Central Administrative Tribunal - Delhi
Mohd Irfan vs M/O Railways on 25 April, 2023
1 OA No. 1161/2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1161/2016
Order reserved on: 17.03.2023
Order pronounced on: 25.04.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
1. Mohd. Irfan, Enquiry Reservation Clerk,
S/o Sri Mohd Ashraf,
House No. H-255 C-4 Storey Building,
MIG Flats, Sector 12 Partap Vihar,
Gaziabad.
2. Om Prakash, Enquiry Reservation Clerk,
S/o Sh. Rajeshwar Singh
House No.B-112, Asha Apartment,
Bajaria Railway Road, Gaziabad.
3. Ashutosh Kumar Joshi, Enquiry Reservation Clerk,
S/o Dr. Jagdish Joshi,
House No. K-156 A, Sector-9,
New Vijay Nagar,
Gaziabad.
4. Ajay Krishna, Enquiry Reservation Clerk,
S/o Moti Lal Tiwari,
House No. B-209, Asha Apartment,
Bajaria Railway Road, Gaziabad.
....Applicants
(By Advocate: Mr. Chandan Kumar)
Versus
1. Union of India through
The General Manager,
Northern Railway, Baroda House,
New Delhi-110001.
2. The Divisional Railway Manager,
Northern Railway, DRM Office,
Near New Delhi Railway Station,
New Delhi-110001.
... Respondents
(By Advocate: Mr. S.N.Verma)
2 OA No. 1161/2016
ORDER
By Hon'ble Manish Garg, Member (J) The present OA has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985, being aggrieved by Order dated 15.09.2014 passed by 2nd respondent wherein, the Competent Authority has rejected the prayers made by the applicants in request letters dated 27.11.2013 and 07.02.2014. Hence, in present OA, the applicants have prayed for the following relief(s):
"a) this Hon'ble Tribunal may quash/set aside impugned order dated 15.9.2014 bearing no.729E/45/1189/P-2 (Annexure A-1);
b) this Hon'ble Court may direct the Respondents take a decision as per Rule 1316-FR-22-C-R-II, now replaced by Rule 1313 (FR22)(1)(A)(I)R-II;
OR In the alternative, declare the Applicants eligible for fixation of pay under Rule 1313(FR22)1(A)(I)R-II and direct the Respondents to fix pay of the Applicants within a period of three months where arrears be paid from 2000 with interest calculated @12% per annum.
c) this Hon'ble Tribunal may pass such other and further order/as it deems fit and proper in the facts and circumstances of the case."
2. BRIEF FACTS:
2.1 Pursuant to Selection by Railway Recruitment Board (RRB), Allahabad for the post of Assistant Driver (Electric), applicants had been working with the 3 OA No. 1161/2016 respondents in said capacity in the pre-revised pay scale of Rs.950-1500.
2.2 In terms of paras 903 and 924 of Indian Railway Establishment Manual (IREM), 30% of their basic pay was added to their basic pay in terms of clause (iii) of Rule 1303 FR-921 (a), i.e., "emoluments which are specially classed as pay by the President."
2.3 On 11.4.2000, which is relevant for deciding the controversy in hand, the last pay drawn by the applicants was as under:
Sl.No. Name of Basic Pay 30% pay Total
Applicant element
1. Mohd. Irfan Rs.3,950/- Rs.1,185/- Rs.5,135/-
2. Om Prakash Rs.4,270/- Rs.1,281/- Rs.5.551/-
3. Ashutosh Kr. Rs.3,950/- Rs.1,185/- Rs.5,447/-
Joshi
4. Ajay Krishna Rs.4,190/- Rs.1,257/- Rs.5,447/-
2.4 It is submitted that the respondents vide their Communication dated 20.08.1993 had introduced concept of General Departmental Competitive Examination (GDCE) to fill up 25% of direct recruitment quota vacancies (for which indents were otherwise required to be placed on RRBs) in certain Group „C‟ categories of staff. Its scope was expanded to include categories of Technical Supervisors also in the grade of Rs.5000-8000. It was done with a view to achieve many 4 OA No. 1161/2016 purposes as with the introduction of new technologies in various departments and also due to changes in operational procedures, surplus manpower was getting generated in almost every department. Hence, the scope of GDCE was expanded in order to provide for greater flexibility in re-deployment of surplus staff and also to take care of promotional aspirations of better qualified staff. Accordingly, maximum age limit for appearing in GDCE was raised to 40 years for general candidates, 43 years for OBC and 45 years for SC/ST.
