Central Administrative Tribunal - Cuttack
S Kumarr vs M/O Railways on 29 January, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA 260/00488 of 2016
Reserved on: 09.01.2024 Pronounced on : 29.01.2024
CORAM
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
HON'BLE MR. RAJNISH KUMAR RAI, MEMBER (J)
1. Sri Sanjay Kumar aged about 42 years S/O- Sri Jagadamba Prasad
of Qr. No.CS-6/B, near water pump Railway Colony, Cuttack
presently working as Tower Wagon Driver Gr.I in the O/O-
SSC/OHE, Cuttack.
2. Sri Subhasish Mukharjee aged about 44 years S/O-Late
Pareshnath Mukharjee of TRD2/2 Railway Colony near Raja
Athagarh Railway Station PC- Khuntuni Dist-Cuttack, presently
working as Tower Wagon Driver Gr.I in the O/O-S.S.C OHE,
RJGR.
3. T.V.Choudary aged about 38 years S/O- T.Narasimha Rao of Qr.
No.429/B, Ratang Colony, Jatni, Khurda Road presently working
as Tower Wagon Driver Gr.Il in the office of SSC/OHE, Khurda.
4. Gouri Sankar Palai aged about 38 years S/O Sudarsan palai of RE-
Type-II Rahama Railway Colony, Jagatsinghpur presently
working as Tower Wagon Driver Gr.III in the office of SSE/TRD-
Rahama.
5. R. Chandra Sekhar Rao aged about 47 years S/P- Late R.
Chinnayya of RF Type-II-4-B, Rahama Railway Colony,
Jagatsinghpur, presently working as Tower Wagon Driver Gr.III
SSC/TRD-Rahama.
6. Sk. Meherul Islam ager about 45 years S/O- Sk. Khaliar Rahaman
of Bara Astana Sepoy Bazar, AT/PO-Mednipur, Dist-Paschim
Midnapur, West Bengal, presently working as TWD, Gr.II,
Bhubaneswar, SSE/OHE, Bhubaneswar.
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7. Abhay Kumar Jena aged about 38 years S/O- Nenguti Jena At-
Gudipatia PO-Sargada Mukurdapur presently working as Tower
Wagon Driver Gr.II in the office of SSC/OHE, Keonjhar AT/PO-
Gutur, TRD- Type-II-19-B Dist-Keonjhar.
8. K.Brundaban Patro aged about 36 years S//O-Late K. Sanyasi
Patro of Vill/PO-G.Ganda Palli PS-Rambha Dist-Ganjam
presently working as Tower Wagon Driver Gr.III RE/TY-2 B-4,
Railway Colony, Jajpur Keonjhar Road.
9. Mohammad Kudus aged about 52 years S/O- Md. Isaquesak At-
Ratipur, PO-Tantia Dist-Khurda presently working as Tower
Wagon Driver Gr.II in the office of SSC/OHE/TMKA.
10 Arjun Singh aged about 43 years S/O- Birendra Singh, residing in
Railway Quarte. No.Type-II/C, presently working as Tower
Wagon Driver Gr.I in the office of TRD, Bhadrak, Charampa,
Bhadrak.
11. Kaushal Kishore aged about 38 years S/O- Ganesh Mandal of
Vill-Ganeh Po- Nayagaw PS- Girhor Dist- Jamuni, Bihar
presently working as Tower Wagon Driver Gr.li in the office of
SSC.OHE- Sakhigopal(SIL).
12. Khitish Mohan Bramha aged about 40 years S/O- S.N. Rajguru of
01/03 Railway Quarter PO- Khuntuni Rajaathagarh, Railway
Colony Dist-Cuttack presently working as Tower Wagon Driver
Gr.III in the office of SSC/OHE- Rajaathgarh.
13. Nirmal Kumar Prusty S/O Late Bhramarabar Prusty AT-Nadhra
Naya Indove Road Dist- Dhenkanal presently working as Tower
Wagon Driver Gr.l in the office of SC/OHE-Talcher.
14. T.V. Srinivasa Rao aged about 43 years S/O-T. Suryanarayana of
Railway Quarter Type-III/B, Charampa, Bhadrak presently
working as Tower Wagon Driver Gr.II in the office of SSE/OHE,
Bhadrak.
