Dismissed

The Administration v. P.Aboosalakaya

Kerala HC23 Jun 2016WP(C)/36864/2008

Case brief

AI extract

What is this about?

This writ petition was filed by the Lakshadweep Administration seeking to correct a pay fixation order passed by the Central Administrative Tribunal which was also the final outcome of a suit/opinion in the lower court. The High Court examined the precedent of State of Punjab Vs. Rafiq Masih and found no merit in the Administration's challenge, dismissing the writ petition.

What did the court decide?

The writ petitions were dismissed as they were not sustainable since the Tribunal's decision was substantively correct.

The Administration Vs P.Aboosalakaya — 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 MR.JUSTICE P.R.RAMACHANDRA MENON

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938

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WP(C).No. 36864 of 2008 (S)

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AGAINST THE ORDER IN OA 561/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 08.11.2006

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PETITIONERS/RESPONDENTS

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ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI.

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PAY AND ACCOUNTS OFFICER, PRINCIPAL PAY AND ACCOUNTS OFFICE, KAVARATTI.

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DIRECTOR OF EDUCATION

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UNION TERRITORY OF LAKSHADWEEP, KAVARATTI.

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HEADMASTER, GOVT. HIGH SCHOOL, KILTAN, UTL.

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BY ADV. SRI.S.RADHAKRISHNAN

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RESPONDENT/PETITIONER:

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P.ABOOSALAKOYA S/O.SRI.P.SHAIKOYA,, PONNIKKAM HOUSE, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP

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BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) BY ADV. SMT.K.RADHAMANI AMMA BY ADV. SRI.ANTONY MUKKATH BY ADV. SRI.K.RAMACHANDRAN (THYKOODAM)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-2016, ALONG WITH WPC. 1151/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 36864 of 2008 (S)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P1	:	A TRUE COPY OF THE O.A.No.561 of 2005 FILED BY THE RESPONDENT
EXT.P2	:	A TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS
EXT.P3	:	A TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN O.A.No.561 OF 2005 DATED 08.11.2006
EXT.P4	:	A TRUE COPY OF REVIEW APPLICATION NO.17 OF 2007 FILED BY THE PETITIONERS
EXT.P5	:	A TRUE COPY OF THE REPLY STATEMENT IN R.A.No.17 of 2007 FILED BY THE RESPONDENT.
EXT.P6	:	A TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN R.A.No.17 of 2007 DATED 01.07.2008.

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/TRUE COPY/

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P.S. TO JUDGE.

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P.R. RAMACHANDRA MENON &

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ANIL K. NARENDRAN, JJ.

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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Dated this the 23^rd June, 2016

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JUDGMENT

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P.R. Ramachandra Menon, J.

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These petitions have been preferred by the Lakshadweep Administration on being aggrieved of the verdict passed by the Central Administrative Tribunal, Ernakulam in the concerned O.As, in relation to the pay fixation effected in the case of the respondents/applicants.

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According to the Administration, there were some mistakes in the pay fixation, which were sought to be corrected by passing orders, which according to the applicants was not correct or sustainable and hence the same was sought to be challenged by filing the O.As. The Tribunal found that the fixation

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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effected by the Administration in the concerned scale, placing the applicants at the level of Rs.9100/(in the scale of 6500- 10500/-), was not correct and that, by virtue of the course and events involving granting of Selection Grade in the cadre of Primary School Teachers (having the scale of pay of Rs.650010500) retrospectively w.e.f. 01.01.1998 and in view of the subsequent promotion to the post of Headmaster w.e.f. 12.07.1999, the pay had to be fixed, granting the benefit of FR 22(1)(a)(i) reckoning two increments, whereupon it would have been Rs.9500/-. It was also observed that, the fixation sought to be made at the level of Rs.9900/-, as originally ordered and sought to be justified by the applicants, was not correct or sustainable and it was accordingly, that the benefit was moulded in O.A.No. 561/2005, which in turn was extended to be followed in the other case, i.e. O.A.No.228 of 2007 as well. The said course, according to the Administration, is not correct or sustainable and it is contented that the mistake is perpetuated, which hence is under challenge in these writ petitions.

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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Heard the learned Standing Counsel for the

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Administration as well as the learned counsel on behalf of the respondents/applicants.