2.5 In the above context, the respondent no.1 vide notice dated 20.07.1999 sought to fill vacancies in the category of ECRC Grade Rs.4500-7000 through GDCE and accordingly sought applications from eligible employees to be forwarded through proper channel.
Applicants applied and took the written test held on 17.10.1999.
2.6 The respondent no.1 vide Internal Communication dated 11.04.2000 communicated to all the Divisional Heads, the list of candidates who had passed the test with further instructions that they may be put to medical test and thereafter, place under requisite training before posting.
5 OA No. 1161/20162.7 Further, the 2nd respondent vide Communication dated 12.07.2000, inter alia, stated as under:
"They will draw their pay @ Rs.4500/- PM plus allowances admissible under the rules from the date of taking independent duty as E&RC. Since the service cards of these candidates have not been received in this office, the pay of such of the staff who are drawing pay Rs.4500/- and above in their substantive grade will be fixed later U/R1316-FR-22-C-R-II on receipt of their service record....It may also be made clear to them that if any one of them is found unscreened later on he will be reverted to his substantive post and no representation will be entertained.
The staff who are undergoing punishment WIT/WIP, reduction in pay or rank or under suspension or SF-5 pending against them should not be promoted at this office may be advised accordingly."
2.8 Accordingly, applicants vide their joint representation in 2002 sought pay fixation, which was declined by the 2nd respondent vide Order dated 07.11.2002 stating that "their selection as E&RC has been outside their normal channel of promotion as per their own willingness."
2.9 Applicants vide their representation dated 26.02.2003, reiterated their request for pay fixation. Aggrieved, by inaction the applicants filed OA No.2015/2004, seeking pay fixation. The said OA was rejected by this Tribunal vide order dated 09.02.2005. A Review was filed against the detailed Order of the Tribunal was also dismissed. Applicants, feeling aggrieved by the Order of the Tribunal, preferred Writ 6 OA No. 1161/2016 Petition (Civil) No.5457/2007 against order dated 09.02.2005, which was also rejected by the Hon‟ble High Court vide its Order dated 24.03.2008.
2.10 However, the Allahabad Bench of this Tribunal vide Office Order dated 04.02.2011 allowed OA No.130 of 2007 filed by one Shubhasis Halder, who was similarly situated like, applicants herein, whose pay was fixed earlier but that was undone later, whereby the Tribunal directed that deduction of money from earlier pay fixed of "Shubhasis Halder" be refunded to him with interest and restore the pay already fixed.
2.11 It is further submitted that Shri Shubhasis Halder (serial no.10) has been one person who passed the same examination and whose result was published by the respondents vide Communication dated 11.04.2000, wherein the result of the applicants is at Sl. Nos.53, 55, 62, 65.
2.12 It is submitted that the Writ Petition No.33309/2011 preferred by the respondents was dismissed by the Hon‟ble Allahabad High Court vide its Order dated 01.02.2012. Based on the above decision of the Hon‟ble High Court of Allahabad, the applicants No.1 & 3 vide their letters dated 27.11.2013 and 07.02.2014 again sought fixation of their pay.
7 OA No. 1161/20162.13 The respondents, however, Vide Office Order dated 15.09.2014 once again rejected the request of the applicants on the ground that "...your selection as E&RC had been under GDCE through RRB which does not apply running allowances, hence there is no need of re-fixation of pay." Hence the OA.
