Central Administrative Tribunal - Ernakulam
Philip Mathew vs The Secretary Ministry Of Railways New ... on 4 December, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00042/2020
Wednesday this the 4th day of December 2024
CO RAM :
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Ms.V.RAMA MATHEW, ADMINISTRATIVE MEMBER
Philip Mathew,
Aged 49 years,
S/o.K.V.Mathai,
Office Superintendent (Safety),
Divisional Office, Southern Railway, Trivandrum.
Residing at C-3C, Muthoot Green Valley,
Krishna Nagar Lane, AKG Road, Trivandrum. ...Applicant
(By Advocate Mr.Martin.G.Thottan)
versus
1. Union of India represented by the Secretary,
Government of India, Ministry of Railways,
Rail Bhavan, New Delhi - 110 001.
2. The General Manager,
Southern Railway,
Park Town, Chennai - 600 003.
3. The Senior Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. ...Respondents
(By Advocate Mr.Anil Prasad, ACGSC)
This application having been heard on 18 th November, 2024 the
Tribunal on 4th December 2024 delivered the following :
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ORDER
HON'BLE Ms.V.RAMA MATHEW, ADMINISTRATIVE MEMBER The facts briefly stated are as under.
The applicant is a medically de-categorized running staff absorbed into the stationary post of Office Superintendent (Safety). The applicant while working as Senior Passenger Guard at Trivandrum in the scale PB-2 Rs.9300-34800 +GP 4200, was medically decategorized on account of falling visual acuity w.e.f. 08.08.2016. From that date onwards, he was kept on a supernumerary post as mandated by the Rights of Persons with Disabilities Act, 2016. Thereafter, the applicant was absorbed as Office Superintendent (Safety) at Trivandrum Divisional Office.
2. He has filed this Original Application as he is aggrieved by the action of the respondent in reducing his basic pay with retrospective effect and the proposed consequential recovery as over-payment. It is alleged that the impugned action of the respondent in cancelling the pay protection granted to the applicant, on being absorbed in the alternative post, is in violation of the provisions under the Rights of Persons with Disabilities Act, 2016 and also the statutory rule 1313(1) (a) (2) of Indian Railway Establishment Code.
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3. As per Section 20 of the Rights of Persons with Disabilites Act, 2016, which provides that 'if an employee after acqiring disability is not suitable for the post he was holding, shall be shifted to some other posts with the same pay scale and service benefits.' As per the said Section the applicant is entitled for protection of his pay scale from previous pay and basic pay that he has drawn before the medical de-categorization. The applicant being a running staff prior to his medical de-categorization and on being absorbed against a stationary post, 30% of the basic pay which represents the pay element of the running allowance has to be added on to the applicant's basic pay prior to his absorption in the stationary post as per terms of Rule 1308 of Indian Railway Establishment Manual which states that the pay of the disabled/medically decategorized Railway servants would be fixed on absorption in an alternative post at a stage corresponding to the pay previously drawn in the post held by them on regular basis before acquiring disability/medically decategorisation. For running staff, the pay fixation will be based on the basic pay plus a percentage of their basic pay representing the pay element of running allowance as may be in force. If the basic pay so arrived at does not correspond to any stage in the absorbing grade, the pay may be fixed at the stage just below and the difference allowed as personal pay to be absorbed in future increase in pay. Similarly, if the pay so arrived at A S PEETHAMBARAN 2024.12.04 11:41:04+05'30' -4- exceeds the maximum of the absorbing grade, the pay may be fixed at the minimum (maximum) and the difference may be allowed as personal pay to be absorbed in future increments/increases in pay. Other allowances such as Dearness Allowance, City Compensatory Allowance and House Rent Allowance should be allowed on pay plus personal pay, if any, in the absorbing grade.
4. The applicant's pay in the stationary post of Office Superintendent in Level-6 of the pay matrix was fixed adding on 30% of the basic pay that the applicant has drawn as a running staff. The pay of the applicant after adding 30% of the basic pay would be Rs.88,400/-. Since there was no stage in the Level-6 pay matrix, the applicant's pay was rightly fixed in the just above stage at Rs.88,700/- with effect from 08.08.2016. This is as per the terms of Rule 1313 (a)(2) of the IREM which states -
"When the appointment to the new post does not involve such assumption of duties and responsibilities or greater importance, he shall draw as initial pay, the stage of the time scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis."
This fixation is also in consonance with Section 20 of the Rights of Persons with Disabilities Act, 2016.
