Dismissed

Export Inspection Council of India v. K S Jeejimol

Kerala HC5 Mar 2024WA/809/2017

Case brief

AI extract

What is this about?

Junior Hindi Translator challenged rollback of her 5th Pay Commission upgraded pay scale and denial of 6th Pay Commission benefits by her autonomous-body employer. Division Bench held pay disparity against other Central Government employees was unexplained discrimination and dismissed both writ appeals, directing grant of benefits within one month.

What did the court decide?

Both writ appeals dismissed; appellants directed to grant Single Bench-ordered pay scale and MACP/grade pay benefits within one month of receipt of certified copy.

Export Inspection Council of India Vs K S… — Pension and Retirement Benefits | Kerala HC (2024)

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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 AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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TUESDAY, THE 5^TH DAY OF MARCH 2024 / 15TH PHALGUNA, 1945

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WA NO. 809 OF 2017

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AGAINST THE JUDGMENT DATED 20.01.2017 IN WPC NO.17363 OF 2005

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OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS:

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1 EXPORT INSPECTION COUNCIL OF INDIA, REPRESENTED BY ITS DIRECTOR (INSPECTOR & QUALITY CONTROL), 3RD FLOOR, NDYMCA, CULTURAL CENTRE BUILDING 1, JAI SINGH ROAD, NEW DELHI-110 001.

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2 EXPORT INSPECTION AGENCY, REPRESENTED BY ITS MANAGING DIRECTOR, MANOHAR BUILDING, M.G.ROAD, KOCHI-11.

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3 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF EXPENDITURE, MINISTRY OF FINANCE, NEW DELHI-110 001.

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BY ADVS.

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ASSISTANT SOLICITOR GENERAL MANU S. DSG OF INDIA

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RESPONDENT/PETITIONER:

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K S JEEJIMOL,

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JUNIOR HINDI TRANSLATOR, EXPORT INSPECTION AGENCY, KOCHI-682 011.

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BY ADVS.SMT.S.LAKSHMY SRI.SHAFIK M.A.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2024, ALONG WITH WA.114/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. Nos.809/2017 & 114/2023

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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 AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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TUESDAY, THE 5^TH DAY OF MARCH 2024 / 15TH PHALGUNA, 1945

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WA NO. 114 OF 2023

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AGAINST THE JUDGMENT DATED 28/10/2022 IN WP(C) NO.9590/2022 OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS:

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1 EXPORT INSPECTION COUNCIL OF INDIA, REPRESENTED BY ITS DIRECTOR, (INSPECTOR & QUALITY CONTROL), 2ND FLOOR, BLOCK I, COMMERCIAL COMPLEX, EAST KIDWAI NAGAR, NEW DELHI, PIN – 110 023.

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2 EXPORT INSPECTION AGENCY, REPRESENTED BY ITS JOINT DIRECTOR, SHIPYARD QUARTERS ROAD, PANAMPILLY NAGAR SOUTH, KOCHI, PIN – 682 036.

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3 UNION OF INDIA, REPRESENTED BY SECRETARY, DEPARTMENT OF COMMERCE, MINISTRY OF COMMERCE & INDUSTRY, UDYOG BHAVAN, NEW DELHI, PIN – 110 001.

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4 THE SECRETARY TO THE GOVERNMENT OF INDIA, DEPARTMENT OF OFFICIAL LANGUAGE, MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI, PIN – 110 002.

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BY ADV K.S.PRENJITH KUMAR

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RESPONDENT/PETITIONER:

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K.S.JEEJIMOL, AGED 57 YEARS, D/O.K.A.SREEDHARAN, JUNIOR HINDI TRANSLATOR, EXPORT INSPECTION AGENCY, KOCHI-682 011, RESIDING AT 'ARYA NIVAS', VADUTHALA P.O., KOCHI, PIN – 682 023.

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W.A. Nos.809/2017 & 114/2023

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BY ADVS. P.V.SALEEM SHAFIK M.A K.E.HADHIK JAZAR(K/000410/2022)

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2024, ALONG WITH WA.809/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. Nos.809/2017 & 114/2023

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AMIT RAWAL & C.S.SUDHA, JJ.

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-----------------------------------------------Writ Appeal Nos.809/2017 and 114/2023 ------------------------------------------------Dated this the 05^th day of March, 2024

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J U D G M E N T

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Amit Rawal, J.

