Union of India and others v. Usha Vijayakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943** **OP (CAT) NO. 344 OF 2017** **AGAINST THE ORDER/JUDGMENT IN OA NO.180/1010/2013 DATED 17.02.2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS:** 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF INFORMATION & BROADCASTING, NEW DELHI-110001. 2 THE DIRECTOR GENERAL, PRASAR BHARTI (INDIA" PUBLIC SERVICE BROADCASTER), ALL INDIA RADIO, AKASHVANI BHAVAN, NEW DELHI-110001. 3 THE STATION DIRECTOR, PRASAR BHARATHI (INDIA'S PUBLIC SERVICE BROADCASTER), ALL INDIA RADIO, CALICUT-1. 4 THE STATION DIRECTOR, PRASAR BHARATHI (INDIA'S PUBLIC SERVICE BROADCASTER), ALL INDIA RADIO, TRIVANDRUM. BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.T.V.VINU, CGC ## **RESPONDENT/APPLICANT:** USHA VIJAYAKUMAR, W/O.V.K.VIJAYAKUMAR, INSTRUMENTALIST (GOTTUVADYAM) (RETIRED), ALL INDIA RADIO, CALICUT, RESIDING AT USHUS, 1/4562-B, BILARTHKULAM P.O., ERANZHIPALAM, CALICUT673006. BY ADV SRI.MILLU DANDAPANI THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 19.11.2021, THE COURT ON 3.12.2021 DELIVERED THE FOLLOWING: ## **O.P.(CAT) No.344 of 2017 2** ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **.................................................................** ## **O.P.(CAT) No.344 of 2017** _[Arising out of the impugned order dated 17.02.2017 in O.A. No.180/1010 of 2013 on the file of the CAT, EKM Bench]_ ## **.................................................................** Dated this the 3[rd] day of December, 2021 ## **JUDGMENT** ## **Viju Abraham, J.** The respondent herein has instituted Ext.P1 O.A. No 1010 of 2013 before the Central Administrative Tribunal, Ernakulam Bench with the following prayers: - _"(i) issue an order cancelling Annexure A3 and to pass fresh order in accordance with Annexure A1 order of the Tribunal,_ - _(ii) to direct respondents 2 and 3 to consider Annexures A6 and A7 representations,_ - _(iii) pass such other appropriate order or direction as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case_ _and_ - _(iv) award cost of the application."_ 2. The Tribunal after hearing both sides have rendered Ext. P8 final order dated 17.02.2018, which is impugned in the present Original Petition, setting aside Annexure A3 order and directing the appellants herein to issue fresh orders fixing the pay of the applicant consequent to 2nd financial up-gradation under the ACP scheme at Rs.10,000-15,200, the corresponding pay of which carries the grade pay of Rs.6,600 as shown in Annexure A10 with a consequential ## **O.P.(CAT) No.344 of 2017 3** direction to refix the pay and to pay the arrears within a period of 3 months from the date of receipt of a copy of the order. 3. Being aggrieved by Ext. P8 final order of the Tribunal in the said O.A., the respondents have instituted the above Original Petition under Articles 226 & 227 of the Constitution of India seeking to set aside Ext.P8 Order in OA No.180/001010/2013 dated 17.02.2017 of the Central Administrative Tribunal, Ernakulam Bench. 4. Heard Shri. T.V. Vinu, learned Central Govt. Counsel appearing for petitioners in the O.P/respondents in the O.A and Smt. Sumathi Dandapani, learned Senior Advocate appearing for the respondent in the O.P/applicant in the O.A. 5. As per the averment in the original application, the applicant is an instrumental artist in Gottuvadyam, and that she was initially appointed as a staff artist in August 1977 and she was later upgraded as B high-grade instrumentalist w.e.f. 09.03.1979. Later as per a decision taken vide order dated 11.01.1993 to treat all the staff artists as Govt. servants, she has been held to be a regular Civilian Central Govt. employee w.e.f. 06.03.1982. As per the recruitment Rules relating to artists, posts of instrumentalist grade II, III, and IV are to be filled up through interview, and no promotion is provided ## **O.P.(CAT) No.344 of 2017 4** for and that for grant of each grade, a specific standard of efficiency has been provided. On 09.08.1999 to mitigate the hardship in the case of acute stagnation, the Assured Career Progression Scheme (hereinafter referred to as "ACP Scheme") was introduced by the Government in the isolated posts or in promotional posts. In respect of cadre post, the benefit attached to the promotional post will be available after completion of 12 years of service and similarly, the pay scale attached to the next promotional post could be available after completion of 24 years of service. The request of the applicant for the benefit of ACP Scheme was rejected contending that she is not found eligible for A grade from B high grade as required under the Rules and therefore not eligible for the ACP Scheme. Impugning the said orders of rejection the respondent/applicant earlier approached the Tribunal by filing O.A. No.567 of 2016. After consideration of the rival claims the Tribunal as per Annexure A1 order dated 27.03.2018 allowed the O.A. holding that the respondent /applicant in the O.A is entitled to grant ACP and as the applicant has government service from 06.03.1982, she would be entitled to grant 1st ACP in the grade of Rs.6500–15000 w.e.f. 09.08.1999 and 2nd ACP from 06.03.2006 i.e., on completion of 24 years of government service and further directed the petitioners/respondents ## **O.P.