2.14. The learned counsel for the applicants would further contend that the stand of the respondents is ex facie incorrect in the light of their own document dated 12.07.2000 (Annexure A-4) wherein they held the applicants eligible for pay fixation under Rule 1316 FR- 22-C-R.II. He would further contend that IRCE Rule 1316-FR-22-C-R-II stands deleted and is replaced by Rule 1313(FR22)(1)-R-II, which reads:
"1313. (FR-22) (I) -The initial pay of a railway servant who is appointed to a post on a time scale of pay is regulated as follows:--
(a) (1) Where a railway 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 fulfillment 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 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 twenty five only, whichever is more.
Save in cases of appointment on deputation to an ex-cadre post, or to a post on ad-hoc basis, the railway servant shall have the option , to be exercised within one month from the date of promotion or appointment as the case may be, to have the pay fixed under this rule from the date or such promotion or appointment or to have the pay fixed initially at the stage of 8 OA No. 1161/2016 the time scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be re-fixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the pay of the lower grade or post. In cases where an ad-hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment:
Provided that where a railway servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time scale of the lower post, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time scale of the lower post or rupees twenty five, whichever is more;"
2.15 The learned counsel for applicants would contend that the impugned Office Order dated 15.09.2014 whereby, the request of the applicants has been rejected is not an order passed under Rule 1313 (FR-22)(1)(A)(I)R.II, the respondents are required to take decision in terms of their own document dated 12.07.2000. The applicants were appointed as E&RC and were holding the post of Assistant Driver (Electrical) in substantive capacity and their appointment in E&RC carried duties and responsibilities of greater importance than those attaching to the post held by them. It is averred that 30% running allowance is payable to the applicants as part of pay even prior to their appointment as E&RC in terms of para 903 and 924 (i)(d) of IREM. 9 OA No. 1161/2016 2.16 He also drew attention to decision rendered by the Hon‟ble Apex Court in case of Hope Plantations Limited Vs. Taluk Land Board -CA no.540/1986 decided on 3.11.1998 and further G.C. Ghosh and ors Vs. UOI -W.P 938 to 945 of 1983 decided on 20.11.1988. Further reliance was placed on the case of Shubhasis Halder Vs. UOI and Ors., reported in 2011 SCC Online CAT 4789 decided on 04.02.2011 which was upheld in Civil Misc. Writ Petition No.33309 of 2011 by the Hon‟ble Allahabad High Court.
3. Per contra, the learned counsel for the respondents would contend that the applicants are not entitled to relief(s) sought in the OA.
3.1 It is submitted that applicants were appointed as Asstt. Driver (Electric) through RRB, Allahabad in Grade Rs.950-1500. Thereafter, they appeared in examination for the post of E&RC in Grade Rs.4500-7000 against GDCE 25% quota of direct recruitment and got selected. After successfully completing the requisite training, they were posted as E&RC over Delhi Division and their pay had been fixed accordingly vide order dated 12.07.2000. 3.2 The applicants had requested to fix their pay by adding 30% running allowance but as per Railway Board‟s letter No.E(P&A)II-2004/RS-28 dated 15.09.2006 10 OA No. 1161/2016 and RBE No.132/2006, which stipulated that "it is advised that in the absence of specific orders from the Railway Board to this effect, the benefit of reckoning of pay element for the purpose of fixation of pay of running staff on their appointment to the post under the General Department Competitive Examination (GDCE) is not admissible."
3.3 Further, the GDCE Scheme is voluntary in nature and the concerned staff is aware of the mode of fixation of pay on their appointment to a post under the said Scheme. Hence, in such cases, pay fixation has to be effected without taking into account the pay element. The applicants were replied accordingly.
3.4 The learned counsel for respondents would further contend that they had already filed an OA bearing No.2015/2004, which has been dismissed by this Tribunal and the Writ Petition (Civil) No.5457/2007 has also been dismissed by the Hon‟ble High Court of Delhi. Hence, the present OA is hit by principle of constructive res judicata.
3.5 Thereafter, they again reagitated and requested to fix their pay by adding 30% running allowance through Single window system (EGRS Cell) in this office bearing 11 OA No. 1161/2016 No.18084582 dated 07.02.2004 and the same has been replied vide letter dated 15.09.2014.
