Judgment:
HON'BLE Ms K NOORJEHAN, ADMINISTRATIVE MEMBER
The applicant has filed this OA under Section 19 of the Administrative Tribunal's Act 1985, seeking a direction to the 2nd respondent to sanction the stepping up of pay with that of his junior Sri Gokuldas Thachan w.e.f. 1.1.1986 and grant all consequential benefits including arrears of pay and allowances and pension.
2. The applicant has already retired from service on 31.7.2000. It appears from the Annexure A-3 letter dated 26.9.2001 of the first respondent that the applicant had made a representation for stepping up of pay to the 2nd respondent some time in the year 2001. The first respondent has advised the second respondent that the power to step up the pay lies with the second respondent himself and therefore, the matter need not be referred to the first respondent. Thereafter, the second respondent considered the applicant's case for stepping up of pay and vide Annexure A-4 letter dated 8.5.2002 informed the applicant that though Shri Gokuldas was junior to him in the grade of Inspector (OG) he got his promotion to the grade of Inspector (SG) earlier than the applicant under reservation quota and his pay was fixed accordingly. While Sri Gokuldas was promoted to the grade of Superintendent and his pay was fixed, the applicant was drawing the pay in the grade of Rs.550-900 only from 3.7.1985 whereas Sri Gokuldas was drawing the said scale from 18.9.1980 due to promotion under reservation quota. Thereafter, the applicant submitted Annexure A-6 appeal to the second respondent and it was rejected by Annexure A-7 letter dated 5.11.2002. The grievance of the applicant is that the reason stated by the respondents to reject his claim is unsustainable in the light of Annexure A-1 judgment of the High Court. Pointing out this aspect, he submitted Annexure A-9 representation which has not yet been disposed of. The main grounds raised by the applicant are that (i) the posts of Inspector Ordinary Grade and Senior Grade constitute a common cadre, the Senior Grade was created on the recommendation of the Pay Commission only for avoiding stagnation of Inspectors, there is no creation of an intermediary category the duties and responsibilities of both the posts are the same, they are also interchangeable, (ii) the applicant is senior to Sri Thachan in the cadre of Inspector Ordinary Grade, reservation was wrongly granted to Shri Thachan (iii) Annexure A-1 judgment held that both the categories of Inspectors are treated as one common cadre, then he is entitled to the benefit of stepping up of his pay to that of his junior, (iv) there is considerable drop in his pay which continues to recur in his pension as well.
3. The respondents opposed the O.A. by filing reply statement and objection to M.A. 948/08 to condone the delay in filing the O.A. They submitted that the O.A. is liable to be dismissed on the ground of inordinate delay as the impugned orders were passed in 2002 while the O.A. was filed only in December, 2008. They submitted that as per the recruitment rules in force at the relevant time, Inspector (Ordinary Grade) was feeder grade for promotion to the post of Inspector Senior Grade hence, reservation was applicable. The applicant was drawing the scale of Rs. 550-900 only w.e.f. 3.7.1985 whereas Shri Thachan was drawing the scale w.e.f. 18.9.80 onwards. Shri Gokuldas Thachan though junior, by virtue of getting promotion against a reserved post earlier than the applicant, he was drawing higher pay in the grade of Superintendent than the applicant. Therefore, they contended dismissal of the O.A. both on delay and on merits.
4. The applicant filed rejoinders stating that the delay may be condoned as he alone is affected and no prejudice will be caused to any others and that on the basis of the judgment of the High Court at Annexure A-1 the respondents ought to have reviewed the promotion of Shri Thachan earlier than the applicant.
5. We have heard learned counsel on either side and have gone through the pleadings.
6. The learned counsel for the applicant relying on the judgment of the High Court at Annexure A-1 argued that the post of Inspector(Senior Grade) is not a promotion post, hence, reservation rules cannot be applied and that the promotion of Shri Thachan earlier than the applicant by granting benefit of reservation, should have been reviewed. The learned counsel for the respondents on the other hand argued that as per the recruitment rules in force at the relevant time, it was a promotion and that the judgment relied on by the applicant is not applicable in the case of the applicant.
7. The issues raised in this O.A. are whether the promotion of Shri Thachan to the post of Inspector Senior Grade was a promotion or not and whether the judgment of the High Court relied on by the applicant is applicable in his case. It is noticed that at the relevant time the post of Inspector Senior Grade was a promotion post to the Inspector Ordinary Grade. Shri Tachan belonging to a reserved category, was promoted to the post of Inspector Senior Grade earlier than the applicant. Therefore, Shri Tachan was drawing more pay than the applicant when both were promoted to the post of Superintendent.
8. In fact, the 2nd respondent in compliance with judgment of High Court of Kerala in OP NO. 3911/81 and a demand from the Kerala Central Excise Executive Association, reviewed the promotion to the cadre of Inspectors (Senior Grade) and the dates assigned to them were revised and the seniors were given notional promotion. The applicant has produced Annexure A-2 office order No. 107/96 dated 21.5.1996 by which the promotion already granted to Senior Grade till its abolishment on 1.1.1986 was revised. The list of officers who were considered to have been promoted as Inspector (Senior Grade) in the respective years was enclosed. The applicant's name was included as Sl. No. 149 with deemed date of joining Senior Grade as 3.7.1985. Even after the review DPC, an anomalous situation of juniors who got promotion to the Senior Grade by virtue of extant rules continued till then drawing higher pay than their admitted seniors. The applicant had not moved the High Court well in time challenging the review DPC proceedings assigning him 3.7.1985 as the notional date of promotion while his juniors like Thachan were promoted earlier under reserved category and continued to draw more pay than him.
9. More over, the applicant was granted stepping up of pay once on par with one Sri T.S. Sreekumaran Nair, Inspector w.e.f. 1.1.1980. As per 2nd order No. 24 under FR 22 second time stepping up cannot be allowed if the anomaly has arisen with reference to the pay of the same junior.
10. As regards the objections raised by the respondents against the condonation of delay in filing the O.A, the Tribunal by its order dated 6.2.2009 observed that the question of condonation of delay would be considered at the time of disposal of the O.A. after considering the case on merits. The applicant seeks stepping up of his pay with that of his junior w.e.f. 1.1.1986 with all consequential benefits including arrears of pay and allowances and pension. The judgment of the High Court relied on by the applicant is dated 4th March, 1986. The applicant retired from service on 31.7.2000. The O.A. was filed only on 2.12.2008. Admittedly, there is a delay in filing the O.A. hence, it is hit by Limitation Act. The applicant has not put forth any cogent, bonafide and sufficient cause to condone the delay.
11. In this view of the matter, the O.A. is dismissed on delay as also on merits. There is no order as to costs.