Central Administrative Tribunal - Hyderabad
Jasvinder Pal Singh vs The Divisional Railway Manager on 20 February, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 295/2006 Date of order: 20-02-2009 Between: 1. Jasvinder Pal Singh, 2. D.H.M. Baba, 3. B. Vasantha Kumar, 4. K. Venugopal, 5. M. Kishore Kumar 6. M. Muthu Krishnan, 7. M. Balaji Rao, 8. Kalyani Prasad 9. R. Siva Kumar 10. M. Hari Prasad 11. L. Balu Swamy 12. S. Vadivel 13. Ch. Rajani Sunder ... Applicants A N D 1. The Divisional Railway Manager, South Central Railway, Guntakal Division, Guntakal, Anantapur Dist.515 801. 2. The Senior Divisional Personnel Officer, South Central Railway, Guntakal Division, Guntakal, Anantapur Dist. AP 515801. 3. The Divisional Mechanical Engineer(Power), South Central Railway, Guntakal Division, Guntakal, Anantapur Dist. AP 515 801. 4. N. Krishna Murthy, Occ. Driver Goods, O/o. The Chief Crew Controller, Gooty Railway Station, Gooty, Anantapur Dist. A.P. 515 402. 5. A.S.B. Shunmugam, Occ. Driver Goods, O/o. The Chief Crew Controller, Gooty Railway Station, Gooty, Anantapur Dist. A.P. 515 402. 6. V.K. Shaji, Occ. Driver Goods, O/o. The Chief Crew Controller, Nandalur Railway Station, Nandalur, Kadapa Dist. A.P. 516 150. 7. N. Sarath Babu, Occ. Driver Goods, O/o. The Chief Crew Controller, Gooty Railway Station, Gooty, Anantapur Dist. A.P. 515 402. ... Respondents Counsel for the applicants : Mr. V. Suryanarayana Sastry Counsel for the respondents : Mr. V. Rajeswara Rao C O R A M : THE HON'BLE MRS. BHARATI RAY, MEMBER (J) THE HON'BLE MR. HRIDAY NARAIN, MEMBER(A) O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J) This application has been filed by the applicants questioning the action of the 2nd respondent vide proceedings dated 20.12.2005 in rejecting the request of the applicants through their representations submitted dated 29-05-2005 to step up their pay on par with their original juniors, respondents 4 to 7 herein, who were promoted on adhoc basis to the post of Driver Goods by applying rule of reservation, vide proceedings dated 01-07-2004 and vide proceedings dated 03-09-2004 and whose pay was fixed higher than the original seniors, the applicants herein. Copy of the order of the 2nd respondent dated 20.12..2005 is enclosed as Annexure A-1 at page 10 of the OA.
2. The applicants were promoted as Goods Drivers in the pay scale of Rs. 5000-8000 at the places mentioned against their name and their basic pay was fixed at Rs.5000/-. It is the grievance of the applicants that the private respondents herein were granted adhoc promotion to the post of Goods Driver in the year 2004 and their pay was fixed at Rs.5000/- Subsequently Goods Drivers selection was completed and a panel was prepared vide proceedings dated 17-6-2005 and the applicants were placed above the private respondents in the panel in unreserved category. It appears that the private respondents are getting higher pay i.e. Rs. 5150 with effect from 1.7.2005. Referring to Railway Board letter No. E(NG)1-2002/PM-1/16 dated 2.7.03 RBE No. 14/2003 the applicants submitted that in terms of the said letter the basic pay of the applicants is required to be fixed equal to the juniors and arrears also be granted from the date they have shouldered higher responsibility as Goods Driver. Applicants submitted representation to the Sr. DPO, SC Railway, Guntakal, the 2nd respondent herein narrating the above facts and requested for fixing their basic pay as Rs.5150/- with effect from 1.7.2005 and claimed the arrears accordingly. Some of the representations are enclosed by the applicants along with the OA. However, 2nd respondent vide his letter dated 20.12.2005 informed the 12th applicant that the request for stepping up of pay on par with Sri N. Sarath Babu has been examined. The said person was promoted as Goods Driver purely on adhoc basis against the SC point accrued at the time of assessment of vacancies. Subsequently on his empanelment as Goods Driver his services were regularised as Goods Driver w.e.f. 21.06.2005. Therefore, the Railway Board letter dated 02.07.2003 quoted by the applicant does not apply in this case as this is not a case of erroneous promotion. Questioning the said order the applicants have approached this Tribunal. However, we find that the order passed in respect of other applicants are not available in the OA.