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5. On 06.06.2018 a letter bearing No.V/P11/II/SNP-Guards was received proposing to refix the pay of the applicant with effect from 08.08.2016 by fixing his pay at Rs.86,100/- and granting a personal pay of Rs.2300/-. The personal pay of Rs.2,300/- granted to the applicant would get absorbed/nullified when he is due for next increment. The said letter directed the applicant to represent against the proposal of reduction in his pay and the applicant submitted his representation dated 20.06.2018 to the 3rd respondent.
6. It is alleged that without taking into consideration the Annexure A-3 representation of the applicant, the reduction in pay was implemented. From Annexure A-2 it could be seen that the applicant's pay that he has drawn prior to his absorption in the stationary post was protected from 08.08.2016 to 30.06.2017 by granting a personal pay of Rs.2,300/- and from 01.07.2017 onwards it was alleged there would be substantial reduction in his pay, which the applicant has to suffer till his retirement. In effect, the applicant's pay which was granted as per the rules cited above is not protected. Hence, the applicant filed O.A.No.1043/2018 before the Tribunal, which was disposed of by an order dated 21.12.2018 directing the 2 nd respondent to consider and pass appropriate orders on the Annexure A-3 representation within 30 days of A S PEETHAMBARAN 2024.12.04 11:41:04+05'30' -6- receipt of the order. The respondents are also restrained from effecting recovery of overpayment till a decision was taken on the Annexure A-3 representation. Consequently, an order No.V/P11/II/SNP-Guards dated 16.12.2019 was issued rejecting the applicant's claim in accordance with para No.1308 of IREM Vol.I. The relevant portion of the same reads as under :
The Annexure A-3 representation of the applicant has been examined in detail. The applicant while working as Sr.Passenger Guard, TVC Division was medically decategorized w.e.f 08.08.2016. The pay of the applicant who was a running staff has been fixed by giving an addition of 30% of pay representing the pay element of running allowance. Since the basic pay so arrived after the addition did not correspond to any cell in the relevant level of the VII CPC Pay Matrix, his pay was fixed at a cell just below and the difference was allowed as Personal Pay to be absorbed in future increments in pay. This action was taken in terms of para No.1308 of IREM Vol.I as amended by Board vide Letter No.E(NG)I-96/RE3/9(2) dated 29.04.1999. Pay protection was given as per extant rules and there was no loss of emoluments to the applicant.
Railway Board vide Letter No.E(NG))-2018/RE-3/3 dated 14.10.2019 has confirmed the course of action taken by this Railway. In terms of the above letter, while fixing the pay of a medically decategorized running staff in an alternative stationary post, if the resultant pay (after addition of 30%) does not correspond to any cell, in the same pay level, then the pay will be fixed in the next below cell of the same pay level and difference in pay will be protected as personal pay which will be adjusted n future increments.
A S PEETHAMBARAN 2024.12.04 11:41:04+05'30' -7- In light of above, the fixation of pay of the applicant on medical decategorization w.e.f 08.08.2016 as Rs.86100 + Rs.2300 PP to be absorbed in future increments is valid and is in order. Hence his request to withdraw the above said fixation is not accepted.
7. As on 08.08.2016 the applicant's pay is Rs.88,400/- and on absorption in alternative post on medical de-categorization, the applicant's pay is required to be protected as per Section 20 of the Rights of Persons with Disabilities Act. By fixing the pay at Rs.86,100/- and granting Rs.2,300/- as personal pay meant that the applicant's pay would be protected only for a period of less than 11 months. From the next increment date i.e. 01.07.2017, there would be a substantial reduction in the applicant's basic pay. By granting personal pay, the pay of the applicant would be protected only for 11 months and from the next date of increment onwards to the rest of his career, he would only get a reduced pay. Hence, it is alleged that this is in violation of protection as contemplated under the provisions of Rights of Persons with Disabilities Act. It is suggested that fixation of pay of medically decategorized employees if fixed as per the provisions of Rule 1308, IREM Vol.I, it would necessarily entail reduction in the basic pay after absorption of the personal pay in the next increment. It is suggested that Para 1308 to the extent it prescribes the fixation of pay at the stage just below and the A S PEETHAMBARAN 2024.12.04 11:41:04+05'30' -8- difference allowed as personal pay to be absorbed in future increase in pay is in direct contravention to Section 20 of the Persons with Disabilities Act. The applicant seeks the striking down of Para 1308 of IREM to the extent it is contrary to the provisions of Rights of Persons with Disabilities Act, 2016. It is also suggested that the proposed recovery of overpayment is in contravention to the dictum of the Hon'ble Supreme Court in State of Punjab & Ors. vs. Rafiq Masih (Whitewasher) AIR 2015 SC 696.
