Kerala High Court
V.T. Xavier vs Union Of India on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
OP (CAT) NO. 35 OF 2020
AGAINST THE ORDER/JUDGMENT IN OA 883/2017 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH, ERNAKULAM
PETITIONER/S:
V.T. XAVIER
AGED 76 YEARS
S/O.THOMAS, RETIRED DEPUTY OFFICE SUPERINTENDENT LEVEL
I RESIDING AT MANGAT, POONITHURA.P.O., KOCHI-682038
BY ADV PIRAPPANCODE V.S.SUDHIR
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE,
NORTH BLOCK, NEW DELHI-110001
2 THE CHAIRMAN
CENTRAL BOARD OF CUSTOMS AND CENTRAL EXCISE, DEPARTMENT
OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA,
NORTH BLOCK, NEW DELHI-110001
3 THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS
COCHIN I COMMISSIONERATE, I.S.PRESS ROAD, KOCHI-682018
4 THE CHIEF ACCOUNTS OFFICE
OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS
AND SERVICE TAX, CENTRAL REVENUE ROAD, I.S. PRESS ROAD,
KOCHI-682018
5 THE CHIEF ACCOUNTS OFFICER,
OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS
AND SERVICE TAX, C.R.BUILDING, MANACHIRA, CALICUT-
673001
6 SENIOR ACCOUNTS OFFICER
PAY AND ACCOUNTS OFFICE, CENTRAL EXCISE, CENTRAL
OP (CAT) NO. 35 OF 2020
2
REVENUE BUILDING, I.S.PRESS ROAD, KOCHI-682018
BY ADV SRI.P.VIJAYAKUMAR
SRI.P.VIJAYAKUMAR, ASGI
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 02.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT) NO. 35 OF 2020
3
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
===================================
O.P.(CAT). No. 35 Of 2020
(against the order dated 07.11.2019 in O.A.No.883/2017 on the file of the CAT, EKM.
Bench)
=========================================
Dated this the 2nd of November, 2021
JUDGMENT
Alexander Thomas, J.
The prayers in the above Original Petition instituted
under Articles 226 and 227 of the Constitution of India and filed at
the instance of the Original Applicant in the OA, are as follows:
(I) To call for the records leading to Ext.P4 and set aside the same.
(ii) Direct the respondents to fix petitioner in the pay scale of
Rs.425/- (UDC scale) with effect from 15.01.1976, in the light of
Ext.P1(A1) letter and Ext.P1(A2) order and accordingly grant him
all benefits, including re-fixation of his pension, following such
fixation, expeditiously within a time limit to be fixed by this
Hon'ble Tribunal.
(iii) Declare that the petitioner is entitled to have his pay scale at
Rs.425/- revised with effect from 15.01.1976 under FR 26 and CSR
418(B) and accordingly entitled to have his pay and pension,
refixed.
(iv) Such other reliefs as this Hon'ble Court deems fit and
proper int eh circumstances of this case.
2. Heard Sri.Pirappancode V.S.Sudheer, learned counsel
appearing for the petitioner in the OP/sole applicant in the OA,
Sri.P.Vijayakumar, learned Assistant Solicitor General of India,
appearing for the respondents in the OP/respondents in the OA.
OP (CAT) NO. 35 OF 2020
3. The petitioner has filed the instant OA No.883/2017
before the Central Administrative Tribunal, Ekm Bench with the
following prayers.
(I) Call for the records leading to Annexure A10 and quash the same.
(ii) Direct the respondents to fix the applicant in the pay scale of
Rs.425/- (UDC scale) with effect from 15.01.1976, in the light of Annexure
A1 letter and Annexure A2 order and accordingly grant him all benefits,
including refixation, expeditiously and within a time limit to be fixed by
this Hon'ble Tribunal.
(iii) Direct the 2nd respondent to consider and pass orders on Annexure
A11 petition, expeditiously and within a time limit to be fixed by this
Hon'ble Tribunal.
(iv) Declare that the applicant is entitled to have his pay scale at
Rs.425/- revised with effect from 15.01.1976 under FR 26 CSR 418(B) and
accordingly entitled to have his pay and pension refixed.