(CAT) No.344 of 2017 5** in the O.A to pass consequential orders and to pay arrears of pay and allowance within a period of 2 months from the date of communication of the order. Since no action was taken pursuant to Annexure A1 order passed by the Tribunal, a contempt petition was filed as C.P. No. 56 of 2008, and the Tribunal as per Annexure A2 order closed the said contempt holding that orders have been passed by the Government subsequent to issuance of Annexure A1 order of the Tribunal and that if the order passed is not in full compliance with Annexure A1 order, the same could be agitated by a separate original petition and giving such liberty contempt petition was closed. 6. It is the contention of the respondent/applicant that the directions in Annexure A1 are not fully complied with and that as per Annexure A3 order dated 02.12.2008, sanction was accorded for grant of 2nd financial up-gradation under the ACP Scheme to the respondent/applicant raising her pay scale from Rs.5500–9000 to Rs.6500–10500 w.e.f. 19.08.2001 on completion of 24 years of regular service rendered by the applicant in the post of instrumentalist. It was also contended that she has been granted 1st financial up-gradation for an amount of Rs.1,25,232/- on the same date when the order was issued on 2.12.2008. Since the issuance of ## **O.P.(CAT) No.344 of 2017 6** Annexure A3 order was in flagrant violation of Annexure A1 order passed by the Tribunal, the applicant submitted Annexures A5 to A7 representations before the authorities. Since such request was not considered by the official respondents, the applicant preferred O.A. No. 1010 of 2013 with a prayer to quash Annexure A3 order and to pass fresh orders in accordance with Annexure A1 order of the Tribunal and also for consideration of Annexures A6 and A7 representations. 7. Ext.P2 reply statement dated 28.04.2015 was filed by the petitioners/respondents in the O.A, in which it is admitted that a decision has been taken by the competent authority to treat grade IV (Rs.5000–8000), grade III, and grade II of instrumentalist in All India Radio as isolated posts for grant of ACP and in compliance of the direction issued by the Tribunal order dated 02.12.2008, the applicant was granted second up-gradation to the scale of Rs.650010500 and consequently she was paid arrears of Rs.1,25,232/-. It is further contended that the applicant has already got the benefit of one financial up-gradation on 09.03.1979 from the scale of pay of Rs. 5000-8000 to Rs.5500–9000. The ACP Scheme was introduced by the Government w.e.f. 09.08.1999 to deal with the problem of genuine stagnation and hardship faced by employees due to lack of ## **O.P.(CAT) No.344 of 2017 7** adequate promotional avenues. Those employees who were stagnating in the scale in which they were initially appointed will become eligible for the 1st financial up gradation on completion of 12 years of regular service and 2nd up gradation on completion of 24 years of regular service to the next higher scale in the hierarchy. The hierarchy of scale of pay existing in the cadre of instrumentalists is Rs.5000-8000 (Grade IV), Rs.5500–9000 (Grade III), Rs.650010500 (Grade II), and Rs.10000-15200 (grade I). Since the applicant has already got the benefit of one financial up-gradation on 09.03.1999, she becomes eligible for the 2nd financial up-gradation under the ACP scheme on completion of 24 years of service on 19.08.2001 to the scale of Rs.6500-10500. By way of Annexure A3 order, the said benefit has been granted to the applicant and thereby fully complied with Annexure A1 order passed by the Tribunal. Even though it is stated so, the department has taken a stand in paragraph 10 of the reply statement, that the post of instrumentalist in All India Radio cannot be said to be an isolated post as defined in the ACP scheme and that it is not a stand-alone post having neither feeder grade nor promotional grade. There is an inbuilt scheme of upgradation of pay scales between the post of instrumentalist between Grade IV to Grade II depending on up-gradation of skills in their ## **O.P.