AI Structured Summary
Not yet generated for this judgment
Judgment
Om Prakash VII, Member (J)
This Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following relief(s):-
“(i) This Hon’ble Court may be pleased to quash the impugned order dated 18.03.2020 issued by respondent No. 3 addressed to the respondent No.1 in respect of applicant No.1 (Annexure No. A-1 in compilation No.1).
(ii) This Hon’ble Court may kindly be pleased to direct the respondents to upgrade the pay scale of the applicants in pursuant to MHA order dated 19.02.2003 and MoF OM dated 14.07.2003 from Rs. 5000-150-8000 to Rs. 5500-175-9000 w.e.f. 11.02.2003 with actual financial benefit and notional pay fixation from 01.01.1996 along with 8% interest on the payment of arrears.
(iii) Any other relief which this Hon’ble Court may deem fit and proper in the facts and circumstances of present case.
(iv) Award cost of the original application in favour of the applicant”.
During the hearing, on the request of the applicant, the learned counsel for the applicant was permitted to remove the details of applicant No. 2 from the list of parties. The amendment has now been carried out.
The brief facts of the case are that the applicant was appointed as a Junior Hindi Translator in 2002. In 2003, the pay scale for this post was upgraded. However, an Office Memorandum later stated that the upgraded pay scale would apply only to the Central Secretariat. Some employees challenged this before the Kolkata Bench of the Tribunal in OA 912/2004 and OA 939/2004. The Tribunal allowed both cases and quashed the Office Memorandum. This decision was upheld by the Hon’ble High Court and later by the Hon’ble Supreme Court. In the present OA, the applicant seeks that the impugned order be set aside and he be granted the same upgraded pay scale.
Respondents have filed counter affidavit wherein it has been stated that the applicant was appointed as Junior Hindi Translator in the pay scale of Rs.5000–8000, and although the Ministry of Home Affairs later upgraded the scale to Rs. 5500–9000 for CSOLS cadres, this benefit was specific to CSOLS posts only. The Ministry of Finance initially allowed the upgraded scale notionally but subsequently clarified on 29.03.2004 that these upgraded scales could not be extended to similarly designated posts in other departments. Accordingly, any unilateral or unauthorized extension of the higher scale had to be withdrawn. It is stated in the counter affidavit that the earlier decisions in OA Nos. 912/2004 and 939/2004 were personam, not in rem, and therefore not binding on the respondents’ department.
The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in his Counter Affidavit while reiterating the averments made in the O.A. and nothing new has been added.
We have heard Shri Ashish Srivastava, learned counsel for the applicants and Shri Raghvendra Pratap Singh, learned counsel for the respondents and perused the record.
Submission of the learned counsel for the applicant is that the applicant was appointed on 13.05.2002 as a Junior Hindi Translator in the pay scale of Rs. 5000–8000 in the respondent-department. In 2003, the Ministry of Home Affairs upgraded the pay scale of Junior Hindi Translators to Rs. 5500–175–9000 w.e.f. 11.02.2003. Learned counsel for the applicant further submitted that on 29.03.2004, the Ministry of Finance issued an Office Memorandum stating that this upgraded pay scale would apply only to the Central Secretariat cadre. Some similarly placed persons challenged this before the Kolkata Bench of the Tribunal in OA No. 912/2004 and OA No. 939/2004. Both OAs were allowed on 09.11.2006, and the OM dated 29.03.2004 was quashed. The respondents then challenged the Tribunal’s order before the Hon’ble Kolkata High Court, but their petition was dismissed. They again approached the Hon’ble Supreme Court, but their SLP was also dismissed. Thus, the Tribunal’s order became final. It is argued that the applicant is similarly situated to the applicants of the above OAs. Therefore, denying the upgraded pay scale to him is arbitrary and illegal. Since the clarificatory OM dated 29.03.2004 has already been quashed, the observations made by the authority in the impugned order are incorrect. It is further argued that the judgment passed in OA No. 912/2004 and OA No. 939/2004 is a judgment in rem, meaning it applies to all similarly placed persons, not only to the original applicants. After these decisions were upheld by the Hon’ble High Court and the Hon’ble Supreme Court, several other Benches of the Tribunal have also allowed similar OAs. Hence, it is argued that OA be allowed, the impugned order be set aside, and the same benefits be granted to the applicant.
Learned counsel for the respondents opposed the prayer and argued that decision in the OA No. 912/2004 and OA No. 939/2004 was not in rem but it was personum. It was not applicable to the respondents’ department. Learned counsel for the respondents also placed reliance on the clarification dated 29.03.2004 issued by the ministry of Finance, Department of Expenditure and further argued that there is no illegality perversity and infirmity in the impugned order, thus, argued to dismiss the OA.
