Central Administrative Tribunal - Hyderabad
Between vs The Divisional Railway Manager (P) on 4 November, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL: HYDERABAD BENCH:
HYDERABAD
ORIGINAL APPLICATION NO.898 OF 2007
DATE OF ORDER: 4th NOVEMBER, 2008
BETWEEN:
SHRI G.RAJA BABU,
S/O Shri G.Venkata Raju,
Aged about 53 years,
Occupation: Junior Clerk/Head Clerk (ACP),
R/o H.No.9/160/9/46/1, Plot No.182,
Bhajarang Nagar Colony, Balaji Nagar,
Shameerpet Mandal,
Hyderabad 500 087.
.. APPLICANT
AND
1. The Divisional Railway Manager (P),
Hyderabad/S.C.Railway, Hyderabad Division,
Hyderabad Bhavan,,
Secunderabad.
2. The Sr.Divisional Finance Manager,
S.C.Railway, Hyderabad Division,
Hyderabad Bhavan,,
Secunderabad.
3. The Assistant Divisional Engineer,
S.C.Railway, Hyderabad Division,
Nizamabad.
.. RESPONDENTS
COUNSEL FOR THE APPLICANT: Shri J.M.Naidu, Advocate
COUNSEL FOR THE RESPONDENTS: Shri V.Rajeswara Rao, SC for Rlys.
CORAM:
HON'BLE MRS. BHARATI RAY, MEMBER (JUDL.)
HON'BLE MR. HRIDAY NARAIN, MEMBER (ADMN.)
ORDER
(PER HON'BLE SHRI HRIDAY NARAIN, MEMBER (ADMN.) The present OA has been filed by the applicant with a prayer to declare the action of the 3rd respondent in revising and reducing the pay of the applicant from Rs.6050/- to Rs.5300/- in the scale of Rs.5000-8000 (RP) vide proceedings dated 24.9.2007 based on the proceedings dated 3.7.2007 and also communication dated 7.9.2007 of the 2nd respondent inspite of clarification of the 1st respondent dated 9.5.2007 based on the Railway Board's clarification as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and consequently direct the respondents to pay all the arrears of salary duly fixing the pay at Rs.6050/- in the pay scale of Rs.5000-8000 with all consequential benefits including interest.
2. The brief facts of the case, as stated by the applicant in the OA, are as follows:-
The applicant was appointed as RPF Rakshak in the scale of Rs.200-240 (in 5th Central Pay Commission scale, the scale was merged as Rs.3050-4590). He was promoted as Head Rakshak/Driver temporarily w.e.f. 1.6.1983. He was subsequently promoted as Naik w.e.f. 27.3.1986 in the grade of Rs.210-270 (in 5th CPC the equivalent scale is Rs.3200-4900). He was further promoted as Head Constable/Driver on officiating capacity in the grade of Rs.950-1500 (in 5th CPC the equivalent scale is Rs.3050-4590). While performing duties as Head Constable/Driver Grade-II in the scale of Rs.4000-6000, he was medically decategorised for the said post (in B1 category of RPF Department) but fit for C1 category with sedentary job. The 1st respondent absorbed the applicant as Junior Clerk in the scale of Rs.3050-4590 (RP) in the Engineering Department of Hyderabad Division and posted him in the office of the Senior Section Engineer, P.Way, Medchal, vide proceedings dated 16.6.2005. The Inspector of RPF of 'A' Company Headquarters, Secunderabad prepared salary particulars of the applicant which he was drawing at the time of medical decategorisation showing the pay of the applicant as Rs.5,000/- as basic pay. The 1st respondent fixed the pay of the applicant in the scale of Rs.4500-7000 (RP) w.e.f. 1.10.99 vide proceedings dated 13.6.2006. The applicant was also granted the second financial uprgradation as he had completed 24 years of service, in the scale of Rs.5000-8000 w.e.f. 15.6.2000, vide proceedings dated 7.11.2006 of the 1st respondent, which was approved by the 2nd respondent, vide proceedings dated 15.11.2006 and 19.12.2006 for both the ACPs. However, the 2nd respondent sought clarification from the 1st respondent vide letter dated 23.2.2007 raising a doubt with regard to eligibility of financial up-gradation in favour of the applicant and the 1st respondent gave clarification based on the Railway Board's letter dated 9.5.2007 to the effect that the applicant is entitled for two ACP benefits on completion of 12 years and 24 years as he was absorbed in the post of Junior Clerk foregoing his promotions in his parent department on medical decategorisation. Thereafter, the 2nd respondent revised and fixed the pay of the applicant to his disadvantage reducing his pay from Rs.6050/- to Rs.5300/- vide proceedings dated 3.7.2007 and the 3rd respondent pursuant to the order of the 2nd respondent revised the pay of the applicant to his disadvantage reducing his pay from Rs.6050/- to Rs.5300/- in the pay scale of Rs.5000-8000 vide proceedings dated 24.9.2007. Hence the present OA.
