OP(CAT) 55/2020 1 2025:KER:29738 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR TUESDAY, THE 18TH DAY OF MARCH 2025 / 27TH PHALGUNA, 1946 OP (CAT) NO. 55 OF 2020 AGAINST THE ORDER/JUDGMENT DATED 08.04.2019 IN OA NO.709 OF 2015 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONERS/RESPONDENTS IN OA: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF FISHERIES, MINISTRY OF FISHERIES, ANIMAL HUSBANDRY AND DAIRYING, KRISHI BHAVAN, NEW DELHI. 2 THE DIRECTOR GENERAL, FISHERY SURVEY INDIA, NEW FISHING HARBOUR, SASOON DOCK, COLABA, MUMBAI - 400 005. 3 THE ZONAL DIRECTOR FISHERY SURVEY INDIA, COCHIN - 682 005. 4 THE ZONAL DIRECTOR FISHERY SURVEY INDIA, VISHAKAPATNAM - 530 001. BY ADV PRENJITH KUMAR, CGC RESPONDENTS/APPLICANT IN OA: SHRI.T.A.SAJIVE, AGED 58 YEARS S/O. ANTONY, CHIEF ENGINEER GR. I(RETIRED), COCHIN BASE OF FISHERY SURVEY OF INDIA, COCHIN - 682 005, RESIDING AT 'THISSERY HOUSE', MALIPURAM P. O., VYPIN, ERNAKULAM - 622 511. BY ADVS. T.V.AJAYAKUMAR RIMJU P.H.(K/504/2014) THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(CAT) 55/2020 2 2025:KER:29738 J U D G M E N T K. V. JAYAKUMAR, J Feeling aggrieved by the order of the Central Administrative Tribunal in O.A.No.709/2015 dated 08.04.2019, Union of India and its officers preferred this OP(CAT). 2. The applicant knocked the doors of the Central Administrative Tribunal seeking a declaration that, he is entitled for increment in the scale of pay of Chief Engineer Grade-I for the period from 1987 to 1997 as per FR-26 and is entitled to reckon the same for fixation of pay on regular promotion as Chief Engineer Grade-I. 3. The respondent/applicant joined the service in the year 1986 as Chief Engineer Grade-II in the Fishery Survey of India (FSI). The applicant worked as Chief Engineer Grade-I on adhoc basis in the scale of Rs.3000-4500 on two occasions from 05.05.1986 to 26.06.1986 and from 03.11.1986 to 28.11.1986. Subsequently, the respondent/applicant was appointed as Chief Engineer Grade-I on continuous basis from 08.05.1987 to 04.11.1997. The applicant was selected as Chief Engineer Grade-II through UPSC in Integrated Fisheries Project (IFP) and worked from 06.11.1997. He reported back in FSI in 2006 as per re-organization of the OP(CAT) 55/2020 3 2025:KER:29738 department. Finally, the applicant was promoted as Chief Engineer Grade- I on a regular basis in the scale of pay of Rs.10,000-15200 with effect from 01.05.2008. No promotional benefits through fixation of pay accrued to the applicant, as he had already been granted the 1st Assured Career Progression (ACP) in the same pay scale during the year 2000. The respondent/applicant submitted Annexure-A2 representation claiming protection of pay with increments for the period he worked in the higher post earlier to the regular posting as Chief Engineer Grade-I, invoking the provision of FR 22(1). As per the said rule, the applicant is entitled to eleven (11) annual increments in the higher scale. 4. Even though the applicant had submitted Annexure-A5 representation along with Annexure-A6 relevant rules, there was no positive response from the petitioner. Thereafter, the respondent/applicant submitted Annexure-A8 consolidated representation to the 1st petitioner on 03.10.2013. The claim of the respondent/applicant was rejected vide Annexure-A1 order of the 4th petitioner. 