(v) Such other reliefs as this Hon'ble Tribunal deems fit and proper in
the circumstances of this case.
4. After hearing both sides, the Tribunal has rendered
Ext.P4 final order on 07.11.2019, dismissing the OA on the ground
that the plea of the petitioner for refixation of his pay in the pay
scale with effect from the date sought for by him are not tenable and
that no reliefs can be granted in the matter and thus, the OA has
been dismissed. Being aggrieved by the impugned verdict of the
Tribunal at Ext.P4, the Original Applicant has instituted the above
Original Petition as mentioned herein above.
5. The applicant has initially entered service as National
Disciplinary Scheme Inspector (NDS Instructor) in the Educational
Department of the Ministry of Education & Social Welfare with
effect from 16.12.1963 in the scale of pay of Rs.95-155/- (Old LDC
OP (CAT) NO. 35 OF 2020
scale), later promoted as NDS Instructor Grade I in the scale of pay
of 110-200/- (Old UDC Scale) on 04.01.1973. It appears that the
said Department where the petitioner was working was abolished
and the arrangement was made by the Union Government that such
incumbents like the Original Applicant should submit their
technical resignation so that they could be appointed in some other
Department. It appears that in compliance of the said arrangement,
the Original Applicant had submitted his technical resignation from
the erstwhile Department and had joined the Central Excise
Department, under the Ministry of Finance of the Union
Government on 15.01.1976. However, at that time, he was granted
only the benefit of LDC in the pay scale of Rs.260-400, which is the
applicable pay scale for LDC. Whereas in the erstwhile Department
(Department of Youth Affairs and Sports) of the Union Government,
his revised old pay in the cadre of UDC was Rs.425/- as basic pay. It
appears that the petitioner had a complaint that when he joined the
Central Excise and Customs Department as LDC, he was not given
pay scale of Rs.425/- in the UDC scale, which was enjoined
consistently in his erstwhile Department. The stand of the
respondent was that the petitioner was appointed in the new
Department as LDC consequent to the abolition of the erstwhile
OP (CAT) NO. 35 OF 2020
Department, but that his pay was fixed at Rs.334+Rs.91 as personal
pay by giving him 12 advanced increments (counting the number of
belated years in the previous Department) and his pay was fixed to
Rs.425/- as per Annexure A3. Long thereafter, the applicant had
retired from the service of Central Excise and Customs Department
of the Ministry of Finance in the Union Government on 30.06.2002.
Petitioner raised the complaint that there has been considerable
reduction in both the pension and retirement benefits and therefore
he instituted Original Application, O.A.No.791 of 2002 before the
Central Administrative Tribunal, EKM Bench, seeking refixation of
gratuity. The said O.A. was allowed by this Court and WP(C)
No.15717 of 2005 filed by the respondents herein to challenge the
earlier verdict of the Tribunal in OA No.791 of 2002 was dismissed
by this Court, . The present complaint voiced by the petitioner is
that his pay should have been fixed to Rs.425/- in the equivalent
UDC pay which was enjoined in his erstwhile Department.