4. Having heard the learned counsels for the respective parties and carefully gone through the records, we would now analyse the factual aspects as well as law on the subject.
5. ANALYSIS:
5.1 It is not disputed that in the present OA, the applicants are agitating their grievances on the strength of decision rendered in Shubhasis Halder (supra), which was upheld in Civil Misc Writ Petition No.33309 of 2011 by the Hon‟ble Allahabad High Court vide its Order dated 01.02.2012.
5.2 The learned counsel for the applicants in support of his case draws an analogy from G.C.Ghosh and ors Vs UOI -W.P 938 to 945 of 1983 decided on 20.11.1988, wherein it was observed as under :-
"Learned Additional Solicitor General appearing for the Railway Administration is not in a position to contend that there is any such special distinguishing feature to justify denying of uniformity in treatment. The prayer of the writ Petitioners must accordingly be granted to the aforesaid extent. It is therefore directed that the Petitioners should be accorded the same treatment as their counterparts are being accorded in the Northern Railway in regard to treating the running allowance granted to the running staff as part of the pay when they are transferred or promoted to a stationary post during the period they hold the officiating in the stationary post to the same extent and in the same manner as enjoined 12 OA No. 1161/2016 by the Allahabad High Court pursuant to the aforesaid judgment. Writ petitions are disposed of accordingly. There will be no order as to costs."
5.3 Admittedly, the applicants therein in the case of Shubhasis Halder (supra) had contended that "Shri Subhasis Haldar appearing in person submits that he did not appear in the selections as an open market candidate. The circular as well as prescribed forms to be filled up by candidates clearly provide in specific columns, to the posts on which the applicant is working, his total service period. He applied as a departmental candidate and was entitled to the pay protection in accordance with Rule 1313.(FR-2) (i), in which it is provided that the initial pay in the time scale of the higher post shall be fixed at the stage next above the notional pay 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 twenty five only, whichever is more."
5.4 We also take note of the fact that though decision of G.C.Ghosh (supra) is quite relevant to the context and facts of the said case, however, the same is inapplicable in facts of the present case inasmuch as it is also well settled law that the principles of res judicata are attracted in present case where the matter in issue in the later proceedings have directly and substantially been in issue in earlier proceedings, between the same parties, in a competent forum having jurisdiction. Res judicata debars the Court from exercising jurisdiction to determine the lis, if it has attained finality between the parties. There is a distinction between res judicata and issue of estoppel. In the case of issue of estoppel, a party 13 OA No. 1161/2016 against whom an issue has been decided would be estopped from raising the same issue again. Where an issue could have been raised in earlier proceedings, but has not been raised again, the principle of constructive res judicata would be attracted to deny relief, for it is not the policy of law that multiple proceedings should be initiated in Court in relation to the same cause of action. Where the cause of action for initiation of proceedings is a distinctive cause of action, the principles of res judicata would not apply. (Ref: Civil Appeal No. 5036 Of 2022 (Arising Out Of SLP (C) No. 20995 Of 2017) Central Bank Of India & Others Versus Dragendra Singh Jadon decided on 02.08.2022) 5.5 In State of Rajasthan v. Nemi Chand Mahelaa, C.A. No.3873/2010 decided on 30.04.2019, two judge Bench of the Hon‟ble Apex Court has also elucidated the difference between the doctrine of res judicata and law of precedent in the following terms:
"11...The reasoning given in paras 22 and 23 in Manmohan Sharma case [Manmohan Sharma v. State of Rajasthan, (2014) 5 SCC 782 : (2014) 2 SCC (L&S) 8] relating to the case of Danveer Singh would reflect the difference between the doctrine of res judicata and law of precedent. Res judicata operates in personam i.e. the matter in issue between the same parties in the former 17 (2019) 14 SCC 179 litigation, while law of precedent operates in rem i.e. the law once settled is binding on all under the jurisdiction of the High Court and the Supreme Court. Res judicata binds the parties to the proceedings for the reason that there should be an end 14 OA No. 1161/2016 to the litigation and therefore, subsequent proceeding inter se parties to the litigation is barred. Therefore, law of res judicata concerns the same matter, while law of precedent concerns application of law in a similar issue. In res judicata, the correctness of the decision is normally immaterial and it does not matter whether the previous decision was right or wrong, unless the erroneous determination relates to the jurisdictional matter of that body. (emphasis supplied) Thus, a binding decision of the court which has attained finality would bind the parties to the proceedings inter- se."
