Union Of India vs Tessy Tom
2025 Latest Caselaw 3983 Ker

Kerala High Court

Union Of India vs Tessy Tom on 12 February, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                                        2025:KER:20727
               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                  &

              THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR

     WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946

                       OP (CAT) NO. 176 OF 2020

          AGAINST THE ORDER DATED 26.11.2019 IN OA NO.54 OF 2016 OF

           CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH


PETITIONERS/RESPONDENTS:

     1     UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE
           GOVERNMENT OF INDIA, MINISTRY OF DEFENCE (FINANCE),
           NEW DELHI -110001,
     2     THE CONTROLLER GENERAL OF DEFENCE ACCOUNTS
           ULAN BATAR ROAD, PALAM, DELHI CANTT-110010.
     3     THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS(NAVY)
           NO.1, COOPERAGE ROAD, MUMBAI-400001,
     4     THE DEPUTY CONTROLLER OF DEFENCE ACCOUNTS (NAVY)
           AREA ACCOUNTS OFFICER(NAVY), PERUMANOOR P O,
           THEVARA, COCHIN - 682015.

           BY ADVS. C.DINESH

RESPONDENT/APPLICANT:
           TESSY TOM, W/O. TOM JOSEPH, STENOGRAPHER GR.II, AREA
           ACCOUNTS OFFICER(NAVY), PERUMANOOR P O, THEVARA, ERNAKULAM
           DISTRICT, COCHIN - 682015, RESIDING AT TALIYAN HOUSE,
           THURAVOOR PO, ANGAMALY, ERNAKULAM PIN - 683572.

           BY ADVS. GOVINDASWAMY T C
           NISHITHA BALACHANDRAN(K/001180/2022)

OTHER PRESENT:
            SRI. KRISHNA T C (DSGI IN CHARGE)

      THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12.02.2025, THE COURT

ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CAT) No.176/2020

                                         2

                                                                 2025:KER:20727

                                 JUDGMENT

K. V. JAYAKUMAR, J

This OP(CAT) is directed against the order of the Central

Administrative Tribunal in O.A.No.54/2016 dated 26.11.2019, whereby the

claim of the applicant has been allowed. Impugning the said order of the

Central Administrative Tribunal, Union of India and its officers preferred

this OP(CAT).

2. Succinctly, the facts in brief are as follows:

The applicant, Tessy Tom, was working as Stenographer - D in the

scale of pay of Rs.4000-6000/- in the Central Secretariat Stenographer

Service (CSSS) with effect from 01.07.1991. On completion of 12 years of

service, she was granted first financial upgradation under the Assured Career

Progression Scheme (ACPS) with effect from 01.07.2003. The above

financial upgradation was in the scale of pay of Rs.Rs.5500-9000/- attached

to the promotional post of Stenographer - C in CSSS. While so, the applicant

was transferred on her own request as Stenographer - III in the pay scale of

Rs.4000-6000/- to the office of the Deputy Controller of Defence Accounts

(Navy), Kochi. The applicant joined the petitioners' office on 30.05.2005.

The Department in the acceptance issued Annexure-A4 order in this regard.

2025:KER:20727 Annexure-A4 would state that the applicant will not get the benefit of her

past service for the purpose of seniority and henec shall be treated as fresh

entrant for all purposes much less seniority in the DAD, would commence

from the date of her joining in the department. However, the counting of

past service for fixation of pay, pension, carry forward of leave etc., was

ordered to be considered in accordance with the extant orders/rules.

3. The case of the respondent/applicant before the Tribunal

and before us is that, her pay ought to have been protected and financial

upgradation ought to have been granted to her. The applicant submitted a

representation claiming pay protection and the financial upgradation. The

contention of the department is that the applicant joined the Defence

Accounts Department (DAD) as Stenographer II on 30.05.2005 in the pay

scale of Rs.4000-6000/- as against the pay scale of Rs.5500-9000/- drawn

in her previous office in the UPSC. On her joining as Stenographer II, her

basic pay was fixed at Rs.5700/- in the pay scale of Rs.4000-6000/- giving

pay protection. Later, she was granted 1 st financial upgradation in the pay

scale of Rs.5000-8000 and the pay was fixed at Rs.5750/- purely on

provisional basis pending clarification from the office of the CGDA

Headquarters, New Delhi.