6. After hearing both sides, we are of the view that the
main reasonings and conclusions arrived at by the Tribunal in the
instant Ext.P4 final verdict cannot be faulted by us in any serious
manner. Though, it may be true that the petitioner was granted
applicable Old UDC scale at the time he was serving his erstwhile
OP (CAT) NO. 35 OF 2020
Department, but due to abolition of the said Department and the
post thereunder, petitioner complied with the instructions of the
Union Government and had submitted technical resignation and
was appointed in the new Department, viz, Central Excise and
Customs Department at the Union Ministry of Finance, but only in
the LDC scale. Petitioner has not challenged that decision. The
reasons that prompted the Union Government to place an
incumbent like the Original Applicant, who was earlier serving as
UDC in the abolished erstwhile Department by granting him only
LDC payscale in the new Department is not fully known to us. That
could have been a policy decision. Be that as it may, the fact of the
matter is that the above said decision of the Union Government,
allowing the petitioner to be appointed in the new Department and
granting him only the payscale in the LDC post has not been
challenged by him at any point of time and therefore, we have to
proceed on the premise that the said decision is legally correct and
tenable. We have to bear this basic premise in mind while we
consider the issue raised before us as to whether or not the Original
Applicant is entitled for higher pay scale claimed by him. From
further pleadings and materials on record, it appears to be common
ground that the total pay received by the Original Applicant as in the
OP (CAT) NO. 35 OF 2020
LDC scale at the time he was relieved from the erstwhile
Department was Rs.425/-. Though the petitioner was posted in the
new Department in the UDC scale, his pay was fixed as Annexure 3
at Rs.334+Rs.91/-, which is equal to 12 advanced increments
counting the number of completed years in the previous
Department in the scale of LDC at Rs.260-400/- with effect from
15.01.1976 and the said Rs.91/- was granted as personal pay to bring
it to the level of Rs.425/-, and thus he was afforded protection of
pay consequent to his appointment in the new Department. The
Tribunal has mainly held that in the light of these facts and
circumstances, the applicant cannot legally claim that his pay
should be fixed to the higher pay scale of UDC, as he was redeployed
in the new Department only in the pay scale of LDC. It may also be
pertinent to refer to some of the fine-tuned factual aspects rendered
by the Tribunal, as contained in para No.4 of Ext.P4 final order
which reads as follows:
Heard learned counsel for the parties at length, perused the
records, and appreciated the legal position. The short question raised
in the present original application is whether the applicant is entitled
for higher payscale in the payscale of LDC or not. Learned counsel for
the applicant has drawn our attention to Annexure A2(a) where his
pay is shown as Rs.425/- + DA Rs.114.80 + ADA Rs.53.6 and HRA
Rs.31.90, which comes to Rs.624.80. Total arrears of pay and
allowances on account of above refixation for the period 01.03.1971 to
01.01.1976, received by the applicant, was Rs.10441/-. The applicant
was re-deployed to the Central Excise Department as his erstwhile
department has been abolished. We have glanced through the pay
fixation details at page 26 of the OA (Annexure A3/3), wherein it is
OP (CAT) NO. 35 OF 2020
shown that as on 31.12.1976, his pay was Rs.334-91/- and as on
January, 1991, his pay was 1640-30. This shows that though the
applicant's pay was fixed at Rs.334/-, pay scale admissible to
UDC, he had been granted the same despite the fact that the
applicant had joined the present department to the post of LDC
carrying pay scale of Rs.260-400. However, his pay was protected
by the department as on January, 1991 by granting 12 increments
and his pay was fixed at Rs.1640/-, which is equivalent to Rs.425/-
which was granted with effect from 01.01.1977 onwards till
January 1991 when the pay scale of Rs.1640/- was granted,
equivalent to Rs.425/- basic pay he was drawing in his erstwhile
department.
7. After hearing both sides, we are of the view that the
Tribunal cannot be faulted with for taking the considered view
that after having joined the lower post in the new department and
after having received pay protection by adding 12 increments, the
applicant cannot legally claim that his pay should be fixed to the
higher pay scale of UDC, as he was infact deployed only in the
pay scale of LDC. The said main findings of the Tribunal does not
deserve any serious interdiction in the hands of this Court in
exercise of supervisory jurisdiction. Sri.Pirappancode V.S.Sudheer,
learned counsel, in his usual polite and firm manner has
endeavored to persuade us to accept that the petitioner's pay
should be fixed in the higher pay scale of UDC etc. In that regard,
the learned counsel for the petitioner would also fervently point
out that the petitioner herein is an elderly citizen, who is now in his
eightees and he is patiently waiting to get his rights vindicated etc.
After hearing the learned counsel for the petitioner and the
OP (CAT) NO. 35 OF 2020
learned Assistant Solicitor General of India appearing for the
respondents, we are of the view that we are not in a position to
accede to the above said fervent submissions made by
Sri.Pirappancode V.S.Sudheer, learned counsel appearing for the
petitioner. This is in view of the reasons stated by us herein above.
In otherwords, the petition fails and in that view of the
matter, the above O.P will stand dismissed.
