IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 WP(C).No. 23852 of 2005(S) -------------------------- OA.619/2001 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. C.R.SADASIVAN NAIR, S/O.LATE K.RAMAN PILLAI, HEADMASTER, GOVERNMENT J.B.SCHOOL, AGATHI, U.T.OF LAKSHADWEEP (RETIRED), RESIDING AT THIRUVANANTHAPURAM. 2. THE LAKSHADWEEP SPECIAL PAY OPTED EMPLOYEES' ASSOCIATION, REPRESENTED BY ITS GENERAL SECRETARY SHRI.C.R.SADASIVAN NAIR, HEADMASTER, GOVERNMENT J.B.SCHOOL, AGATHI(RETIRED) RESIDING AT THIRUVANANTHAPURAM. 3. M.CHELLAPPAN, S/O.N.MONIYAN, SUPERINTENDENT, VIGILANCE CELL, SECRETARIAT, KAVARATTI, RESIDING AT KAVARATTI. BY ADV. SRI.P.V.MOHANAN RESPONDENT(S): --------------- 1. THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI-1. 2. THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, NEW DELHI. 3. THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI. ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN FOR R3 SRI.T.P.M.IBRAHIM KHAN ASST. SOLICITOR GENERAL FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS:- P1: TRUE COPY OF THE JUDGMENT IN O.A.NO.619/2001 DATED 16-12-2003. P2: TRUE COPY OF THE ORIGINAL APPLICATION DATED 26-4-2001. P3: TRUE COPY OF REPLY STATEMENT FILED BDY THE RESPONDENT DATED 19-2-2002. P4: TRUE COPY OF REJOINDER FILED BY THE APPLICANT DATED 9-7-2002. RESPONDENTS' EXHIBITS:- R3(a): TRUE COPY OF THE JUDGMENT DTD. 2-1-2008 PASSED BY THIS HONOURABLE COURT IN W.P.(C) No. 22461/2005. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 23852 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 12th day of January, 2011 JUDGMENT Basheer, J Petitioners are erstwhile employees under the Lakshadweep Administration. They hail from Kerala. According to the petitioners, they were being paid “Island Special Pay”, pursuant to the option made by them. The Supreme Court had also approved the grant of special pay to these “Mainlanders”. However, the Ministry of Finance, Government of India took a decision to scrap “Island Special Pay” and sanction Special Compensatory (Remote Locality) Allowance at revised rates with effect from August 1, 1997, based on the recommendation of the Fifth Central Pay Commission. 2. Accordingly, consequential orders (Annexures-A4 and A5 in the Original Application) were issued by the Administration and the Ministry of Finance. These orders were challenged by the petitioners before the Central W.P.(C) No. 23852/2005 2 Administrative Tribunal, Ernakulam Bench, contending that it was a colourable exercise of power without any sanction of law. The other prayer in the Original Application is extracted hereunder:- “to direct the respondents to pay “Island Special Pay” treating as Basic Pay and its benefits to the applicants and similarly placed mainland recruits, who are members of Lakshadweep Special Pay Opted Employees Association, as declared in Annexures A6, A7 and A8 and such other orders issued by this Hon'ble Tribunal and Hon'ble Supreme Court with all consequential benefits including D.A., Terminal benefits etc. “ The Tribunal, after considering the rival contentions of the parties, dismissed the Original Application. The said order passed by the Tribunal is impugned in this writ petition. 3. Sri P.V. Mohanan learned counsel for the petitioners submits that since the “Island Special Pay” has been reckoned by the Lakshadweep Administration for the purpose of granting pensionary benefits, the petitioners have no grievance as far as this issue is concerned. 4. However, learned counsel invites our attention to an order issued by the Administration on November 29, W.P.(C) No. 23852/2005 3 2009 pursuant to the order passed by the Apex Court in S.L.P. No.4994/09 filed by the Administration against the judgment of this court in W.P.(C) No.22461/2005, which arose from O.A. No.618/2002. In the said order the Administration has issued a direction to the drawing and disbursing officers of the Island to implement the orders in O.A. Nos.580/93, 877/93 etc. The contention of the learned counsel is that the petitioners and similarly placed optees would be entitled to reckon the “Island Special Pay” for the purpose of revision of their pay scales and other ancillary benefits as well. 5. Sri. Radhakrishnan learned standing counsel for the Lakshadweep Administration takes strong exception to the above contention and submits that since rule 9 (25)(c) of the Fundamental Rules has been deleted, the above contention raised by the petitioners is wholly untenable. He further submits that the issue relating to the claim for merger of “Island Special Pay” in the pay of the employees had already been concluded and it was thereafter that W.P.(C) No. 23852/2005 4 optees had taken up the claim for reckoning the special pay for the purpose of pensionary benefits. He further points out that this Court has already held in at least two decisions that “Island Special Pay” could not be merged in basic pay in view of rule 9(21)(a)(i) of the Fundamental Rules and rule 33 of C.C.S. (Pension) Rules. The above decisions were rendered by a Division Bench in W.P.(C) Nos. 22461/2005 and 30943/2005. 6. Learned counsel for the petitioners fairly concedes that this Court has already taken such a view, but according to him the petitioners in these two writ petitions were not parties to the cases referred to in the order dated November 29, 2009 issued by the Administration. 7. We do not propose to refer to or deal with the above contention at this stage, particularly in view of the submission made by Sri.P.V. Mohanan that the petitioners do not intend to pursue the present writ petition any further at this stage. His only prayer is that the petitioners be given liberty to pursue the remedy available to them, in W.P.(C) No. 23852/2005 5 the light of the order dated November 29, 2009 issued by the Administration. 8. The writ petition is, therefore, closed with liberty to the petitioners to pursue the remedy, if any, available to them as regards their claim for re-fixation of pay, in the light of the above order, in accordance with law. The petitioners may approach the Administration in this regard, if so advised, in which event, an appropriate decision shall be taken in accordance with law. Writ petition is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.