(CAT) No.344 of 2017 8** respective musical disciplines through Music Audition Board of All India Radio. Challenging Annexure A1 order of the Tribunal, the Department filed W.P(C) No. 21573 of 2008, which was ultimately dismissed by this court. There is a delay of more than 4 years on the part of the applicant in approaching the appropriate forum for redressal of her grievances. It is also submitted that by Annexure R1 order dated 23.08.2013 the Department approved the grant of 3rd financial up-gradation to the applicant under MACP with effect from 6.3.21012 from the present grade pay of Rs. 4600 in pay band 2 (PB - 2) to grade pay of Rs. 4800 in PB - 2. 8. Ext.P3 rejoinder dated 20.07.2015 was filed in answer to Ext.P2 reply statement filed by the official respondents mainly contending that the stand of the department that the post held by the applicant is not an isolated post goes against their own statement in paragraph 6 of the reply statement. After the dismissal of the Writ Petition filed as W.P.(C). No. 21573 of 2008 challenging Annexure A1 order of the Tribunal the Department ought to have allowed the direction issued in Annexure A1. Thereafter Ext.P4 additional reply statement dated 24.11.2015 was filed by the department in answer to Ext.P3 rejoinder mainly reiterating the earlier contention that since the applicant has already got the benefit of one financial up- ## **O.P.(CAT) No.344 of 2017 9** gradation on 09.03.1999 she becomes eligible for the 2nd financial up-gradation under ACP scheme on completion of 24 years of service on 19.08.2001 to the scale of Rs.6500-10500 and by Annexure A3 order the said benefit has been granted to the applicant. 9. Thereafter Ext.P5 additional rejoinder dated 26.03.2016 was filed in reply to Ext.P4 additional reply statement mainly contending that the department has not given her either 1st ACP w.e.f. 09.08.1999 or the second ACP from 05.03.2006 instead they only granted her 2nd ACP from 19.08.2001 as per Annexure A3 order and therefore the applicant made a further prayer in the said additional rejoinder that the Tribunal may be pleased to grant 1st ACP w.e.f. 09.08.1999 in the pay scale of Rs.6500-200-1050 and 2nd ACP w.e.f. 05.03.2006 in the pay scale of Rs.10000–325-15200 and 3rd MACP on completion of 30 years of service on 05.03.2012 in the pay band of Rs.15600 – 39100 and grade pay of Rs.7600. 10. Still further, Ext.P6 second additional reply statement dated 22.07.2016 was filed by the Department contending that Annexure R3 order has been issued by them as the competent authority has observed that 1st and 2nd ACP benefit to the applicant is to be granted w.e.f. 09.08.1999 and 06.03.2006 after completion of 12 years and 24 years of regular service w.e.f. 06.03.1982 from the ## **O.P.(CAT) No.344 of 2017 10** date on which she was declared as a deemed government servant, All India Radio Thiruvananthapuram was requested to re-fix the 1st ACP benefit w.e.f. 09.08.1999 in the pay scale of Rs.6500-10500, after completion of 12 years of regular service w.e.f. 06.03.1982 and 2nd ACP benefit w.e.f. 06.03.2006 in pay band of Rs.9300-34800 with grade pay of Rs.4800 after completion of 24 years of regular service w.e.f. 06.03.1982 and not in the pay scale of Rs.10000-15600 as she did not fulfill the promotional norms, i.e. she has not obtained an A grade certificate from MAB, for granting ACP benefit in the above said pay scale. It is further stated that direction has been issued to the Station Director, All India Radio, Thiruvananthapuram to convene a screening committee meeting for grant of 3rd MACP benefit to the applicant after completion of 30 years of regular service w.e.f. 06.03.1982 in the grade pay of Rs.5400 and as per Exts. R4 and R5. The whole benefit due to the applicant/respondent herein as stated above was sanctioned and as such Annexure A1 order of the Tribunal had been fully complied with. 11. The applicant/respondent again filed Ext.P7 second additional rejoinder dated 2.11.2016 to the second additional reply statement filed by the appellant/respondent in the O.A. mainly contending that denial of pay scale of Rs.10000-15200 to the ## **O.P.