5. The stand of the petitioners was that, while the applicant was officiating in the post of Chief Engineer Grade-I, he was granted pay in the respective scale of Rs.3000-4500. However, the officiating pay was restricted as per FR 35 as the promotion had not been OP(CAT) 55/2020 4 2025:KER:29738 on regular basis. As per Annexure-R2, seven (7) years regular service is required for getting promotion as Chief Engineer Grade-II. 6. The Central Administrative Tribunal, noticing the rival contentions of the counsel for the parties, allowed the claim of the respondent/applicant. 7. Adv.Prenjith Kumar, learned Central Government Counsel submitted that the impugned order of the Central Administrative Tribunal is patently illegal and unsustainable. 8. Per contra, learned counsel for the respondent/applicant supported the order of the Tribunal. 9. We have heard the rival submissions of the counsel for the parties and appraised the paper book. 10. The relevant paragraphs of the order of the Central Administrative Tribunal are extracted hereunder: “9. FR 22(1) that both sides refer to reads as follows: "Where a Government servant holding a post other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay OP(CAT) 55/2020 5 2025:KER:29738 arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or (rupees one hundred only), whichever is more." 10. The applicant had repeatedly represented his case citing Rule 9 and 13 of CCS (RP) Rules, 2008, but these were not accepted by the respondents. They took the stand that restriction under FR 35 quoted below is applicable in the case. "The Central Government may fix the pay of an officiating Government servant at an amount less than that admissible under the Rules." The learned Counsel for the applicant stated that the restriction under FR 35 are not to apply in a case where, "a Government servant holding the post in substantive or temporary or officiating capacity is promoted or appointed in substantive or temporary or officiating capacity as the cose may be, subject to the fulfilment of the eligibility conditions os prescribed in the relevant recruitment rules, to another post carrying duties and responsibilities of greater importance" 11. Clearly the applicant in this case had been asked to work at a level which carried with it higher responsibilities. This implies that the restriction which has been referred to by the respondents in the reply statement does not apply in this case. The only other point to be considered is the date when the applicant acquired the 7 years experience in the feeder cadre of Chief Engineer Grade II to be eligible for promotion as Chief Engineer Grade-1. This seems to have been acquired when he completed 7 years in the lower post which was on 6.3.1993. The respondents raised a contention that he performed the role of Chief Engineer Grade-l in officiating capacity "with intermittent breaks". This assertion is not supported by the evidence on record. 12. After due consideration of the case, we allow the prayer to the extent of declaring that he is eligible for increments relating to the pay scale of Chief Engineer Grade) from the period he acquired the necessary eligibility (7 years from the OP(CAT) 55/2020 6 2025:KER:29738 date of entry into service) till he was regularly promoted as Chief Engineer Grade-l, which was on 01.05.2008. The OA stand allowed to the extent indicated above. Order as per direction above are to be issued within 30 days of receipt of the copy of this order. No costs.” 