. 11300/- which he was drawing and the balance Rs.3,300/was treated as personal pay. Representation made by the applicant is Annexure A7 and subsequently he approached the Tribunal by filing O.A. 166 of 1999. The Tribunal directed to consider the representation by Annexure A8 order. But they did not consider the representations favourably and passed Annexure A11 order. Review filed thereafter also did not give the relief he sought for. Hence he approached the Tribunal by _**WP(C) 6354 & 12453/07**_ 3 filing the present O.A. 3. Though it was contended by the applicant that his period of deputation should be treated as regular service and pay fixed under Fundamental Rule 22(1)(a)(i) with reference to his pay as Public Prosecutor in the CBI, the Tribunal found that he was appointed as a Senior Public Prosecutor by transfer based on consultation with the UPSC pursuant to the notification issued for filling up of the post of Senior Public Prosecutors and Law Officers. As per the notification, applications were called for deputation/transfer from suitable State/Central Government employees possessing the requisite qualifications. Officers selected by the Government are governed by the general terms of deputation as contained in DOPT OM No. 2/29/91-Estt. (Pay.II) dated 5.1.1984 and will have the option to draw the grade pay plus deputation (duty) allowance or to have their pay fixed in the Central scale of pay of the post or as per normal rules. The mode of recruitment to the post is 50 % by promotion failing which by transfer on deputation, 25% by direct recruitment and 25% by transfer on deputation/transfer. It is also provided that deputationists cannot be considered for appointment by promotion. Eventually, the petitioner was selected and he was appointed on transfer basis. Since he was holding the deputation post of Public Prosecutor working in the same department, as per _**WP(C) 6354 & 12453/07**_ 4 the note appended to the rules, he will not be eligible for consideration for promotion. Therefore, the contention that he should be treated as being promoted was rightly rejected by the Tribunal. The fact that his appointment to the present post as a Senior Public Prosecutor was made at a time when he was working on deputation by itself cannot be treated as though he was holding a substantive vacancy and to treat his appointment by way of promotion. His appointment to the higher post also cannot be treated as on deputation since his appointment to the present post is by way of transfer after inviting applications and after considering his application and after due consultation with the UPSC. Though a deputationist is also entitled to be considered, as per the notification for the post, it cannot be considered as a continuation of the earlier appointment. Looking from various angles, it admits of no doubt that it can only be treated as a fresh appointment in the Central Government by transfer from the State Government and cannot be considered as an earlier appointment on deputation. We do not find, in the circumstances, any illegality in the order passed by the Tribunal. The O.M. dated 18.6.2001 governs the pay fixation of the State Government employees under the Central Government on or after 1.1.1996. Now the next question is what is the relevant provision governing his pay fixation. For the purpose of convenience, we _**WP(C) 6354 & 12453/07**_ 5 extract below the said O.M. which is as follows: (a) Where the State Government have revised the pay scale of their employees on the pattern of V Central Pay Commission at CPI 1510 w.e.f. 1.1.96 the pay of these State Government employees on their appointment under the Central Government would be fixed directly under normal rules ie. F.R. 22(1)(a)(2) or FR 22. 1(a)(1) as the case may be. (b) Where the State Government have revised the pay scales of their employees after 1.1.1996 beyond CPI 1510, basic pay of the employees is to be determined first in the Central Scale by reducing the element of DA, ADA, IR etc. grated by the State Government after 1.1.1996 (beyond CPI 1510) and thereafter the pay would be fixed under normal rules i.e. FR 22(1)(a)(1) r F.R. 22(1)(A)(2) as the case may be. (c) Where the state government have either not revised or revised the pay scale of their employees on or after 1.1.1996 below CPI 1510 basic pay of these employees shall be determined first in the Central scale by adding the element of DA, ADA up to CPI 1510 grated by the State Government and thereafter their pay would be fixed under the normal rules. 4. It goes without saying that in the light of the above O.M., pay has to be fixed with reference to the pattern cadre and not with reference to the pay scale of the deputationist. No other rule or OM is produced to show that the pay in the newly appointed post has to be fixed protecting the scale of pay drawn by him while working as a deputationist. The applicant, _**WP(C) 6354 & 12453/07**_ 6 relying on the decision in _**Madhavan v. Union of India**_ ((1987) 4 SCC 566) claims that the benefit of pay fixation is to be on the basis of deputation. But we find the said decision has no application with regard to the pay fixation but only applies to length of service. The revised pay scale in the State Government came into force with effect from 1.3.1997 and not with effect from 1.1.1996. In such situation, the Tribunal directed the respondent to consider the case of the petitioner in the matter of pay fixation with reference to the OM as referred to above and to consider whether he will be governed by (a), (b) or (c) as the case may be. In the absence of materials produced, neither the Tribunal nor could we consider as to whether the applicant will be governed by clause (a) (b) or (c) as the case may be, since it requires factual details to be collected with reference to the provisions contained in the OM before one could come to the conclusion as to whether clause (a)(b) or (c) will apply. In the above facts and circumstances, we find that the order of the Tribunal on the principles stated with which we concur and the benefit of pay fixation is a matter to be calculated with reference to the OM by the authorities concerned. 5. Though in the writ petitions, both sides have sought to challenge the order passed by the Tribunal, on a careful consideration of the facts as found by the Tribunal with reference to the relevant notification and _**WP(C) 6354 & 12453/07**_ 7 provisions of law, that would apply, there cannot be any doubt that the appointment of the applicant being to a post of Senior Public Prosecutor by way of transfer, it has to be treated only as a direct appointment made to the post. But he will be entitled to the protection of pay scale with reference to the OM as referred to above. Since the respondents have not calculated the benefits in terms of the OM, the same has to be considered by the respondents as expeditiously as possible, since the applicant has already retired from service and any delay will only cause undue hardship to him. 6. We, in the circumstances, direct the respondent Union of India, the petitioner in W.P.(C) 6354/2007 to take such follow up action as directed by the Tribunal subject to what is stated above without delay and final orders shall be passed at any rate within a period of six months from the date of receipt of a copy of this judgment. It will be open to the applicant to submit additional representation producing additional materials for the purpose of calculating the benefit as per the OM dated 18.6.2001 within a period of three weeks from the date of receipt of a copy of this judgment. Both the writ petitions are disposed of subject to the above direction. 7. Though it is contended by the learned counsel for the petitioner in W.P.(C) 12453/2007 that he may be entitled for personal pay protection, the _**WP(C) 6354 & 12453/07**_ 8 same need not be considered by this Court since only if that falls within the provisions contained in the OM, will he be entitled to claim such benefit. But whether or not such pay will come within the purview of the OM is left open to be decided by the authorities. P.R. RAMAN, JUDGE. P.S. GOPINATHAN, JUDGE. KNC/-