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15. B. Srinivasa Rao aged about 49 years S/O- V. Trinath Rao
presently working as Tower Wagon Driver Gr.I in the office of
SSE/OHE/Talcher Dist- Anugul.
16. Sk. Abdus Sazaque S/O- SK.Abdus Sator of Railway Quarter-
331/C Retang Colony, Jatni, Khurda Road presently working as
Tower Wagon Driver Gr.II in the office of SSE/OHE/Khurda.
17. Baikhunthanath Patra aged about 40 years S/O- Duryadhan Patra
AT-RE-Type-II, A-1, Railway Station Road, Balugaon presently
working as Tower Wagon Driver Gr.II in the office of
SSE/OHE/Balugaon.
18. P.Srinivash Rao aged about-41 years S/O-Late P. Mallesu
Quarter- RE Type-III A/2, Railway Colony Road Balugaon Dist-
Khurda presently working as Tower wagon Driver Gr.I in the
office of SSE/OHE, Baugaon.
19. Simanchalam Behera aged about 35 years S/O- Gunanu Behera
Mahaveer Nagar, L-II, Raiiway Station, Chhatrapur, Ganjam
presently working as Tower Wagon Driver Gr.I in the office of
JE/OHE/CAP.
20. Debraj Dalai aged about 42 years S/O- Jogindra Dalai Quarter
No.18/13, TRD Colony, Dist-Keonjhar presently working as
Tower Wagon Driver Gr.III in the office of SSE/OHE, Keonjhar.
All the applicants are working under the East
Coast Railway, Rail Vihar, Chandrasekharpur,
Bhubaneswar, Dist-Khurda.
.....Applicants
-VERSUS-
1. Union of India represented through the General Manager, East
Coast Railway, Rail Vihar, Chandrasekharpur, Bhubaneswar
Dist- Khurda.
2. The Secretary (Estt), Ministry of Railways, Railway Board,
New- Delhi.
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3. Chief Personnel Officer, East Coast Railways Bhubaneswar
Dist- Khurda.
4. Deputy Director, Pay Commission-V, Ministry of Railways,
Railway Board, Room No-305-B.P.Maidan New-Delhi-110001.
Respondents....
For the applicant : Mr. B. Dash, Counsel
For the respondents : Mr B Nayak, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
There are 20 (twenty) Applicants in this Original Application. All of them are working as Tower Wagon Driver Gr. II & Gr. III under the Railway- Respondents. They have filed this Original Application, praying inter alia as under:
"a. The Original Application may be allowed; b. Orders under Annexure-A/10, A/11 and A/12 may be quashed;
c. The respondents may be directed to allow the applicants to draw pay scale of Rs. 1350-2200 w.e.f 01.01.1986 and Rs. 5000-8000/- w.e.f. 01.01.1996;
d. The respondents may be directed to allow the applicants to draw the arrear differential pay within a time to be stipulated by this Hon'ble Tribunal; and e. Such other order(s)/direction(s) may be given in giving complete relief to the applicants."5
2. According to learned counsel for the Applicants they are equal to Goods Train Drivers of the Railway. Respondents-Authorities granted the pay scale of Rs. 1350-2200 w.e.f. 01.01.1986 and Rs. 5000-8000/- w.e.f. 01.01.1996 to the Goods Train Drivers but they were deprived of the said pay scale; albeit, in pursuance of the decision of the Hon'ble Apex Court in Civil Appeal No. 365 of 2007 disposed of on 8th July, 2010 (Union of India and Ors vs Jagdish Pandey & Ors) (A/1 ) and decision of Hon'ble High Court of Calcutta dated 2.4.2014 in WPCT No. 208 of 2007 (Sukumar Dutta and another vs UOi & Ors) which was upheld by the Hon'ble Apex Court vide order dated 01.10.2015 in Special Leave to Appeal ( C) No. .....CC No.(s) 12002/2015, they are entitled to the same. It is submitted that the applicants submitted representation, inter alia praying for grant of the same pay scale to them and as the Respondents-Authorities did not consider the same they had approached this Tribunal in OA No. 372 of 2016 which was disposed of on 26.05.2016 with direction to the Respondents to consider and dispose of the representation of the Applicants. Respondents-Authorities without taking into consideration the decision of the Hon'ble Supreme Court in its true spirit and without due application of mind rejected their representation vide order dated 2006.2016 6 (A/11 ); which order according to the Applicants' Counsel being illegal, arbitrary is liable to be quashed.
