Central Administrative Tribunal - Delhi
Sh. Harish Chander vs Union Of India Through on 9 September, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-131/2012
Reserved on : 30.08.2013.
Pronounced on :09.09.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Harish Chander,
S/o Sh. Khem Chand,
R/o 1/9, Old Rajinder Nagar,
New Delhi-61. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
the General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. The Divisional Railway Manager,
Northern Railway, Delhi Division,
State Entry Road, New Delhi.
3. Divisional Personnel Officer,
DRM Office, Northern Railway,
Delhi Division, State Entry Road,
New Delhi. . Respondents
(through Sh. VSR Krishna and Sh. Shailendra Tiwary, Adocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) This O.A. has been filed seeking the following relief:-
That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 4.10.2011 and dated 3.1.2012 (A/1), declaring to the effect that the same is illegal, arbitrary and discriminatory and consequently, pass an order directing the respondents to consider the case of the applicant for absorption in alternative suitable post in PB 9300-34800+GP4600/- with all the consequential benefits from the date of absorption including the pay and allowances.
2. Brief facts of the case are that the applicant was initially appointed in the Railway on 23.02.1976 on the post of Assistant Driver. Gradually, he got promoted to the post of Loco Pilot Mail. The Chief Medical Superintendent of Northern Railway, Divisional Hospital Delhi vide his order dated 01.09.2008 declared the applicant unfit for the post of driver. The respondent No.3 then redeployed the applicant as power controller Headquarter Baroda House, New Delhi against supernumerary post w.e.f. 20.10.2008. Later on, on 19.03.2011 the applicant was posted in Railway Museum as a toy train driver against a supernumerary post. He has been working there since then. The applicants contention is that as per Railway Board Circular he was entitled to be considered for an alternative job on a stationary post in the grade pay of Rs.4600/- but the respondent No.3 vide his order dated 04.10.2011 decided to absorb the applicant on the post of Office Superintendent in the pay band of Rs.9300-34800+GP 4200. Aggrieved by the same, the applicant filed OA No. 4403/2011 before this Tribunal. However, on 04.10.2011 the same was dismissed as withdrawn and liberty was given to the applicant to submit a representation to the respondents against their order dated 04.10.2011. Accordingly, the applicant submitted his representation on 13.12.2011 to the DRM, New Delhi. However, on 03.01.2012 the representation of the applicant was rejected by Respondent No.3 (Divl. Personnel Officer). Aggrieved by the same, the applicant has filed this O.A. before us.
3. Learned counsel for the applicant argued that running staff in the Railways is entitled to running allowance of 30% which is not applicable on stationary post. Thus, in order to have equivalence between two categories the Railway Board have issued a Circular No. R.B.E. No. 254/99 dated 01.10.1999 to decide equivalence between two categories of staff. A copy of the said Circular is available on page-26 of the paper-book, the relevant portion of which is extracted below:-
Subject : Comparison of grades of running staff with those of stationary staff for the purpose of promotion/selection.
[No.E(NG)1-98/PM2/8 dated 1.10.99] As the Railway Administrations are aware, Board had under their letter No. E(NG)I-89/PM2/8-A dated 10.1.92 (Bahris RBO 1992, Vol.I, P.S) circulated the equivalence of grades of running staff with grades of stationary staff for the purpose of promotion for the stationary categories where both running and stationary staff are eligible and considered together.
2. The question of equivalence of grades has since been reviewed in the light of the scales of pay introduced on the basis of scales of pay recommended by the Fifth Central Pay Commission. The matter has been raised by NFIR also in the PNM meeting with the Board. The matter has been considered in consultation with both the Federations. It has been decided that the grades of running staff may be equated with those of the stationary staff as indicated below:-
__________________________________________________________ Category of Running Staff Scales of pay Scale of stationary Applicable posts to which equated ________________________________________________________________________
1. Loco Running
(i) Mail/Express Drivers/ 6,000-9800 6,500-10,500 Sr.Passenger Driver/ Sr. Motormen ____________________________________________________________
4. Learned counsel argued that a Mail/Express Driver whose pay scale was Rs.6,000-9,800 under the Fifth Central Pay Commission was treated equivalent to stationary post in the grade pay of Rs.6,500-10,500. Thus, in accordance with this Circular he was entitled to be redeployed on an alternative post in Pay Band of Rs.9300-34800 with the Grade Pay of Rs.4600 rather than the Grade Pay of Rs.4200 that has been offered to the applicant.