We have considered the rival submissions of the parties and have gone through the entire record.
In this matter, it is evident from the record that in the year 2003, the pay scale of Junior Hindi Translator was upgraded from Rs. 5000– 8000 to Rs. 5500–175–9000 w.e.f. 11.02.2003. It is also clear that after this upgradation, similarly situated persons were granted the benefit. The applicant was posted in the respondents’ department. A clarification letter was issued on 29.03.2004 stating therein that the OM dated 11.02.2003 was applicable only to the Central Secretariat officials. It further appears that this clarification and the denial of benefits were challenged by some similarly situated persons before the Kolkata Bench of this Tribunal in OA No. 912/2004 and OA No. 939/2004. Both OAs were allowed, and the Tribunal made the following observations in the penultimate paragraphs of the judgment:
“11. In the result for the forgoing reasons and discussions and in view of the observations and findings of Hon’ble Apex Court and the Principal Bench, CAT the impugned office memorandum dated 29.3.04 is hereby quashed and set aside and we direct the respondents to extend the benefit of the Ministry of Finance OM dated 14.7.2003 to the applicant and we further direct the respondents to remove the anomalous position and grant the pay scale of Rs. 5500-9000/- to the Junior Hindi Translator within a period of 3 months from the date of receipt of the order”.
The judgment and order passed in the aforesaid OAs were challenged before the Hon’ble Kolkata High Court in Writ Petition No. 632/2007. The Hon’ble High Court dismissed the writ petition and upheld the Tribunal’s decision. The respondents thereafter approached the Hon’ble Supreme Court through SLP No. 17419 of 2009. The SLP was dismissed on 25.07.2013, thereby affirming the orders passed by both the Tribunal and the Hon’ble High Court. It is further evident from the record that several other Original Applications were subsequently filed before different Benches of the Tribunal on the same issue. All such OAs were allowed and the benefit of the upgraded pay scale was granted to similarly situated persons. References to some of these OAs are given below:
(i) Dr. Shree Gyanmote Vs. Controller of Defence Accounts and others in OA No. 796/2007 decided on 04.07.2008 by CAT, Hyderabad Bench;
(ii) Vinod Kumar Diwakar and another Vs. Union of India and others in OA No. 330/01548/2015 decided on 04.11.2015 by CAT, Allahabad Bench;
(iii) Dr. Sulakshmi Kumari and others Vs. Union of India and others in OA No. 699 of 2013 decided on 26.5.2015 by CAT Patna Bench;
In this matter, it is clear that the applicant was appointed on 13.05.2002, and therefore he is also entitled to the benefit of the upgradation granted vide OM dated 11.02.2003. Since the clarificatory note dated 29.03.2004 has already been quashed, it no longer exists in law. The judgment passed by the Kolkata Bench of this Tribunal, as affirmed by the Hon’ble High Court and the Hon’ble Supreme Court, is in the nature of a judgment in rem. Therefore, merely because the applicant belongs to the Ordnance Factory Board is not a valid ground to deny him the benefit of the upgraded pay scale. The denial of upgradation on this basis is not permissible.
In the case of State of Karnataka & Others vs. C. Lalitha, (2006) 2 SCC 747, Hon’ble Apex Court has held as under:-
“29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently.”
The ratio laid down in C. Lalitha (supra) squarely applies to the facts of the present case. The said judgment places a clear obligation on the respondents to extend identical benefits to all employees who are similarly situated. Since the applicants stand on the same footing as the applicants in OA No. 912/2004 and OA No. 939/2004 (supra), they are entitled to the same benefits, and any differential treatment would be legally impermissible.
In view of the settled legal principles and the facts of this case, it is clear that employees who are in the same situation must be treated in the same manner. Therefore, the respondents should have given the present applicant the same benefits that were granted in OA No. 912/2004 and OA No. 939/2004. Accordingly, we hold that the impugned order dated 18.03.2020 is illegal, arbitrary, and cannot be upheld. It is, therefore, liable to be quashed.
In view of the above, the Original Application succeeds and is allowed. The impugned order dated 18.03.2020 is hereby quashed. The respondents are directed to extend to the applicant the same benefits as granted in the judgment and order dated 09.11.2006 passed by the Kolkata Bench of this Tribunal, and to give all consequential benefits, including arrears and revision of pay as the matter has already attained finality by virtue of the Hon’ble Supreme Court’s judgment dated 25.07.2013. There shall be no order as to costs. All connected M.As stand disposed of.