(CAT) No.344 of 2017 11** applicant only for the reason that she has not obtained A grade is not sustainable especially for the reason that similarly placed artists who were in B high Grade and continued till retirement in that grade were granted ACP scales corresponding to A top grade of Rs. 1000015200 with grade pay of Rs.6,600 in the 6th CPC. In the said additional rejoinder the applicant pointed out that Shri. S.A. Swamy, T.R. Balasubramaniam, Shri. Pala C.K., T.H. Lalitha and Smt. Geetha Devi Vasudevan staff artists who were all in B high and A grade were given next pay scale with grade pay of 6th CPC and these aspects could be clearly understood from Annexure A10 document obtained by the applicant under the Right to Information Act and therefore the applicant cannot be denied the pay scale of Rs.10000-15200/- on the pretest that she has not obtained A grade certificate and therefore Ext R4 order is not correct and if the applicant is extended the benefit granted in Annexure A10 she would get grade pay of Rs. 6600/-. 12. Exhibit P10 obtained by the applicant as per the Right to Information Act contains two portions, the first of which is an order dated 07.11.2016, which is the pay fixation statement of the applicant whereas the 2nd portion relates to the grant of 1st ACP benefits to the persons mentioned in the said second additional rejoinder who ## **O.P.(CAT) No.344 of 2017 12** are claimed to be similarly situated to the applicant. 13. In the present Original Petition the petitioners have filed an affidavit dated 28.11.2017 mainly in answer to Annexure A10 document produced along with Ext.P7 second additional rejoinder by producing Exts. P9 and P10 which are show-cause notices issued to Shri. S.A Swamy and T.R. Balasubramaniam referred to in Annexure A10 document, directing them to explain as to why the pay scale of Rs.10000-15200 granted as 1st ACP as on 09.08.2009 (must be a typographical error in place of 09.08.1999, the date on which they were eligible for 1st ACP on completion of 12 years) be refixed as Rs.7450-1150 as on 09.08.2009 as they were granted ACP benefits in the proper scale of pay reckoning their service from the date of casual/contractual engagement instead of the date of becoming government servants i.e, on 06.03.19982, and also for the reason that they do not fulfill promotional norms necessary for ACP benefits. 14. The Tribunal after going through Annexure R3 pay fixation statement dated 12.7.2016 and Annexures R4 and R5 consequential orders entered a finding that the claim in Annexure R3 pay fixation statement that the applicant is not entitled to a pay scale of Rs. 10000-15200 for the reason that she has not obtained an A Grade ## **O.P.(CAT) No.344 of 2017 13** Certificate by MAB for granting ACP benefits in the above said pay scale cannot be accepted, since similarly placed artists referred to Annexure A10 has been granted 1st ACP in the scale of Rs. 1000015200/- and thereby allowed the Original Application setting aside Annexure A3 order and directing the appellants herein to issue fresh orders fixing the pay of the applicant consequent to 2nd financial upgradation under the ACP scheme at Rs. 10000 -15200, the corresponding pay of which carries the grade pay of Rs. 6600 as done in Annexure A10 with a consequential direction to refix the pay and to pay the arrears within a period of 3 months from the date of the receipt of the copy of the order. 15. We take note of the fact that the pleadings in the case before the Tribunal is placed on a piecemeal basis by filing reply statements, rejoinders, and additional reply statements, and additional rejoinders. It is pertinent to note that divergent pleas have been taken in those pleadings and reliefs sought are also modified in those rejoinders and additional rejoinders, which we feel, was not the proper course that should have been adopted. The Tribunal has also not properly adverted to the facts of the case and also to the contentions raised by the parties while passing Exhibit P8 Order. The respondent/ applicant contended that such a situation occurred ## **O.P.(CAT) No.344 of 2017 14** only for the reason that modified orders were issued by the Department while the Original Application was pending consideration before the Tribunal. In the said circumstance, we feel that the applicant should have amended the Original Application incorporating all the factual aspects in the statements and rejoinders with necessary pleadings and seeking proper reliefs. This Court in _**Narayanan v. State of Kerala,** [1993 (1) KLT 461]_ while considering a similar issue regarding the amendment to the original petition has depreciated such a procedure and in paragraph 2 of the said judgment it is held as follows: _**2** . Before proceeding to state the facts of the case or dealing with the contentions raised by the parties, I must mention a feature that has been noted in many of the original petitions that have come up before me for hearing. Leave is often granted by this court for