Central Administrative Tribunal - Madras
Geetha Sampathkumar And R. Suguna vs T.R. Kirubhanandan And Ors. on 23 October, 1998
JUDGMENT D.V.R.S.G. Dattatreyulu, Member (J)
1. These applications are filed under Section 19 of the Administrative Tribunals Act praying to quash orders issued under Annexures A.7. in O.A. 772/96 & A.6 in O.A. Nos. 788 & 790 of 1996.
2. The applicant in O.A. 772 of 1996 is working as Confidential Assistant in the Stenographer Cadre in the Southern Railway, Madras. She was granted two increments in the scale of Rs. 1400-2600 with effect from 27.5.1993 for having passed Post Graduate Diploma in personnel Management & Industrial Relations as per Annexure A.1. Her pay was also refixed as per the Railway Board's letter dt. 14.2.1990 and circulated on 8.3.1990 (Annexure. A.2.). It is stated that subsequently on 22.2.1996, the Chief Personnel Officer issued a letter Annexure A.5 stating that there is a clarification that the stenographers and typists may be considered for incentive payment on acquiring higher qualifications only if they were promoted as ACOs or APOs. The applicant submitted a representation on 7.3.1996 and asked not to reduce her pay (Annexure A.6.). Subsequently the applicant was issued an order by the second respondent directing that the pay has to be refixed withdrawing the increments granted and for recovery of the overpayments as per Annexure A.8. dated 9.7.1996. This order is challenged as violating Article 14 of the Constitution of India.
3. The respondents have filed reply affidavit stating that the applicant belongs to the General Administration Department and not Personnel Department and therefore, the increment was erroneously granted and the clarification issued by the Railway Board vide their letter No. E(NG) /1/91/IC2/2 dated 10.7.1991, it is clarified that the stenographers and typists have to be considered, for incentive only after they are promoted as ACOs or APOs. Hence this order to revise her pay and to recover the payment. There is no illegality in the said order, and therefore the application has to be dismissed.
4. The applicant in O.A. 788 of 1996 is working as Stenographer. It is stated that employees who acquire higher or additional scientific/technical or Accounts qualification are eligible for grant of two incentive increments when once they possess the Post Graduate Diploma in Personnel Management and Industrial Relations. The applicant passed the same. Therefore she was given the incentive increments. But by the letter dated 22.2.1996 (Annexure A-8) she was asked to explain why the increments should not be withdrawn. She submitted her representation dated 15.3.1996 (Annexure A-9). The first respondent gave the order dated 3.7.1996 ordering withdrawal of the increment and for refixation of the pay vide Annexure A-10. Hence this application.
5. The respondent has filed the same reply as in O.A. No. 772 of 1996 as stated above.
6. The applicants in O.A. 790 of 1996 are stated to be working as Senior Stenographers. They acquired Post Graduate Diploma in Personal Management and Industrial Relations. Therefore, they were all given two incentive increments. But, subsequently by letter dated 7.3.1996 Annexure A.III, stating that the increments have to be withdrawn and the pay has to be refixed. Therefore, the said order is questioned in the application.
7. The respondents have filed reply same as that of the reply in O.A. No. 772 of 1996.
8. Annexure Nos. A-1 to A-8 have been marked on behalf of applicant in O. A. 772/98. Annexure Nos. A-1 to A. 10 are marked on behalf of applicant in O.A. 788 of 1996. Annexure Nos. A.I to A.VII are marked on behalf of applicant in O.A. 790 of 1996. Respondents have filed only R.I as their Annexure.
9. Arguments were heard on both sides, the point that arise for consideration in these applications is whether the respondents have right to take the action withdrawing increments already granted and to refix the pay and also to recover the amounts that were drawn by the applicants in pursuance of the incentive increments that was granted.
10. The origin of these increments have to be considered for the purpose of appreciating the relevant facts. For this purpose a reference to the reply itself is sufficient. Originally, as per Annexure A.3 in O.A. No. 772 dated 4.7.1966, it is stated that incentives to Class III Railway employees Apprentices for acquiring higher or additional Scientific/Technical/ Accounts Qualifications. It is seen from this letter that incentives should be granted to such of the Class III staff who acquire additional qualifications in scientific, technical or accounts. In pursuance of the said letter the other important document to be considered is Annexure A.4 dated 29.5.1989 in which also the subject is incentives for acquiring higher scientific/ accounts/technical qualifications. The most important document is Annexure A.2 dated 8.3.1990 in which it is stated that the benefits of the incentives should go to the non-gazetted employees working in Stores and Personnel Departments also. At page 2 paragraph 2 of the letter it is clearly stated that two advance increments will be allowed on acquiring Post Graduate Diploma in Personnei Management and Industrial Relations conducted by any recognised University. As far as the applicant in O.A. 772 of 1996 is concerned she was granted the increments. The same facts will apply to the other applicants also.
