Union Of India & Ors. vs G. Vijayan & Ors.

Devan Ramachandran, J.

The petitioners are before us, against the final order of the learned Central Administrative Tribunal, Ernakulam, in O.A. 842 of 2019, because it has granted the benefit of Non -Functional Grade Pay to the respondents herein, contrary to the contention that they were not eligible for it.

The involved facts are not greatly in dispute and are virtually admitted. We will, therefore, confine ourselves only to those areas where there is a controversy.

It is admitted that consequent to the Sixth Pay Commission (CPC) recommendations, the Ministry of Finance issued Annexure A1 resolution dated 29.08.2008, which, inter alia, provided for Non - Functional Grade pay of Rs.5,400/- to certain categories of employees.

It is the specific case of the respondents, that they were drawing the same scale of pay as Section Officer/Private Secretary, with a Grade Pay of Rs.4,800/- - albeit admitting that this was consequent to the benefits under the Assured Career Progression (ACP) scheme obtained by them - and hence, that, as per Annexure A1 Resolution, they are entitled to be placed in the Non- Functional Grade of Rs.5,400/-. The respondents assert that, though they have now retired from service, on attaining the age of superannuation, they were entitled to be placed in the Grade Pay of Rs.5,400/-, since they had completed four years of service in the afore mentioned scale, thus being entitled to the benefits of the above stated Resolution. They allege that, however, this has been denied to them, thus constraining them to approach the learned Tribunal.

We notice that the learned Tribunal has allowed the claim of the respondents, relying upon the judgment of the Honourable High Court of Madras in M.Subramaniam v. Union of India (WP(C)No.13225 of 2010), which judgment has been confirmed by the Honourable Supreme Court, having dismissed the SLP filed against it.

Sri.T.V.Vinu – learned Central Government Counsel, contended that the ratio in M.Subramaniam (supra) would not fit into the facts of this case because; for one, the respondents herein belong to a different service, which were not identified for the purpose of grant of Non-functional Higher Grade as per Annexure A1; and for the second, that they are not governed by the afore Resolution alone, but by the Central Civil Services (Revised Pay) Rules, 2008, (hereinafter referred to as ‘the Rules’ for short) – a copy of which is on record as Annexure R2 – in which, only the post of Administrative Officer (Grade II)/Senior Private Secretary had been offered the benefit above. He pointed out that, as per Annexure A1 Resolution, specifically Clause 7 thereof, benefits are granted to classes of employees based on department specific recommendations; and that in this case, the posts occupied by the respondents were not so identified for the purpose of grant of Grade Pay of Rs.5,400/-. He reiterated that, in such circumstances, M.Subramaniam (supra) cannot apply.

Sri.T.V.Vinu then added that, in any event, the respondents can claim no benefit for the reason that Annexure R1 clarification issued by the Government of India, dated 11.02.2009, mandates that persons who have got the Grade Pay of Rs.4,800/-solely through the benefit of ACP, will not be entitled to the further non-functional upgradation.

Sri.S.Radhakrishnan – learned counsel for the respondents, however, submitted that, even assuming that the above contentions carry force for the sake of argument, it would not obtain forensic favour because, the Honourable Supreme Court, in All India Naval Clerks Association and Others v. Union of India [Special Leave Petition No.29204/2019], has declared ineluctably that ‘not to pay the similar pay scale to the petitioners/Assistants in other lower formations in the Indian Navy with that of the Assistants in CSS would be clearly discriminatory and violative of Article 14 of the Constitution of India’. He argued that, going by the same principle, his clients’ exclusion – even assuming it is so, from Annexure R2 Rules – would be wholly inequitable and unconstitutional; and that they would, therefore, be covered by Annexure A1 Resolution, since they have completed four years in the Grade Pay of Rs.4,800/-, which they obtained on being granted the ACP benefits. He then showed us that, in Annexure R3 – which is a proceeding of the Government of India dated 26.05.2020, Senior Private Secretaries were given the benefit of enhanced Grade Pay; and further that, his clients have pointed out in their Review Application filed before the learned Tribunal, namely R.A.No.23/24 – a copy of which is Ext.P7 – that, at least 14 other persons who were similarly situated as his clients, or even in lower categories, have been given the Non-functional Grade Pay of Rs.5,400/-, for the reason that they had completed four years and more in the Grade Pay of Rs.4,800/-. He prayed that, therefore, this Original Petition be dismissed.