3. Respondents have contested the application by filing a counter reply. They have admitted that respondents No. 6 & & were promoted as Goods Driver on adhoc basis vide letter dated 01.07.2004 and the respondents No. 4&5 were promoted as Goods Drivers on adhoc basis vide order dated 03.09.2004. All the applicants belong to UR community whereas the respondents No. 4 to 7 belong to SC community. In regard to respondents 4 to 7 the respondents have added that they were promoted purely against the post reserved for SC employees since as per extant orders of Railway Board dated 19.09.1983 even in adhoc promotion roster points for SC and ST employees are to be observed and considered for promotions out of turn as per seniority. In regard to the promotion of applicants respondents have stated that the applicants 2 to 13 who were also selected for the post of Goods Drivers were promoted as Goods Drivers and their initial pay on promotion was fixed at the minimum of Rs.5000/- in scale Rs.5000-8000(RP) since they were drawing pay less than Rs.5000/- in the category from which they were promoted as Goods Driver and eligible for only the minimum pay of Rs.5000/- as per rules. It is the case of the respondents that respondent nos. 4 to 7 were initially promoted as Goods Drivers on adhoc basis against the posts reserved for 'SC' and they have actually worked as adhoc Goods Drivers earlier to the applicants who were later promoted as Goods Drivers on regular basis along with the respondents 4 to 7 who were drawing higher pay than the applicants. Hence stepping up of pay of the applicants on par with their juniors who were promoted against the reserved points of 'SC' earlier to the applicants is inadmissible and the applicants were accordingly advised that, their request for stepping up of their pay on par with their junior employees is not admissible vide impugned letter dated 20.12.2005. Referring to the Railway Board letter no. F(E)11/89/FR-1/1 dated 12-12-1991 the respondents have stated that the Railway Board amended the rules applicable for stepping up of pay of senior employees on par with his junior employee who is drawing more pay than his senior, deleted the provisions relating to such stepping up of pay under Rule No. 1316 (FR-22C) vide IREC Vol. II 1990 edition. The deletion of Rule 1316 (FR-22C) is on account of instructions contained in Railway Board's letter F(E)II/89/FR-I/I dated 12.12.1991 circulated by CPO/SC under letter No. P (R)436/R II/II dated 30.12.1991 (SC No. 177/91) in which a minimum benefit of Rs.25/- / Rs.100/- is provided when employees are promoted from a lower post to higher post vide Railway Board's letter No. F(E)II/89/FR-I/I dated 12.12.1991 and F(E)/II-99/FR/I/I dated 27.9.1999 (RBE.No. 244/99) respectively which derives more financial benefit than the benefit derived under Rule FR-22 C.
4. Applicants have filed rejoinder to the counter reply filed by the respondents.
5. We have heard Mr. V. Suryanarayana Sastry learned counsel for the applicants and Mr. V. Rajeswara Rao, SC, for the respondents. We have also gone through the facts of the case and material papers placed before us.
6. At the time of final hearing learned counsel for the respondents produced before us Serial Circular No. 140/2003 containing Railway Board letter dated 2.7.03 which has been referred to by the 12th applicant in his representation dated 29.05.2003 and submitted that this circular has no application in the case of the applicant since no erroneous order has been passed. It is also his contention that the legality of the adhoc promotion has never been questioned by the applicants.
7. In view of the above facts and circumstances the question that falls for consideration is whether the respondents are justified in rejecting the request of the applicants to step up their pay with their juniors.
8. It is not disputed that the private respondents are junior to the applicants. It is also not disputed that the private respondents were given regular promotion. It is evident that by virtue of adhoc promotion to private respondents their pay was fixed in the promotional post before they were regularly promoted and were drawing the pay of promotional post. Para-3 of Section IV of Swamy's Handbook, 2008 contains instruction in regard to "Stepping up of pay to remove anomalies". The relevant portion is extracted herein below :
"General.- Stepping up of the pay of a senior at par with his junior with a view to remove genuine anomalies arising out of appliaction of the following rules/orders is permissible under specific Government orders subject to conditions specified infra:-
1. Fixation of pay under FR 22(I)(a)(1) on promotion to a higher post.
2. In the case of senior promoted prior to 1-1-1996, vis-a-vis his junior promoted subsequent to that date in the revised scale under CCS (RP) Rules, 1997.
3. Fixation of pay on appointment to Selection Grade posts in Groups 'C' and 'D' cadres not involving higher responsibilities.
4. Fixation of pay in the revised scales under CCS(RP) Rules, 1997. Here the date of next increment of the senior will be advanced at par with the junior.
Competent Authority - In respect of Items 1 to 3 above, the authority competent to exercise powers under FR 27 is competent to sanction stepping up of the pay of the senior and the sanction should be issued in exercise of powers under FR 27. In respect of Item (4), the Head of Office or Head of the Department, as the case may be, is competent to advance the date of next increment.
