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Judgment
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member)
The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"... issue direction to the Respondents to extend to the Applicant, the benefit of the order in Lr. No. A-27/17/6thCPC/5/2008-E.III dated 17.06.2013 issued by the 1st Respondent, as long as it remains in force; and an appropriate direction, as deemed fit, to prevent the 1st Respondent from selectively discriminating only the Applicant by enforcing the order No. A/40/11/37/2015-E.III dated 23.03.2018 only in respect of the Applicant.
Brief facts of the case as submitted by the applicant are as follows: The Applicant is a retired Officer of the Employees' State Insurance Corporation (ESIC), a Central Autonomous Body. During his service, he was promoted to the cadre of Branch Manager/Superintendent/Social Security Officer (SSO) on 31.01.2006 and continued to serve in the said cadre until his retirement on 31.01.2017. Upon implementation of the recommendations of the Sixth Central Pay Commission by the Government of India, the benefit of pay fixation in terms of the Department of Personnel and Training (DoPT) Order dated 22.12.2010, with reference to Note 10 under Rule 7 of the CCS (RP) Rules, 2008, was extended to the employees of the ESIC pursuant to the Order dated 17.06.2013 issued by the 1st Respondent. Accordingly, the 2nd Respondent issued Office Order No. 74 of 2013 dated 18.10.2013 in respect of the Applicant, granting him the benefit of the revised pay fixation. However, the said order was subsequently kept in abeyance by the 2nd Respondent vide Memo dated 06.08.2014, pending clarification from the 1st Respondent. Pursuant to the directions issued by this Tribunal in O.A. No. 525/2015 on 14.03.2016, the 1st Respondent, after a period of two years, issued a speaking order dated 23.03.2018, declaring that the earlier fixation of pay granted to similarly placed employees was “invalid”. The 1st Respondent further treated the amounts already drawn by such employees as “excess” and directed recovery of the alleged excess amounts from them. However, the said order dated 23.03.2018 was stayed by this Tribunal, Chennai Bench, in O.A. No. 571 of 2018 on 15.05.2018. Consequently, all other similarly placed employees, including those who had been granted the benefit of the earlier pay fixation, have continued to receive the said benefit pending adjudication by this Tribunal. The order dated 23.03.2018, which has been stayed by this Tribunal, is now sought to be enforced selectively by the 1st Respondent only against the Applicant. Hence, the present Original Application.
The learned counsel for the Applicant submitted that the 2nd Respondent had granted the Applicant the pre-revised pay scale of Rs. 7,450–11,500 and, correspondingly, the revised Pay Band of Rs. 9,300–34,800 with Grade Pay of Rs. 4,600, vide Office Order No. 74 of 2013 dated 18.10.2013. However, the 2nd Respondent subsequently, and without any valid justification, decided to keep the said order in abeyance and declined to give effect to the same vide Memo dated 06.08.2014, thereby denying the Applicant the benefit of the revised pay fixation.
He further submitted that the Applicant belongs to the category of employees who were promoted between 01.01.2006 and 31.08.2008 and in whose cases certain anomalies had arisen in the matter of pay fixation. The said anomaly was subsequently rectified by the DoPT vide O.M. F. No. 1/1/2008-IC dated 13.10.2008, followed by the clarification issued by the Ministry of Finance, Department of Expenditure, Implementation Cell, vide U.O. No. 10/1/2009-IC dated 14.12.2009. Pursuant thereto, the pay fixation of employees promoted during the period from 01.01.2006 to 31.08.2008 was carried out by the Headquarters Office, New Delhi, as well as by the Andhra Pradesh Region, Marol Sub-Region and Kerala Region.
He further submitted that certain Regional Directors had sought further clarification on the matter. Consequently, the 1st Respondent, vide letter dated 17.06.2013, issued clarification to all Regional Directors directing that the pay and allowances of employees promoted to the cadre of SSOs during the period from 01.01.2006 to 31.08.2008 be fixed with reference to the Government of India/DoPT O.M. Dated 22.12.2010 Learned counsel pointed out that the Applicant was also permitted to draw pay of Rs. 13,860/- with effect from 01.02.2006 in the revised Pay Band of Rs. 9,300–34,800 with Grade Pay of Rs. 4,600/-, in terms of Office Order No. 74 of 2013 dated 18.10.2013. Subsequently, however, the 2nd Respondent kept the said order in abeyance and sought clarification from the 1st Respondent.