4. On implementation of the 6th CPC, her pay was placed in

PB-2 Rs.9300-34800/- + GP Rs.4200/- with effect from 01.01.2006

2025:KER:20727 corresponding to the pre-revised pay scale of Rs.5000-150-8000/-. The

applicant's pay was fixed in accordance with the Headquarters office letter

dated 25.06.2015 which states that, in case of an employee after getting

promotion/ACP seeks unilateral transfer to the lower post or lower scale,

he/she is entitled to the 2nd/3rd financial upgradation as the case may be on

completion of 20/30 years of regular service respectively. The stand of the

Union of India was that the department has correctly fixed her pay of

Rs.5700/- in the pay scale of Rs.4000-6000/- after giving pay protection.

The Central Administrative Tribunal, after considering the rival pleas,

allowed the OA. The relevant paragraphs are extracted hereunder:

"6. Since this issue has already been dealt with by this Tribunal at great length and held in favour of the applicant therein that reduction of Grade Pay from Rs.4200 to Rs.1900/- is highly unjustifiable and that the applicant is entitled to the Grade Pay fixed at Rs.4200/-. In the present case the applicant's Grade Pay has been reduced from Rs.4200/- to Rs.2400/- almost on the similar issue that he has been transferred to lower post.

Thus, we are of the considered view that this matter squarely covers the case of the applicant. Accordingly, we hold that the applicant is entitled for the second financial upgradation under MACP Scheme in PB-2 plus GP Rs.4600/- with effect from 15.1.2012 with all consequential benefits arising therefrom. However, since the applicant has approached this Tribunal in the year 2016, we restrict the consequential relief relating to arrears to a period of three years prior to the date of filing of the Original Application as per the judgment of the Hon'ble Apex Court in the case of

2025:KER:20727 Union of India & Anr. v. Tarsem Singh in Civil Appeal No.5151-5152 of 2008. The respondents are directed to comply with the aforesaid directions within a period of three months from the date of receipt of a copy of this order."

5. The short question involved in the present OP(CAT) is

that, whether an employee when transferred to another department of her

choice with a lesser pay, he/she is entitled to claim the financial

upgradation?. The issue has already been pondered by this Court in WP(C)

No.17795/2010. In that case, the issue was covered in favour of the

applicant.

6. Following the dictum laid down in W.P(C)

No.17795/2010, a Division Bench of this Court considered the same issue in

OP(CAT) No.178/2015. Therefore, the issue involved in this matter is no

longer res integra. The relevant paragraphs of OP(CAT) No.178/2015 is

extracted hereunder:

"5. We have heard the learned counsel for the parties and have perused the Original Petition and the materials on record.

6. Learned counsel for the petitioners would submit that the claim of the petitioners was hopelessly barred by limitation and therefore the Tribunal ought not to have entertained such a stale claim. He would further submit that on account of the transfer sought by the petitioners, the promotion earned before transfer would offset against the entitlement of the first ACP in the new organization. He would be entitled for the second upgradation only on completion of twenty four years of service.

2025:KER:20727

7. We have considered the rival submissions raised across the Bar.

8. It is admitted that while the respondent/applicant was working in Kalamassery Station at Trivandrum Division, had sought transfer to Palakkad Division. The first upgradation in respect of the petitioners was due on 04.01.2010. However, the respondent had taken the case of the applicant as one joined in service on January 2000 and thereafter assessed his claim for the MACP. This exact point was considered by the Tribunal in Annexure A2 order which was confirmed by this Court and by the Apex Court. Insofar as the claim being barred by limitation, we note that the Tribunal has noticed the said fact and found that the cause projected by the applicant being a recurring cause of action, there cannot be any delay in approaching the Tribunal.

On analysis of the legal position as held by this Court under Annexure A3 judgment, we are of the considered view that the point raised in the Original Petition is squarely covered by the judgment of this Court in WP(C).No.17795/2010 dated 20.03.2012. Accordingly, the Original Petition fails and the same is dismissed."