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Two writ appeals, i.e., W.A.No.809/2017 directed against the judgment dated 20.01.2017 rendered in W.P.(C).No.17363 of 2005, whereby the impugned orders of the appellants 1 and 2 passed on the basis of the order of the Central Government rolling back the pay-scale granted to the Junior Hindi Translator on the basis of the 5^th Pay Commission, have been set aside and W.A.No.114/2023, against the judgment dated 28.10.2022 rendered in W.P.(C).No.9590/2022 whereby the claim of the respondent/petitioner for grant of upgraded pay scale as per the recommendation of the 6^th Pay Commission has been allowed.

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The facts in brief in both cases are summarized as below:-

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The respondent/petitioner was employed as a Junior Hindi Translator in the Export Inspection Agency (EIA) an autonomous body, on a temporary basis on 27/04/1989. With effect from 17/05/1991, her

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W.A. Nos.809/2017 & 114/2023

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services were regularized and the basic pay scale at the relevant point of time was ₹1200-2040/-. As per the recommendation of 4^th Central Pay Commission the post of Junior Hindi Translator was placed in the scale of ₹1400-2300/-. Thereafter, in 1996 on account of recommendation of 5^th Pay Commission, was granted the pay scale of ₹4000-6000/-, whereas according to the petitioner-respondent, she should have been placed in a pay scale of ₹5000-8000/- in view of the fact that the other Junior Hindi Translators working in the Government were accorded the similar pay scale. Her pay was upgraded to ₹5000-8000/- w.e.f. 01/01/1996. The benefit of 2^nd Assured Carrier Progression (ACP) was granted with effect from 11/09/2003. The order dated 19/07/2005 with effect from 01/01/1996 granting the pay scale of ₹5000-8000/- was rolled back in view of the communication of the Central Government dated 30/05/2013 accepted by the autonomous body vide 31/05/2013. The said action was impugned in this court in W.P.(C).No.17363 of 2005 on the ground that there was a disparity in pay scale vis-a-vis the employees working in the Government Department and autonomous bodies. Even otherwise the benefit of the enhancement of pay scale has been granted to all other employees of the autonomous bodies. Learned

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W.A. Nos.809/2017 & 114/2023

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Single Bench noticing the objections of the appellants allowed the writ petition on the ground that the orders of the autonomous body did not assign any reasons of rolling back the pay scale.

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During the pendency of Writ Appeal No.809/2017 preferred by

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the Export Inspection Council of India in the absence of the stay of the impugned judgment, the respondent/petitioner filed another writ

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petition No.9590/2022 by setting out the following claims:

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“(i) TO CALL FOR THE RECORDS LEADING TO EXHIBIT P-1 TO P- 21 AND TO DECLARE THAT THE PETITIONER IS ENTITLED FOR THE SCALE OF PAY OF RS.5500-9000 ON HER APPOINTMENT AS HINDI TRANSLATOR AND FOR CORRESPONDING REVISION OF PAY AND GRANT OF FINANCIAL UPGRADATION INCLUDING THE GRADE PAY OF RS.5400 ON GRANTING 2^ND MACP;

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(ii) TO ISSUE A WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION TO THE RESPONDENTS IN CONFORMITY WITH EXHIBITS P-15 AND P-16. TO GRANT THE SCALE OF PAY OF RS. 5500-9000 ON HER APPOINTMENT AS HINDI TRANSLATOR AND FOR CORRESPONDING REVISION OF PAY AND GRANT OF FINANCIAL UPGRADATION INCLUDING THE GRADE PAY OF RS. 5400 ON GRANTING 2D MACP:

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(iii) TO DECLARE THAT THE PETITIONER IS ELIGIBLE TO BE GRANTED THE GRADE PAY OF RS. 5400/- ON HER MACP WITH EFFECT FROM 01.9.2016. AS HAS BEEN GRANTED BY THE GOVERNMENT OF INDIA AS PER P-3 & P-4 AND AS DIRECTED BY P- 11:

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(iv) TO ISSUE SUCH OTHER WRITS, ORDERS OR DIRECTIONS AS THIS HON'BLE COURT MAY DEEM FIT AND PROPER IN THE CIRCUMSTANCES OF OF THE CASE:

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(v) TO AWARD COSTS OF THIS PROCEEDINGS.”