Learned counsel also drew our attention to the judgment dated 05.08.2025 passed by the Hon’ble High Court of Kerala in Original Petition Nos. 111/2023, 15/2024, 157/2023, 159/2023, 29/2024, 39/2024 and 47/2024, whereby the Hon’ble High Court allowed the said Original Petitions, set aside the order dated 08.03.2023 passed by the Ernakulam Bench of this Tribunal and remanded the matters to the Tribunal for reconsideration. Pursuant thereto, upon reconsideration, the Ernakulam Bench, vide orders dated 30.06.2026 passed in O.A. No. 28 of 2022 and connected cases, allowed the Original Applications. Learned counsel therefore prayed that a similar order be passed in the present case.
When the aforesaid submissions were put to the learned counsel appearing for the Respondents, he vehemently opposed the same and relied upon the averments and contentions raised in the reply statement.
Heard the rival submissions made by the learned counsel on both the sides, perused the pleadings and the materials available on record.
We find that the issue is no longer res integra in view of the order dated 30.06.2026 passed by the Ernakulam Bench of this Tribunal in O.A. No. 28/2022 and connected cases. The relevant portion of the said order, which is material for deciding the present O.A., is extracted below:
“9.The issue for adjudication in these cases are:-
(i)Whether the Government of India, Ministry of Finance O.M dated 13.11.2009, granting Grade Pay Rs.4600/- in place of Grade Pay Rs.4200/-, mandates only substitution of Grade Pay or requires fresh pay re-fixation of Band Pay by treating Rs.7450-11500 as the applicable pre-revised scale?
(ii)Whether the benefit under the O.M dated 13.11.2009 is confined to a mere enhancement of Grade Pay, without affecting Band Pay or other fixation benefits under the CCS (RP) Rules, 2008?
(iii)Whether the benefit of re-fixation, if any, under O.M dated 13.11.2009 is restricted exclusively to the 4 Headquarters Services and corresponding Stenographers, or whether it extends to similarly placed employees such as SSOs of Employees' State Insurance Corporation?
(iv)Whether the reliance placed by ESIC on DoPT O.M dated 22.12.2010, Ministry of Finance UO dated 14.12.2009, DoPT letter dated 03.01.2014, is legally sustainable for interpreting or restricting the benefit under O.M dated 13.11.2009?
(v)Whether Annexures R-1(a), R-1(c), and R-1(e), including audit observations relied on by ESIC, are applicable to the present cases and whether such audit observations are binding in determining applicants' entitlement?
If the applicants are otherwise entitled to re-fixation, whether such benefit can lawfully be restricted only to employees promoted as SSO between 01.01.2006 and 31.08.2008, excluding those promoted prior to 01.01.2006?
(vii)Whether the benefit, if admissible, can validly be denied to employees who retired before 01.10.2007, particularly when the pay upgradation was granted with retrospective notional effect?
10.In order to come to a conclusion of the issues, we need to examine each of the notifications issued. There is no doubt that SSOs were placed in the pay scale of Rs.6500-10500 notionally with effect from 2004 and actually with effect from 2007 and the pay fixation with reference to this pay scale of Rs.6500-10500 because they had already been placed in this pay scale in the 5th CPC itself.
11.In the O.M dated 13.11.2009 which is at the heart of this controversy the relevant paragraphs are as follow –
" Sixth Pay Commission recommended merger of the three pre-revised scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 and replaced them by the revised pay structure of grade pay of Rs.4200/- in the pay band PB-2. Vide para 2.2.21 (v) of its Report, the Commission recommended that on account of the merger of these 3 scales, some posts which constituted feeder and promotion grades would come to lie in an identical grade. The Commission gave specific recommendations in its Report granting higher grade pay of Rs.4600/- to some categories of these posts. As regards the other posts, the Commission recommended that it should first be seen if the posts in these 3 scales can be merged without any functional disturbance and if possible, the same should be done. Further, the Commission recommended that in case it is not feasible to merge the posts in these pay scales on functional consideration, the posts in the scale of Rs.5000-8000 and Rs.5500-9000 should be merged with the posts in the scale of Rs.6500-10500 being upgraded to the next higher grade in the pay band PB-2 with grade pay of Rs.4600/- corresponding to the pre-revised scale of Rs.7450-11500. In case a post already exists in the scale of Rs.7450-11500, the post being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.7450-11500.
Consequent upon the Notification of CCS (RP) Rules, 2008, Department of Expenditure has received a large number of references from administrative ministries/departments proposing upgradation of the posts which were in the pre-revised scale of Rs.6500-10500 as on 01.01.2006 by granting them grade pay of Rs.4600/- in the pay band PB-2. The matter has been considered and it has now been decided that the posts which were in the pre-revised scale of Rs.6500-10500 as on 01.01.2006 and which were granted the normal replacement pay structure of grade pay of Rs.4200/- in the pay band PB-2, will be granted grade pay of Rs.4600/- in the pay band PB-2 corresponding to the pre-revised scale of Rs.7450-11500 with effect from 01.01.2006. Further, in terms of the aforementioned provisions of CCS (RP) Rules, 2008, in case a post already existed in the pre-revised scale of Rs.7450-11500, the posts being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.7450-11500.