3. Respondents have filed counter contesting the case of the Applicants and the Applicant has also filed rejoinder.
4. According to learned counsel for the Respondents have submitted that the post of Goods Driver is filled up from Shunter/Asst. Drivers on promotion. In terms of RBE 152/2001, for the post of Goods Driver an employee must have the educational qualification of Matriculation and Act Apprentice passed of ITI or Diploma in Mech/Elect/Electronics in lieu of ITI. Whereas, the post of Tower Wagon Driers is filled up from the existing Motor Vehicle Drivers for which an employee must have the educational qualification of Class VIII pass with ability to read and understand the traffic rules and other electrical safety rules along with heavy Motor Driver License. It has been submitted that the nature of duties and responsibilities of Goods Driver is much more strenuous and difficult vis-à-vis that of Tower Wagon Drivers (TWDs). While Goods Drivers have immense greater responsibility of Driving a Goods Train independently with large number of wagons and the jobs calls for grant amount of alacrity and concentration, Tower Wagon Driers drive single Motor Car only on specified area to carry staff for attending brake down in their jurisdiction within about 30 KMs. It has been stated that the normal duty hours of Goods 7 Driers are 10 Horus whereas the duty hours of TWDs is 8 hours. The Goods Drivers are responsible for running extremely heavy duty locations varying from 3850 to 6000 hours power while Tower Wagons Driven by TWDs are of a maximum of 630 hours power. The Goods Driver has to study lack book and inspect the Locomotive (Engine) and follow other instructions as laid down in the operative manual of the particulars class of locos. No such work is required to be done by TWDs. It has been submitted that in the matter of grant of pay scale is a matter of policy which is decided by experts taking into various factors. Therefore, taking into consideration all aspects of the matter it cannot be said that the Tower Wagon Drivers are equal to Goods Driver, the pay scale granted to the Wagon Drivers should be extended to the Tower Wagon Drivers. Further it is submitted that the decision of the Hon'ble Apex Court Jagdish Pandey & Ors was not a case of pay anomaly between Tower Wagon Driers and Goods Towers. The said matter filed by Tower Wagon Drivers seeking extension of Running Allowing to them as was being given to the Goods Driver; which matter set at rest by the order of the Hon'ble Apex Court. The Hon'ble Apex Court have also granted opportunity to the Respondents - Department to pass an appropriate order in relation to the pay scales applicable to any class of its employees including the Applicants therein afresh and in accordance with law. Accordingly, Railway Board issued order dated 8 15.11.2010 dated 15.11.2010 relating to pay of the Tower Wagon Driver justifying as to how the pay scale of both the cadres cannot be equated. Hence by placing reliance on the decision of the Hon'ble Apex Court in the cases of Harbans Lal vs State of Himachal Pradesh, 1989 (4) SCC 459; Mewa Ram Kanojia vs AIIMS & Ors, 1989(2) SCC 235, State of Harayana & Ors vs Jasmer Singh & Ors, 1997 AIR (SC) 1788 and New Delhi Municipal Counsel vs Pan Singh, AIR 2007 SC 1365 learned counsel for the Respondents has prayed for dismissal of this OA.
5. In order to counter the stand of the Respondents, discussed above, learned counsel for the Applicants by drawing our attention to the order dated 02.04.2014 in W.P.C.T.No.208 of 2007 (Sukumar Dutta & Anr vs UOI and Ors), of the Hon'ble High Court of Calcutta has submitted that similarly situated employees like the present Applicants had also approached before CAT, Calcutta Bench, Calcutta in OA No. 746 of 2003 which was also dismissed by the said Bench vide order dated 23.04.2004 against which the Applicants, therein, approached before the Hon'ble High Court of Calcutta which was allowed with direction that the Railway could not have applied different standard for the same class of employees and denied the scale which was paid to the Goods Train Drivers and the said order has also attained finality since SLP No. 12002 of 2015 filed by the Respondent-Railway was 9 also dismissed by the Hon'ble Apex Court vide order dated 01.10.2015. In compliance of the said order, the Eastern Railway, Calcutta granted the pay scale of the Goods Drier to the Applicants therein who were working as Tower Wagon Driver vide order dated 29.10.2015 & 30.10.2015 (Annx.13 (A) & 13 (B)). But the Respondents rejected the claim of the applicants vide order dated 26.05.2016/20.06.2016 by placing reliance on the Railway Board's letter dated 15.11.2010 without taking into consideration the aforesaid decisions of the Hon'ble Calcutta High Court which was upheld by the Hon'ble Supreme Court on the specific prayer for grant of the pay scale of the Tower Wagon Driver as was being given to Goods Driver. Hence, learned counsel for the Applicants has prayed for the relief to the Applicants.