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W.A. Nos.809/2017 & 114/2023

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The claim in the second round of litigation was on the basis of

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the recommendation of the 6^th Pay Commission to be brought under the pay Pay Band-2 with a scale of ₹9300-34800/- with a grade pay of ₹4600/-. The pre-revised pay of the post of Junior Hindi Translators was in the scale of ₹6500-10500/-. The cause of action to claim the aforementioned relief was on the basis of Ext.P15 communication dated 16/02/2016 of the Government of India, Ministry of Home Affairs and Ext.P16 dated 28/03/2007 of the Government of India, Department of Official Language, Ministry of Home Affairs for, the Recruitment Rule (educational qualification etc.) in subordinate offices should be similar to that of the Central Secretariat Official Language Service (CSOLS) cadre. Appellants applied the contents of the latter and did not grant the said benefits as sought for. Learned Single Judge by rejecting the contentions of the appellant by relying upon the documents Exts.P11 to P14 notice that the Official Language Policy of the Central Government had been directed to made applicable to autonomous bodies under the Central Government as well, allowed the writ petition.

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Learned counsel appearing on behalf of the appellant in support

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of the two intra court appeals submitted that the judgment of the learned single bench is not sustainable on the ground that as it is well settled that the

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W.A. Nos.809/2017 & 114/2023

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parity of pay scales must be left to the Government and on the decision of the experts, court should be circumspect. Executive function lies in the exclusive domain of the rule making authority. The contents of Exts.14 to 15 revealed that the Official Language Policy of the Central Government was to be implemented by the autonomous bodies under the Central Government but there was no mention or stipulation that persons/employees working in autonomous bodies would be entitled to the same pay scale as applicable to the Central Government employees or subordinate offices. There was no general direction from the Government of India to extend the benefit of pay parity to the employees holding the post of official language in autonomous bodies in Central Government. Whereas on the other hand, Government of India, Ministry of Finance clarified that the upgraded pay scales approved by the Government as specific to the post of Translators cannot be extended to the similar posts elsewhere. Similar is the arguments with regard to granting the benefits on the basis of the 5^th Pay Commission.

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On the other hand learned counsel appearing on behalf of the respondent- writ petitioner relied upon the documents placed on record with the counter affidavit in W.P.(C).No.114/2023 by submitting that from the very beginning, the employer, that is the autonomous body, did not implement the recommendation of pay commission, as the first pay scale of

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W.A. Nos.809/2017 & 114/2023

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the respondent was ₹1200-2040/- which was the scale of a UDC in any Central Government Organization whereas the pay scale of Junior Hindi Translator in all other Departments was ₹1400-2300/- under the 4^th Central Pay Commission which was later revised to ₹5500-9000/- by 5^th CPC in 1996. Department of Expenditure, Ministry of Finance vide O.M. dated 14/07/2003 granted the upgraded pay scale of ₹5500-9000/-, ₹6500-10500/and ₹7500-12000/- to the post of Junior Hindi Translator, Senior Hindi Translator and Assistant Director respectively. In fact, the Parliament Committee on official language from time to time have conducted inspections and directed that the pay of the Hindi Staff is to be brought at par with the other departments, autonomous bodies and other institutions under the Government of India. Reliance has been laid to communications R1(b), R1(c), R1(d), R1(e), R1(f) and R1(g) respectively. It was further contended that there is no illegality in the judgment of the learned Single Bench.

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We have heard counsel for the parties and appraised the paper

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books.

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The documents placed on record would reveal that all the employees in the autonomous bodies except Hindi Translators have been getting the benefit of parity of pay vis-a-vis the employees working in the Central Government and autonomous bodies. No hard and fast rule or any

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W.A. Nos.809/2017 & 114/2023

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cogent reasons have come forward in rolling back of the pay scale as late as in 2013 or non grant of the pay scale, the subsequent ground of litigation except for reference of some business rule which had not seen in the light of the day. There has to be a rationale and some foundation for rolling back and that too, after compliance of the principles of natural justice. In fact after rolling back, attempt was made for recovery of the arrears but this Court vide interim order, brought some succor. It is settled law that if a person has been granted a benefit without any misrepresentation or maliciously, cannot be asked to refund the amount. The periodic inspections of the Central Government for adoption of Hindi language also recommended that the translators both junior/senior working in the autonomous bodies should be brought at par with the pay scale of the counter parts in the Central Government. The appellants are not in denial of the fact that the entire body of the Official Language Policy including the designation of the posts as well as institution of pay scale was made applicable to autonomous bodies under the Central Government as well. Similar benefits have been also extended as per the communication dated 30/05/2016 in respect of autonomous bodies like Coconut Development Board, Rubber Board, Khadi and Village Industries Commissions. Disparity in the pay is an act of discrimination which cannot be allowed to be perpetuated with impunity.