amending the original petitions incorporating new averments and new prayers besides producing new documents. Very often the amendments are not carried out in the original petition, nor copies of the amended original petition produced with the result the court has to wade through various petitions to get a true picture of the amended original petition. Such a situation exists in this original petition also, the petitioner not having chosen to carry out the amendment allowed by CMP.No. 15954 of 1992 in the original petition. Nor has he chosen to produce copies of the amended original petition. Normally this should have entailed refusal to look into the amendment. But I am refraining from doing so to avoid a failure of justice. It is necessary that all amendments to an original petition either in the averments or the prayers in the original petition or by way of production of new documents should be carried out in the original petition besides producing copies of the amended original petition for the use of the court and for service on the contesting respondents. However, as stated earlier I am treating the petition as one amended by CMP.No.15954 of 1992 and dealing with it as such despite the default on the part of the petitioner in carrying out the amendment. I must also mention that in between the original petition_ ## **O.P.(CAT) No.344 of 2017 15** _and C.M.P.No.15954 of 1992 a document had been introduced as Ext.P15 along with CMP.No. 14019 of 1992, a petition for direction. Having regard to the numbering of this annexure, it is clear that the petitioner intended that also to be treated as part of the original petition. But it has made its appearance in a petition for direction without being followed by any petition for amendment of the original petition. Production of such documents along with applications for interim relief to be treated as exhibits in the main petition also causes difficulties to the court when such production is not followed up by appropriate amendment. One of the problems that may arise is that the exhibit in question will remain unexplained and unanswered in any counter affidavit that may be filed by the respondents as it does not form part of the original petition itself, though that contingency does not arise so far as this case and Ext.P15 produced along with CMP.No.14019 are concerned. With these prefatory remarks I shall proceed to state the facts and deal with the matter on merits._ 16. In view of the above, the proper course will be to remit the matter back to the Tribunal for reconsideration of the matter afresh after granting an opportunity to amend the pleadings. Since the present litigation is pending from 2006 onwards and that the applicant has already retired from service as early as on 2012, we do not deem it appropriate to remit the matter to the Tribunal for fresh consideration. We, therefore, proceed to decide the matter on merits. 17. The claim of the respondent/applicant in O.A. is governed by O.M. No. 35034/1/97-Estt (D) dated 09.08.1999 issued by the Ministry of Personnel, Public Grievances and Pension issued for grant of Assured Career Progression Scheme (ACP Scheme). The said scheme was introduced to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. In Exhibit P2 reply ## **O.P.(CAT) No.344 of 2017 16** statement dated 28.04.2015 the Department has taken a stand that the post of Instrumentalist in All India Radio cannot be said to be an isolated post as defined in the ACP scheme. The said issue as to whether the post of Instrumentalist in All India Radio is an isolated post or not is concluded by the decision of this court in W.P.C. No. 21573 of 2008 filed by the petitioners herein challenging Annexure A1 order of the Tribunal dated 27.03.2008 in O.A. No. 567 of 2006 wherein the finding of the Tribunal that the post held by the respondent is an isolated post has been upheld. 18. The main contentions raised by the petitioners is that the Tribunal as per the impugned Exhibit P8 order has directed to grant parity with those employees mentioned in Annexure A10, in respect of whom erroneous fixation of pay was done and therefore, the direction issued by Tribunal to fix the pay of the respondent consequent to the 2nd financial up-gradation under the ACP scheme at Rs.10000-15200/- the corresponding pay of which carries the grade pay of Rs. 6600 as shown in Annexure A10 is wrong. 19. We feel that the Tribunal in the earlier round of litigation while passing Annexure A1 order in O.A. No. 567 of 2006 and also while issuing the present impugned Exhibit P8 order in O.A. No. 1010 of 2013 has not properly appreciated the actual benefit due to ## **O.P.