Central Administrative Tribunal - Cuttack
Bidyadhara Ram vs M/O Railways on 15 November, 2023
the cot as, tn, Sess -
Reserved on: O8.1 126238 Pronounced on: (+ CORAM:
i OS SONG oF NS CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH DA 260 /00828 of 2019 eer weaned HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A} HON'BLE MR. RAJNISH KUMAR RAL MEMBER (] Midyadhara Ram, aged about 61 years, Son of Late Makra Ram, retired Senior Technician {Mason}, Office of WPRO/CRW East Coast Rallway/Mancheswar, residence of At-Badhi, Po. Badampur, Ps. Rasgovindapur, Dist.
Mayurbhanj, Odisha, Pin- 757 020.
wo Applicant VERSUS Union of India, represented through the General Manager, East Coast Railway, E.Co R Sadan, Chandrasekharpur, Bhubaneswar, Dist, Khurda-75201%.
2. Chief Work Shop Manger, East Coast Railway, Carriage Repair Workshop, Mancheswar, Bhubaneswar, Dist. Khurda- FO2021.
3. Workshop Personnel Officer, Carriage Repair Workshop, E.Co.Rly, Mancheswar, Bhubaneswar, Dist. Khurda-75202 1. iene Respondents For the applicant : Mr. N.R.Routray, Counse! Forthe respondents «Mr. R.S.Pattanaik, Counsel ot SEK EN SNES ESE cag Bee ES Us SSO OSE af SLY Pad.
The grievance of the applicant is for consideration of his case for grant of the financial uperadation under ACP by taking ints consideration the period of service from the date of his in service training, Le. from the date when after being selected through a positive act of selection was sent for in service training for sis months, Le. 19.041988. He has fled representation an 12.08.2019 claiming the benefit by citing the settled law but the respondents without considering his grievance in Its proper perspective rejected and communicated the same vide order dated 21.21.2019. itis the case of the applicant that In the above circumstances he has Aled this Griginal Application inter alla praying ta quash the order of relection dated 21.2 L2079 [A/?) and te direct the Respondents to grant Rim i' fmancial up gradation wel, 19.04.2000 and pay him the differential arrear salary by extending the benefit of order passed in OA No. 192/2010 and others.
2 Respondents have Aled thelr counter contesting the case of the applicant Inter alia stating that the applicant was Initially appointed as Trainee Skilled Artisan on stipendiary basis for being eventually 3 OA 246 JOSS ak STS absorked as Skilled Artisan in Carriage Repair Workshop, Mancheswar. He joined the in-service training on 19.04.1988 in pursuance of letter dated 18.03.1998. He joined as Temporary Trainee Skilled Artisan in SMW trade on stipendiary pay of Rs, 950/- pm in scale of Rs. 950-1500/- plas allowances as admissible. However, after protracted ligations In the matter of regular appaintment of trainee skilled artisans, finally, the applicant was regularized as Skilled Artisan Gr. IN {Mason vide order dated 28.08.1998. To deal with the problem of genuine stagnation and financial hardship faced by the employee due to lack of adequate promotional avenues, as a safety net, on the basis of recommendation of su CPC, Railway Board issued a scheme known as ACP vide RBE No. 233/1999 dated 01.10.1999 and as per the scheme an employee is entitled to bwo Nnancial upgradation at the intervais of 12 & 24 years of regular service provided that the employee concerned has not got any promation. It is submitted that regular service for the purpose of ACP scheme means the period of service countable for the purpose of promotion in terms of relevant RR and as per the conditions stipulated in the scheme at para 4 the first Hnancial up gradation shall be allowed after completion of 12 years of regular service. Since the applicant was regularized vide order dated 28.081 998, he was entitled to the first ' ThA SSH ENORID BE RNIS & LE SES HSS AF Sot9 financial up gradation under ACP only after completion of 12 years regular service from the date when he was regularized and, therefore, question of grant of 18 financial up gradation under ACP wel 19.04.2000 does not arise. The period fram 19.04.1988 to 27.08.1998 was treated as trainee Skilled Artisan/Trade Apprentice which periad thus cannot be treated as in-service training as claimed by the applicant. The applicant was promoted to the post of Tech. Gr. 1] (Mason) in scale Rs. 4000-6000/- wef 131.2001, thereafter, to the post of Tech.Grl iMason} in scale Rs. 4500-7000/- wall 05.12.2003 and retired from service wel SLOS 2017, In the counter, delay and laches has also taker as one of the grounds to defeat the claim of the applicant. Henee, according to the Respondents the applicant is net entitled to the benefit which he has claimed in this OA and, this OA being devold of any ment is Hable to be dismissed.