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W.A. Nos.809/2017 & 114/2023

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For the reason aforementioned, we are of the view that there is no illegality and perversity in the judgment of the learned Single Bench impugned in both appeals. Do not find any merit in the appeals and accordingly dismissed.

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At this stage we have been informed that the respondent is retiring in the month of May. Thus, we direct the appellants to grant the benefits as granted by the learned Single Bench within a period of one month from the date of receipt of a certified copy of this judgment.

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Sd/- AMIT RAWAL JUDGE

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Sd/- C.S.SUDHA JUDGE

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W.A. Nos.809/2017 & 114/2023

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APPENDIX OF WA 809/2017

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APPELLANTS' ANNEXURES

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Annexure I: True copy of the UO Note No.5(9)/E.III B/2011 dated 14.03.2013, issued by the Ministry of Finance, Department of Expenditure E.III(B) Branch. Annexure II: The relevant extracts from the Central Civil Service (Revised Pay) Rules, 1997. Annexure III: True copy of the O.M. No.7(34)/E.IIIA/97 dated 02.12.1997. Annexure IV: True extract of the order dated 14.01.1961. Annexure V: True extract of the Government of India (Transactions of Business) Rules, 1961. Annexure VI: True extract of Rule 253 of General Financial Rules (GFR). Annexure VII: True copy of the O.M. dated 02.11.2010, issued by Department of Expenditure.

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W.A. Nos.809/2017 & 114/2023

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APPENDIX OF WA 114/2023

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APPELLANTS' ANNEXURES

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Annexure A TRUE COPY OF THE LETTER NO.15/42/2013O.L (SERVICE) DATED 02.05.2013 Annexure A(a) TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A Annexure B TRUE COPY OF THE OFFICE MEMORANDUM F.NO.1/1/200/-IC DATED 24.11.2008

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RESPONDENT'S ANNEXURES

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Annexure-R1(a)	true copy of	the Lette	r No.
	EIC/D(Q/C)/78/98/47 enclosing and the and EP.	59 dated 2 Letter No. 3/	6.2.1998 49-9/-EI
Annexure-R1(b)	The Photostat cop 3/23/2007-Export 23.2.2015	y of the Let Inspection	ter No. dated
Annexure-R1(c)	The Photostat copy 3/23/2007-Export 26.03.2015.	of the DO Le Inspection	tter No. dated
Annexure-R1(d)	The Photostat copy 3/23/2007-Export 28.12.2016.	of the DO Le Inspection	tter No. dated
Annexure-R1(e)	The Photostat copy 3/23/2007-Export 2.2.2017	of the Letter Inspection	D.O.No. dated
Annexure-R1(f)	The Photostat copy No. K-16013/02/20 dated 28.3.2019	of the Lett 19-Export In	er D.O. spection
Annexure-R1(g)	The true copy 16013/2/2019-Exp.In	of the OM s. dated 18.3.	F. No. 2021

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W.A. Nos.809/2017 & 114/2023

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Annexure-R1(h)	The true	copy of the Page 75 of Manual
	regarding Language, Official Affairs	the use of the Official published by the Department of Languages, Ministry of Home
Annexure-R1(i)	The true and 88 o regarding Department Ministry o	copy of the Relevant pages 87 f the Compilation of Orders Hindi published by the of Official Languages, f Home Affairs.
Annexure-R1(j)	The true 3(1)/2/96-	copy of the Letter F. No. EI and EP dated 19.7.2005
	issued by Respondent	the Director of the 1st
Annexure-R1(k)	The true EIC/D(Q/C) 1st respon	copies of the Letter No. 78/2008/4005 issued by the dent dated 22.10.2008
Annexure-R1(l)	True copy 27.7.2017	of Letter No. 7CPC/2017 dated issued by the 1st Respondent

Export Inspection Council of India v. K S Jeejimol

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Export Inspection Council of India v. K S Jeejimol

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