Dismissed

P.Balarajan Nambiar v. Union of India

Kerala HC14 Nov 2016WP(C)/12252/2012

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging an order rejecting a claim for higher placement and pensionary benefits. The Court held it had jurisdiction as the petitioner drew pension in Kerala. It ruled benefits erroneously granted to others are not a basis for the petitioner's claim, and no promotion policy provision justified the relief sought.

What did the court decide?

Writ petition dismissed; claim for higher placement and pensionary benefits rejected.

P.Balarajan Nambiar Vs Union of India — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938

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WP(C).No. 12252 of 2012 (F)

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PETITIONER:

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P.BALARAJAN NAMBIAR, RESIDING AT EDATHUMPOYIL HOUSE, P.O. CHERUVANNUR, VIA MEPPAYYUR, KOZHIKODE DISTRICT - 673 524.

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BY ADVS.SRI.C.VALSALAN

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SRI.K.RAKESH ROSHAN SMT.THUSHARA.V

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RESPONDENT(S):

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1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF POWER, SHRAM SHAKTHI BHAVAN, RAFI MARG, NEW DELHI.

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2. TEHRI HYDRO DEVELOPMENT CORPORATION LTD., A-10, KRIBHCE BHAVAN, SECTOR -1, NOIDA, UTTARPRADESH, REPRESENTED BY ITS CHAIRMAN -CUM-MANAGING DIRECTOR, PIN - 201301.

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3. DIRECTOR (PERSONNEL), TEHI HYDRO DEVELOPMENT CORPORATION LTD., A-10, KRIBHCE BHAVAN, SECTOR-1, NOIDA, UTTARPRADESH, PIN - 201301.

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4. GENERAL MANAGER (P&A), PERSONAL AND ADMINISTRATION, TEHI HYDRO DEVELOPMENT CORPORATION LTD., A-10, KRIBHCE BHAVAN, SECTOR-1, NOIDA, UTTARPRADESH, PIN - 201301.

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R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR R2 TO R4 BY ADV. SRI.ROY CHACKO

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-11-2016, THE COURT ON 14-11-2016 DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 12252 of 2012 (F)

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APPENDIX

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PETITIONER(S) EXHIBITS:

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EXHIBIT-P1-	TRUE COPY OF THE CIRCULAR DATED 05/06/1990 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT-P1(A)-	TRUE COPY OF THE OFFICE ORDER DATED 11/06/1997 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT-P1(B)-	TRUE COPY OF THE OFFICE ORDER DATED 16/02/2002 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT-P2-	TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE 3RD RESPONDENT THROUGH THE CHIEF VIGILANCE OFFICER DATED 24/04/2011.
EXHIBIT-P3-	TRUE COPY OF THE REPRESENTATION SUBMITTED TO 2ND RESPONDENT THROUGH THE CHIEF VIGILANCE OFFICER DATED 25/06/2011.
EXHIBIT-P4-	TRUE COPY OF THE REPRESENTATION SUBMITTED TO 2ND RESPONDENT THROUGH THE CHIEF VIGILANCE OFFICER DATED 11/09/2011.
EXHIBIT-P5-	TRUE COPY OF THE REPRESENTATION SUBMITTED TO IST RESPONDENT THROUGH THE CHIEF VIGILANCE OFFICE DATED 24/11/2011.
EXHIBIT-P6-	TRUE COPY OF THE LETTER DATED 18/01/2002 BY THE CHIEF VIGILANCE OFFICER TO 3RD RESPONDENT.
EXHIBIT-P7-	TRUE COPY OF THE LETTER DATED 20/03/2002 BY THE CHIEF VIGILANCE OFFICE TO 3RD RESPONDENT.
EXHIBIT-P8-	TRUE COPY OF THE ORDER DATED 30/05/2002 ISSUED BY 4TH RESPONDENT.
EXHIBIT-P9-	TRUE COPY OF THE REPRESENTATION DATED 18/07/2002 SENT BY EX. JR. EXECUTIVE (VIG) TO THE 2ND RESPONDENT.
EXHIBIT-P10-	TRUE COPY OF THE MINUTES DATED 08/07/2003.
EXHIBIT-P11-	TRUE COPY OF THE INTER OFFICE MEMO DATED 6.1.2004 WITH COVERING LETTER.
EXHIBIT-P12-	TRUE COPY OF THE APPEAL DATED 22.8.2007 SUBMITTED BY PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT-P13-	TRUE COPY OF THE JUDGMENT IN O.P.NO.26079 OF 2002. --2--

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--2--

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WP(C).No. 12252 of 2012 (F)

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EXHIBIT-P14TRUE COPY OF THE ORDER DATED 29.2.2012 BY 1ST RESPONDENT.