Accordingly, in terms of Rule 6 of CCS (RP) Rules, 2008, revised pay of Government servants in the pre-revised scale of Rs.6500-10500 who were earlier granted grade pay of Rs.4200/- and who have already exercised their option for drawal of pay in the revised pay structure in the format prescribed in the Second Schedule to the Rules, will be fixed again in accordance with illustration 4A annexed to CCS (RP) Rules, 2008."
The pay scales in the ESIC has been produced in the reply statement wherein the Assistant in the pay scale of Rs.5000-8000 were placed in the grade pay of Rs.4200/-, SSOs in the pay scale of Rs.5500-9000 and Rs.6500-10500 notionally and were originally placed in the grade pay of Rs.4600/- and Assistant Director who were in the pay scale of Rs.6500-10500 were placed in the grade pay of Rs.4800/-. It has also been argued that the pay scale of SSOs in ESIC has never been upgraded or placed in the pay scale of Rs.7450-11500 and hence the applicants would not be eligible for the grade pay of Rs.4600/-. The ESIC had adopted the Memorandum of Government of India of 13.11.2009 on 08.12.2009. Apparently some amount of confusion has been issued by reading Government of India O.M dated 22.12.2010 which in actual terms was regarding the pay fixation of Headquarters Services like Central Secretariat Services and their counterpart Stenographer Services and sought to take the stand that the pre-revised scale of pay of Rs.7450-11500 was only intended for Headquarter Services and the extension of benefits to the SSOs etc., of ESIC was incorrect and therefore directed the withdrawal. This was based on the audit objection produced as Annexure R-1(c) in O.A.No.180/325/2018 and DoPT O.M.No.7/7/2008-CS.I(A) dated 03.01.2014. This has effectively resulted in ignoring the clarification in O.M dated 13.09.2018 which categorically states that there shall be a merger of the pay scales of Rs.6500-10500 to Rs.7450-11500 or in the absence of a pay scale of Rs.7450-11500 the pay scale of Rs.6500-10500 will be upgraded to the next higher grade in the pay band PB-2 with the pay scale of Rs.7450-11500.
It has been argued very vehemently that it is for the Government to decide the cutoff date if such benefit is to be extended and such benefit cannot be granted retrospectively. Here, it is not a question of extending the benefit retrospectively. The benefit has already been extended to the SSOs by the ESIC in its 140th Meeting in 2007 ie., in the pay scale of Rs.6500-10500. The subsequent developments with reference to the pay scales which has been adopted by the ESIC cannot retrospectively be withdrawn from a subsequent date ie., in 2017 and change the entire pay structure of the applicants. Reference has been made to the fitment table provided in the CCS (Pay) Rules for PB-2 and it should be noted that the fitment table cited was prior to the O.M of 13.11.2009. Once the revision in the fitment table happened we would refer to the illustration 4A which clearly indicates that individuals drawing the pay scales of Rs.6500-10500 as on 01.01.2006 they would either be merged in the higher pay scale of Rs.7450-11500 or in the absence of any post in the pay scale of Rs.7450-11500, which is the case here, they would be fixed in the pay scale and would consequently draw the grade pay of Rs.4600/-.
The complete and utter confusion was created by ignoring the O.M of 13.11.2009 and adopting the O.M dated 16.11.2009 which was intended for a completely different set of persons and ignoring the fact that the O.M of 13.11.2009 was universally applicable and adopted by the ESIC is what is led to the confusion and to that extent the clarification which has been issued in 2018 is based on a incorrect premise and therefore, cannot be sustained.
Hence the OAs succeed and that clarification of 2018 is struck down as being contrary to the terms of 6th CPC recommendations as adopted by the ESIC. The respondents are directed in those cases where refixation has already been done to correctly fix the pay of the applicants and pay them any consequential arrears which is due within a period of three months from the date of receipt of a copy of this order, failing which 8% interest would be payable. There shall be no order as to costs.”
In view of the foregoing discussion and in light of the judgment cited supra, the O.A. succeeds and is accordingly allowed. The Respondents are directed to refix the pay of the Applicant in terms of the order dated 17.06.2013 issued by the 1st Respondent and to extend to him all consequential benefits, including arrears of pay, as admissible, within a period of three months from the date of receipt of a copy of this order. In the event of failure to comply with the aforesaid direction within the stipulated period, the Respondents shall be liable to pay interest on the arrears at the rate of 6% per annum from the date of expiry of the said period until the date of actual payment. There shall be no order as to costs.