6. We have considered the rival contentions of the respective parties and perused the records. We feel that at this stage there is no reason to go much deep to the matter as the entire claim of the Applicants can be decided based on the decisions already rendered which had already set at rest.
7. We find that as to whether the Tower Wagon Drivers entitled to Running Allowance as was given to the Goods Drivers was the subject matter of consideration before the Hon'ble Supreme Court in Civil Appeal No. 365 of 2007 filed by Union of India and others vs Jagdish Pandey & Others, which was ultimately set at rest in favour of the Tower Wagon Drivers by the order of 10 the Hon'ble Apex Court 08.07.2010. Relevant portion of the order of the Hon'ble Apex Court in the said case is extracted herein below:
"5. As already noticed, the challenge to the above order was not accepted by the High Court and both the issues raised before the High Court, namely that the case of the Railway was not considered properly by the Tribunal on merits and secondly, it had no jurisdiction to examine the said circular as the order was passed by the Divisional Railway Manager outside the jurisdiction of the Tribunal were rejected and while upholding the order of the Tribunal, the High Court of Calcutta held as under:
"Considering the aforesaid, it is apparent that at all relevant time Tower Wagon Drivers are being treated as equivalent to Goods Train Drivers. There is no reason shown for treating them now differently. Contention of authorities refusing to treat the Tower Wagon Drivers equivalent to driver of Goods Train, cannot be accepted. If the Tower Wagon Drivers are continuously being treated as running staff and equivalent to drivers of goods trains; drivers there is no reason shown for which Tower Wagon Drivers cannot be refused to be treated as equivalent to the same grade as earlier was being done for a long period. The impugned judgments have dealt with the relevant aspects appropriately and there is no reason to interfere with the same."
6. .....
7. ......
8. The respondents in the present appeal had challenged the validity of the above order before the Tribunal on various grounds including that they have always been placed at parity with the goods driver, they have been given similar scales and there was no reason, whatsoever, for altering the pay scale to the prejudice of the respondents, which was in force for a considerable time. It will be useful for us to notice the findings recorded by the Tribunal. In paragraph 8 of its judgment the Tribunal noticed that both the parties have not placed on record any material to indicate as to what was the pay scale provided for the TWDs pursuant to the various Pay Commission Reports. The Tribunal specifically noticed and recorded the finding that for the last 40 years, i.e. right from 1959 the respondents were being paid the same pay scale as goods drivers. There was no disparity of pay scales between TWDs and goods drivers 11 after Union of India and Railways had accepted recommendations of the IInd, IIIrd, IVth and even of Vth Pay Commissions. The Tribunal also specifically noticed vague denials of the Union of India and that such denials were hardly substantiated by any cogent material. Reliance was placed upon the judgment of the Calcutta High Court in relation to the grant of running allowance. In that Writ Petition, the only dispute raised by the parties related to the grant of running allowance and the Union of India did not raise the issue of disparity in pay scale. This order of the High Court had attained finality. We have already referred to the findings recorded by the Tribunal where it is specifically noticed that after acceptance of Vth Pay Commission Report by the Government, TWDs were given the salary in the pay scale of Rs. 5000-8000 w.e.f. 1.1.1996 and in the letter dated 15.4.1993 the concerned authorities noticed the disparity created even between the TWDs i.e. in Sealdah division out of 32 TWDs, 24 were getting pay scale of Rs. 1350-2200 (unrevised) and remaining 8 were getting the pay scale of Rs. 1320-2040 and it directed a uniform pay scale of Rs. 1350-2200 should be given to all the TWDs. Another reason that weighed with the Tribunal was that no material has been produced to show as to what were the reasons or material on the basis of which the authorities had decided to discontinue the pay scale of Rs. 1350-2200 to these respondents. The above reasoning and discussion in the order of the Tribunal clearly shows that the action on the face of it was arbitrary. This order of the Tribunal was confirmed by the High Court and the respondents made no effort to place anything on record to show that they were different and distinct classes and were entitled to receive different pay scales. Even in the order dated 9th August, 2002 the Tribunal specifically noticed that it was not even averted that eligibility criteria for the post of TWDs was different than