3. "The applicant has fled rejoinder trying to justify the Inaction of the respondents in not granting the Nmanclal upgradation under ACP by counting the entire period of services w.e.h 19.04.1988 by taking the help ofthe decisions rendered by this Tribunal which was upheld by Hon'ble High Court so alsa by Hon'ble Apex Court.
ied GA SESHUSEL of SUES eve Roe Ro 4, Ry reiterating the stand taken in their respective pleadings, materials and citations relied on in course of hearing, Ld. Counsel for the applicant has prayed for the relief sought in the OA and the Ld. Counsel for the respondents has prayed for dismissal of the OA and, having heard them at length, perused the records.
iad a On perusal of the record, it is seen that the issuc raised In this OA is set at rest and is no more res integra. In this regard it is noted that this Tribunal vide order dated 22.03.2012 in OA No. 192/2010 (Chittaranjan Mohanty Vs UO! & Ors.) held the decision in favour of the applicant, which was challenged by the respondents department before the Hon'ble High Court of Orissa in W.P(C) No. 12425/2012 and their Lordships vide order dated 06.02.2013 upheld the order of the Tribunal. Said arder hag also been upheld by the Hon'ble Apex Court vide arder dated 02.08.2013 in SLP No. 11040/2013. Subsequently, similar matter came wp before this tribunal in QA No. 924/2013 in the case of Parsuram Nayak Vs UOI & Ors, which was disposed of on 07.04.2016 in fayour of the said applicant and upheld by the Hon'ble High Court of Orissa vide order dated O8.03.2017 in W.P(C) No, 19250/2016 and by the Hon'ble Apex Court vide order dated 15.09.2017 in SLP/Diary No. 5 Qa ZoO HOw 23168 /2017. The relevant portion of the order of this Tribunal in OA 1932/2010 is as under:
"6 This was objected to by Learned Counsel for the Applicant on the ground that the a pplicant was appointed as Trainee Artisan in a particular scale of pay (Rs.950-1 500 /+), He has been granted annual Increment since 29.05. 19B8 and, as such the period of service from 1988 onwards should be reckoned for the purpose of counting reckonable service for grant of ACP Although the applicant was appointed as Trainee Artisan on a stipend of Rs85t/., subsequently vide order under Annesure-A/i dated 03-08- 1997 he was allowed the scale of pay of Rs 950-1500/- from the date of the order, During the course of hearing, Learned Standing Counsel fer the Respondents produced before us the service sheet of the applicant. On perusal of this document it reveals that Increment has been granted to the applicant on Annual basis wet. 29.03.1988 in terms of Establishment 9rl. No. 109/92 and his pay was accordingly refixed. We have perused the Estt, Srl Ne. 100/92 whereunder the Railway have decided that the period af training will be treated as duty for the purpose of grant of increments to those railway servants wha have undergone such training on or after 01-01-1986. It has further been provided therein (Estt. Sri. No.109/92) that the benefit of counting the period for pay will be admissible an-notisnal hasis from 11.1986 and on actual basis from D1-10-1990. In siew of the above the contention of the Respondents that the period spent by the applicant a Trainee Artisan and hence is not reckonable for the purpose of ACP cannot be.
for grant of ACP.
