Central Administrative Tribunal - Ernakulam
K Bijeesh vs M/O Railways on 4 July, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00284/2015
Thursday, this the 4th day of July, 2019
CORAM:
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
Hon'ble Mr. Ashish Kalia, Judicial Member
K. Bijeesh, aged 39 years, S/o. Balachandran Nair,
Pharmacist / Railway Hostpial / Palakkad /
Southern Railway / Palakkad Division, Residing at
Railway Quarter No. 172-A, Railway Colony, Hemambika Nagar,
Palakkad - 682 009. ..... Applicant
(By Advocate : Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by the General Manager,
Southern Railway, Head Quarters Office, Park Town PO,
Chennai - 600 003.
2. The Senior Divisional Personnel Officer, Southern Railway,
Palghat Division, Palghat - 678 002.
3. The Chief Personnel Officer, Southern Railway,
Head Quarters Office, Park Town PO, Chennai - 600 003.
4. The Chief Personnel Officer, South Western Railway Headquarters,
Lakshmi Balakrishna Square, 3rd Floor, Station Road,
Hubli - 580 020.
5. The Secretary to the Government of India,
Ministry of Railways, Rail Bhavan, New Delhi - 110 001.
6. The Sr. Divisional Personnel Officer,
South Western Railway, Hubli - 580 020. ..... Respondents
(By Advocate : Mrs. Girija K. Gopal)
This application having been heard on 26.06.2019 the Tribunal on
04.07.2019 delivered the following:
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ORDER
Hon'ble Mr. Ashish Kalia, Judicial Member -
The relief claimed by the applicant are as under:
"(i) Declare that the applicant is entitled to be granted PB-2 + GP Rs.
4,200/- (NFG) with effect from 9.4.2009 and to continue to draw the benefits which the applicant was enjoying in this regard while in the Hubli Division of South Western Railway and direct the respondents accordingly;
(ii) Direct the respondents to grant the applicant the non-functional grade of PB-2 + GP Rs. 4,200/- with effect from 9.4.2009 and direct the respondents to allow the applicant to continue to draw the benefits enjoyed by the applicant in the Hubli Division of South Western Railway;
(iii) Direct the respondents to grant the applicant the benefit of the first financial upgradation under the MACP scheme in PB-2 + GP Rs. 4,600/- with effect from 1.10.2009 or at least with effect from 1.11.2013 with all consequential benefits arising there from;
(iv) Award costs of and incidental to this application;
(v) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."
2. The brief facts of the case are that the applicant was initially appointed as a Pharmacist on 1.10.1999 in Hubli Division of South Central Railway in the pay scale of Rs. 4,500-7,000/- which was granted the revised PB-1 plus Grade Pay of Rs. 2,800/- w.e.f. 1.1.2006. While working as such, the applicant applied through proper channel and was selected for appointment as a Pharmacist in the Southern Railway. The applicant submitted his technical resignation from the earlier post and he was relieved from Hubli to report at the Southern Railway, Headquarters on 18.3.2009. Applicant was posted to the Railway Hospital at Salem where he joined on 9.4.2009. Later he was transferred to the Railway Hospital, Palakkad where he is presently employed. Vide Annexure A7 the Railway Board revised the pay structure of the Pharmacist cadre. Accordingly, the 3 entry grade Pharmacist cadre would be in PB-1 plus Grade Pay of Rs. 2,800/- and PB-2 plus Grade Pay of Rs. 4,200/- would be granted to the Pharmacist (entry grade) on non-functional basis after completion of two years of regular service in Grade Pay of Rs. 2,800/-. The applicant became entitled for grant of benefit of non-functional grade w.e.f. 1.1.2006. He submitted a representation in this regard and the Hubli Division of the Railways vide Annexure A10 order fixed the pay of the applicant in the non-functional grade of PB-2 plus Grade Pay of Rs. 4,200/- w.e.f. 1.1.2006. However, the respondents Southern Railway informed the applicant that he would be eligible for counting of past service only for increments and that he would be given non-functional grade of PB-2 