that for the goods driver and their duties were substantially different. In other words, either before the Tribunal or before the High Court the Union of India never pleaded the essential basis for justifying payment of different pay scales to two categories of drivers i.e. TWDs on the one hand and goods train drivers on the other. There has to be a substantial difference in method of recruitment, eligibility, duties and responsibilities before substantial disparity in scale can be justified. As far as recording of finding of facts is concerned, factual disputes can hardly be raised before this Court and in any case for the first time. Despite this the Union of India has failed to place any material to substantiate its decision before the Forum/Courts. The judgment of the Calcutta High Court, in relation to running allowances, has attained finality. At that time no other issue was raised by Union of India that they are different and distinct posts with different pay scales and as such identical running allowances could not be paid. In fact, the judgment of the Calcutta High Court has duly been implemented now for years together without objection. Not only this, 12 same pay scale as that of the goods train driver has been paid to these respondents for years and there appears to be no justification on record for unilateral withdrawal of such a scale. Pay scale is a legitimate right of an employee and except for valid and proper reasons it cannot be varied, that only in accordance with law. None of these justifiable reasons exist in the present case. The impugned order itself does not give any reason. The expression `erroneously' used in the order can hardly justify withdrawal of such an existing right.
9. We may also notice that the respondents had specifically pleaded and even placed on record certain orders in which in certain divisions the post of TWD is inter-changeable with goods driver. Orders have also been placed on record to show that in different divisions TWDs are getting different scales and the Railway Board, as such, has not passed any final order which is uniformly applicable to all the divisions of the Railways in India. Of course, this has been disputed by the appellants. The appellants have also attempted to file certain documents on record to show that the duties of both these posts are different and even recruitment criteria is different. We are afraid that this contention cannot be raised for the first time before this Court. This was expected of the Union of India to raise all these issues before the appropriate forum i.e. the Tribunal and justify the same. Even before us, these averments have been made without any supporting data or documents to substantiate such a plea. No comparative chart of the duties and responsibilities of these two posts, recruitment rules specifying eligibility or selection criteria and working conditions have been placed on record. The vague averments made to that effect cannot persuade this Court to disturb the concurrent findings recorded by the Tribunal as well as by the High Court.
10. It is a well settled rule that parties are expected to raise specific pleadings before the first forum for adjudication of the dispute. Those pleadings are the basis of the case of the respective parties even before the appellate/higher Courts. The parties would be bound by such pleadings, of course, subject to the right of amendment allowed in accordance with law. In the present case, no such amendment has been carried out even before the High Court and it will be unfair for this Court to get into the controversy of factual matrix of the case at this stage of the proceedings, particularly, when there exists no justification whatsoever on record as to why even these averments were not made before the Tribunal and not even before the High Court, despite the fact that the Tribunal had specifically made comments in this regard in its judgment. Even before this Court but for bald averments no documents, data or cogent material has been placed for appropriate adjudication of the rights of the parties. 13
11. During the course of arguments this was also brought to our notice that most of the respondents in the present appeal have already retired from service and there exist no justification for affecting any recoveries from their salaries as they have already worked and received their salaries as granted by the Union of India itself.
12. For the reasons afore stated, we find no legal infirmity in the judgments of the Tribunal and the High Court. While dismissing this appeal we make it clear that this judgment will not affect the right of Union of India to pass an appropriate order in relation to the pay scales applicable to any class of its employees including the respondents afresh and in accordance with law. We do hope that if such an order is passed it will be upon proper application of mind and after taking into consideration appropriate material and/or data."