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EXHIBIT-P15TRUE COPY OF THE REPORT DATED 8.6.2012 SENIOR MANAGER VIGILANCE IN CONSEQUENCE OF EXHIBIT P14 ALONG WITH COVERING LETTER.

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RESPONDENTS' EXHIBITS:

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EXT.R2A:	TRUE COPY OF THE JUDGMENT DATED 8.7.2003 PASSED IN WPC.NO.21717/2003.
EXT.R2B:	COPY OF THE OFFICE ORDER DATED 7.2.1991 ISSUED BY TEHRI HYDRO DEVELOPMENT CORPORATION LTD.
EXT.R2C:	COPY OF THE ORDER DATED 1.8.19990 ALONG WITH THE ENGLISH TRANSLATION.
EXT.R2D:	COPY OF THE U.P.GOVT’S GO DATED 8.3.1995 ALONG WITH ITS ENGLISH TRANSLATION.
EXT.R2E:	COPY OF THE APPROVAL DATED 3.8.1995 ALONG WITH ITS ENGLISH TRANSLATION.
EXT.R2F:	COPY OF OFFICE ORDER DATED 8.9.1995 ALONG WITH ITS ENGLISH TRANSLATION.
EXT.R2G:	COPY OF OFFICE ORDER DATED 24.8.2000.
EXT.R2H:	COPY OF THE REPORT OF THE COMMITTEE.
	//TRUE COPY//

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P.S. TO JUDGE

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mbr/

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ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.12252 of 2012

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= = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 14^th day of November, 2016

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JUDGMENT

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1.The writ petition is filed seeking the following reliefs:-

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a) Issue a writ of certiorari and quash Exhibit P10, Exhibit P11 and Exhibit P14 as illegal.

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b) Declare that the petitioner on the facts and given circumstances is entitled to be promoted to the post of E-1 in executive cadre of the 2^nd respondent company as on 1-42000.

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c) Issue a direction to the 1^st respondent to consider and dispose of Exhibit P12 forthwith and afresh in accordance with law after hearing the petitioner, so as to consider the claim of promotion by the petitioner on the basis of the promotion policy of the 2^nd respondent company.

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d) Direct the respondents to give notional promotion to the petitioner as E.1 in the executive cadre and grant pensionary benefits on that basis.”

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2.The contention of the petitioner in the writ petition is that he had joined the service of the 2^nd respondent on 13.12.1993. He had retired on 30.06.2002. He had prior service in the CRPF from 28.05.1962 and was deputed to the Indo Tibetan Border

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W.P.(C).No.12252/12

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Force (ITBP for short) on 19.04.1975 and was absorbed on 19.04.1977. His claim was that he should have been absorbed as S-3(Supervisor) and given resultant promotions as was done in the case of similarly situated persons and that the rejection of such claim by the second respondent was erroneous. The petitioner had preferred Exhibit P12 representation before the 1^st respondent which was directed to be considered by this Court by Exhibit P13 judgment. Exhibit P14 order passed by the 1^st respondent rejecting the claim of the petitioner is under challenge.

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3.Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 2^nd respondent.

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4.The learned counsel appearing of the respondent takes a preliminary objection that this writ petition is not maintainable in this Court since no cause of action arose within the jurisdiction of this Court and this Court has no territorial jurisdiction to consider a case which is essentially referable to

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W.P.(C).No.12252/12

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the petitioner's service in the 2^nd respondent. The learned counsel relies on the decision of a Full Bench of this Court reported in Registrar, Indian Maritime University v. Viswanathan [2014 (4) KHC 451 (FB)] to contend that where no part of the cause of action arises within the jurisdiction of this Court, the mere fact that an order of termination was served to the petitioner in Kerala would not confer jurisdiction.

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5.Learned counsel for the petitioner on the other hand relies on decision of the Apex Court reported in Dinesh Chandra Gahtori v. Chief of Army Staff [(2001) 9 SCC 525] to contend that national functionary like the Chief of Army Staff could be sued anywhere in the country.

