High Court of KeralaDivision Bench2015-11-26Dismissed

Union of India and Others v. T.V. Sathiamma

Case / Petition Number:OP (CAT) No. 32 of 2015 (Z)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. SURENDRA MOHAN
SHAJI P.CHALY
Judgment Date: 2015-11-26
Court Decision / Holding: Petition dismissed. The High Court did not interfere with Ext.P7; CAT’s order condoning the delay and granting pay protection remains effective. The petitioners are granted a further six weeks from receipt of a copy of the judgment to comply with Ext.P7 directions.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

T.V.Sathiamma

Respondents

Union of India
Chief Postmaster General, Kerala Circle
Senior Superintendent of Post Officers, Kottayam Division
Senior Postmaster, Kottayam H.O.

Legal Representation & Advocates

Counsels for Petitioners

• N. Nagareesh, Assistant Solicitor General of India

Counsels for Respondents

• Martin G. Thottan, Advocate
• P. C. Sebastian, Advocate

Case Synopsis & Summary

The Union of India and other postal department authorities (the petitioners) challenge an order of the Central Administrative Tribunal (CAT) that condoned a long delay and allowed the respondent, T.V. Sathiamma, to seek pay protection after her transfer from a GDS Mail Deliverer to a GDS Branch Post Master within the same recruitment unit. The respondent, who undertook not to claim her former pay scale at the time of transfer, faced a reduction in TRCA and then filed OA 207/2013 seeking protection of her pay. The CAT, after considering the Full Bench decision, condoned the delay and allowed the OA, prompting the petition. The petitioners argued that the CAT’s leniency was erroneous, emphasizing that the respondent delayed for about 1808 days and relied on decisions of the Supreme Court that caution against relief for those who sleep on their rights. The respondent contends that there was no delay in filing OA 207/2013, and that protection of pay is permissible where there is a transfer within the same recruitment unit albeit with different TRCA, a point already upheld by Annexure A3 judgment and later by a Division Bench. The High Court, noting binding precedents and the CAT’s discretion, declines interference under Article 227, upholding the CAT order. The petition is dismissed; six weeks’ extension is granted to comply with the CAT directions."

Provisions of Law Cited

Constitution of India, Article 227

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the CAT seriously erred in condoning the delay and allowing OA 207/2013. They urged that reliance on Supreme Court precedents to deny relief for laches was misapplied; a delay of about 1808 days cannot be countenanced, especially when the petitioner had previously undertaken not to claim a higher pay and still faced a five-year delay before filing. They argued that CAT’s discretion to condone delay should not override settled rights and that Article 227 of the Constitution permits interference when a CAT order is perverse or contrary to law. The petition further asserted that a Full Bench judgment of the CAT and its acceptance by the Kerala High Court should not bind the court to extend protection retrospectively to a lower pay scale.