(CAT) No.344 of 2017 17** the respondent as per 1st and 2nd ACPs and also the entitlement of MACP scheme on completion of 30 years of service. Therefore we are considering the claim of the respondent/applicant in the O.A. on the basis of the ACP scheme dated 09.08.1999 referred above, a copy of which has been produced by the petitioner’s counsel along with the argument note dated 05.08.2021. Clause 7 of Annexure A1 attached to the scheme reads as follows: _"7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given by the Ministries/Departments concerned in the immediately next higher_ _**(standard/common)** pay-scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification dated September 30, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the payscale S-4, as indicated in Annexure-II, will be eligible for the propposed two financial upgradations only to the pay-scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenues of promotion at all. Since financial upgradations under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on 'dynamic' basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;"_ 20. The respondent/applicant was initially appointed as a staff artist in August 1977. Later as per a decision taken vide order dated 11.1.1993 to treat all the staff artists as Govt. servants, she has ## **O.P.(CAT) No.344 of 2017 18** been held to be a regular civilian central govt. employee w.e.f.6.3.1982. As per Clause 7 of the ACP Scheme in the case of isolated post as in the present case, financial up-gradation will be given in the immediately next higher pay scale as indicated in Annexure II standard/common pay scale attached to the ACP scheme dated 09.08.1999. As per Clause 8 of the office memorandum dated 09.08.1999 introducing the ACP scheme, the employee will be entitled to ACP scheme benefits only from the date of issuance of the said office memorandum. 21. The respondent/applicant have regular service from 06.03.1982. So, on completion of 12 years, she is entitled to 1st ACP. ACP scheme was introduced w.e.f. 09.08.1999 and as per the scheme, the benefit of ACP is granted by providing the next scale of pay as provided in the scheme. Therefore, the applicant was granted 1st ACP by upgrading the existing pay of Rs.5,500-9,000 to the next scale of pay of Rs.6,500-10,500. 22. After 12 years from 09.08.1999, i.e., on 06.03.2006 the applicant was entitled to 2nd ACP on 06.03.2006. The 2nd ACP is granted in the next pay scale i.e., from Rs. 6,500-10,500/ to Rs. 7,450-11,500/- in the 5th CPC pay scale and in the 6th CPC pay scale of Rs. 9,300-34,800 with corresponding grade pay of Rs. 4,800. ## **O.P.(CAT) No.344 of 2017 19** Subsequently, the ACP scheme was replaced by the MACP scheme. Thereafter, on completion of 30 years, _i.e_ ., on 06.03.2012, 3rd MACP benefit was sanctioned to the applicant in the pay band of Rs. 9,30034,800/- with corresponding grade pay of Rs.5,400/-. It is the contention of the petitioners that all the benefits due to the applicant/respondents have been correctly fixed as per Annexure A10 pay fixation statement order No.CLT-10(2)/2016-17/AC/2659 dated 07.11.2016 and it shows the benefits granted to her as per 1st and 2nd up-gradation as per ACP scheme and also grant of 3rd upgradation as per MACP scheme. It is pertinent to note that the pay fixation statement as revealed in the order dated 07.11.2016 produced as Annexure A10 along with the second additional rejoinder dated 02.03.2016 is not challenged by the respondent/applicant in the O.A. except taking a claim for parity based on similar benefits granted to one T.R. Balasubramaniam and S.A. Swamy and that no contention is taken that Annexure A10 pay fixation statement is not in accordance with ACP as well as MACP schemes. The Tribunal also did not consider whether the respondent/applicant has been granted the benefit as per the above schemes but only relied on the benefit granted to similarly placed artists like T.R. Balasubramaniam and S.A. Swamy and declared ## **O.P.(CAT) No.344 of 2017 20** that the applicant should be granted 2nd ACP on completion of 24 years in the scale of Rs.10,000-15,200/- carrying the corresponding grade pay of Rs.6,600/-. 