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6.The petitioner admittedly had retired from service in 2002. Though the order impugned is with regard to the benefits which were due to him on account of his placement in S-3 post on absorption in the 2^nd respondent, the only effect of

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W.P.(C).No.12252/12

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the consideration of his claim at this stage would be a revision of his pensionary benefits. The petitioner is a resident in Kerala and is receiving his pensionary benefits here. In view of the decision of the Division Bench of this Court reported in Pillai v. ONGC Ltd. [2008(4) KLT 199] which has not been considered or overruled by the Full Bench in Dr.K.G. Viswanathan's case (supra), I am of the view that in case of pensioners who draw their pension within the territorial jurisdiction of this Court, this Court would have jurisdiction to consider the claims relating to their service conditions which would have an impact on the pension drawn by them. Apart from the above, this Court had, on an earlier occasion, without any objection from the respondents who were on party array, issued Exhibit P13 judgment directing the consideration of Exhibit P12 representation preferred by the petitioner. In the above view of the matter, I am of the opinion that nothing stands in the way of this Court considering the legality of Exhibit P14

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W.P.(C).No.12252/12

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order passed by the 1^st respondent.

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7.The claim of the petitioner as highlighted in Exhibit P12 was that he was absorbed as Supervisor Grade-II in the 2^nd respondent on 19.12.1993. He was later promoted as Supervisor Grade-3 and Grade-4 and as Executive Grade-1 on 01.04.2000. He contends that similarly situated persons, one Sri.Rawat and Sri.Ramola, were posted as Supervisor Grade-3 on absorption. The petitioner claims the same benefits. This was the specific aspect directed to be considered in Exhibit P13 judgment. In Exhibit P14 the 1^st respondent states that at the time of his joining on deputation in THDCIL, the 2^nd respondent, the petitioner was holding the post of Sub Inspector while Sri.Rawat was holding the post of Inspector in the CRPF at the time of joining in the 2^nd respondent. It is stated that Sri.Rawat was eligible for S-3 Grade at the time of joining, but was mistakenly granted S-4 Grade in the 2^nd respondent. This according to the 1^st respondent was a mistake. In the case of Sri.Ramola also, it is stated that his

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W.P.(C).No.12252/12

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placement in scale of Rs.1400-2300 on absorption in the 2^nd respondent was erroneous. Going by the promotion policy, it is stated that the petitioner was entitled only for placement at S-2 level at the time of joining the 2^nd respondent, as has been rightly granted to him. The CMD of the 2^nd respondent was, therefore, directed to review the cases of Sri.Rawat and Sri.Ramola and fix the responsibility for lapses, if any.

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8.A counter affidavit has been filed on behalf of the 2^nd respondent justifying the stand of the respondents that the petitioner was entitled only for S-2 Grade on joining the 2^nd respondent. It is contended that all benefits due to him on the basis of the promotion policy have been granted to him. The petitioner has produced Exhibit P15 report submitted on the basis of the impugned order whereby the benefits granted to Sri.Rawat and Sri.Ramola were upheld and no responsibility was fixed on any official for the alleged aberration in the matter of this placement.

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W.P.(C).No.12252/12

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9.I have considered the rival contentions. It is seen that the claim raised by the petitioner for placement in S-3 grade on absorption and to revision of his terminal benefits was based only on the benefits granted to Sri.Rawat and Sri.Ramola and not on account of any positive claim on the basis of promotion policy in force. It is contended in the impugned order that the benefits granted to the two officers as stated above, was an “aberration” and that they were also not entitled to such benefits. Apart from contending that similarly situated persons had been granted placement in the next higher scale, the learned counsel for the petitioner has not placed before this Court any specific provision of the promotion policy justifying the claim raised by him in this writ petition. It is trite law that benefits erroneously granted to two other officers cannot, in the absence of a positive sustainable claim, be the basis of grant for similar benefits to other employees.

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In the above view of the matter, the sole fact that the benefits were not recovered from the other officers pointed out by the

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W.P.(C).No.12252/12

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petitioner cannot independently enable him to draw the same benefits. As stated earlier, the learned counsel for the petitioner has not pointed out any provision in the promotion policy enabling grant the benefits sought for by the petitioner in this writ petition. I am, therefore, of the view that rejection of the claim raised by the petitioner cannot be said to be arbitrary or illegal. In the result, the writ petition fails and is therefore dismissed.

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sd/- Anu Sivaraman, Judge

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P.Balarajan Nambiar v. Union of India

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P.Balarajan Nambiar v. Union of India

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