3. The main ground urged by the applicant is that once pay is fixed, it cannot be changed to the disadvantage of the employee without giving an opportunity of hearing him. As per Railway Board's clarification under Serial Circular No.276/99, 112/2000, the employee who has been medically decategorised and absorbed in the lower post is entitled for the benefit of Assured Career Progression Scheme (ACP Scheme) in the new hierarchy taking into account of his total service since appointment. As per Section 47of 'the Persons with Disabilities (Equal opportunities, protection of Rights and Full Participation) Act, 1995', employees cannot be put to disadvantage and denied the financial benefits on account of his medical decategorisation and his pay has to be fixed as per Para 1330 of IREM. Since the 2nd respondent himself certified the pay fixation after thorough verification, he cannot revise the pay fixation to the disadvantage of the applicant without giving him opportunity by way of show cause notice, thereby the 2nd respondent has violated the rules and also not followed the principles of natural justice.
4. The respondents have filed reply statement on 17.9.2008 contending that the applicant got two promotions in RPF Department prior to joining as Junior Clerk in the Engineering Department after medical decategorisation. As per Assured Career Progression Scheme (ACP Scheme), employees are entitled for the benefit of pay scale prescribed under the scheme after completion of 12/24 years if promotions were not given during the said period. Admittedly, the applicant got two promotions and thus he was not entitled for the benefit under the ACP Scheme. Hence, the fixation done in the case of the applicant was not correct and thus required revision. The fixation done by the 1st respondent was accordingly rectified . The Railway Board, vide letter dated 9.5.2005 clarified that in the case of medically decategorised employees, there is no provision for protection of pay scale in the event of transfer to a lower post. So, in such cases, past service may be counted towards ACP Scheme and the benefit of financial up-gradation will be given as per the hierarchy of the redeployment department. In the instant case, the applicant was medically decategorised and joined the Engineering Department with effect from 16.6.2005. As the applicant had already got two promotions in the RPF Department and this benefit had come to the applicant only after joining the new Department i.e., Engineering Department, he is not eligible for the benefit under the ACP scheme. The applicant was allowed two promotions from the date of joining the Engineering Department i.e., 16.6.2005 taking his past service into account as he had completed 24 years of service. The contention of the applicant that he should be given the benefit of ACP Scheme from 1.1.1999 as proposed by the 1st respondent is not correct. The applicant was medically decategorised on account of the circumstances which did not arise in the course of employment. As per 1313 IREM, the pay will be fixed at the stage corresponding to the pay previously drawn and if no such stage is there, he may be given the stage below the pay previously drawn. In the instant case, the applicant was in the grade of Rs.4000-6000 at the time of decategorisation. There is no grade equivalent to the above grade offered to him i.e., he was found suitable for sedentary job in C-1 category in clerical cadre of Engineering Department. As per para 1313 IREM, if there is no such stage in the post in which he is absorbed, he may be given the stage just below the pay previously drawn by him. Accordingly, he was offered a post in grade Rs.3050-4590 and his pay was fixed at the maximum of the stage of Rs.4590/-. Hence the applicant was immediately benefited by way of decategorisation as he got two promotions and earned a post in grade Rs.5000-8000 w.e.f. 16.6.2005, the date on which he assumed as Junior Clerk. The respondents have stated that had the applicant continued in the RPF Department, he would not have got the scale of Rs.5000-8000 immediately.
5. The applicant has filed rejoinder on 23.9.2008 reiterating the contentions made in the OA. It is stated that the contention of the respondents that he is entitled for the benefit of two financial up-gradations only w.e.f. 16.6.2006 i.e, from the date of joining the post of Junior Clerk in the scale of Rs.3050-4590 in the Engineering Department, is totally incorrect. It is further stated that contrary to the Railway Board's circulars, the respondents are releasing the benefits from the date of absorption in the new Department.
6. The learned counsels for the applicant as well as the respondents supported their respective pleadings.
7. We have carefully considered the arguments on both sides and the materials on record. We are of the view that the 2nd respondent certainly committed an error in fixing the pay of the applicant to his disadvantage without giving a proper notice of hearing to him. We, therefore, set aside the impugned order of the third respondent with a direction to the 2nd respondent to give a proper hearing to the applicant before taking a decision with regard to the applicant's pay. The 2nd respondent is directed to pass a speaking order in the matter after dealing with all the contentions that may be raised before him by the applicant. The matter shall be decided by the 2nd respondent within two months of the receipt of this order.
8. Since we are restoring the matter for decision afresh to the concerned authorities, we refrain from giving any opinion on various contentions raised before us by the applicant.
9. The OA is thus disposed of with the above observations. There shall be no order as to costs.
(HRIDAY NARAIN) (BHARATI RAY) MEMBER (ADMN.) MEMBER (JUDL.)