Union Of India vs Y Amminikutty
2024 Latest Caselaw 16699 Ker

Kerala High Court

Union Of India vs Y Amminikutty on 12 June, 2024

Author: Amit Rawal

Bench: Amit Rawal

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                   &
              THE HONOURABLE MR. JUSTICE EASWARAN S.
    WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
                     OP (CAT) NO. 43 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 08.12.2015 IN OA NO.162 OF 2013
OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN O.A.:

    1     UNION OF INDIA
          REPRESENTED BY SECRETRY TO GOVERNMENT,
          DEPARTMENT OF POSTS, GOVERNMENT OF INDIA,
          NEW DELHI - 110 001.

    2     THE CHIEF POSTMASTER GENERAL
          KERALA CIRCLE, TRIVANDRUM - 695 001.

    3     THE SUPERINTENDENT OF POST OFFICE
          KOLLAM POSTAL DIVISION, KOLLAM - 691 001.

    4     THE POST MASTER
          HEAD POST OFFICE,KOLLAM - 691 001.

          BY ADV SRI.T.V.VINU, CGC


RESPONDENT/APPLICANT IN O.A.:

          Y AMMINIKUTTY
          W/O. LATE G. MAMACHAN,
          RESIDING AT CHEPPALLIL HOUSE,
          KANJAVELY P.O., KOLLAM - 691 602.


     THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 12.06.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (CAT) NO. 43 OF 2017
                                  2



                           JUDGMENT

Amit Rawal, J.

1. The present original petition has been preferred by

the Union of India against the judgment of the Central

Administrative Tribunal allowing the original application (OA)

preferred by the respondent -applicant being the widow of

Sri.G.Mamachan, Deputy Postmaster, aggrieved of the inaction

on the part of the petitioners to disburse retiremental benefits

by taking into consideration the last pay drawn by him. The case

set up was that husband was paid a salary in the Higher

Selection Grade-I but the retirement benefits were paid without

taking note of the said benefit of officiating promotion and

recovery of salary after retirement therefore was not

permissible. The stand of the petitioners-Union before the

Tribunal was that the husband was not granted third financial

upgradation under the Modified Assured Career Progression with

effect from 01.09.2008 in Pay Band-II at 9300-34800+Grade

Pay Rs.4200/-. The Official posted as Postal Assistant, Kollam,

on 09.06.2010 as per the request and continued to work at

Kollam till his retirement on 31.10.2013. OP (CAT) NO. 43 OF 2017

2. Learned Tribunal considering the facts, passed the

following directions:

3. Heard the counsel for the parties and considered the written submissions made. This is a simple case of an official having discharged and performed higher responsibilities of a HSG-1 post for a period of 15 days which is not denied by the respondents, the payment given is sought to be withdrawn. Going by the presumption that the deceased employee was performing some mandatory functions which can be performed only by a person holding the post of Dy.PM, it would then be immaterial as to who made the working arrangement orders, as without this working arrangement the work of the post office would beversely affected. The issue that comes up is whether there is a provision in the service rules to provide husband of the applicant the benefit of officiating in the Dy PM's post for a period of 15 days. Applicant makes a reference to FR 35 without elucidating the same. GoI orders dated 5.8.1981 under FR35 reads as follows:(1) No restriction of officiating pay in cases of regular cadre promotion -under the existing orders, provisions of FR 35 operate only in respect of appointments by transfer on deputation. Recently, a question was raised as to whether the said provisions of FR 35 would also apply to cases of promotions within the cadre. The matter has been considered. It has been decided that the restrictions of officiating pay under FR 35 should not be invoked in respect of regular cadre promotions where the employee becomes due for promotion, falls within the zone of consideration and fulfills all qualifications prescribed for promotion. The rule by its above definition as laid down in the latter part is not applicable to the applicant's husband as the reference is to regular cadre promotion where employee OP (CAT) NO. 43 OF 2017

becomes due for promotion. However, FR 49 may come to the aid of the applicant by stretching its intended definition:

'FR 49 (i) where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post.