8. It is not very clear as to how Para 1308 of the IREM is contrary to the provisions of Section 20 of Rights of Persons with Disabilities Act, 2016 as it is noticed that the provisions of Section 20 of Rights of Persons with Disabilities Act, 2016 with additional modifications as regards running allowance of medically decategorized staff has actually been incorporated into Para 1308 of the IREM.
9. On examination, the respondent in his reply statement has pointed out that the applicant had not substantiated his claim that his pay was reduced with effect from 01.07.2017 onwards. On the contrary, it is seen from the Service Register that the applicant was granted Rs.86,100/- + Rs.2300/- personal pay w.e.f. 08.08.2016, Rs.88,700/- A S PEETHAMBARAN 2024.12.04 11:41:04+05'30' -9- w.e.f. 01.07.2017, Rs.91,400/- w.e.f. 01.07.2018, Rs.94,100/- w.e.f. 01.07.2019 and Rs.96, 900/- w.e.f. 01.07.2020 i.e., an increment of Rs.2700/- every year. In 2017 the increment being granted by absorbing the personal pay of Rs.2300/- and the difference being granted as increment for that year as per the terms of Para 1308 of IREM. The basic entitlement of the applicant as per the terms for pay fixation on absorption is governed by Para 1308 of the IREM where contrary to the general principle that basic pay does not include allowances in order to enable medically de-categorized employees to continue to draw the pay they were drawing prior to medical decategorization, Para 1308 permits the addition of the running allowances for all running staff who are medically de-categorized to the basic pay at the time of pay fixation and where there is no parallel scale in the new post to fix it at the scale below and add difference of personal pay to be adjusted at the time of next increment, which is what has been done. As it is very clear from the details provided by the respondents, this is precisely what has been done and in fact, there is no reduction in the pay of the employee as has been alleged. There has been a very specious argument saying that he should have effectively got one full additional increment to fit him in the next scale during the time of next increment would effectively grant the employee an increment of Rs.3000/- at the time of annual increment A S PEETHAMBARAN 2024.12.04 11:41:04+05'30' -10- which would be well above the sanctioned increment of Rs.2,700/- for the pay scale and very different from the increment of Rs.2000/-, which the employee would have drawn if he was in his previous scale, as is apparent from the Annexure A2 statement, the fixation which is sought to be challenged; which would not be permissible under any provisions of the Rules. To that extent the correction of the wrong fixation is correct and the employee is seeking an additional increment over and above his entitlement by his argument claiming that he is aggrieved by violation of Rights of Persons with Disabilities Act, by reduction in pay, which does not fits with the factual matrix in the said fixation.
10. The applicant seeks protection from recovery due to the refixation citing Rafiq Masih's (supra). However, he has failed to elaborate how he fits into the parameters indicated in the Rafiq Masih's judgment (supra) in order to seek protection from such recovery. The applicant is 49 years old and is a serving employee with 11 years of service at the time of filing of the Original Application. Therefore, he is not entitled to the protection of Rafiq Masih's judgment (supra).
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11. Hence, the OA stands dismissed. No order as to costs.
(Dated this the 4th day of December, 2024) V.RAMA MATHEW JUSTICE SUNIL THOMAS ADMINISTRATIVE MEMBER JUDICIAL MEMBER asp A S PEETHAMBARAN 2024.12.04 11:41:04+05'30' -12- List of Annexures in O.A.No.180/00042/2020
1. Annexure A-1 - A copy of the Memorandum No.V/P.11/II/SNP- Guards dated 04.10.2016 issued by the 3rd respondent.
2. Annexure A-2 - A copy of the Letter bearing No.V/P.II/II/SNP- Guards dated 06.06.2018 issued by the 3rd respondent.
3. Annexure A-3 - A copy of the Representation dated 20.06.2018 submitted by the applicant.
4. Annexure A-4 - A copy of the Order dated 21.12.2018 in O.A.No.1043/2018.
5. Annexure A-5 - A copy of the Letter bearing No.V/P.II/11/SNP- Guards dated 16.12.2019.
6. Annexure A-6 - A copy of the Para 1308 of Indian Railway Establishment Manual Volume - I.
7. Annexure R-1 - A copy of the Railway Board's Circular bearing RBE No.171/2019 issued under No.E(NG)I-2018/RE-3/3 dated 14.10.2019.
8. Annexure R-2 - An extract of the Railway Board's Circular bearing RBE No.89/1999 issued under No.E(NG)I/96/RE-3/9(2) dated 29.04.1999.
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