8. Thus, the Hon'ble Apex Court in the aforesaid decision upheld the view of the Hon'ble High Court holding that that at all relevant time Tower Wagon Drivers are being treated as equivalent to Goods Train Drivers. There is no reason shown for treating them now differently. Contention of authorities refusing to treat the Tower Wagon Drivers equivalent to driver of Goods Train, cannot be accepted. If the Tower Wagon Drivers are continuously being treated as running staff and equivalent to drivers of goods trains; drivers there is no reason shown for which Tower Wagon Drivers cannot be refused to be treated as equivalent to the same grade as earlier was being done for a long period. However, as per the leave granted to the Respondents to pass an appropriate order in relation to the pay scales applicable to any class of its employees afresh and in accordance with law, admittedly Railway Board issued order No. PC-V/2000/CC/16/PD dated 15.11.2010 giving two different scales for the justification made in the said order. Hence, it goes without saying that the 14 aforesaid order dated 15.11.2010 making distinction in the matter of pay of Tower Wagon Drivers Goods Driver having no retrospective application is applicable to the Tower Wagon Drivers appointed on and after 15.11.2010 but certainly not to the present Applicants who are admittedly covered by the observation and direction of the Hon'ble Apex Court in the case of Jagdish Pandey & Ors (supra).
9. Over and above, we find that some of the Tower Wagon Drivers approached before the CAT, Calcutta Bench of the Tribunal praying for similar pay scale to that of Goods Drivers which was dismissed. The Applicants therein challenged the said order of dismissal before the Hon'ble High Court of Calcutta in WPCT No. 208 of 2007. The Hon'ble High Court Of Calcutta vide order dated 02.04.2014 by taking into consideration the decision in the case of Jagdish Pandey & Ors (supra), quashed the order of the CAT, Calcutta Bench and allowed the prayer of the Applicants therein directing grant of the scales of pay as was being given to the Goods Drivers which was also upheld by the Hon'ble Apex Court. Relevant portion of the decision is quoted herein below:
"The Petitioners were employed as Tower Wagon Drivers in the Eastern Railway. In 1959 the pay scale of Tower Wagon Drivers was at par with that of Goods Train Drivers. On 24th September,1986 a different pay scale was introduced for some categories of Goods Train Drivers. The Railway Board then revised the rates of running allowance and other allowances in 1998.15
O.A. No. 1529 of 1994 was filed by the Petitioners before the Central Administrative Tribunal, Calcutta Bench, claiming the pay scale of `1350-2200/- which was being paid to the Goods Train Drivers. The application was disposed of by the Tribunal on 3rd October, 2002 directing the Petitioners to submit a representation within two weeks so that it could be considered in the light of the undisputed position and the decisions of the High Court within two months of the date of the receipt of the representation.
In compliance of that order of the Tribunal, the Petitioners approached the Divisional Railway Manager, Eastern Railway, who passed an order on 22nd January, 2003. That order was challenged by the Petitioners in CPC No. 12 of 2003. The Court disposed of that contempt petition, observing that the order of 3rd October, 2002 had been complied by the Respondents. The Court granted liberty to the Petitioners to choose another Forum for redressal of their grievances.
The Divisional Railway Manager refused the prayer of the Petitioners to grant the pay scale of `5000- 8000/- at par with the Goods Train Drivers. The Petitioners filed O.A. No. 746 of 2003 before the Central Administrative Tribunal, Calcutta Bench, praying for a direction upon the respondents "to fix up the pay of the applicants as prescribed for Goods Drivers in terms of the Orders and Judgments cited in the Annexures herein and in view of the notification Annexure-A/4 of the Railway Board granting such benefit from 1991, whence from the order was to treat the Tower Wagon Drivers at par with the Goods Drivers for all purposes with arrear wages and interest thereon at the rate of 18% for deliberately wrong interpretation to deprive the applicants of their legal claim of the Pay scale of Goods Drivers and Running Allowance in that rate".16
The Tribunal dismissed the application on the ground that the Petitioners were not similarly situated as the Goods Train Drivers and, therefore, were not entitled to any relief. The Tribunal has also observed that the Petitioners had not challenged the order passed on 22nd January, 2003 and, therefore, did not grant any relief to the Petitioners.