: US ZaR SHOR af BEES 7 As far as the contention of the Respondents' counsel that this case being covered by the order of this Tribunal in OA No. 190/10, can be disposed of by leaving the matter to the authorities to examine the case of the applicant, as directed! in the aforesaid QA, we do not Hind justifiable reason to do so because in the earlier OA, we had no occasion to peruse the Estt. SL No. 108/92 and the service sheet of the said applicant while passing order in OA No. 190/10, 8 In view of the discussions made above, the order of rejection at Amnexure-A/? canmot be held to be justified and the same is accordingly quashed. The Respondents are hereby directed to count the period of service of the applicant from 29.3.1988 for the purpese of grant of ACP and allow the applicant financial benefits under ACP W he fulfills the other conditions required for grant of financial up-gradation under ACP. Respondents are further directed to complete the entire exercise within a period of 90 days from the date of receipt of copy of this order"
& The Hon'ble High Court of Orissa in W.P.(C) No. LEEs5O 2016 (Ol & Ors. Vs. Parsuram Nayak) observed as under:
"In this writ petition, the petitioners, Le. East Coast Railway and its functionaries have challenged the order dated OF.04.2016 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 924 of 2013, wherein the Tribunal had directed the present petitioners to calculate the period undergone towards training while granting 1° financial up-gradation, Present opposite party no. entered to the Railway Service on 30.03.1988 as a Skilled Artisan/Welder Grade-Hl. Thereafter he was sent for in-service training. While continuing as such, since he completed 12° years af qualifying service on 29.03.2000 and the benefit of 1° financial upgradation was not extended in his favour, he ES GA PHO (OORT of SELF preferred OA. No. 7200 of 2013. The said Original Application was disposed of directing the railways to take a decision on the representation of the applicant. The same was rejected by the railways wide order dated 25412013 on the ground that since the applicant was regularized as Tech, Gr-Tll Welder) with effect from 04.09.1997, therefure, 12 year is to be counted from 04.09.1997 and period from 321,.03.1988 te 03.09.1997 is to he counted towards training. The said order dated 25.11.2012 was challenged by the applicant in O.A. No. 821 of 2013, The Tribunal while dispusing Q.A. No. 924 of 2013 taken into consideration of the feet that such an issue has no longer res-integra in view of the decision in GA. No 192 of 2010, which was confirmed by this Court in WPCC) No. 42495 of 2012 and by the Apex Court in SLP No. 11040 of #012. The Tribunal therefore quashed the order of rejection dated 25.11.2013 and directed the respondents to grant Ist financial upgradation with effect from 29.03.2000 with the consequential financial benefits in favour of the applicant.
Since the issue has already been settled by the Apex Court and basing on that, the impugned order was passed, we do not find any illegality or irregularity in the impugned order ro be interfered with."
7, Hon'ble High Court In anather similar matters, je. WP CC) Noa. 16565 of 2016, and other batch case (Union of India vrs Bhagaban Mishra), vide order dated 01.05.2017 while dismissing the writ petition had held:
"Cn the basis of the admitted position that the opposition parties ~ applicants have been appointed in pursuance fo the advertisement No. M@/476/MC5/R&S, as such there Is no dispute about the fact that they have been appointed aller getting either [YT] certificate or apprenticeship certificate under the Apprenticeship Act, 1961 and got their engagement in pursuance to the said advertisement as trainees and on successful training they have been taken under regular establishment on different dates, as such we are not in hesitation to hold on the basis of this factual aspect which has been placed before us that the said training period is In service training.
It is not res Integra/ that in service training period would not be counted for counting the length of service, learned Sr. Counsel for the East Coast Railway has submitted that it is the pre service training as has been obtained by them under the Apprenticeship Act, 14961, this argurment is not acceptable to us in the view of the admitted position in the case thet the applicants have been appointed in pursuance to the advertisement No. M8 /476/MCS/RS&S which requires mmimum qualification to have ITE or the certificate of apprenticeship, hence we are of the considered view that the training obtained by them is during service period and as such the said period would not in any stretch of imagination not be counted for the purpose of counting the length of period of service"
8 The SLP No. 26896/2019 filed by the respondents challenging the above order of Hon'ble High Court was dismissed by Hon'ble Apex Court vide order dated 22.10.2019 with the following observations:
"We And no ground to Interfere with the impugned order {s} passed by the High Court on the ground that the petitioners were given the regular pay scale and the increments were also given to them right from day one. Even during the training period, increments were given to them. We have considered the policy pertaining to ACP. On perusal of the same, we find no ground to deny the benefit of training period, which was after appointment nee) £38 SAU ARS of Ze ate The Special leave petitions are, accordingly, dismissed"
9. The decision of the Hon'ble High Court of Orissa In W.P{C) 27118/2021 dated 06.12.2022, so far as delay is concerned, reads as under:
"This matter Is taken up through hybrid mode.
2, Heard Mr. N.B.Routray, learned counsel appearing for the petitioner and Mr. | Nayak, Central Government 'Counsel appearing for the Union of India-opposite parties.
3. The petitioner has filed this writ petition challenging the arder dated 17.08.2021 under Annesure-2 series in MLA. Nodes of 2019 farising out of OLA, No.SS6 of £018), by which the Central Administrative Tribunal, Cuttack Bench, Cuttack has rejected the claim of the petitioner for grant of benefit of ACP on the pround of delay and laches, and further seeks fo issue direction to the opposite panies to grant Ist financial upgradation wef, 03.04.2000 under ACP Scheme with all consequential and Anancial benefits.