5.6 The applicants herein were applicant no.2, applicant no.1, applicant no.5 and applicant no.3 respectively, in earlier round of OA in 2015/2014 decided as earlier as on 09.02.2005, wherein the Co-Ordinate Bench of this Tribunal held as under :-
"7. The applicants cannot also claim this benefit on the plea that such benefit has been given to other similarly situated persons. In this connection, we will like to rely on the judgement of the Hon'ble Supreme Court in the case of State of Bihar & Ors. vs. Karnleshwar Prashad Singh and Another, 2000 (2) SCT page 889 and that of Hon'ble Delhi High Court in the case of Satya Prakash vs. Union of India & others, 2003 (1) SCT page 694 in which a view was taken that concept of equity as envisaged in Article 14 cannot be enforced in a negative manner and the benefit of a wrong order cannot be extended to others.
8. In view of the above, we do not find any merit in the OA and the same is dismissed, without any order us to costs."
5.7 The case did not end up here. The said detailed Order dated 09.02.2005 was challenged before the Hon‟ble High Court in WP (C) No.5457/2007, wherein vide Order dated 24.03.2008, it was held as under:
"Mr. Jetender Singh, learned counsel for the petitioner, urges that the petitioner was working as an Assistant 15 OA No. 1161/2016 Driver (Electrical) and earning travelling allowance. His emoluments were higher. He submits that he was also earning 30% running allowance which has not been taken into account while fixing his pay in the post of Electrical and Reservation Clerk. It is not disputed that the as an Electrical and Reservation Clerk after petitioner joined as applying through the Railway Service Commission and getting selected. This post was against direct recruitment quota. The Tribunal has held that the instructions in para 30 of the IREM were very clear - whenever a Railway employee, whether permanent or temporary was allowed to apply to the Railway Service Commission for appointment to a new post and he was selected, pay was required to be fixed under the normal rules.
The Tribunal held that normal rules had been allowed considering the railway allowance. Moreover, we are in agreement with the approach adopted by the Tribunal when it observed the running allowance allowed to Railway employee is a special allowance drawn by them by virtue of their holding a particular post, say that of a Driver when he is to move from one station to another. It will be illogical to give him the benefit of this allowance in the fixation of pay when he is promoted to a post of a Reservation Clerk, which is a stationary post and he has been selected against direct recruitment quota, along with other outside candidates, not belonging to Railways. That is why specific provision has been made in para 30 that in such a case, fixation of pay will be under normal rules?.?
We find no infirmity or error in the order of the Central Administrative Tribunal. Dismissed."
6. CONCLUSION:
6.1 In view of the above discussions, we do not find any merit in the claim of the applicants herein on the basis of principles of law enunciated and cited herein above. We also find that in earlier OA No. 2015/2004 there were ten applicants whereas, in the present OA there are only four out of ten applicants, who chose to approach the Tribunal again.16 OA No. 1161/2016
6.2 We dismiss the present OA with a cost of Rs.
5,000/- to be paid by each of the applicants for wasting valuable time of the Tribunal and for seeking to re-agitate the same despite the detailed Order dated 09.02.2005, which was upheld by the Hon‟ble High Court in WP (C) No.5457/2007 vide Order dated 24.03.2008, which became final and binding between the parties. The costs shall be recovered from salary/pension of each of the applicants to be deposited in "The Prime Minister‟s Relief Fund". The respondents shall ensure depositing the same in "The Prime Minister‟s Relief Fund" after deducting the same from the pay/pension of the applicants within a period of one month from the date of receipt of a certified copy of this Order. The respondents shall also file a compliance report thereto.
7. The OA is dismissed with costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /sd/