IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD WRIT PETITION NO.3764/2018 (S-CAT) BETWEEN:
1. UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF MINES NEW DELHI-110001 2. THE CONTROLLER GENERAL INDIAN BUREAU OF MINES INDIRA BHAVAN, CIVIL LINES NAGPUR - 440001 (BY SMT.ANUPAMA HEGDE, CGSC.) AND SHRI ASHISH GHOSHAL AGED 52 YEARS S/O LATE M.R.GHOSHAL …. PETITIONERS HINDI TRANSLATOR INDIAN BUREAU OF MINES BANGALORE RESIDING AT #47, 1ST CROSS SARASWATIPURAM NANDINI LAYOUT BANGALORE-560096 …RESPONDENT (BY SRI MAHESH L., ADV. FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.7.2017 PASSED BY THE LEARNED MEMBERS OF THE CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE IN ORIGINAL APPLICATION NO.170/00248/2015 (VIDE ANNEXURE-H) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:
ORDER Legality and correctness of the order dated 28.7.2017 passed in O.A.No.170/00248/2015 by the Central Administrative Tribunal, Bangalore (hereinafter referred to as “Tribunal” for the sake of brevity) is assailed by the Union of India and another in this writ petition.
2. We have heard Smt.Anupama Hegde, learned Central Government Standing Counsel appearing for the petitioners and Sri.Mahesh.L., learned counsel for the respondent and perused the material on record.
3. Respondent herein filed Original Application assailing the order at Annexure-A12 as contrary to the law declared in Smt.T.P.Leena’s case and sought parity with the pay scales extended and the benefits granted to her under Modified Assured Career Progression (MACP). The respondent also sought for grant of benefit of the first MACP in the pay scale of Rs.9,300-Rs.34,800/- with grade pay of Rs.4,800 with effect from 1.9.2008 and for extension of benefit of second MACP in the pay scale of Rs.9,300-Rs.34,800 with grade pay of Rs.5,400/- with effect from 5.2.2010 and with a further direction to refix the pay of the applicant and also for arrears of payment. Initially, the said application was allowed by order dated 8.10.2015 by the Tribunal. Being aggrieved by the said order, the present petitioners namely the Union of India and another had filed W.P.No.14968/2016 before this Court. The said writ petition was heard and disposed of by order dated 20.9.2016 by setting aside the order of the Tribunal and by remanding the matter to the Tribunal for consideration. This Court particularly found that the Tribunal had not considered on the factual aspects regarding the case of the respondent herein and as to whether there was parity with the case of Smt.T.P.Leena. While remanding the matter, the co- ordinate Bench of this Court observed that the benefits already granted to the respondent by the earlier order of the Tribunal dated 8.10.2015 shall not be disturbed. But if a different order is passed by the Tribunal, then the recovery shall follow in accordance with law. Subsequent to remand, the Tribunal reconsidered the matter and impugned order dated 28.7.2017 has been passed. Being aggrieved by the said order, Union of India and another are once again before this Court assailing the same.
4. At this stage, it may be recalled that the object and purpose of remand was in order to enable the Tribunal to ascertain as to whether the benefits granted to Smt.T.P.Leena could be extended to the applicant herein. In other words, as to whether there was parity in the case of Smt.T.P.Leena and in the case of the respondent herein and to compare the factual matrix.
5. However, before the Tribunal, the senior panel counsel for Union of India submitted that the facts as stated in the case of Smt.T.P.Leena, which ultimately was approved by the Hon’ble Supreme Court and facts in the present case were a mirror image of each other and therefore, they virtually consented before the Tribunal that it is unnecessary to examine the factual aspects of the matter. Instead a contention was raised that the case of Smt.T.P.Leena had not been considered in accordance with law. Without substantiating the said contention with any iota of supporting material, in the circumstances, the Tribunal once again allowed the original application and reiterated the benefits granted to the respondent herein by its earlier order. Being aggrieved, the Union of India and another are once again before this Court.
6. The main reason for remanding the matter by order dated 20.9.2016 was in order to give opportunity to the petitioners herein to establish that the benefits granted to Smt.T.P.Leena by Ernakulam Tribunal, which was confirmed by the Kerala High Court and subsequently by the Hon’ble Supreme Court could not be granted to the respondent herein. Instead of establishing the same, the learned panel advocate of the petitioners herein on the other hand subsequently contended that the case of Smt.T.P.Leena and that of the respondent were on par. Infact, that is exactly the case of the respondent herein. In order to demonstrate the same, at pages 192-193 of the memorandum of writ petition, the respondent has prepared a table to show the similarities in both the cases as to why the respondent herein is entitled to the benefit extended to Smt.T.P.Leena.
