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2010 DIGILAW 4086 (MAD)

Union of India v. P. Shanmugam

2010-09-08

ELIPE DHARMA RAO, K.K.SASIDHARAN

body2010
Judgment :- K.K. Sasidharan, J. The order passed by the Central Administrative Tribunal dated 10 July, 2009 in O.A.No.510 of 2008 directing the petitioners to re-fix the retirement benefits of the first respondent and to refund the amount recovered from him, is the subject matter of this writ petition. 2. The first respondent was appointed as Group-D employee in the office of Director, Foreign Post at Chennai. He was granted time bound promotion on 29 March, 1984 and as Biennial Cadre Review in Group-D on 1 July, 1994. As per the prevailing regulations, Group – D employees, who have been promoted to Biennial Cadre Review has to opt either to retire on reaching the age of 60 years and draw pay in the scale of Rs. 8251200 or to retire at the age of 58 years and draw pay in the scale of Rs.950-1400. The first respondent exercised his option to retire at the age of 60 years and he was allowed to draw pay in the scale of Rs.825-1200 on his promotion to Biennial Cadre Review in Group D. The pay of the first respondent was fixed on 1 January, 1996 at Rs.3,450/- in the scale of Rs.2750 – 4440 under CCS (RP) Rules, 1996. Subsequently, his pay was stepped up from Rs.3,660/- to Rs.3,800/- in the scale of Rs.3050 – 4590 on par with his junior S. Umapathy, who was promoted as Biennial Cadre Review with effect from 1.1.1999. 3. While the matters stood thus, the Director General of Post and Telegraphs as per clarificatory orders dated 28.2.2000 and 08.10.2001 informed the second respondent that no retrospective claim can be entertained from those employees, who have exercised their option prior to 13 May, 1998. In accordance with the said order, the pay revision given to the first respondent to the stage of Rs.3,800/- on 1.1.1999 was examined and ultimately his pay was revised and he was directed to refund a sum of Rs.21,468/-, treating it as overpayment. The excess amount was recovered from the death-cum-retirement gratuity of the first respondent. The request made by the first respondent to cancel the re-fixation was rejected as per proceedings dated 29 April, 2008. The excess amount was recovered from the death-cum-retirement gratuity of the first respondent. The request made by the first respondent to cancel the re-fixation was rejected as per proceedings dated 29 April, 2008. This made the petitioner to file an Original Application before the Central Administrative Tribunal challenging the proceedings dated 29 April, 2008 and with a prayer to restore the pay in the scale of Rs.3050 – 4590 with effect from 13 May, 1998 and to pay the arrears besides refund of excess collected from his retirement benefits. 4. The petitioners in their reply statement filed before the Central Administrative Tribunal justified their action in revising the pay scale. According to the petitioners, after enhancing the retirement age uniformly to 60, the Government have decided against reopening the case of those employees, who have opted to retire at the age of 58 or 60 years prior to 13 May, 1998. Therefore, the revision of pay scale given to the first respondent from 1 January, 1999 was not in order and as such they were fully justified in recovering the excess amount. According to the petitioners, the decision to revise the pay scale was taken on account of the circulars issued by the Director of Postal Department dated 28 February, 2000 and 08 October, 2001. In short, the petitioners maintained that the revised pay scale consequent to the re-fixation of retirement at the age of 60 years was made applicable only to those employees, who have not exercised their option earlier. THE JUDGMENT BELOW: 5. The Central Administrative Tribunal considered the issue in the light of the earlier proceedings in O.A.No.69 of 2008. The issue involved in the said application was also revision of pay scale consequent to the increase of retirement age to 60 years. The action taken by the department to re-fix the pay scale on the basis of the circular issued by the postal department was quashed in the said original application with a direction to restore the pay scale at Rs.3050-4590 with effect from 1 January, 1999. According to the Tribunal, the issue involved in the subject case was clearly covered by the earlier order. Accordingly, the original application was allowed. According to the Tribunal, the issue involved in the subject case was clearly covered by the earlier order. Accordingly, the original application was allowed. The petitioners were directed to refund the amount already recovered from the first respondent, with a further direction to re-fix his retirement benefits within a period of three months from the date of receipt of a copy of the order. It is the said order which is challenged in this writ petition. SUBMISSIONS:- 6. The learned Central Government Standing Counsel appearing on behalf of the petitioners contended that the first respondent having exercised his option prior to 13 May, 1998 was not entitled to the benefits of the new pay scale introduced by the Government consequent to the enhancement of retirement age from 58 to 60 years. According to the learned Standing Counsel, the first respondent has already exercised his option to retire at the age of 60 years with a particular scale of pay. The other employee, who was junior to him by name Umapathy was given revised scale of pay on account of the implementation of the recommendation of V Pay Commission. Therefore, it was not open to the first respondent to claim the new pay scale as he has already exercised his option prior to 13 May, 1998 and as such, all such employees have to continue in the lower scale of pay even though they are also in the same cadre. 7. The learned counsel for the first respondent justified the order passed by the Central Administrative Tribunal. According to the learned counsel, with effect from 1 January, 1999 there was only one scale and therefore, the petitioners cannot discriminate similarly situated employees mainly on the ground that they have given the option prior to 13 May. 1998. The learned counsel would further contend that the earlier order in O.A.No.69 of 2008 has already been implemented by the petitioners and as such it was not open to them to contest the subject case, which was decided solely on the basis of the earlier order. THE ISSUES AND THEIR RESOLUTION: 8. 