23. The petitioners have filed an affidavit dated 28.11.2017 in the present O.A. in which Exts.P9 and P10 notices issued to the afore referred Sri.T.R.Balasubramaniam and Sri.S.A.Swamy were produced whereby they were intimated that the up-gradation of pay to a scale of Rs.10,000-15,200 was erroneous. In the said notice, it is made clear that the said scale was wrongly given for the reason that their service (casual/contractual) was also reckoned for grant of ACP benefit. The only averment of the applicant is that she is entitled to a similar treatment that was given to similarly placed employees like her. It has come out in record that the pay granted to similarly situated employees was by a mistake and that the department has initiated steps to refix the pay as is evident from Exts.P9 and P10 notices issued to the afore referred employees. Therefore, the applicant cannot claim parity with other employees who were granted a benefit by mistake. The petitioners rely on a judgment of the Apex Court in _**Singaravelan P. and Others v. District Collector, Tiruppur and DT and Others 2020 (3) SCC 133**_ , while considering the claim of the appellants therein for grant of ## **O.P.(CAT) No.344 of 2017 21** ## Special Grade Scales of Pay which has been granted to similarly placed employees, declined to grant the benefit holding as follows: _**"22.** The only question to be settled, therefore, is whether the appellants are entitled to claim parity with the drivers who have so far been granted benefits vide the orders of the High Court and this Court, as mentioned supra in para 4._ _**23.** In this respect, we find that the High Court in the impugned judgment was correct in concluding that the appellants cannot claim such relief on the strength of Article 14 of the Constitution of India, when once it has been found that they are not lawfully entitled to the same. It is well-settled by now that a person cannot invoke Article 14 to claim a benefit extended to someone similarly placed if he is not lawfully entitled to such benefit in the first place. Article 14 embodies the concept of positive equality alone, and not negative equality, that is to say, it cannot be relied upon to perpetuate an illegality or irregularity. In fact, this Court has opined that this principle extends to orders passed by judicial fora as well. Thus, the jurisdiction of a higher court cannot be invoked on the basis of a wrong order passed by a lower forum. In this respect, it would be fruitful to refer to the following passage from the decision of this Court in Basawaraj v. LAO [Basawaraj v. LAO, (2013) 14 SCC 81] : (SCC p. 85, para 8)_ “ _8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh [Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745] , Anand Buttons Ltd. v. State of Haryana [Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164] , K.K. Bhalla v. State of M.P. [K.K. Bhalla v. State of M.P., (2006) 3 SCC 581] and Fuljit Kaur v. State of_ **O.P.(CAT) No.344 of 2017 22** _Punjab [Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455] .)”_ _This proposition was also recently affirmed by a three-Judge Bench of this Court in State of Odisha v. Anup Kumar Senapati [State of Odisha v. Anup Kumar Senapati, (2019) 19 SCC 626 : 2019 SCC OnLine SC 1207] ._ _**24.** Thus, it is evident that the appellants cannot claim the Selection Grade and Special Grade scales of pay of Rs 5000-8000 and Rs 55009000 respectively, solely on the strength of earlier decisions of the High Court, without showing how they, themselves, are entitled to such benefit in the first place. In such a situation, we are of the considered view that the appellants can only be granted the benefit of the Selection Grade and Special Grade scales of pay to which they are lawfully entitled in terms of GOMs No. 162 i.e. Rs 4000-6000 and Rs 4300-6000 respectively._ _**25.** Therefore, in view of the foregoing discussion, we find no reason to interfere with the impugned judgment [Director of Sericulture Deptt. v. K. Kumar, 2015 SCC OnLine Mad 4746 : (2015) 4 CTC 241] . The instant appeals are hereby dismissed, and the impugned judgment is confirmed."_ 24. In the present case, the respondent/applicant has not stated as to how she is entitled to the 2nd financial up-gradation under ACP scheme in Pay Band 3 – Rs. 10,000 – 15,200 with grade pay of Rs. 6,600/-. Further, no reason has been shown or any valid contentions have been raised before the Tribunal or before this Court as to why the benefit sanctioned to her as per Annexure A10 pay fixation statement order dated 07.11.2016 is wrong. The Tribunal also did not consider the entitlement of the respondent/applicant for 2nd financial up-gradation based on ACP/MACP Scheme but solely relied on the benefit granted to two similarly situated employees who have been granted the said scale of pay, which was subsequently found to be erroneous and not in consonance with the ACP Scheme. Therefore, we are of the opinion that the direction of the Tribunal to ## **O.P.