7. We have closely perused the table and we find that on perusal of the same, benefit that has been extended to Smt.T.P.Leena by Ernakulam Tribunal which has been sustained by the Kerala High Court and thereafter approved by the Hon’ble Supreme Court, must be extended to the respondent herein. For the purpose of immediate reference, we are extracting the table as under:
Similarities in both the cases APPLICANT SMT.T.P.LEENA Post held Hindi Translator Hindi Translator Date of initial appointment 05.02.1990 30.03.1990 Date of completion of 10 years of service 04.02.2002 29.03.2002 Date of completion of 20 years of service 04.02.2010 29.03.2010 Initial scale of pay Rs.1400-2300 Rs.1400-2300 As per recommendation of 5th CPC pay upgraded to:
Rs.5000-8000 Rs.5000-8000 Ist financial upgradation under ACP:
Rs.5500-9000 (w.e.f. 05.02.2002) Rs.5500-9000 (w.e.f. 30.03.2002) 6th CPC recommendation upgraded the pay scale of Hindi Translator w.e.f. 01.01.2006:
Rs.6500- 10500/-
Rs.6500- 10500/-
Pay fixed as on 01.01.2006 in the correspondence Revised Pay Band with grade pay Rs.12,840/-
Rs.4,600/-
Rs.12,840/-
Rs.4,600/-
Date of increment and pay as on the date of annual increment.
01.07.2006 01.07.2007 01.07.2008 Rs.13,370/- + GP of Rs.4,600/-
Rs.13,910/- + GP of Rs.4,600/-
Rs.14,470/- + GP of Rs.4,600/-
Rs.13,370/- + GP of Rs.4,600/-
Rs.13,910/- + GP of Rs.4,600/-
Rs.14,470/- + GP of Rs.4,600/-
Introduction of MACP 01.09.2008 The promotion/ financial up gradation granted under ACP to the pre- revised scale of Rs.5500-9000, may be ignored on account of merger of the pre-revised scale The promotion/ financial up gradation granted under ACP to the pre- revised scale of Rs.5500-9000, may be ignored on account of merger of the pre-revised scale of Rs.5000- 8000/- Rs.5500-
9000, and Rs.6500- 10500/-
recommended by 6th CPC [please refer MACPS annexure- 1(5)(1)] of Rs.5000- 8000/- Rs.5500-
9000, and Rs.6500- 10500/-
recommended by 6th CPC [please refer MACPS annexure- 1(5)(1)] 8. The order of the Tribunal in the case of Smt.T.P.Leena was affirmed by the Kerala High Court by its judgment dated 21.6.2012. The said judgment of the Kerala High Court has been sustained by the Hon’ble Supreme Court by dismissing the SLP on 15.10.2012. When a specific aspect of the matter was considered by this Court and matter was remanded to the Tribunal in order to ascertain as to whether the case of Smt.T.P.Leena was applicable to the respondent herein, at the instance of the petitioners herein, on perusal of the impugned order, it is noted that no such attempt has been made by the petitioners herein to establish that the case of Smt.T.P.Leena is distinct or different from the case of the respondent herein. In other words, the benefit extended to Smt.T.P.Leena could not be extended to the respondent herein. Rather, it has been subsequently contended that the case of Smt.T.P.Leena and case of respondent herein are mirror image of each other.
9. In the circumstances, the Tribunal was justified in following the judgment passed by the Ernakulam Tribunal in the case of Smt.T.P.Leena which was affirmed by Kerala High Court and subsequently, by the Hon’ble Supreme Court dismissing the SLP filed against the judgment of Kerala High Court. Therefore, we find no reason to interfere with the impugned order and there is no merit in the writ petition.
10. At this stage, learned Central Government Standing Counsel for the petitioners submits that in the case of other applicants namely Sri.M.V.Mohanan Nair and other persons, the matter is pending before the Hon’ble Supreme Court and there is stay of the orders passed by various High Courts. Therefore, appropriate directions may be issued in this case also.
11. The learned counsel for the respondent very fairly submits that in the event the Hon’ble Supreme Court holds that benefits extended to Smt.T.P.Leena could not be extended to the persons similarly situated to the respondent herein, then such judgment of the Hon’ble Supreme Court may be binding on the respondent herein.
12. We record the submission of the learned counsel for the respective parties. We hold that in the event the Hon’ble Supreme Court comes to a different conclusion and holds that persons similarly situated as respondent herein are not entitled to the benefits of MACP as sought for by them, then the judgment of the Hon’ble Supreme Court would be made applicable to the case of the respondent herein. However, till then, whatever payments have been made to the respondent herein, shall not be recovered.
Accordingly, the writ petition is dismissed.
Sd/- JUDGE Sd/- JUDGE DM/-