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As discernible from the narration of facts in W.P.(C) No.36864 of 2008, the applicant, who was working as a Primary School Teacher, was subsequently given the Senior scale of Rs.4500-7000/-. Thereafter, the applicant was given promotion as Headmaster in the Junior Basic scale carrying the scale of pay of Rs.5500-9000 on 28.06.1999. It was thereafter, that the applicant was given 'Selection scale' in the grade of Primary School Teacher having the scale of pay of Rs.5500-9000 as per Annexure-A3 order dated 11.05.2000, retrospectively w.e.f. 01.01.1998. As per Annexure-A5 order dated 28.07.2000, the pay in the post of Head Master was fixed, applying FR 22(1)(a) (i). The salary as on 12.07.1999 was reckoned as Rs.7600/and by virtue of the application of the aforesaid rule, granting two increments, the pay came to be fixed as Rs.7950/-. Thereafter, the next increment was given on 01.01.2000,

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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whereby, the pay came to be re-fixed as Rs.8125/-. Later, the salary in the Selection Grade was revised with retrospective effect from 01.01.1998, as per Annexure-A6 dated 17.07.2002 and the pay scale of the Selection Grade was fixed at Rs.650010500/-, which, obviously, is higher than the salary scale in the promoted post of Headmaster , which was still in the scale of Pay of Rs.5500-9000/-. This Court does not find it necessary to deal with the said anomaly, if it be so, as this Court is concerned only with the correct fixation in the concerned scale.

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Pursuant to retrospective pay revision in the Selection Grade carrying the scale of pay of Rs.6500-10500/- w.e.f. 01.01.998, the further course of action pursuant to promotion as Headmaster as per Annexure A4 from 28.06.1999 had to be reviewed. It was accordingly, that Annexure A7 came to be passed on 17.07.2002 by the Administration. Here again, due to an inadvertent mistake, as put forth by the Administration, the benefit came to be granted to the petitioner in terms of FR 22(1) (a)(i), as a result of which, undue benefits came to be extended

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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to the applicant, granting fixation of pay at the level of Rs.8900/in the place of Rs.8500/-. It was challenging the course of action pursued and to get things corrected by the Administration, that the matter was taken up by the applicant before the Tribunal, seeking for the following reliefs.

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“i. To declare that the review/revision of pay of the applicant with effect from 01.01.1996 made as per Annexure A-12 order dated 12.04.2005 on the basis of Annexures A-9 and A-10 is without authority of law, ultra vires and void.

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ii. To call for the records leading to Annexures A- 9, A-10 and A-12 and to set aside the same.

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iii. To issue appropriate direction or order directing the respondents to work out the retirement gratuity, commuted value of pension, monthly pension and other retiral benefits of the applicant without regard to Annexures A-9, A-10 and A-12 and to sanction and disburse the amounts payable to the applicants towards retiral benefits and monthly pension forthwith and at any rate, within a time-frame that may be fixed by this Hon'ble Tribunal ;

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iv. To issue appropriate direction or order directing the respondents to sanction and pay interest on the retirement gratuity, commuted value of pension and

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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the arrears of pension at the rate of 18% from the respective dates they became due , till the date of actual payment ;

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v. To grant such other reliefs which this Hon'ble Tribunal may deem fit, proper and just in the circumstances of the case

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The stand taken by the Administration was sought to be justified by filing a reply statement. After hearing both the sides, the course and proceedings pursued were discussed with reference to the chronology of dates and events and ultimately,

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the Tribunal held in paragraphs 13,14 and 15 as follows:

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“13. The above calculation would show that when the applicant's pay was fixed in the scale of Rs.650010500/- on 01.01.1998, he was holding the post of P.S.T. and NOT Head Master. His promotion on regular basis as Headmaster was w.e.f. July 1999 and he had opted for fixation of pay in the scale of Headmaster w.e.f. 01.01.2000. Though the pay scale of PST and Headmaster was one and the same, i.e. Rs.6500-200-10500/- by virtue of the fact that the latter post was of higher responsibility, benefit under FR 22(1)(a)(i) was admissible which, if granted would have resulted the pay of the applicant raising it from Rs.8100/- to Rs.8500/- (i.e. add one notional increment in the feeder post (i.e.Rs.8300/- and fix

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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it at the next higher stage, i.e. Rs.8500/-). In that event, pay for the subsequently years would be raised correspondingly to Rs.8700/- as on 01.01.2001, Rs.8900/as on 01.01.2002, Rs.9100/- as on 01.01.2003, Rs.9300/as on 01.01.2004. And, the pay of the applicant works out to Rs.9500/- as on 01.01.2005. This has not been done. This is the error committed while issuing the impugned order at Annexure A-9.

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14. Thus, while the pay fixed as per the initial calculation was Rs.9900/- as on 01.01.2005, the pay actually to be fixed is Rs.9500/- as on 01.01.2005. As the applicant was originally in the post of P.S.T. and later on promoted as Headmaster, he is entitled to the benefit of FR 22(i)(a)(i) only once. Since the pay scale of the two posts happens to be one and the same, i.e.Rs.6500-20010500/-, the benefit under this Rule would be one notional increment at the feeder grade, and raising the pay at the next stage. In this case, the same would amount to Rs.200 + Rs.200 i.e. Rs.400/-. It was this amount that was omitted by the respondents while calculating the pay when the impugned order was passed. In the earlier fixation, however, apparently, the benefit of FR22(1)(a)(i) has been given twice, i.e. first when the pay was fixed in the wake of revision of pay scale of the post of P.S.T. from Rs.55009000 to Rs.6500-10500/- (See para (f) above) and again at the time of actual promotion from the post of P.S.T. to the post of Headmaster (vide para (g)above). It is thus the

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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benefit having been granted twice that has resulted in an additional Rs.400/- having been paid to the applicant.