(CAT) No.344 of 2017 23** grant the benefit of 2nd ACP in Pay Band 3 – Rs. 10,000 – 15,200 with grade pay of Rs. 6,600/- is liable to be interfered with. Therefore, we set aside Exhibit P8 order of the Central Administrative Tribunal, Ernakulam Bench dated 17.02.2017 in O.A. No. 1010 of 2013. 25. We further hold that the respondent/applicant in the O.A. is entitled to grant of 1st and 2nd financial up-gradation benefits as per ACP Scheme as also the 3rd financial up-gradation benefits as per MACP Scheme as sanctioned in Annexure-A10 Order No. No.CLT-10(2)/2016-17/AC/2659 dated 07.11.2016. i.e., a. Ist ACP (12 years) granted in the Pay Scale Rs. 6,500-10,500 w.e.f. 09.08.1999. b. 2nd ACP (24 years) granted in the PB2 – Rs.9300-34800 with GP 4,800/- w.e.f. 06.03.2006. c. 3rd MACP (30 years) granted in PB2 – Rs.9300 – 34800 with GP 5,400/- w.e.f. 06.03.2012. d. All the other benefits ordered in Annexure-A10 should also be released to the applicant. 26. Consequently, we direct the petitioners/respondents to take immediate steps to fix the pay of the applicant granting the benefits as stated above and disburse the arrears due consequent to ## **O.P.(CAT) No.344 of 2017 24** the said fixation, with 6% interest thereon from the date on which the amount became due upto date of actual payment, within a period of 2 months from the date of receipt of a copy of this judgment. The last pay of the applicant as on the date of her retirement should also be consequently correctly fixed and pensionary benefits like pension, DCRG, etc., should be revised and arrears of revised pensionary benefits should also be released to the applicant, along with intrest @6% per annum from date of retirement upto date of actual payment, within one month thereafter. If the above amounts by way of arrears of pay & other benefits, arrears of revised pensionary benefits are not paid within the above time limit, then the above interest rates will stand enhanced to 8% per annum. The orders and directions of this Tribunal at Ext.P-8 final order dated 17.2.2017 in O.A.No.1010/2013 will stand modified and substituted as above. With the above directions, the Original Petition is disposed of. sd/- **ALEXANDER THOMAS JUDGE** sd/- ## **VIJU ABRAHAM** **JUDGE** pm **O.P.(CAT) No.344 of 2017 25** ## **APPENDIX OF OP (CAT) 344/2017** ## **PETITIONERS' ANNEXURES:** |ANNEXURE A3|TRUE COPY OF THE ORDER NO CLT/27(1)2006-S| |---|---| ||DATED 2.12.2008| |ANNEXURE A1|TRUE COPY OF THE ORDER DATED 27.3.2008 IN| ||OA 567/2006| |ANNEXURE A2|TRUE COPY OF THE ORDER DATED 17.12.2008 IN| ||CONTEMPT PETITION NO 56/2008| |ANNEXURE A4|TRUE COPY OF THE ACQUITTANCE ROLL| |ANNEXURE A5|TRUE COPY OF THE REPRESENTATION DATED| ||2.7.2012 SUBMITTED BY THE APPLICANT| |ANNEXURE A6|TRUE COPY OF THE REPRESENTATION DATED| ||29.1.2013 SUBMITTED BY THE APPLICANT| |ANNEXURE A7|TRUE COPY OF THE REPRESENTATION SUBMITTED| ||BY THE APPLICANT| |ANNEXURE R1|TRUE COPY OF ORDER NO 8/5/2016-S.V111/393| ||DATED 23.8.2013| |ANNEXURE R2|TRUE COPY OF ORDER NO CLT.10(2)2013-S/3738| ||DATED 10.10.2016| |ANNEXURE A8|TRUE COPY OF THE ORDER NO 5/18/2009-S1(B)| ||DATED 26.7.2011| |ANNEXURE A9|TRUE COPY OF THE LETTER NO 8/854/72-S-| ||VIII(PT.I)/505 DATED 28.7.2015| |ANNEXURE R3|TRUE COPY OF THE DG.AIR OM NO 32/21/2013-S| ||VIII/571 DATED 29.6.2016| |ANNEXURE R4|TRUE COPY OF THE REVISED PAY FIXATION ORDER| ||NO CCCCJT-10(2)2016-17/AC/DATED 12.7.2016| |ANNEXURE R5|TRUE COPY OF THE LETTER NO TVM.1 (12)2016-S| ||DATED 7.7.2016| |ANNEXURE A10|TRUE COPY OF THE DATA PROVIDED TO THE| ## **O.P.(CAT) No.344 of 2017 26** ||APPLICANT UNDER THE RIGHT TO INFORMATION| |---|---| ||ACT| |EXHIBIT P1-|TRUE COPY OF THE OA.NO.180/001010/2013| ||DATED 23/09/2013 FILED BY THE RESPONDENT.| |EXHIBIT P2-|TRUE COPY OF THE REPLY STATEMENT DATED| ||28/04/2015 FILED BY THE PETITIONERS.| |EXHIBIT P3-|TRUE COPY OF THE REJOINDER DATED 20/07/2015| ||FILED BY THE RESPONDENT.| |EXHIBIT P4-|TRUE COPY OF THE ADDITIONAL REPLY STATEMENT| ||DATED 24/11/2015 FILED BY THE PETITIONERS.| |EXHIBIT P5-|TRUE COPY OF THE ADDITIONAL REJOINDER DATED| ||26/03/2016 FILED BY THE RESPONDENT| |EXHIBIT P6-|TRUE COPY OF THE 2ND ADDITIONAL REPLY| ||STATEMENT DATED 22/07/2016, FILED BY THE| ||PETITIONERS.| |EXHIBIT P7-|TRUE COPY OF THE 2ND ADDITIONAL REJOINDER| ||DATED 02/11/2016 FILED BY THE RESPONDENT.| |EXHIBIT P8-|TRUE COPY OF THE ORDER IN| ||OA.NO.180/001010/2013 DATED 17/02/2017 OF| ||THE CENTRAL ADMINISTRATIVE TRIBUNAL,| ||ERNAKULAM BENCH.| |EXHIBIT P9-|TRUE COPY OF THE LETTER NO.32/21/2013-S-| ||VIII/441 DATED 11/04/2017 ISSUED TO| ||SHRI.S.A.SWAMY.| |EXHIBIT P10-|TRUE COPY OF THE LETTER NO.32/21/2013-S-| ||VIII/441 DATED 11/07/2017 ISSUED TO| ||SHRI.T.R.BALASUBRAMANIAM.| |// True Copy//|| |PA to Judge||