Conditions - 1. Both the senior and junior employees should belong to the same cadre and the posts to which they have been promoted or appointed should be identical and in the same cadre.
2. The junior and the senior should have held identical scales in the lower post and should hold identical scales in the higher post.
3. The anomaly should directly arise from application of the relevant rule/order.
4. The stepping up of pay is admissible with reference to the first junior (not necessarily immediate junior) on only one occasion; but if the junior concerned gets his pay stepped up at par with one junior to him, then the pay of the senior may again be stepped up.
5. The junior should not have been drawing more pay than the senior from time to time in the lower post.
6. Advancement of DNI (Item 4) of senior is admissible only if he was drawing more pay than the junior in the pre-revised scale and his pay in the revised scale is fixed at the same stage as that of his junior.
Increment. - The next increment will fall due after completion of normal qualifying period of 12 months from the effective date of the stepping up - FR 22,GIO(23)and Rule 8, CCS(RP)Rules.
Stepping up of pay of departmental candidate from the DNI of direct recruit whose training period was counted for increment - In respect of direct recruits, the period of training before appointment counts for increments and this does not count for increment in case of departmental candidates. This may result in the departmental promotee's drawing less pay than a direct recruit junior to him. This anomaly may arise either from the date of his promotion or from the date of next increment of the direct recruit, and may be removed by stepping up the pay of the departmental promotee employee from the date of next increment of direct recruit junior to him - FR 22,GIO(25).
Instances which do not constitute anomaly for stepping up of pay -
The following instances do not constitute an anomaly of junior drawing more pay than the senior and stepping up of pay will not be admissible in such cases :-
(i) Extraordinary Leave resulting in postponement of the date of next increment with consequent drawal of less pay than the junior in the lower grade itself; pay parity cannot be claimed even if promoted earlier to the higher grade.
(ii) A senior forgoing/refusing promotion leading to the promotion of junior earlier and drawal of higher pay than the senior; increased pay drawn by a junior due to ad hoc officiating/regular service rendered in the higher posts for for periods earlier than the senior.
(iii) A senior joining higher post later than the junior and drawing less pay.
(iv) A senior appointed later than the junior in the lower post itself and drawing less pay than the junior, when promoted to the higher post earlier than the junior.
(v) A senior direct recruit drawing less pay than a junior promotee whose pay has been fixed with reference to the pay drawn in the lower post.
(vi) When a junior gets more pay due to additional increments earned on acquiring higher qualifications.
-FR 22, GIO(27), Para.2.
Stepping up of pay of directly recruited Section Officers recruited through Civil Service Examination to the level of pay guaranteed to their junior Departmental Section Officers - In the revised scale of pay where a Senior direct recruit Section Officer is drawing less pay than a promotee Section Officer appointed from the same or later date by virtue of the pay of the promotee Section Officer having been fixed at the guaranteed minimum of Rs. 6,900 in the scale of Rs.6,500-10,500, the pay of the direct recruit will be stepped up by the concerned cadre authority under FR 27 with effect from the date of promotion of the promotee officer, to the stage of Rs.6,900. The increment after the stepping up will be admissible to such direct recruit Section Officers on completion of necessary qualifying service from the date from which the pay is so stepped up. These orders will also be applicable to the released ECOs/SSCOs subject to certain conditions. - FR 22,GIO(26)and OM, dated 1-1-1998."
9. It is not in dispute that the applicants who were senior joined the higher post later than the private respondents who had already working in the said post on adhoc basis and thereby the applicants who were senior was drawing lesser pay. That being the position in terms of 'Instances which do not constitute anomaly for stepping up of pay' at para (ii) above, since the juniors were working in the higher scale on adhoc promotion, the applicants are not entitled to step up their pay with their juniors who were admittedly drawing more pay than the applicants who were senior to them, from time to time in the lower post. More over as per instruction (ii) (supra) the private respondents were junior and were drawing higher pay due to adhoc promotion. Therefore, the seniors pay cannot be stepped up. It is not in dispute that private respondents were working in the higher post on adhoc basis before they were given regular promotion and are drawing more pay than the applicants on regular promotion. The applicants are, therefore, not entitled for stepping up of their pay with their juniors. It is also seen that the juniors of the applicants were drawing more pay than the applicants by virtue of their adhoc promotion.
10. That being so, we find nothing wrong in the action of the respondents in rejecting the representation of the applicants requesting for stepping up of pay with their juniors. OA is dismissed accordingly with no order as to costs.
(HRIDAY NARAIN) (BHARATI RAY)
MEMBER (A) MEMBER (J)