11. The contention on behalf of the applicants is that the clarification said to have been advised by the Railway Board under Annexure A.5 have no relevance in the question of the increments already granted, and the increments granted to the applicants cannot be withdrawn on the basis of the clarification when once the right to have the increments is accepted earlier and also acted upon by the respondents and the pay is accordingly fixed. The applicants were granted the incentive increments already and when their pay is fixed in terms of the increments granted for acquiring the qualification. Now the clarification is sought by the Railways and that clarification appears to have been given when the incentive for acquiring the higher qualification as regards the stenographers have to be granted and therefore the increment has been ordered to be withdrawn as seen from Annexure A.5. In the reply, it is seen from paragraph No.3 that the Railways have extended equally two increments for the staff of the Personnel Department, for acquiring the Post Graduate Diploma in Personnel Management or Industrial Relations. It is stated that as the applicants belong to the General Administration and not the Personnel or Stores Department increments have been erroneously granted. It is stated that the Railway Boards by its letter dated 10/12/7/91 clarified the position. It is to be seen that when once the original scheme of granting the incentives is accepted, the question of clarification is only superfluous. What is the benefit by giving the incentive increments is the policy decision of the Government and that was already taken and in pursuance of the said decision increments were granted. The respondents plea that the stenographers being in the General Administration that they are not in Personnel Department or Store Department and therefore, they are not entitled for the increments appears to be devoid of any merit. It is admitted in the counter at page 4 that the stenographers post are not attached any particular department but their cadre is kept under General Administration. The respondents are not able to bring to the notice of the Tribunal that there is no special department known as the General Administration Department. It is necessary to refer to paragraph 7 at page 6 of the reply wherein it is stated as follows:-
"But the stenos and Typists of all departments whose cadre is maintained in General Administration Department were also granted incentive increments on acquiring the above qualification erroneously. Stenographers are attached to different department and are transferable from one Department to another. Thus they cannot be classified to be belonging to Personnel Department. In fact they are covered in General Branch."
This assertion in the reply establishes that the stenographers are transferable from one department to another, across the reasoning of the respondent that the stenos do not belong to Personnel Department, when once they are transferable from one department to another and they are working in any department to which they are transferred it cannot be said that this category of stenographers and typists are excluded from the Personal Department or Stores Department. The very nature of the work done by the stenographer and typists is the technical work wherever they have been posted or transferred including the Personnel Department and the Stores Department. If they are only exclusively kept in other department if such department exists the question of considering the arguments advanced by the respondent that they do not belong to Personnel Department or Stores Department can be considered. But when once the stenographers are. working or made to work in Personnel Department and Stores Department as well they are covered under the incentive schemes granted.
12. Moreover, it would be offending Article 14 of the Constitution for the reason that some stenographers working in one department viz. Personnel Department will have the benefit of the increments whereas the others working in other Department will not have the benefit itself is certainly discriminatory and violative of the Article 14 of the Constitution. They are doing equal work in whichever department they are posted. Thus the reason intended and the ambit of granting the incentive increment is with regard to possessing higher qualification by the Technical personal of the department but the question that the stenographers and typists only if they are promoted as A.C.Os or A.P.Os. will be useful and they have to be given incentive only after that is devoid of the rationale for the reason that their possessing the higher qualification as contemplated to give the incentive will be an added advantage for the effective performance of the duties when once have gone from one post to another post on promotion. But it is not as if their benefits of having the higher qualification will start only if they are promoted. The higher qualification is part of the knowledge beneficial for the effective functioning in a particular Department even prior to the promotion. Moreover, this theory that they are entitled for incentive increment only after they are promoted is the brain child of the subsequent clarification which has no basis at the time when the incentives are granted. Further it is to be seen that when once the incentive is accepted and increment is granted and the incentive amount is formed part of the pay of the individual, subsequent clarification will deprive him of the pay already fixed and any interference at the later date will be reducing the pay which can be done only by way of a punishment but not otherwise. The respondents can give such a clarification only with regard to the future incentive increments to be granted but not with regard to the employees to whom the incentive increment has formed the part of the pay of the employee. The clarification cannot have the retrospective effect but will have only prospective effect. Therefore, the impugned orders by which the respondents wanted to withdraw the increments and revise the pay and the efforts to recover the amounts already drawn by the applicants is quite illegal and affects the Fundamental Rights of the fixation of pay and drawing the increments.
13. The learned Counsel appearing for the applicants had filed a judgment of the Hon' ble High Court of Judicature at Madras in Writ Appeal No. 859 of 1991 which shows that the question of any clarification will not deprive the benefit already accrued to a particular person. Though this judgment is not directly on increments the proposition of law is the same.
14. Hence in view of the above, the O.A. Nos. 772/96, 788/96 and 790/96 are allowed and the following orders are passed:
1. Railway Board's letter No. E. (NG) 1/91/1C2/2DT. 10/12.7.91 read withletter No.E (NG)I/87/IC2/I dated 27.11.1995 is quashed.
2. The Circular dated 22.3.1996 is also quashed.
3. The order dated 9.7.1996 is also quashed, in so far as the applicant in O.A. No. 772/96 is concerned.
4. As far as the applicant in O.A. 788/96 is concerned, the order in O.A. No. 22.2 1996 is quashed.
5. Consequentially the order passed by the 1st respondent in Order No.P(GS)359/ XII/Incentive/Stenographers dated 3.7.1996 is quashed.
6. As far as the applicants in O.A. 790 of 1996 is concerned the order No. P(G3)/ XII/Incentive/Stenographers dated 8.7.1996 is quashed.
7. All the applicants in O. A.Nos. 772/96, 788/96 & 790/96 are entitled to the grant of incentive increments as per the Railway Board's letter dated 14.2.1990.
8. No order as to costs.