Contentions of Respondents

The respondent contended there was no delay in filing OA 207/2013 and that protection of pay was permissible in transfers between posts within the same recruitment unit, even with different TRCA. The respondent emphasized that the transfer occurred on her own request, with an undertaking not to claim a higher pay, yet she was granted protection five years later. The respondent noted that Annexure A3 judgment (Full Bench of CAT, upheld by a Division Bench) supports pay protection and that the CAT correctly exercised its discretion in condoning the delay. The respondent urged that no interference was warranted under Article 227 given the binding judgments and the need to respect CAT’s expertise.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
U.P. Jal Nigam and Another v. Jaswant Singh and Another	(2006) 11 SCC 464	Mentioned Only	Cited by the ASGI to illustrate that those not vigilant in enforcing rights may not be entitled to relief after a long delay; the High Court does not apply this to grant relief.
A.P. Steel Re-Rolling Mill Ltd v State of Kerala and others	(2007) 2 SCC 725	Mentioned Only	Cited by the ASGI in context of delay; the High Court does not ground its decision on this to extend relief.
S.S. Balu and another v. State of Kerala and others	(2009) 2 SCC 479	Mentioned Only	Cited by the ASGI as part of the argument on delay and vigilance; used as a reference rather than a binding rule in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 26TH DAY OF NOVEMBER 2015/5TH AGRAHAYANA, 1937 OP (CAT).No. 32 of 2015 (Z) ---------------------------- AGAINST THE ORDER/JUDGMENT IN OA 207/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED PETITIONERS/RESPONDENTS: --------------------------- 1. UNION OF INDIA AGED 59 YEARS REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS NEW DELHI - 110 001. 2. THE CHIEF POSTMASTER GENERAL KERALA CIRCLE, THIRUVANANTHAPURAM - 695 033. 3. THE SENIOR SUPERINTENDENT OF POST OFFICERS, KOTTAYAM DIVISION, KOTTAYAM- 686 001. 4. THE SENIOR POSTMASTER, KOTTAYAM H.O., PIN - 686 001. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENE RESPONDENT/APPLICANT: ------------------------- T.V.SATHIAMMA W/O. LATE DIVAKARAN WORKING AS GDS BPM ERAVINELLOOR P.O. RESIDING AT MULLACKAL HOUSE, MANGANAM P.O. KOTTAYAM - 686 018. R1 BY ADV. SRI.MARTIN G.THOTTAN R BY ADV. P.C. SEBASTIAN THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 26-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 32 of 2015 (Z) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------- EXHIBIT-P1-TRUE COPY OF THE O.A 207/2013 FILED BY THE RESPONDENT BEORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT-P2-TRUE COPY OF THE M.A 336/2013 IN O.A 207/2013 EXHIBIT-P3-TRUE COPY OF THE OBJECTION TO THE M.A FOR CONDONATION OF DELAY FILED BY THE RESPONDENTS. EXHIBIT-P4-TRUE COPY OF THE REPLY STATEMENT DATED 12/11/2013, FILED BY THE PETITIONERS. EXHIBIT-P5-TRUE COPY OF THE REJOINDER STATEMENT DATED 27/01/2014 FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM BENCH . EXHIBIT-P6-TRUE COPY OF THE ADDL. REPLY STATEMENT FILED BY THE PETITIONERS DATED 05/03/2014. EXHIBIT-P7-TRUE COPY OF THE ORDER IN O.A 207/2013 WITH M.A NO. 336/2013 DATED 31/07/2014 OF THE CAT, ERNAKULAM BENCH. RESPONDENT(S)' EXHIBITS NIL ------------------------- K. SURENDRA MOHAN, & SHAJI P.CHALY,JJ. --------------------------------------O.P(CAT) NO:32 OF 2015 ---------------------------------------Dated this the 26[th] November, 2015. ## JUDGMENT The Union of India and others, the respondents in O.A.207/2013, have filed this original petition challenging Ext.P7 order of the Central Administrative Tribunal ('CAT' for short) condoning the delay and allowing the original application filed by the respondent. The respondent had filed the original application contending that she was initially appointed as a GDS Mail Deliverer ('GDSMD' for short) at Paduva Post Office in Kottayam Postal Division. On her request, she was transferred from the post of GDSMD Paduva to the post of GDS Branch Post Master ('GDSBPM' for short) on 27.3.2008. At the time of transfer, the respondent was drawing a time related continuity allowance ('TRCA' for short) at the stage of 4670/- in the scale of 4220-75-6740. After₹ ₹ OP(CAT)32/2015 2 transfer, her TRCA was fixed at 3660-70-5760. She was₹ transferred to the post of GDSBPM after she had executed an undertaking that she would not claim her former pay scale. However, according to the petitioners, in the year 2013, five years after her transfer she filed O.A.207/2013 contending that her pay was liable to be protected. Though there was a delay of 1808 days the CAT has condoned the delay and has allowed the original application granting protection of the respondent's pay. The petitioners are aggrieved by the said order. 2. According to Shri.N.Nagaresh, the Assistant Solicitor General of India (ASGI), the CAT seriously erred in condoning the delay and allowing the application filed by the respondent. The learned ASGI has placed reliance on the decisions of the Apex Court in U.P.Jal Nigam and Another v. Jaswant Singh and Another [(2006)11 SCC 464, A.P.Steel Re-Rolling Mill Ltd. V State of Kerala and others [(2007)2 SCC 725] and S.S.Balu and another v. State of Kerala and others [(2009)2 SCC 479] in OP(CAT)32/2015 3 support of his contention that, persons who were not vigilant in enforcing their rights were not entitled to any benefit after a considerable lapse of time. This is so even in cases where others who were similarly situated, but were vigilant had been granted relief. It is pointed out that the respondent herein had slept over her rights for an abnormally long period. It is also pointed out that she had consciously obtained transfer on her request, after executing an undertaking that she would not claim a higher salary. Thereafter, she had acquiesed and had been receiving the lower pay for five years thereafter. In view of the above, it is contended that there is no justification for granting her any relief. 3. Adv.Martin G. Thottan who appears for the respondent disputes the above contentions of the learned ASGI. According to the counsel, there is absolutely no delay in filing the original application. Though it is true that she had obtained transfer on her request, that does not disentitle her from claiming protection of her pay. The issue OP(CAT)32/2015 4 according to the learned counsel had been considered by a Full Bench of the Central Administrative Tribunal and had been decided in favour of the respondent. This Court has in Annexure A3 judgment, upheld the decision of the Full Bench. It was in view of the above that the Central Administrative Tribunal had condoned the delay and allowed the Original Application. According to the learned counsel, Ext.P7 therefore does not call for any interference. 4. Heard. It is no doubt true that, the petitioner had been transferred in the year 2008 on her own request. According to the learned ASGI, she was working as a GDS Mail Deliverer before her transfer. However, she had been transferred to a different post, that of a GDSBPN. Since the transfer was to a different post it is contended that protection of pay would not be applicable. However, we notice from Annexure A3 judgment that, a similar question had been considered by this Court in the said judgment. A Full Bench of the Central Administrative Tribunal had held that in respect OP(CAT)32/2015 5 of transfer from one post to another within the same recruitment unit but with different TRCA (i.e from higher to lower) pay protection on the same lines as in our case would be available. The above verdict of the Full Bench has been upheld by another Division Bench of this Court in Annexure A3 judgment. In view of the above binding dictum we are not satisfied that any interference with Ext.P7 is called for under Art.227 of the Constitution. As rightly pointed out by the learned counsel for the petitioners the reduction in pay being a continued grievance of the respondent could not attract the limitation that has been prescribed. In any case, the CAT has exercised its discretion and has condoned the delay. We notice that, the respondent is working as a GDS. She cannot be credited with sufficient education or knowledge of the consequence of her act in having executed the undertaking that she would not claim her higher grade. We also notice that a similar contention has been negatived by the Division Bench in Annexure 3 judgment. OP(CAT)32/2015 6 For the foregoing reasons we do not find any grounds to admit this original petition. The same is therefore dismissed. Since the time stipulated by Ext.P7 for complying with the directions therein has expired, the petitioners are granted a further period of six weeks from the date of receipt of a copy of this judgment for complying with the same. Sd/K. SURENDRA MOHAN Judge Sd/SHAJI P.CHALY Judge jj /True copy/ OP(CAT)32/2015 7 OP(CAT)32/2015 8 OP(CAT)32/2015 9