plus GP Rs. 4,200/- only w.e.f. 9.4.2011 i.e. after completion of two years in the Southern Railway. Despite lapse of time applicant was not granted the arrears of pay and allowances arising out of Annexures A10 or A12. Applicant submitted Annexure A13 representation. Vide Annexure A14 all the posts in the entry grade of PB-1 plus Grade Pay of Rs. 2,800/- would stand merge with the posts of non-functional grade in PB-2 plus Grade Pay of Rs. 4,200/- i.e. as if the initial recruitment grade of a Pharmacist would be PB-2 plus Grade Pay of Rs. 4,200/-. The applicant submits that he should get the benefit of PB-2 plus Grade Pay of Rs. 4,200/- w.e.f. 9.4.2009 i.e. the date on which he joined the Salem Division of Southern Railway. Since placement in PB-2 plus Grade Pay Rs. 4,200/- cannot be treated as a promotion or financial upgradation, it must be deemed that the initial entry grade would be PB-2 plus Grade Pay Rs. 4,200/-. Since the applicant's past service would count for all purposes, including for grant of non-functional upgradation and also 4 for the purpose of financial upgradation under the MACP scheme, the applicant is entitled to get the benefit of financial upgradation under the MACP scheme with effect from 1.10.2009 in PB-2 plus Grade Pay Rs. 4,600/-. In the alternative the applicant submits that since his initial recruitment grade of Pharmacist became PB-2 plus Grade Pay Rs. 4,200/- with effect from 1.11.2003, consequent upon the merger, the applicant is entitled to get the benefit of financial upgradation under the MACP scheme in PB-2 plus Grade Pay Rs. 4,600/- at least w.e.f. 1.11.2013 i.e. the date on which the initial recruitment grade of Pharmacist came into existence in PB- 2 plus Grade Pay Rs. 4,200/-. As his representations were not attended to, the applicant has approached this Tribunal by the present OA seeking relief as above.
3. Notices were issued to the respondents. They entered appearance through learned counsel Smt. Girija K. Gopal who filed a detailed reply statement contending that applicant was initially appointed as Pharmacist Grade-III in scale Rs. 4,500-7,000/- w.e.f. 1.10.1999 in Hubli Division. On implementation of VIth Pay Commission recommendations, the scale of Rs.4,500-7,000/- is replaced by PB-1 Rs.5,200-20,200/- plus GP of Rs. 2,800/- w.e.f. 1.1.2006. Applicant was promoted as Pharmacist Grade-II in scale of pay of Rs. 5,000-8,000/- w.e.f. 15.5.2007. While working so he had applied for the post of Pharmacist in Grade Pay of Rs. 2,800/- in PB-1 Rs. 5,200-20,200/- through proper channel and was appointed and posted to Railway Hospital, Salem Division on 9.4.2009. His pay was fixed at Rs. 8,560/- in PB-1 with Grade Pay Rs. 2,800/- as applicable to newly recruited 5 candidate. Applicant joined the post of Pharmacist Grade-II in Palghat Division on 2.11.2010. The respondents contend that applicant was knowing the fact that he had applied for a lower post in Salem Division. Accordingly, his pay was fixed at Rs. 10,940/- in PB-1 Rs. 5,200-20,200/- w.e.f. 9.4.2009. The applicant was granted non-functional grade in Grade Pay of Rs. 4,200/- while working as Pharmacist Grade-III in Grade Pay of Rs. 2,800/- w.e.f. 9.4.2011. While fixing the initial pay in the grade of Pharmacist Grade-III in GP Rs. 2,800/-, the service rendered by the applicant in Hubli Division was taken into account for granting increment duly following Annexures A5 and A11. The applicant is eligible for 2 nd MACP only on 1.10.2019 since he had already earned one promotion/placement in higher scale. As per the MACP scheme the applicant is eligible for 2nd MACP on completion of 20 years of regular service from the date of initial appointment i.e. 1.10.1999 or on completion of 10 years of regular service from the date of first promotion/first MACP, whichever is earlier. Vide Annexure R2, it was clarified by the Railway Board that the placement in the non-functional grade in PB-2 Rs. 9,300- 34,800/- with Grade Pay Rs. 4,200/- should be taken in the nature of promotion for the purpose of granting MACP. Respondents pray for dismissing the OA.