1998. The learned counsel would further contend that the earlier order in O.A.No.69 of 2008 has already been implemented by the petitioners and as such it was not open to them to contest the subject case, which was decided solely on the basis of the earlier order. THE ISSUES AND THEIR RESOLUTION: 8. The principal issue is whether the petitioners were justified in denying the benefits of the new pay scale introduced after accepting the recommendations of the V Pay Commission to increase the retirement age to 60 years with a uniform pay scale for all Group – D employees with effect from 1 January, 1999. 9. There is no dispute that as per the prevailing orders in 1994, Group – D employees, who have been promoted to Biennial Cadre Review has to opt either to retire on reaching the age of 60 years and consequently, to draw pay in the scale of Rs. 825 – 1200 or to retire at the age of 58 years and to draw pay in the scale of Rs.950 – 1400. It is also an admitted case that the firs respondent opted to retire at the age of 60 years. Therefore, he was granted pay in the lower scale of Rs. 825 – 1200. 10. Subsequently, by accepting the recommendation made by the V Pay Commission, retirement age for all categories of employees of the postal department came to be enhanced from 58 to 60 years with effect from 13 May, 1998. In view of the uniform revision of retirement age from 58 to 60 years, all the officials, who had opted to retire at the age of 58 years were allowed to draw the original scale of pay. This resulted in some of the juniors getting more pay than the seniors, inasmuch as the employees, who were opted to retire at 58 years continue to work upto the age of 60 years, in view of the revision of age from 58 to 60 years with effect from 13 May, 1998. There was only one sale which was prevalent in respect of Grade – D employees and that was Rs. 3050 – 4590. The revision of pay scale was done on the basis of the new regulations consequent to V Pay Commission Report. There was only one sale which was prevalent in respect of Grade – D employees and that was Rs. 3050 – 4590. The revision of pay scale was done on the basis of the new regulations consequent to V Pay Commission Report. The postal department found that there was only one pay scale with respect to Group – D employees irrespective of their option exercised earlier to continue at the age of 58 or 60 years. It was only subsequently, and that too, on the basis of the clarificatory letters issued by the Director of Postal Department, the pay scale was revised once again to the prejudice of the employees like the first respondent, without notice. 11. The petitioners have no case that on account of his option to retire at the age of 60 years, the first respondent was given a higher scale of pay. The first respondent wanted to retire at the age 60. Therefore he opted for the scale of pay of Rs.825 – 1200 as against the higher scale of pay of Rs.950 – 1400, in the case of employees, who opted to retire at the age of 58 years. Therefore, the option to retire at the age of 60 years caused financial lose to the first respondent. He has given his option for lower scale as he wanted to retire at the age of 60 years. Subsequently, with effect from 13 May, 1998, the age of retirement was uniformly fixed at 60 years. The scale of pay of Group – D cadre was also fixed uniformly at Rs.3050 – 4590. Naturally, the first respondent was entitled to the new scale. Things would have been different, in case, the employees, who opted to retire at the age of 58 years received higher scale of pay, consequent to revision. However, in the subject case, the first respondent opted only for lower scale of pay. 12. The uniform revision of retirement age at 60 years was on account of the recommendation given by the V Pay Commission. The said retirement age was made applicable to all the employees, who were in the service of the Government at that point of time. The scale of pay was also fixed accordingly to all the Group – D Cadre, irrespective of their exercising the option earlier, either to retire at the age of 60 or at 58 years. The said retirement age was made applicable to all the employees, who were in the service of the Government at that point of time. The scale of pay was also fixed accordingly to all the Group – D Cadre, irrespective of their exercising the option earlier, either to retire at the age of 60 or at 58 years. Admittedly, there was only one scale of pay prevailing in the postal department subsequent to 1 January, 1999. Thiru S. Umapathy, who was far junior to the first respondent was granted the pay scale of Rs.3050 – 4590 with effect from 1 January, 1999. The said pay scale was also given to the first respondent. When the petitioners have uniformly increased the retirement age to 60 years, they cannot discriminate between one set of employees solely on the ground that they have exercised the option earlier to retire at the age of 60 years. In fact, such option was to their detriment inasmuch as they were given only lower scale of pay, when compared to those employees, who have opted for 58 years. The petitioners have come up with a strange contention that in spite of accepting the lower scale of pay in their eagerness to continue up to 60 years, employees should be given the same scale of pay, in spite of the revision of retirement age from 58 years to 60 years and revising the pay scale from Rs. 3050 – 4590 with effect from 1 January, 1999. The revision of pay scale in the case of the first respondent was correctly done and re-fixation to his prejudice was incorrectly done on the basis of the circular. Therefore, the Central Administrative Tribunal was perfectly justified in setting aside the impugned order. We do not find any error or illegality in the said order liable for correction in this writ petition by exercising the power of judicial review. 13. However, we make it clear that we have not examined the case of those employees, who have opted to retire at the age of 58 years claiming higher scale of pay. 14. In the result, the writ petition is dismissed. The petitioners are directed to implement the order passed by the Central Administrative Tribunal within a period of two months from the date of receipt of a copy of this order. Consequently, the connected MP is closed. No costs.