CWP No.6435 of 2011 :1: IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No.6435 of 2011 Date of Decision: April 08, 2011 U.O.I and others. .... Petitioners Versus Central Administrative Tribunal and others ....Respondents CORAM: HON'BLE MR JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Parveen Chandra Goyal, Advocate for Mr. Sanjay Goyal, Addl. Central Govt. Standing counsel for the petitioners. ***** 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The Union of India and its officers have filed the instant petition under Article 226 of the Constitution challenging judgment dated 16.02.2010 (Annexure P-3) partially, accepting the claim made by the original applicant that he is entitled to grant of up-gradation on the post of Assistant in the Pay Scale of Rs.5000-8000 w.e.f. 01.01.1996 instead of its grant by the appellant from 15.04.1998 when the order was passed on the basis of recommendations made by the 5th Central Pay Commission- a fortuitous circumstance. The aforesaid partial relief has been granted to the applicant-respondent on the basis of review taken by the Madras Bench of the Tribunal in its judgment dated 02.03.1999 rendered in O.A. No.27/1999 titled P. Vishwanathan & others v. Union of India & others. The Madras Bench of the Tribunal has accepted the plea of similar applicants and even writ petition against the aforesaid orders namely CWP No.18889 of 1999 CWP No.6435 of 2011 :2: has been dismissed by the Madras High Court on 28.01.2003. The Tribunal has pointed out in the impugned judgment that the SLP has also been dismissed being SLP (C) No.6499 of 2004 on 04.01.2009, although the question of law involved therein was left open. 2. It is appropriate to mention that the Chandigarh Bench of the Tribunal in para 19 of the impugned judgment has recorded the conclusion that the Govt. of India issued Office Memo dated 30.12.1997 stipulating that the 5th Central Pay Commission had recommended the pay scale of Rs.5000-8000 (without special pay) to those Upper Division Clerks who were engaged in complex nature of work and were getting Rs.70 as a special pay in the pre-revised scale in lieu thereof. The petitioner on the basis of those recommendations has issued instructions to give the aforesaid pay scales to all such Upper Division Clerks onwards, who were engaged in arduous nature of duty against the identified post and were in receipt of Rs.70 as Special Pay on 01.01.1996. The order dated 15.04.1998 (Annexure A-31), which was challenged before the Chandigarh Bench of the Tribunal was in fact already set aside by the Madras Bench of the Tribunal in Vishwanathan's case (supra). In para 4 of that order it has been stipulated that the order is to take effect from the date of issue. The reference has also been made to the decision of Principal Bench of the Tribunal rendered in O.A. No.1792 of 2007 titled as Bhagat Singh Negi & others. The Principal Bench has also noticed that SLP (C) No.6499 of 2004 directed against the judgment of the Madras High Court rendered in Vishwanathan's case (supra) has also been dismissed. The issue has been finally settled and the benefits given to similar situated persons could not be denied to the original applicant. As a necessary corollary benefit has been extended to the original applicant-respondent by issuing direction to the petitioners to grant up-gradation to him on the post CWP No.6435 of 2011 :3: of Assistant in the Pay Scale of Rs.5000-8000 w.e.f. 01.01.1996 because the applicant-respondent was factually found to be withdrawing Special Pay of Rs.70 per month for more than six years at the time of his retirement. His pension and retiral benefits were released without taking into consideration the element of Special Pay of Rs.70 or his pay was fixed in the upgraded Scale of Rs.5000-8000. Accordingly, we are of the view that the writ petition does not merit admission. 3. Mr. Sanjay Goyal, learned counsel for the petitioner has made an attempt to argue that the original applicant-respondent has retired on 31.07.1997 and his name could not be concluded in the eligibility list against the vacancy for the year 1996-1997 and that the recommendations of the CPC was accepted and published in the Gazette on 30.09.1997. However, we see no substance in the aforesaid argument because the recommendations of CPC are operative from 01.01.1996 and not from a fortuitous date when the letter was issued. 4. Therefore, we do not find any merit in the petition and the same is, however, dismissed. (M.M. KUMAR) JUDGE (T.P.S. MANN) JUDGE April 08, 2011 sonika