Sri.T.V.Vinu, at this time, intervened to reply, that the cases mentioned in the Review Petition of the respondents would also not inure to them any benefit since they were in different departments, and the posts in question may have been identified for the purpose of the ‘Rules’. He reiteratingly argued that, in this case, the ‘Rules’ did not take in the posts occupied by the respondents; and hence, that they are not eligible to any benefit, as per Annexure A1 Resolution.

When we evaluate the rival submissions, it becomes indubitable that the thrust of the argument of the petitioners is that the posts occupied by the respondents were not identified by their department in terms of Clause 7 of Annexure A1 resolution; and consequently, that they are not entitled to the Higher Grade Pay in an automaton manner. They assert that the category of Senior Private Secretary was so identified and brought within the ambit of the ‘Rules’; to be given the benefit of Higher Grade Pay; but that, since the posts occupied by the respondents were not so recommended, they cannot get the said Grade Pay.

We are afraid that we cannot find favour with the afore submissions because, as rightly argued by Sri.Radhakrishnan, in All India Naval Clerks Association and Others (supra), the Honourable Supreme Court has rendered it without doubt, that the denial of similar Pay Scale to lower formations – albeit in the Indian Navy in that case – with that of other categories, would be discriminatory and violative of Article 14 of the Constitution of India.

Pertinently, in this case, the petitioners do not have a contention that the respondents did not complete 4 years of service in the Grade Pay of Rs.4,800/-, which they obtained on account of the ACP benefit. Their argument is that the said posts were not identified in terms of Clause 7 of Annexure A1 and hence cannot be included within the sweep of the ‘Rules’; to be consequently, not entitled to the benefit.

There is a clear problem for the petitioners in this case because, they do not explain why the categories of posts held by the respondents, even though they were occupying the Grade Pay of Rs.4,800/-, were not recommended in terms of Annexure A1. The explanation offered is solely that the ‘department did not make such recommendations’ and therefore, that such posts were not included within the ‘Rules’, so as to give the respondents the benefit. There is a veiled attempt to justify this, saying that Senior Private Secretaries are ‘hierarchically’ higher than the posts occupied by the respondents; and therefore, that the difference in the Grade Pay and their Scale of Pay ought to be maintained.

It does not require us to expatiate that, in the backdrop of the various precedents covering the field, including that of the Honourable Supreme Court, a distinction merely based on the hierarchy of posts, even when the ‘Rules’ specifically provide for benefits including Non-functional Grade Pay, cannot obtain imprimatur.

In that perspective, certainly, as the learned Tribunal has held, M.Subramaniam (supra) covers the field, especially when the ratio in it is concededly binding on the petitioners.

In the afore circumstances, we see no reason to intervene and consequently, dismiss this Original Petition.

As regards the argument of the petitioners edificed on Annexure R1, we cannot find favour with it either because, neither does Annexure A1 Resolution provide for exclusion as mentioned therein, nor does the ‘Rules’ show the class of posts to be not included therein for that reason. In any case, the clarification issued by the Government of India cannot override the mandatory provisions of the sixth CPC, or the declarations of law by the Honourable Supreme Court, particularly when, in M.Subramaniam (supra), this specific objection was specifically considered and answered against.

In fact, the Honourable Supreme Court has approved M.Subramaniam (supra) very recently, in Union of India & Others v. Sunil Kumar Rai & Others [SLP © No.11595/2023].

In summation, we find approval with the impugned order of the learned Tribunal; and consequently, dismiss this petition.

Annexure A1 TRUE COPY OF THE RESOLUTION NO.L/L/2008-IC DATED 29.08.2008. (RELEVANT PAGES)

Annexure A2 TRUE COPY OF THE ORDER DATED 14.09.2015 IN O.A.NO.296/2014

Annexure A3 TRUE COPY OF THE JUDGMENT PASSED BY THE DIVISION BENCH OF THE MADRAS HIGH COURT DATED 06.09.2010 IN W.P NO.13225/2010 ALONG WITH TRUE TYPED COPY OF ANN. A3

Annexure A4 TRUE COPY OF THE JUDGMENT OF THE APEX COURT IN C.A.NO.8883/2011 DATED 10.10.2017.