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15. Thus, from the calculations, it is clear that the pay of Rs.9,900/- drawn by the applicant as on 01.01.2005 was incorrect and the pay of Rs.9100/- now fixed vide the impugned order is also equally wrong. It should be Rs.9500/- as explained above.

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The operative portion of the verdict passed by the Tribunal as contained in paragraph 30, is as follows:

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“ In view of the above, the OA is disposed of, with the following observations/directions:

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(a) The impugned orders at Annexure A-9 (dated 22.01.2005)A-10 (dated 23.02.2005) and A-12 (dated 12.04.2005) are quashed and set aside.

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(b) It is declared that the pay of the applicant as on 01.01.2005 works out to Rs.9,500/- as explained in para 13 above.

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© Since the applicant has already superannuated, downward revision of pay shall be worked out on notional basis to arrive at the last average ten months pay purely for the purpose of calculation of pension and such other terminal benefits. Nothing less; nothing else.

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(d) The respondents are at liberty to issue

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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necessary show cause notice to the applicant and if even after consideration of the representation, if any, filed by the applicant, the respondents decide to revise the pay of the applicant at Rs.9,500/- they may do so and work out the extent of DCR Gratuity payable and similarly the extent of pension payable and the difference between the amount already paid as provisional pension under Rule 64 and actually payable after working out the same as stated above, along with the difference in gratuity, may be adjusted from out of the DCR Gratuity which has been withheld by the respondents and the balance paid to the applicant.

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(e) Till such time the above drill is performed, the applicant shall continue to be paid the provisional pension.

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The learned Standing Counsel for the Administration

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points out that the mistake committed by the Tribunal is discernible from paragraph 14, wherein an observation has been made to the effect that , since the pay scale of the two posts (Headmaster and Selection Grade scale) happened to be one and the same (Rs. 6500-200-10500/- ), the benefit of Rule 22(1)(a)

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(i) would be one notional increment in the feeder grade and

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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raising pay at the next stage. With reference to the said observation, the learned Standing Counsel submits that, in view of the factual position discussed by the Tribunal itself in the previous paragraph, the scale of pay of the post of Headmaster was Rs.5000-175-9000 (and not Rs.6500-200-10500/-). The latter one was the selection scale of Primary School Teacher and to this extent, the observations are obviously wrong. The Tribunal has found that the applicant was eligible to have the benefit of two increments, applying the rule of FR 22 (1)(a)(i), in turn adding Rs.200 + 200 to the fixation given by the Administration at Rs.9100/-, taking it to Rs.9500/-. Once this mistake is rectified, deleting addition of Rs.200 + 200 (from Rs.9900/-), the position can be brought back, as contended by the Administration.

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The learned Counsel for the applicant fairly concedes that the scale of pay of 'Headmaster', as mentioned by the Tribunal in paragraph 13 and 14 as Rs.6500-200-10500/- is definitely a mistake, which ought to have been Rs.5000-175-9000/-. But

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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there is no mistake in the observation made by the Tribunal in paragraph 14 that the pay scales of the two posts happened to be one and the same in so far as the pay scale of Headmaster and that of 'Primary School Teacher' at the time of ordering promotion was one and the same -i.e. Rs.5500-175-9000/-. This being the position, there is no mistake warranting interference by this Court, as the wrong mentioning of the scale in paragraph 14 as aforesaid, cannot tilt the balance in any manner.

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This Court finds considerable force in the said submission and on evaluating the facts and figures, as discussed by the Tribunal, we are of the view that, but for the mistake in referring to the actual scale as given in paragraph 14, the pay scale of the two posts of 'Headmaster' and that of 'Primary School Teacher' happened to be one and the same (Rs.5000-1759000/-) as on the date of giving promotion as 'Headmaster' to the applicant. As it stands so, the resultant figure worked out by the Tribunal, placing the same at the level of Rs.9500/- in the scale of pay of Rs.6500-200-10500/- appears to be correct and

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W.P.(C)Nos.36864 of 2008 & 1151 of 2010

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proper and the same does not call for any interference. As a natural consequence, there is no question of recovery and even if there was any mistake, no such recovery is possible by virtue of the law declared by the Apex Court in State of Punjab v. Rafiq

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Masih (White Washer) (2015 (4) SCC 334) . Since we have already found that there is no mistake to call for any interference (but for wrongly mentioning the relevant scale in paragraph 14) this Court finds that the challenge raised by the Administration against the verdict passed by the Tribunal is not sustainable. The writ petitions fail and they are dismissed accordingly.

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P.R. RAMACHANDRA MENON, JUDGE

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ANIL K. NARENDRAN, JUDGE

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The Administration v. P.Aboosalakaya

Case brief

What is this about?

What did the court decide?

The Administration v. P.Aboosalakaya

Case brief

What is this about?

What did the court decide?

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