5. Learned counsel has also quoted examples of several other railway employees who have been given benefit of higher grade pay. Thus, he has given a chart in Para 4.6 of his O.A., which is extracted below:-
S. No. Name Post Grade after Redeployment Grade before Redeployment
1. Sunder Lal s/o Sh. Sohan Lal Driver Passenger 4200/- 4600/-
2. Sh. Harish Chander s/o Guard 4200/- 4600/-
3. Sh. Brijesh Kumar s/o Guard 2800/- 4200/-
4. Sh. Deepak Vats Guard 2800/- 4200/-
5. Sh. Ajay Kumar s/o Sh. Vijay Kumar Guard 4500-7000 5500-9000
6. Sh.Harish Chander s/o late Sh.Khem Chand Driver Mail 4200/- 4200/-
He has contended that only the applicant was being discriminated against. Learned counsel prayed that he should also be given a post with grade pay of Rs.4600/-.
6. In their reply, the respondents have not disputed the facts of the case as far as appointment of the applicant and his medical decategorization is concerned. However, they have contended that the Railway Board Circular relied upon by the applicant was applicable only for the purpose of considering equivalence between running staff and stationary staff for promotion and that also before the implementation of the Sixth Pay Commission recommendations. The respondents have argued that the basic pay of the applicant has been protected, since 30% running allowance had been added while determining his basic pay in the pay band of Rs.9300-34800. Thus, he has not been put to any financial loss. Moreover, higher grade pay of Rs.4600/- under the Sixth Pay Commission scales is given on promotional post to which the applicant is not entitled. Learned counsel for the respondents argued that medical decategorization cannot become a reason for the applicant to ask for a promotional post. As per the Disabilities Act the applicant is entitled to be placed on an equivalence post only. Therefore, the arguments of the applicant are misplaced and his O.A. deserves to be dismissed.
7. We have heard both sides and have perused the material placed on record.
8. It has not been denied by the respondents that some of the railway employees, mentioned by the applicant in his O.A., did get placed on posts having higher grade pay. Their contention, however, was that this was a mistake which is being rectified. On perusal of the records, we find that Respondent No.2 under whom Respondent No.3 works has made a reference to the General Manager, Northern Railway on 09.11.2011 seeking clarifications about providing alternative job to the medically decategorized running staff; among equivalent grades after the Sixth CPC for an alternative post. It is also clear from page-61 of the paper-book that a reference on this issue has been made on various dates such as 05.04.2011,13.06.2011 and 19.08.2011. Another reminder was issued on 16.11.2011. It also appears from this aforesaid communication that General Manager, Northern Railway has in turn sought clarification on this issue from the Railway Board vide his office letter No. 755E/314/Policy/Running/DLI/EIIC (pay) dated 18.3.2011, 28.04.2011, 05.07.2011 and 06.09.2011 addressed to Secretary Establishment, Railway Board. It appears that Railway Board have so far not responded. However, without awaiting response from the Railway Board the Respondent No.3 has rejected the representation of the applicant vide his impugned order dated 03.01.2012 and denied the grade pay of Rs.4200/- to the applicant. Thus, on the one hand the respondent Nos.2 & 3 were seeking clarification from the Railway Board through General Manager, Northern Railway on this issue, on the other hand they have rejected the representation of the applicant without awaiting the same. This, in our opinion, was totally arbitrary and unjustified. It was not open to the respondents No.2 & 3 to interpret the Circular of the Railway Board. They rightly sought clarification on the same from the Railway Board itself. In fairness to the applicant they should have awaited the decision of the Railway Board before rejecting his representation. Thus, the impugned order cannot be sustained.
9. Accordingly, we quash the impugned order dated 03.01.2012 by which the representation of the applicant regarding deployment on a post having grade pay of Rs.4600 had been rejected by the respondent No.3. We direct that the respondents decide the case of the applicant afresh after getting clarification from the Railway Board regarding applicability of their Circular dated 01.10.1999 to cases of medical decategorization. This will be done within a period of eight seeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/