Annexure A5 TRUE COPY OF THE LETTER NO.CP(P)/8416/VICPC/22/US(MP)/D(N-II)/201 9 DATED 03.05.2019 ALONG WITH TRUE TYPED COPY OF ANN. A5

Annexure A6 TRUE COPY OF THE ORDER F.NO.A26017/98/2008-AD.IIA DATED 21.11.2008 ALONG WITH TRUE TYPED COPY OF ANN. A6

Annexure A7 TRUE COPY OF THE REPRESENTATION DATED 09.07.2018 SUBMITTED BY THE 1ST APPLICANT IN THE OA

Annexure A8 TRUE COPY OF THE ORDER DATED 01.09.2017 PASSED BY THE APEX COURT IN GOVERNMENT OF NCT OF DELHI VS. SOMVIR RANA.

Annexure R1 A COPY OF THE CBEC LETTER F.NO.A.26017/98/2008-AD.II A DATED 11.02.2009.

Annexure A9 TRUE COPY OF THE JUDGMENT OF THE CALCUTTA HIGH COURT IN WPCT 85/2021 DATED 22.02.2022 (UOI VS. ARABINDA PATHAK).

Annexure A10 TRUE COPY OF THE ORDER PASSED BY THE ALLAHABAD BENCH OF THIS HON'BLE TRIBUNAL IN O.A.NO.321/2022 DATED 13.04.2022 (BHARAMPAL VS. CGST).

Annexure R2 TRUE COPY OF THE RELEVANT EXTRACT OF SECTION II OF PART - B OF SCHEDULE I TO CCS (REVISED PAY) RULES, 2008.

Annexure R3 TRUE COPY OF THE LETTER NO.DOP AA-I/67097/NFSG DATED 26.05.2020 ISSUED BY DTE. OF PERSONNEL, DRDO HQRS.

Annexure RA1 TRUE COPY OF THE ORDER OF THE HON'BLE TRIBUNAL IN OA NO. 842/2019 DATED 02.12.2024

Annexure RA2 TRUE COPY OF THE JUDGMENT OF THE HON'BLE APEX COURT IN CA NO. 4940/2022 (SLP NO. 29204/2019) AINCA VS. UOI

Annexure RA3 TRUE COPY OF THE ORDER DATED 09.03.2017 OF THE HON'BLE TRIBUNAL IN OA NO. 868/2014

Annexure R4 TRUE COPY OF RELEVANT EXTRACT FROM THE LETTER DATED 29.09.2008 ISSUED BY DIRECTORATE OF HUMAN RESOURCE DEVELOPMENT, DRDO, NEW DELHI

Exhibit P1 TRUE COPY OF O.A. NO.180/00842/2019, DATED 22.11.2019 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, EMAKULAM BENCH BY THE RESPONDENTS HEREIN

Exhibit P2 TRUE COPY OF THE REPLY STATEMENT, DATED 17.05.2020 IN O.A. NO.180/00842/2019 FILED BY THE PETITIONERS HEREIN

Exhibit P3 A TRUE COPY OF THE REJOINDER DATED 06.06.2022 IN O.A. NO.180/00842/2019 FILED BY THE RESPONDENTS HEREIN

Exhibit P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT, DATED 10.10.2022 IN O.A. NO.180/00842/2019 FILED BEFORE THE TRIBUNAL, BY THE PETITIONERS HEREIN

Exhibit P5 TRUE COPY OF ARGUMENT NOTE, DATED 28.11.2023 IN O.A. NO.180/00842/2019,

Exhibit P6 TRUE COPY OF THE ORDER DATED 02.12.2024 IN O.A. NO.180/00842/2019 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

Exhibit P7 A TRUE COPY OF THE REVIEW APPLICATION -R.A. NO. 23/2024, DATED 20.12.2024 IN O.A. NO.180/00842/2019, FILED BEFORE THE TRIBUNAL BY THE RESPONDENTS HEREIN

Exhibit P8 TRUE COPY OF THE OBJECTION IN R.A.NO.23/2024 IN O.A. NO.180/00842/2019, DATED 04.03.2025 FILED BY THE PETITIONERS HEREIN

Exhibit P9 TRUE COPY OF THE ORDER IN R.A.NO.23/2024 IN O.A. NO.180/00842/2019, DATED 24.03.2025 PASSED BY THE TRIBUNAL

Exhibit P10 A TRUE COPY OF THE AFFIDAVIT IN O.A. NO.180/00842/20 19 DATED 23.07.2025, FILED BY THE PETITIONERS HEREIN

Exhibit P11 A TRUE COPY OF THE ORDER DATED 30.09.2025 IN O.A. NO.180/00842/20 19 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH