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Judgment
O R D E R
Hon'ble Mr. P. Madhavan, Judicial Member –
This is an Original Application filed by the applicant seeking the following reliefs:
“(i)To set aside Annexure A29 and Annexure A30 to the extent it limits the date of implementation of up-gradation of pay scale of the applicants, working as Auditor-I in FBAA cadre in the 1st respondent Commission from Rs. 4500-7000 to Rs. 5000-8000 with effect from 28.4.2016.
(ii)To declare the action of the 2nd respondent Central Government in issuing Annexure A29 altering the effective date of implementation of the revised scale of pay granted by the 1st respondent Commission to the applicants holding the post of Auditor-I as per Annexure A26 resolution as totally illegal, arbitrary and without jurisdiction.
(iii)To direct the 2nd respondent Central Government to make available necessary funds to the 1st respondent Commission to implement Annexure A26 resolution in so far as the same relates to the applicants within a time frame to be fixed by this Hon’ble Tribunal.
(iv)To direct the 1st respondent Commission to implement Annexure A26 resolution granting up gradation of pay scales of the applicants holding the post of Auditor-I in the 1st respondent Commission from Rs. 4500-7000 to Rs. 5000-8000 with effect from 1.1.1996 and to disburse to the applicants all monetary benefits arising from said grant of revised pay scale fixation including arrears thereof within a time frame to be fixed by this Hon’ble Tribunal.
(v)To declare that the applicants are entitled for current market rate interest for the delay in disbursement of arrears of revised pay scale from 27.10.2014 till the date of actual disbursement.
(vi)To direct the respondents to pay interest at current market rate to the applicants for the delay in disbursement of arrears of revised pay scales from 27.10.2014 till the date of actual disbursement.
(vii)To issue such other and further reliefs as this Hon’ble Tribunal may deem fit to be granted in the facts and circumstances of the case including cost of this proceeding to the applicants. ”
The applicants are working as Auditor-I in Khadi & Village Industries Commission (KVIC). According to them they were not given the scale of pay of Rs. 5,000-8,000/- by Central Pay Commissions and owing to their demands, the respondent No. 1 had constituted an anomaly committee to study the grievances of the applicants. The committee in its report marked as Annexure A1 dated 21.4.1998 recommended the giving of scale of Rs. 5,000-8,000/- to the applicants. The 1st respondent had accepted the recommendations of the Committee and forwarded the proposal to respondent No. 2 for implementing the scale of Rs. 5,000-8,000/-. But the 2nd respondent rejected the proposal for up-gradation of scale of Auditor-I as per letter dated 20.10.2005 (Annexure A3). The applicants challenged Annexure A3 before the Hon’ble High Court of Kerala by filing WP No. 32333/2008. The Hon’ble High Court quashed Annexure A3 as regards Auditor-I and directed the respondents to pass fresh orders as per observations made in the judgment dated 2.2.2011 (Annexure A4) and implement the recommendations of the respondent No. 1 within a period of three months. The respondents filed a Writ Appeal before the Hon’ble High Court as WA No. 837 of 2011 challenging the order of the Single Bench Annexure A4. But the said appeal was permitted to be withdrawn as per order dated 11.1.2012 (Annexure A11). Then the respondent filed a Review Petition RP No. 220 of 2012 before the Single Bench. The said petition was dismissed by order dated 14.3.2012 (Annexure A12). The respondents filed appeal as WA No. 656 of 2012 before the Hon’ble High Court against the order in WP No. 3233 of 2008 and RP No. 220 of 2012 order dated 14.3.2012. The Hon’ble High Court has dismissed the Writ Appeal as per order dated 22.8.2012 [Annexure A15(3)]. An SLP No. 38471/2012 was filed before the Hon’ble apex court and the same was also dismissed on 27.10.2014 (Annexure A16). So the judgment of the Hon’ble High Court dated 2.2.2011 (Annexure A4) has become final.
The respondents sought a clarification regarding the date from which implementation of order has to be made by filing IA No. 1197 of 2015 in WP© No. 32333/2008 on 5.10.2015. They had sought a clarification as to whether the order has to be implemented w.e.f. 1.1.1996 or from 20.10.2005 [i.e. Annexure A1(6)]. The said IA No. 1197 of 2015 in the WP was disposed of by the Division Bench observing as under:
“6.Having regard to the fact that the date on which the pay scale has to be re-fixed was not at all in dispute, either before the learned Single Judge or before this Court, we do not think that any clarification is required in the matter. It is for the appropriate authority to pass appropriate orders in the light of the directions issued by the learned Single Judge. Hence, we do not think that any clarification is required in the matter.”
After the disposal of the clarification petition, the Director of respondent No. 1 addressed the Chief Executive Officer of the Commission recommending implementation of the pay scale w.e.f. 1.1.1996 (Annexure A25). The Commission as per minutes dated 21.1.2016 (Annexure A26) has agreed to extend the pay scales to Auditor-I/Assistant Accountant w.e.f. 1.1.1996. Thereupon, the Chief Executive Officer recommended implementation of the scale w.e.f. 1.1.1996 to the Ministry of MSME by letter Annexure A27. Thereafter, on 22.4.2016 the Commission has considered the above matter again since the Ministry has opined that the date of implementation is the prerogative of the Ministry of Finance. Hence, the Commission held that since the Hon’ble High Court has not given a specific date, it is for the Ministry to pass orders for implementation vide letter dated 22.4.2016 (Annexure A28). The respondents had issued Annexure A30 dated 25.5.2016 implementing the scale of Rs. 5,000-8,000/- w.e.f. 28.4.2016. According to the applicant the order Annexure A30 is arbitrary, illegal and is liable to be set aside.
The respondents mainly contend that the Hon’ble High Court has not specifically stated any date for implementation of the order. It is ordered that “it is for the concerned authority to pass orders in the light of the directions issued by the learned Single Judge”. It is the discretion of respondent No. 2 to decide on the date of implementation of the scale and it is the Central Government which provide funds for the salaries of the KVIC employees as per Section 17 of KVIC Act, 1956 [Annexure R1(b)]. A copy of Regulation 3(1) of the KVIC, 2007 is produced as Annexure R1(e). Hence approval of Central Government is required in all financial matters and there is no merit in this application. The scale of post of Economic Investigator was implemented w.e.f. 24.8.2005 [Annexure R1(1)]. It is clearly mentioned that financial benefits shall be applicable only prospectively. It is also submitted that if the scale is implemented w.e.f. 1.1.1996, it will upset the settled position.
We have heard the rival submissions made by Mr. Deepu Lal Mohan learned counsel appearing for the applicants, Mr. K.C. Muraleedharan, ACGSC learned counsel appearing for respondent No. 2 and Mr. T. Rajasekharan Nair learned counsel appearing for respondent No. 1. We had carefully gone through the pleadings and the judgments passed by the Hon’ble High Court produced as Annexures A4, A12, A15 and the clarification order passed in IA No. 1197 of 2015 dated 5.10.2015. The order which has to be implemented in this case is Annexure A4 order of the Single Bench dated 2.2.2011. The reliefs sought by the applicants before the Hon’ble Single Bench is extracted as under:
“i)issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P10 and quash that part of Ext.P10 rejecting up gradation of the pay scale of Auditors I and Assistant Accountants in terms of the 4th , 5th and 6th pay commission reports.
ii) declare that the petitioners are entitled to get their pay scales upgraded inparity with the pay scale given to similarly placed employees under respondents 1 and 2 who were having the same scale of pay as that of the petitioners as per 4th pay commission report and whose pay scale had been upgraded as per 5th pay commission reports.
iii) issue a writ of mandamus or any other appropriate writ, order or direction compelling the respondents to upgrade the scale of the petitioners at par their counter parts working under the respondents and also in various instrumentalities under the second respondent with effect from 1-1-1996 give them all benefits accordingly including the financial benefit such as arrears of pay etc. without any further delay.”
On a reading of the 3rd prayer it can be seen that the applicants had sought for a writ of mandamus or any other appropriate writ, order or direction compelling the respondents to upgrade the scale of the petitioners at par with their counterparts working under the respondents w.e.f. 1.1.1996 giving them all benefits accordingly including the financial benefit such as arrears of pay etc. without any further delay.
The court after hearing rival contentions had quashed Annexure P10 (Annexure A3 in this OA) to the extent it relates to the scale of pay of the petitioners. The Hon’ble Single Bench directed the 2nd respondent to pass fresh orders in accordance with the observations made in the judgment and implement the recommendations made by the 1st respondent in the matter of revision of scales of pay of the petitioners. The same shall be done and orders passed as expeditiously as possible at any rate, within 3 months from the date of receipt of a copy of the judgment.
We have carefully gone through the judgment of the Single Bench and Division Bench in this case. As observed by the Hon’ble High Court in the clarification petition, there was no dispute raised regarding the date of implementation either before the Single Bench or before the Division Bench. Admittedly the impugned order Annexure P10 in the Writ Petition was issued on 20.10.2005. The respondents considered the up-gradation of scale of Auditor-I/Assistant Accountant, Assistant Lecturer, Artist and Junior Hindi Translator from Rs. 4,500-7,000/- to Rs. 5,000-8,000/-. After consideration the up-gradation of scale of Junior Hindi Translator was allowed with conditions “(i) upgraded pay scale will be admissible prospectively from the date of issue of orders; and (ii) full matching savings will be provided.”
From this it can be seen that the up-gradation of Hindi Translator was implemented prospectively w.e.f. 20.10.2005. The respondents did not agree to the proposal for up-gradation of pay scales of the applicants and the said order disallowing up-gradation which relates to the applicants was quashed. The Single Bench thereafter directed the respondents to pass fresh orders in accordance with the findings and recommendation of the respondents. The applicants also in this case have not challenged the date of implementation of up-gradation granted to by the respondents to Junior Hindi Translators in Exhibit P10. So we find that the applicants are also entitled to get up-gradation of pay w.e.f. 20.10.2005 the date on which the similarly placed Junior Hindi Translators were granted financial up-gradation. There is no merit in the other contentions raised by the respondents as regards the authority to grant financial up-gradation and the discretion vested on respondent No. 2 to fix the date of implementation, as the judgment has become final. The applicants have not made out a special case that Auditor-I is entitled to get the up-gradation from an earlier date than the Junior Hindi Translators were granted up-gradation either in the Writ Petition or in the Writ Appeal. So we find that applicants are not entitled to get a separate date for up-gradation of scale. The order of respondent No. 2 granting up-gradation of scale to Rs. 5,000-8,000 to Auditor-I with effect from 28.4.2016 is arbitrary and discriminatory in nature and liable to be set aside.
Accordingly, the impugned orders at Annexures A29 and A30 granting up-gradation of scale so far as it relates to the date of implementation will stand quashed. The applicants are entitled to get their scale upgraded from Rs. 4,500-7,000/- to Rs. 5,000-8,000/- in the pre-revised pay scale notionally w.e.f. 20.10.2005 i.e. the date on which the similarly situated Junior Hindi Translators were granted financial up-gradation and also notionally in the corresponding scale in the revised pay band of Rs. 9,300-34,800/- plus Grade Pay of Rs. 4,200/- in PB-2 w.e.f. 1.1.2006. The respondents Nos. 1 and 2 are directed to complete the aforesaid exercise within a period of four months from the date of receipt of a copy of this order. The applicants are entitled to the arrears for 3 years period before the date of the petition along with all consequential benefits, if any, after re-fixing their pay as aforesaid. We are guided by the judgment of the Hon'ble Supreme Court in Union of India & Anr. v. Tarsem Singh in Civil Appeal No.5151-5152 of 2008 which have restricted the relief relating to arrears to only three years before the date of petition. We adopt the same principle in this case also.
The Original Application is disposed of as above. No order as to costs.