Sd/-
ALEXANDER THOMAS
JUDGE
Sd/-
VIJU ABRAHAM
JUDGE
Nsd
//true copy//
PA to Judge
OP (CAT) NO. 35 OF 2020
APPENDIX OF OP (CAT) 35/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE O.A.NO.883/2017 FILED BY THE
PETITIONER BEFORE THE HON'BLE CENTRAL
ADMINISTRATIVE TRIBUNAL
EXHIBIT P1(A10) TRUE COPY OF THE LETTER C.NO.II/25/A-7/2001
ACCTS.II DATED 11.1.2016 OF THE 5TH
RESPONDENT.
EXHIBIT P1(A1) TRUE COPY OF THE ORDER PASSED BY THE DEPUTY
SECRETARY, MINISTRY OF EDUCATION AND SOCIAL
WELFARE, GOVERNMENT OF INDIA VIDE LETTER
NO.A.39015/8/75-NFC DATED 23.01.1976
EXHIBIT P1(A1(A) TRUE COPY OF THE LEGIBLE COPY OF EXT.P1(A1)
EXHIBIT P1(A2) TRUE COPY OF THE ORDER DATED 20.12.1989 BY
THE DEPARTMENT OF YOUTH AFFAIRS, GOVERNMENT
OF INDIA
EXHIBIT P1(A2(A) TRUE COPY OF TH LEGIBLE COPY OF EXT.P1(A2)
EXHIBIT P1(A3) TRUE COPY OF THE RELEVANT EXTRACT OF THE
REVISED PAY ORDER IMPLEMENTED IN CENTRAL
EXCISE AND CUSTOMS VIDE ORDER C NO.II/20/A-
5/89/ACC.GRI DATD 16.1.91 WITH THE DATE OF
PAY AS ON 1.2.91
EXHIBIT P1(A4) TRUE COPY OF THE ORDER DATED 23.11.2004 OF
THIS HON'BLE TRIBUNAL IN O.A.NO.791/2002
EXHIBIT P1(A5) TRUE COPY OF THE JUDGMENT DATED 8.6.2005 OF
THE HON'BLE HIGH COURT OF KERALA IN W.P.
(C)NO.15717/2005
EXHIBIT P1(A6) TRUE COPY OF THE TRUE COPY OF THE
REPRESENTATION DATED 28.7.2015 SUBMITTED BY
THE PETITIONER BEFORE THE 3RD RESPONDENT
EXHIBIT P1(A7) TRUE COPY OF THE LETTER C.NO.II/25/A-40/2015
ACCTS. I DATED 21.09.2015 OF THE 4TH
OP (CAT) NO. 35 OF 2020
RESPONDENT
EXHIBIT P1(A8) TRUE COPY OF THE PETITION DATED 20.10.2015
SUBMITTED BY THE PETITIONER BEFORE THE 5TH
RESPONDENT
EXHIBIT P1(A9) TRUE COPY OF THE REMINDER DATED 12.11.2015
SUBMITTED BY THE PETITIONER
EXHIBIT P1(A11) TRUE COPY OF THE REPRESENTATION DATED
11.07.2016 SUBMITTED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT
EXHIBIT P1(A12) TRUE COPY OF THE ORDER DATED 4.9.2017 OF THE
HON'BLE SUPREME COURT IN WP(C)NO.763/2017
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE
RESPONDENTS IN O.A.NO.883/2017
EXHIBIT P3 TRUE COPY O THE REJOINDER FILED BY THE
PETITIONER TO EXT.P2 REPLY STATEMENT
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 07.112019 OF THE
HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH IN OA. NO.883/2017
EXHIBIT P5 TRUE COPY OF THE ORDER NO.C11/34/6/91-
ESST.III DATED 05.11.1999 OF THE COMMISSIONER
OF CENTRAL EXCISE AND CUSTOMS, COCHIN-1
EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE
SENIORITY LIST OF UPPER DIVISION CLERK/TAX
ASSISTANT
RESPONDENT EXHIBITS
EXHIBIT R1 TRUE COPY OF LETTER F.NO.A-26017/67/90-AD 11
DATED 21/12/1990 OF THE MINISTRY OF FINANCE