It appears that several other employees had filed O.A. No. 321 of 2001 before the Central Administrative Tribunal, Calcutta Bench, challenging the order dated 22nd February, 2001 by which it was proposed to reduce the pay scale of Tower Wagon Drivers under the Eastern Railway. The Tribunal decided the application and quashed the order. It held that the Tower Wagon Drivers were entitled to the pay scale of `1350-2200/- from 01.01.1986 and `5000-8000/- with effect from 1.1.1996 with consequential benefits. Aggrieved by that order, the Union of India preferred WPCT No. 697 of 2002. That Writ Petition was disposed of on 2nd March, 2005 by this Court. It has been held that it was apparent that at all relevant times the Tower Wagon Drivers were being treated as equivalent to Goods Train Drivers. Therefore, there was no reason to treat them differently. The contention of the Union of India to treat them differently was not accepted by this Court. Therefore, this Court confirmed the order passed by the Tribunal.
Aggrieved by that decision, the Union of India preferred Civil Appeal No. 365 of 2007, which was disposed of on 8th July, 2010. The Supreme Court confirmed the decision of the High Court. However, it was observed that its judgment would not affect the right of the Union of India to pass appropriate orders in relation to the pay scales applicable to any class of its employees afresh and in accordance with law.
In our opinion, the Tribunal has erred in not following the same judgments and taking a different view in the matter. The observation that the Petitioners had not 17 challenged the order of 22nd January, 2003 and, therefore, they were not entitled to any relief, is unacceptable. The mere fact that the order was not challenged would not affect the Petitioner's right to the relief. The Petitioners had prayed for the relief by a substantial prayer which was included in their application. The Tribunal was bound by the decision in O.A. No. 321 of 2001. The decision was confirmed by this Court in WPCT 697 of 2002 and later by the Supreme Court in Civil Appeal No. 365 of 2007. The Respondents could not, therefore, have applied different standard for the same class of employees and denied them the scale which was paid to the Goods Train Drivers. Moreover, an order was issued by the Joint Director Establishment (P & A), Eastern Railway, on 7.5.1991 indicating that Tower Wagon Drivers must be treated at par with the Goods Train Drivers.
In our opinion, the Tribunal has committed an error by not granting the relief claimed by the Petitioners. The impugned order is, therefore, set aside.
The Petition is allowed with no order as to costs."
10. The decisions of Hon'ble Apex Court in the cases of Union of India v. Atul Shukla & Ors. 9 (2014) 10 SCC 432; Co. AS Iyer & Ors. v. Bala Subramanyan & Ors. 10 (1980) 1 SCC 634; and Punjab State Electricity Board & Anr. v. Ravinder Kumar Sharma & Ors. (1986) 4 SCC 617 indicate that once persons have become members of a service, they are equals and cannot be differentiated for the purpose of salary, seniority, promotion and conditions of 18 service. A career advancement scheme is an incentive and a class amongst a class cannot be created to grant this benefit.
11. Admittedly, in compliance of the aforesaid order of the Hon'ble Calcutta High Court, referred to above, Shri Sukumar Dutta & Anr, who were applicants in the said case, were granted the benefit of pay scale of Goods Driver. This Tribunal is bound by the decision of the Hon'ble High Court of Calcutta granting the relief to the applicants, therein by observing that the Respondents could not, therefore, have applied different standard for the same class of employees and denied them the scale which was paid to the Goods Train Drivers which decision was also upheld by the Hon'ble Apex Court.
12. In view of the discussions made above, we find sufficient force on the submission of learned Counsel for the Applicants that there was gross injustice caused to the Applicants in the decision making process of the matter by rejecting their claim for grant of the pay scale to that of Goods Drivers by applying the Railway Board's circulated dated 15.11.2016 since their cases are covered and governed by the decision of the Hon'ble Apex Court in the case of Jagdish Pandey & Ors (supra) so also in the case of Sukumar Dutta & Anr (Supra). We therefore, quash the impugned order of rejection dated 20.06.2016 (A/11) & dated 26.05.2016 (A/12) and direct the Respondents to fix the pay of applicant in the pay scale of Rs. 1350-2200 w.e.f 01.01.1986 and Rs. 5000- 19 8000/- w.e.f. 01.01.1996, notionally and with effect from the date of filing this OA w.e.f. July, 2016. The entire drill to give effect to the direction made above shall be completed within a period of 180 days from the date of receipt of a copy of this order.
13. In the result, this OA stands allowed to the extent stated above. There shall be no order as to costs.
(Rajnish Kumar Rai) (Pramod Kumar Das) Member (Judl.) Member (Admn.) RK/PS