Allowed

Union of India v. Sri.Simon K John

Karnataka HC12 Nov 2024WP/25666/2018

Case brief

AI extract

What is this about?

Writ petition challenging a CAT order granting pay-fixation relief to a retired defence officer re-employed as a scientist. The court held the Tribunal misapplied precedent and ignored the special provision for commissioned officers, quashing the Tribunal's order.

What did the court decide?

Writ of Certiorari issued quashing the Tribunal's order dated 27.11.2017 in O.A.No.170/00526/2014; no costs.

Union of India Vs Sri.Simon K John — Pension and Retirement Benefits | Karnataka HC (2024)

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1 - NC: 2024:KHC:45676-DB WP No. 25666 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024 PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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WRIT PETITION NO. 25666 OF 2018 (S-CAT)

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BETWEEN:

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UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF DEFENCE SOUTH BLOCK, NEW DELHI – 110 105.

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THE DIRECTOR GENERAL (R & D) DRDO BHAWAN DHQ ZONE, RAJAJI MARG, NEW DELHI – 110 105.

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Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA

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THE CONTROLLER OF DEFENCE ACCOUNTS (R & D), MINISTRY OF DEFENCE (FINANCE), C V RAMAN NAGAR, BENGALURU – 560 093.

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THE CHIEF EXECUTIVE (A) CENTRE FOR MILITARY AIRWORTHINESS & CERTIFICATION (CEMILAC), MINSITRY OF DEFENCE, DEFENCE R & D ORGANISATION, MARTHAHALLI POST, BENGALURU – 560 037.

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THE DIRECTOR PERSONNEL DRDO MINISTRY OF DEFENCE ROOM NO 218, DRDO BHAWAN, DHQ ZONE, RAJAJI MARG, NEW DLEHI – 110 105.

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THE DEPUTY SECRETARY, DEPARTMENT OF ADMINISTRATIVE REFORMS & GREIVANCES, 5^TH FLOOR, SARDAR PATEL BHAWAN, PARLIAMENT STREET, NEW DELHI – 110 001.

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…PETITIONERS

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(BY SRI. JAYAKARA SHETTY H.,ADVOCATE)

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AND:

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SRI.SIMON K JOHN S/O LATE C.K.JOHN, AGED ABOUT 58 YEARS, RETIRED DEFENCE SERVICE OFFICER & WORKING AS SCIENTIST ‘F’, CEMILAC, DRDO, RESIDING AT E/19/4, DRDO TOWNSHIP, PHASE – I, C.V.RAMAN NAGAR, BENGALURU – 560 093.

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…RESPONDENT

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(BY SRI. VENKATESH KUMAR B S.,ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS FROM THE HON'BLE CAT, BANGALORE WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED ORDER DTED 27.11.2017 VIDE ANNEX-A MADE IN O.A.NO. 170/00526 /2014 AND QUASH THE ORDER DATED 27.11.2017 VIDE ANNXA MADE IN O.A.NO.170/00526/2014 PASSED BY THE HON'BLE CAT, BANGALORE AND DISMISS THE O.A.NO.170/00526/ 2017 FILED BY THE RESPONDENT.

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THIS WRIT PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and HON'BLE MR JUSTICE C M JOSHI

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

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Petitioners are knocking at the doors of Writ Court

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for assailing the Central Administrative Tribunal’s order dated 27.11.2017 whereby, O.A.No.526/2014 of the respondent having been favoured, relief has been

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accorded to him as texted below.

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“ 2. When two options are available and the government choose one option among them, that has to be followed through continuously. They cannot elect to choose one element of the option and then another element of another option. Both these options are mutually exclusive and therefore the question is answered in affirmative. The earlier order is upheld. The OA is allowed as above. No order as to costs. ”

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Learned CGC appearing for the petitioners seeks to falter the Tribunal’s order on the following grounds:

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(i) The order is structured on the basis of Apex Court decision in U.T.CHANDIGARH vs. GURCHARAN SINGH, (2014) 13 SCC 598 which is not applicable to the respondent inasmuch as the said decision related to an official of lower cadre in the Defence Services.

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(ii) The Tribunal ignored the text of para 4(d)(ii)

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which constitutes as special law qua para 4(b)(i) in the O.M. dated 5.4.2010 and thereby, a legal infirmity of great magnitude having financial implications on the Central Exchequer has crept in.

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Learned counsel appearing for the respondentemployee resists the petition making submission in justification of the impugned order and the reasons on which it has been constructed. He emphatically reads out para 4(b)(i) of the O.M. dated 5.4.2010 and asserts that the case of his client would fit into the precincts of the said paragraph and therefore, we need not travel to the other paragraph banked upon by learned CGC. He also gives a thumb nail description as to how his client gained entry to the service from the open market.

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Having heard the learned counsel appearing for

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the parties and having perused the Petition Papers, we are inclined to grant indulgence in the matter for the following reasons:

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(a) The submission of learned CGC that the

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Tribunal could not have structured the impugned order in the light of Apex decision in Gurucharan Singh supra , has force; apparently the said decision related to an official of the lower cadre in the Defence Department wherein, obviously the pay scales are comparatively not that attractive qua the officials in the higher cadre. In QUINN vs. LEATHEM, (1901) A.C. 495, 506, Lord Halsbury has observed that a case is an authority for a proposition of law that it actually lays down in a given fact matrix, and not for all that which logically follows from what has been so laid down. A little factual difference may make a sea change to the outcome. When the decision had one of the essential facts namely the cadre of official involved in the litigation, that could not have been ignored by the Tribunal; discounting that runs counter to the law of precedent.

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(b) There is force in the submission of learned CGC that the O.M. dated 5.4.2010, a copy whereof avails at

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Annexure-A4 is in the nature of a delegated legislation since it has got normative and repetitive effect in all cases of the kind and that para 4(b)(i) promulgates general law which has to yield to para 4(d)(ii) which is a special provision essentially and in so many words made applicable to the cases of Commissioned Service Officers belonging to the Defence Force. Learned counsel appearing for the respondent-employee in all fairness agree that a general law and a special law can co-exist in one legal instrument and that the latter would prevail over the former. Para 4(b)(i) reads as under:

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“In all cases where the pension is fully ignored, the initial pay on re-employment shall be fixed as per entry pay in the revised pay structure of the re-employed post applicable in the case of direct recruits appointed on or after 1.1.2006 as notified vide Section II, Part A of First Schedule to CCS (RP) Rules, 2008.”

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Its generality in application & coverage cannot be disputed. Para 4(d)(ii) on the other hand has the following text:

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“In the case of Commissioned Service officers belonging to the Defence Forces and Civilian pensioners who held Group ‘A’ posts at the time of their retirement, the first Rs.4000/of the pension and pension equivalent retirement benefits shall be ignored.”

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Its speciality also cannot be discounted. This aspect having not been adverted to by the Tribunal, learned CGC is right in telling us, the legal infirmity has crept into.

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The vehement submission of learned counsel

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appearing for the respondent-employee as to how his client gained entry to the civil service having retired prematurely from the Defence Services, does not have much relevance for the fixation of pay and structuring of salaries on that basis. The related contention that his client had exercised the option and that would make all the difference so far as the fixation of pay is concerned, again pales into insignificance, Pay Rules being what they

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are.

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In the above circumstances, this petition succeeds; a

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Writ of Certiorari issues quashing the impugned order of the Tribunal, costs having been made easy.

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Sd/(KRISHNA S DIXIT) JUDGE

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