In view of the above judgment, we are of the view that the present

OP(CAT) is liable to be dismissed. Therefore, OP(CAT) fails and it stands

dismissed.

Sd/-

AMIT RAWAL JUDGE

Sd/-

K. V. JAYAKUMAR JUDGE Sbna/

2025:KER:20727

APPENDIX OF OP (CAT) 176/2020

PETITIONER ANNEXURES

ANNEXURE (A1) TRUE COPY OF THE ORDER BEARING NO. PART II O.O. 676 DATED 21.08.2008(NO.184 DATED 23.04.2015) ISSUED FROM THE OFFICE OF THE CONTROLLER OF DEFENCE ACCOUNTS (NAVY) ANNEXURE (A2) TRUE COPY OF THE ORDER BEARING NO. PART I O.O NO.459 DATED 14.10.2015, ISSUED FROM THE OFFICE OF THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (NAVY), MUMBAI.

ANNEXURE (A3) TRUE COPY OF THE ORDER BEARING NO.A-32022/1/03 ADMN .I DATED 29.10.2003 ISSUED BY THE UNDER SECRETARY (ADMN), UNION PUBLIC SERVICE COMMISSION, NEW DELHI.

ANNEXURE (A4) TRUE COPY OF THE ORDER BEARING NO. A20016/9/89- ADMN.I DATED 26.05.2005, ISSUED BY THE UNDER SECRETARY(ADMN) OF UPSC.

ANNEXURE(A5) TRUE COPY OF THE ORDER BEARING NO. PART II O.O NO. 676 DATED 21.08.2008, ISSUED FROM THE OFFICE OF THE CONTROLLER OF DEFENCE ACCOUNTS (NAVY), MUMBAI.

ANNEXURE (A6) TRUE COPY OF THE OM BEARING NO. 35034/3/2008- ESTT(D) DATED 19.05.2009, ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING. ANNEXURE(A7) TRUE COPY OF THE REPRESENTATION DATED 25.10.2012 ADDRESSED TO THE PCDA(NAVY) ANNEXURE(A8) TRUE COPY OF THE LETTER BEARING NO.AN/I/290/MACP/VIL.III DATED 07.12.2012, ISSUED FROM THE OFFICE OF THE ANNEXURE(A9) TRUE COPY OF THE REPRESENTATION DATED 04.11.2013 ADDRESSED TO THE PCDA(NAVY), MUMBAI. ANNEXURE(A10) TRUE COPY OF THE ORDER DATED 28.08.2013 IN OA NO. 1100/2011,RENDERED BY THIS HON'BLE CAT, ERNAKULAM BENCH.

ANNEXURE(A11) TRUE COPY OF THE LETTER NO.

AN/I/290/MACP/VOL/IV DATED 13.02.2014. ISSUED BY THE DEPUTY CDA (AN) ANNEXURE(A12) TRUE COPY OF THE LETTER BEARING NO.K/AN/262/MACP DATED 20.02.2014, ISSUED BY THE DCDA(N) ANNEXURE A(A13) TRUE COPY OF REMINDER UNDER LETTER BEARING NO.

K/AN/262/MACP DATED 01.08.2014, ISSUED BY DCDA (N).

2025:KER:20727 ANNEXURE (A14) TRUE COPY OF THE REPRESENTATION DATED 24.09.2014 ALONG WITH ITS ENCLOSURES, SUBMITTED TO THE 2ND RESPONDENT.

ANNEXURE(A15) TRUE COPY OF THE ORDER BEARING NO.

AN/I/290/MACP/VOL.IV DATED 04.09.2014, ISSUED FROM THE DCDA (AN) ANNEXURE(A16) TRUE COPY OF THE APPEAL DATED 20.05.2015 ADDRESSED TO THE CGDA, DELHI.

ANNEXURE(A17) TRUE COPY OF THE LETTER BEARING NO.K.AN/262/MACP DATED 21.05.2015, ISSUED BY THE SAO(AN).

ANNEXURE A(18) TRUE COPY OF THE REPRESENTATION DATED 17.08.2015 ADDRESSED TOT HE CGDA, DELHI. ANNEXURE A(19) TRUE COPY OF THE REPRESENTATION DATED 15.09.2015, ADDRESSED TO THE PCDA(N). ANNEXURE A(20) TRUE COPY OF THE OM NO.35034/3/2008-ESTT(D) (VOL.II) DATED 01.11.2010, ISSUED BY THE GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL AND TRAINING.