4. Heard Shri T.C. Govindaswamy, learned counsel appearing for the applicant and Smt. Girija K. Gopal, learned counsel appearing for the respondents. Perused the record.
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5. The applicant entered service as Pharmacist Grade-III on 1.10.1999 in Hubli Division. Applicant was promoted as Pharmacist Grade-II in scale of pay of Rs. 5,000-8,000/- (PB-2 Rs. 9,300-34,800/- plus GP Rs. 4,200/-) w.e.f. 15.5.2007. While working as such he applied for the post of Pharmacist in Grade Pay of Rs. 2,800/- in PB-1 Rs. 5,200-20,200/- knowing fully well the fact that he had applied for a lower post. Accordingly, the applicant was selected and posted at Railway Hospital, Salem on 9.4.2009, wherein his pay was fixed by the respondents in the newly assigned grade of Pharmacist Grade-III at Rs. 10,940/- in PB-1 Rs. 5,200-20,200/-. Vide Annexure A8 the Railway Board had issued revised pay structure to the common category posts of Pharmacists cadre. The relevant portion is extracted below:
"2. As per para 2 of Board's letter dated 30.3.2010 Pharmacist Grade-II and Grade-I will be merged and designated as Pharmacist (non-functional grade) in PB 2 with grade pay of Rs. 4,200/- and the grade will be granted to Pharmacist (entry grade) on non-functional basis after 2 years of regular service in the grade pay of Rs. 2,800/-..........."
Accordingly, the respondents granted the applicant the benefit of Annexure A8 by fixing his pay at Rs. 11,790/- in PB-2 Rs. 9,300-34,800/- plus Grade Pay of Rs. 4,200/- w.e.f. 9.4.2011 after completion of two years of regular service in Grade Pay of Rs. 2,800/-. We find that the respondents have taken into account his earlier service in Hubli Division for granting increments. The contention of the applicant that paragraph 1405 of IREM, Vol. I applies to his case is refuted by the respondents stating that it is not applicable to the applicant as the entire Chapter XIV of IREM Vol. I i.e. from paragraph 1401 to 1412 are applicable only to those Railway 7 employees who got appointment in any Government Department other than Railways. In the present case the applicant had been appointed in another zone of Railways in a lower post and not in any other Government Department other than Railways.
6. Further 2nd MACP is granted to a Government servant on completion of 20 years of regular service from the date of initial appointment or on completion of 10 years of regular service from the date of first promotion, whichever is earlier. In the present case the applicant is not eligible for 1 st MACP as he had already got the benefit of Annexure A8 i.e. grant of non- functional Grade in PB-2 Rs. 9,300-34,800/- plus Grade Pay Rs. 4,200/- w.e.f. 9.4.2011 on completion of 2 years regular service in Grade Pay of Rs. 2,800/-. Moreover, the respondents vide Annexure R2 clarified that every financial upgradation has to be treated as an upgradation and therefore, the non-functional upgradation in PB-2 Rs. 9,300-34,800/- plus Grade Pay Rs. 4,200/- has to be counted/treated as one upgradation under the MACP scheme. As contended by the respondents the applicant is now entitled for 2nd MACP on completion of 20 years of regular service from 1.10.1999 i.e. with effect from 1.10.2019.