4. Mr. N.R.Routray, learned counsel appearing for the petitioner contended that the Tribunal, vide order dated 20.03.2018 In GA. Na g60/00821 of 2014 UGirish Chandra Kabat vs. Union of India and others) allowed the benefit of ACP, Against the said order, the Unien of India had approached this Court by filng W.P.(C} nosey? of 2018 and this Court after due adjudication, vide arder dated 20.07 2022, dismissed the said writ petition, relying upon the order passed by the Apex Court in SLPLC) no. 1040 of 2013. Therefore, the rejection of the claim of the petitioner by the Tribunal on the ground of delay and laches cannot be sustained In the eye of law. It is Rurther contended that there is continuity of cause of action for the petitioner to claim the henefif of ACP.
oa DA SOO IL8 af ZOLS S Mr J. Nayak. learned Central Government Counsel appearing for the Union of Indla-oppoasite parties admits the fact that this Court dismissed WIP(C} No367? of 2018 Aled by the Union of India relying upon the order passed by the Apex Court in SLP(C) No.1 1040 of 2073,
6. Having heard learned counsel for the parties and after going through the records, this Court finds that since the claim of the petitiuner for grant af ACP has been adjudicated an merits and the decision of this Court has been confirmed by the Apex Court in SLP(C} No. T1040 of 2013, there is na valid and justifiable reason on the part of the Central Administrative Tribunal, Cuttack Bench, Cuttack to reject the claim of the petitioner on the ground of delay and laches.
7. In the above view of the matter this Court disposes of this writ petition on the basis of the observations made in Paragraph-4 of the order dated 20.07.2022 passed in W.P.(C) No.18677 of 2018, which are extracted below.
"4. On a perusal of the bmpugned order, it is seen that learned Tribunal has passed the impugned order relying upon the decision in O.A. No.L92 of 20790, which has been confirmed by this Court in W.P(C} No.12425 of 2012 and also by the apex Court in SLP(C) No.1 1040 of 2013. The operating portion of the impugned order is extracted hereunder:
5. The above point has already been settled by the decision of this Tribunal dated 22.03.2012 in OA.
No.192 of 2010 as the same has been upheld by the Hon'ble High Court vide order dated 06.02.2013 in W.P.C, No.12425 of 2012 and thereafter, the matter an being appealed of in SLP(C) No.11040 of 2013, the Hon'ble Supreme Court dismissed the same vide order dated 02.08.2013. Following the above decision, this Tribunal, Ister on also granted similar relief to the applicant in O.A, Nol of 2011, 43 GA PEO ONEE oo Therefore, in our considered views, the point in issue being set at rest, we have to hesitation fo hold that the period spent under training all the date of regularization of his service is reckonable for the purpase af grant af ist financial upgradation under the ACP Scheme. Accordingly, we quash the impugned order dated 09.01.2014 (A/S) and direct the respondent-Rallways to recotisider the claim of the applicant for grant of Ist ACP on completion of 12 years service from 08.04.1988, by conducting a review Screening Committee meeting and subject to consequential financial henefits."
@ Accordingly, the order dated 17.03.2021 passed by the 'Tribunal in M.A. No.922 of 2019 {arising out of O.A, NoSS6 of 2018) rejecting the claim of the petitioner is hereby quashed and the opposite partes are directed to grant ACY in favour of the petitioner, as due and admissible to him, within a period of four months from the date of receipt of this order.
9. Issue urgent certified copies as per rules."
40. In view of the settled law, quoted above, if cannot be said that the applicant is not entitled to count the qualifying period of service from the date he joined for In service training, alter being selected, for the purpose of financial upgradation under ACP wef his date of Joining in the training after being qualified through RRB and joining in the pest on his successful completion of training. Accordingly, the impugned order of rejection dated 21112019 [A/?) is hereby quashed and the OOOO te fay Oy gE Ss swe eri i3 OA BAG (OGRE of 2E9 respondents are directed to reconsider the claim of the applicant for grant of ist ACP an completion of 12 years service from 19.04.1988, by conducting a review Screening Committee meeting subject to fulfillment of other conditions. In case the applicant Is found to be otherwise entited to for the Anancial upgradation, he should be paid all his financial benefits upon grant of the financial upgradation. The consequential order to the above extent shall be issued within a period of 120 days from the date of receipt ofa copy of this order.
ii. In the result, this OA stands aliowed to the extent stated above.
There shall be no order as to casts.
2x 3 & 3 2 ' : :
g :
: ce :
fRainish Kamar Ral) {Pramod Kumar Das} Member (Judi) Member (Admn.)