ANNEXURE A(21) TRUE COPY OF THE OM NO.35034/3/2008-ESTT(D) (VOL.II) DATED 04.10.2012, ISSUED BY THE GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL AND TRAINING.

ANNEXURE R1 TRUE COPY OF THE RELEVANT PORTION OF REVISED PAY BANDS AND GRADE PAYS FOR THE POSTS CARRYING PRESENT SCALES IN GROUP A, B, C AND D. ANNEXURE R2 TRUE COPY OF THE LETTER NO.

AN.XI/11051/MACP/2015/IDT/VOL-1, DATED 25.06.2015 FROM THE CONTROLLER GENERAL OF DEFENCE ACCOUNTS.

ANNEXURE R3 TRUE COPY OF THE LETTER NO.

AN.XI/11051/MACP/2011/ID DATED 04.06.2012 FROM THE CONTROLLER GENERAL OF DEFENCE ACCOUNTS. ANNEXURE R4 TRUE COPY OF THE HEAD QUARTERS OFFICE CIRCULAR DATED 25.02.2010 ISSUED TO THE PC OF A(FYS) THE PCDA AND THE CDA.

ANNEXURE R5 TRUE COPY OF THE AMENDED OM NO.35034/3/2008- ESTT(D) (VOL.II) BY DOP AND T DATED 01.11.2010 ISSUED BY THE DIRECTOR (ESTT.I) ANNEXURE R6 TRUE COPY OF THE LETTER NO.

AN/XI/11051/MACP/2015 IDT/VOL-1 DATED 25.06.2015 FROM THE CONTROLLER GENERAL OF DEFENCE ACCOUNTS.

ANNEXURE A7 TRUE COPY OF THE LETTER NO. AN/I/719/VOL.XI, DATED 30.07.2015 BY THE ACCOUNTS OFFICER(AN) ANNEXURE MA 1 TRUE COPY OF PART II O.O. NO. 243 DATED 20.05.2016 ISSUED FROM THE OFFICE OF THE

2025:KER:20727 PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS(NAVY) ANNEXURE MA 2 TRUE COPY OF PART II O.O. NO.261 DATED 31.05.2016 ISSUED FROM THE OFFICE OF THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS(NAVY) ANNEXURE MA 3 TRUE COPY OF PART II O.O NO.263 DATED 01.06.2016 ISSUED FROM THE OFFICE OF THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (NAVY) ANNEXURE MA4 TRUE COPY OF LETTER BEARING NO.AN/III/2739/PF/VOL/58 DATED 14.06.2016, ISSUED BY THE SR. ACCOUNTS OFFICER(AN) IN THE OFFICE OF THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (NAVY) EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00054/2016 FILED BY THE PETITIONER DATED 12.01.2016 BEFORE THE CAT, ERNAKULAM BENCH.

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER IN OA NO.180/00054/2016 DATED 26.07.206 BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P3 TRUE COPY OF THE OM.F.NO. 13/9/2009-ESTT(PAY-I) DATED 21.10.2009 ISSUED BY THE DIRECTOR(PAY) EXHIBIT P4 TRUE COPY OF THE DOPT OM NO.16/04/2012 PAY I DATED 05.11.2012 ISSUED BY THE DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA.

EXHIBIT P5 TRUE COPY OF THE OM NO.12/01/2016-ESTT(PAY-1) DATED 31.03.2017 (6TH PAY COMMISSION AND CCS(RP)2008) EXHIBIT P6 TRUE COPY OF THE ORDER IN OA 180/00054/2016 DATED 26.11.2019 ISSUED BY THE CAT, ERNAKULAM BENCH.

EXHIBIT P7 TRUE COPY OF THE MISCELLANEOUS APPLICATION NO.

180/00673/2016 DATED 27.06.2016(SEEKING STAY OF OPERATION OF ANNEXURE MA 1 TO MA4) FILED BEFORE THE CAT, ERNAKULAM BENCH.