7. Learned counsel for the applicant has relied upon an order passed by this Tribunal in OA No. 180/929/2015 on 27 th February, 2019 stating that he is similarly placed. He had also placed reliance on the orders passed by the Railway Board on 21.3.2006 and 23.1.2018 in support of his case. 8
8. We have carefully gone through the orders passed by the Railway Board, relied on by the applicant. We find that both the orders are not applicable to the present case as they deal with counting of service rendered in the old unit on own request transfer for the purpose of qualifying service for promotion in the new unit and extension of benefit of Grade pay of Rs. 4,200/- (non-functional) to staff working in the cadre of Pharmacist in case of transfer on own request. The applicant's case is not of own request transfer but he is selected and appointed to a lower post which he applied through Railway Recruitment Board, Madras, knowing fully well the fact that he had applied for the lower post. Further the order of this Tribunal in OA No. 180/929/2015 is also not applicable to the present case.
9. Taking stock of the entire facts and circumstances of the case we do not find any reason to interfere with the action of the respondents. However, as contended by the respondents in paragraph 3.4 of the reply statement we direct the respondents to consider the case of the applicant for 2 nd MACP w.e.f. 1.10.2019, if he is found otherwise eligible.
10. The Original Application is disposed of as above. No order as to costs.
(ASHISH KALIA) (E.K. BHARAT BHUSHAN) JUDICIAL MEMBER ADMINISTRATIVE MEMBER "SA" 9 Original Application No. 180/00284/2015 APPLICANT'S ANNEXURES Annexure A1 - True copy of letter of resignation dated 6.1.2009 submitted by the applicant to the 4th respondent. Annexure A2 - True copy of memorandum bearing No. SWR/P.478/VIII/NOC dated 18.2.2009, issued by the 4th respondent. Annexure A3 - True copy of memorandum bearing No. H/P.502/VIII/Vol.I dated 6.3.2009, issued by the Divisional Railway Manager (Per), on behalf of the 6th respondent. Annexure A4 - True copy of Railway Board letter bearing No. E (NG) 60 RR/1/5 dated 7th February, 1961. Annexure A5 - True extract of the Railway Board order bearing No. E(NG)III/79/RR-1/11 dated 15.12.1980 as published in the Master Circular No. 32. Annexure A6 - True copy of paragraph 1405 of the Indian Railway Establishment Manual, Vol.I. Annexure A7 - True copy of Railway Board bearing RBE No. 47/2010 dated 30.3.2010. Annexure A8 - True copy of Railway Board order bearing RBE No. 109/2010 dated 5.8.2010. Annexure A9 - True copy of Railway Board order bearing RBE No. 165/2010 dated 19.11.2010. Annexure A10 - True copy of memorandum bearing No. H/P.481/VIII/Med/VI PC dated 18.7.2011, issued by the 6th respondent. Annexure A11 - True copy of letter bearing No. P(S) 535/VIII/NFG/Pharm/Vol.II dated 27.12.2012 issued by the 3rd respondent. Annexure A12 - True copy of memorandum bearing No. J/P.524/X/6th PC/Fix.(Pt) dated 19.2.2013 10 issued by the 2nd respondent. Annexure A13 - True copy of representation dated 27.1.2014 submitted to the 2nd respondent. Annexure A14 - True copy of Railway Board order bearing RBE No. 102/2013 dated 8.10.2013. Annexure A15 - True copy of representation dated 30.5.2013 addressed to the 2nd respondent. Annexure A16 - True copy of representation dated 23.10.2013, addressed to the 2nd respondent. Annexure A17 - True copy of Railway Board order bearing RBE No. 188/2010 dated 28.12.2010. Annexure A18 - True copy of Railway Board order bearing RBE No. 147/2015 dated 23.11.2015. RESPONDENTS' ANNEXURES Annexure R1 - True copy of Railway Board letter order bearing RBE No. 101/2009 dated 10.6.2009. Annexure R2 - True copy of Railway Board circular bearing No. PC-V/2009/ACP/2 dated 20.4.2010. Annexure R3 - True copy of arrear statement vetted by Associate finance dated 18.6.2015. Annexure R4 - True copy of Railway Board letter bearing No. PC-III/2013/CRC/7. Annexure MA1 - Railway Board's letter dated 15.10.1997. Annexure MA2 - Railway Board's letter dated 17.10.2001 being. -x-x-x-x-x-x-x-x-