11. Noticing the rival contentions of the parties, the Tribunal allowed the claim of the respondent/applicant. The Tribunal, on the basis of FR 22(1), took the view that, respondent/applicant is entitled to additional increments till he was regularly promoted as Chief Engineer Grade-I. 12. We do not find any illegality or perversity in the order of the Central Administrative Tribunal. No good ground for interference is made out. OP(CAT) is devoid of any merit and dismissed accordingly. Sd/- AMIT RAWAL JUDGE Sd/- K. V. JAYAKUMAR JUDGE Sbna/ OP(CAT) 55/2020 7 2025:KER:29738 APPENDIX OF OP (CAT) 55/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE OA NO.180/00709/2015 FILED BY THE PETITIONER DATED 8.4.2019 BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P1 (A1) TRUE COPY OF THE MEMO NO.F.NO.04-35/2014-ESTT. DATED 19.12.2014 ISSUED BY THE RESPONDENT. EXHIBIT P1 (A2) TRUE COPY OF THE REPRESENTATION DATED 3.10.2011 SUBMITTED BY THE APPLICANT. EXHIBIT P1 (A3) TRUE COPY OF THE RTT REQUEST DATED 24.10.2011 SUBMITTED BEFORE DOPT. EXHIBIT P1 (A4) TRUE COPY OF LETTER NO.20/1/2011 ESST.(PAY-1) DATED 9.11.2011 ISSUED BY THE DOPT. EXHIBIT P1 (A5) TRUE COPY OF THE REPRESENTATION DATED 8.6.2012 SUBMITTED BY THE APPLICANT. EXHIBIT P1 (A6) TRUE COPY OF THE LETTER F.NO.1/1/2008-IC DATED 29.1.2009 ISSUED BY THE MINISTRY OF FINANCE. EXHIBIT P1 (A7) TRUE COPY OF THE REPRESENTATION DATED 31.7.2012 SUBMITTED TO THE 2ND RESPONDENT. EXHIBIT P1 (A8) TRUE COPY OF THE REPRESENTATION DATED 3.10.2012 SUBMITTED TO THE 1ST RESPONDENT. EXHIBIT P1 (A9) TRUE COPY OF THE LETTER F.NO.2-10/2004-EI DATED 20.12.2013 OF THE 2ND RESPONDENT. EXHIBIT P1 (A10) TRUE COPY OF THE LETTER NO.F.4-35/2014-ESTT. DATED 24.1.2014 OF THE 4TH RESPONDENT. EXHIBIT P1 (A11) TRUE COPY OF THE RTI REQUEST DATED 1.4.2014 TO THE OFFICE OF THE 2ND RESPONDENT. EXHIBIT P1 (A12) TRUE COPY OF THE LETTER F.2-10/2014 ESTT. DATED 16.5.2014 OF THE OFFICE OF THE 4TH RESPONDENT. EXHIBIT P1 (A13) TRUE COPY OF THE ORDER 78813-4/2012 E-1 DATED OP(CAT) 55/2020 8 2025:KER:29738 22.8.2014 OF THE 2ND RESPONDENT. EXHIBIT P1 (A14) TRUE COPY OF THE REPRESENTATION DATED 30.9.2014 SUBMITTED BEFORE THE PRESIDENT OF INDIA. EXHIBIT P1 (A15) TRUE COPY OF THE OM NO.10/02/2011 E-11 A DATED 19.3.2012 ISSUED BY THE MINISTRY OF FINANCE. EXHIBIT P1 (A16) TRUE COPY OF THE REPRESENTATION DATED 8.1.2015 SUBMITTED TO THE 2ND RESPONDENT. EXHIBIT P1 (A17) TRUE COPY OF THE OM NO.19/02/2013-ESTT.(PAY-I) DATED 12.12.2013 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA 180/00709/2016 DATED 11.11.2016 FILED BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P2 (R1) TRUE COPY OF THE RECRUITMENT RULES FOR THE POST OF CHIEF ENGINEER GR.I (O.M. NO.1/10/89-ESTT. (PAY-I) DATED 22.10.1990. EXHIBIT P2 (R2) TRUE COPY OF THE SCHEDULE FOR THE POST OF CHIEF ENGINEER GR.I. EXHIBIT P2 (R3) TRUE COPY OF THE ABSTRACT, RESTRICTION OF OFFICIATING F.R.35 IN CASE OF CADRE PROMOTION. EXHIBIT P2 (R4) TRUE COPY OF THE OFFICE ORDER NO.63/2006 DATED 19.8.2006 BY THE DIRECTOR I/C EXHIBIT P2 (R5) TRUE COPY OF THE OM NO.1/1/2008-IC DATED 29.1.2009 BY THE MINISTRY OF FINANCE. EXHIBIT P2 (R6) TRUE COPY OF THE OM NO.1/1/2008-IC DATED 13.9.2008 BY THE MINISTRY OF FINANCE. EXHIBIT P2 (R7) TRUE COPY OF THE ABSTRACT OF PARA 4.1 OF APPENDIX 5. EXHIBIT P3 TRUE COPY OF THE ORDER IN OA 180/00709/2015 DATED 8.4.2019 ISSUED BY THE CAT, ERNAKULAM BENCH.