4. The only drawback is that the applicant's husband was not performing the duties of lower and higher post as defined above, but he did perform the duties of the higher post. Applicant's husband has merely obeyed his superior's orders and had no choice in refusing the same. He may have also accepted the arrangement with the expectation of the same providing him some additional pensionary benefit on the basis of last pay drawn. Be that as it may, after extracting work, a postmortem as to who is the competent authority to have issued his working/officiating orders is not appropriate at this belated stage. Further as per Supreme Court judgment in State of Punjab and others vs. Rafiq Masih (White Washer) and others (2015) 4 SCC 334 recovery from retired persons is not permissible.

5. It has been held by the Apex Court that when person is directed to discharge the duties of a particular post, he was at least entitled to the pay and allowances attributable to that post during the period he carried out such duties.

OP (CAT) NO. 43 OF 2017

6. A reference has also been made by applicant to Rule 50 (1) of P&T Manual Volume IV wherein officiating arrangements for vacancies not more than one month duration may be confined to officials in the office where vacancy occurs even if that involves supercession of senior officials somewhere else. The applicant does not, however, amplify whether the said arrangement is accompanied by sanction of higher officiating post pay. The respondent in his reply statement has conveniently not made a reference to the above point. As a special case and only applicable to husband of applicant in the O.A and not to be quoted as a precedent in any other case, the pay of the husband of the applicant be fixed in HSG-I grade for the period he held the post ie. 17.10.2012 to 31.10.2012 and to fix the retiral benefits accordingly. O.A is disposed of accordingly. No order as to costs."

3. We are of the view that the aforesaid directions

are totally innocuous. Union of India should not have

challenged the same and could have complied with the

directions (supra) and disposed of in accordance with law as

there is no quarrel to the reference of the Rules. We do find

any illegality. Petition stands dismissed.

Sd/-

AMIT RAWAL, JUDGE Sd/-

EASWARAN S., JUDGE nak OP (CAT) NO. 43 OF 2017

APPENDIX OF OP (CAT) 43/2017

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION IN OA NO. 162 OF 2013 DATED 25.2.2013 FILED BY THE RESPONDENT.

ANNEXURE A7 TRUE COPY OF THE MEMO NO.C/21/12 DATED 4.1.2013 ISSUED ON BEHALF OF THE 3RD RESPONDENT.

ANNEXURE A6: TRUE COPY OF THE ORDER NO.B/J-9 DATED 29/11/2012 ISSUED ON BEHALF OF THE 3RD RESPONDENT.

ANNEXURE A5 TRUE COPY OF THE ORDER C/21/12 DATED 4/01/2013 ISSUED ON BEHALF OF THE 3RD RESPONDENT.

ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 14.12.2012 ISSUED BY THE 3RD RESPONDENT.

ANNEXURE A3 TRUE COPY OF THE CHANGE REPORT IN RESPECT OF LATE G.MAMACHAN,.

ANNEXURE A2 TRUE COPY OF THE ORDER NO.B/J-9 DATED 28.10.2012 ISSUED ON THE BEHAL;F OF THE 1ST RESPONDENT.

ANNEXURE A1 TRUE COPY OF THE PAY BILLS IN RESPECT OF MR.G.MAMACHAN IN THE MONTH OF AUGUST, 2011 AND JULY 2011.

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA NO. 162/2013 DATED 04.9.2013 FILED BY THE PETITIONERS.

ANNEXURE R1 TRUE COPY OF THE PAY SLIP OF LATE SHRI.C.MAMACHAN FOR THE MONTH OF OCTOBER, 2012.

EXHIBIT P3 TRUE COPY OF THE REJOINDER IN OA NO.

162/2013 DATED 09.9.2015 FILED BY THE OP (CAT) NO. 43 OF 2017

RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT IN OA NO. 162/2013, DATED 07.10.2015 FILED BY THE PETITIONERS.

EXHIBIT P5 TRUE COPY OF THE ORDER IN OA NO.

                   162/2013,     DATED    08.12.2015     OF
                   THECENTRAL   ADMINISTRATIVE    TRIBUNAL,
                   ERNAKLAM BENCH.

EXHIBIT P6         TRUE COPY OF THE LETTER NO. 137-

64/2010-SPB.II DATED 28.7.2011 ISSUED BY THE DIRECTOR (STAFF), DEPARTMENT OF POST, MINISTRY OF COMMUNICTION & IT, NEW DELHI.