Central Administrative Tribunal - Chandigarh
Narender Singh vs Union Of India Through General Manager on 6 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ORIGINAL APPLICATION N0. 060/00062/2015 Chandigarh, this the 6th day of March, 2017 CORAM:HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) & HONBLE MS. RAJWANT SANDHU, MEMBER(A) 1. Narender Singh, Employee No. 485464, aged 52 years S/o Sh. Gurmukh Singh, working as Junior Engineer (Shell), Rail Coach Factory, Kapurthala. 2. Yogindra Kumar Dubey, Employee No. 492006, aged 50 years S/o Sh. Phool Chandra Dubey, working as Senior Technician, Rail Coach Factory, Kapurthala. .APPLICANTS (Argued by: Shri R. K. Sharma, Advocate) VERSUS 1. Union of India through General Manager, Rail Coach Factory, Kapurthala, Punjab. 2. Railway Board through Secretary, Railway Board, Rail Bhawan, New Delhi. 3. General Manager (P), Rail Coach Factory, Kapurthala, Punjab. .RESPONDENTS (Argued by: Sh. Lakhinder B. Singh, Advocate) ORDER (Oral)
JUSTICE M.S. SULLAR, MEMBER (J)
1. The challenge in this Original Application (OA) filed by the applicants Narender Singh son of Sh. Gurmukh Singh and Yogindra Kumar Dubey S/o Sh. Phool Chandra Dubey, is to the impugned orders dated 7.12.1994 (Annexure A-1); dated 18.4.2013 (Annexure A-2), as corrected vide order dated 18.5.2013 (Annexure A-3), orders dated 26.12.2013 (Annexures A-4 and A-5); and order dated 19.12.2014 (Annexure A-6) whereby their claim for stepping up of their pay of Rs.15,740/-, in the cadre of Master Craftsmen (later on re-designated as Senior Technician w.e.f. 1.1.2006), at par with their junior Sadhu Ram, at Rs.16020/- has been rejected by the competent authority.
2. The epitome of the facts and material, which needs a necessary mention, for the limited purpose of deciding the core controversy involved in the instant OA, and emanating from the record, is that the applicant No.1 Narender Singh, joined Rail Coach Factory (RCF) as Technician Grade-III on 27.5.1987, confirmed on 30.1.1988, promoted as Technician Grade II on 30.9.1991, Technician Grade I on 28.11.1992 and was assigned seniority No. 62/1995. He was promoted as Senior Technician on 11.7.1998 and assigned Seniority No. 34/2007, in the relevant seniority list. He was further promoted as Junior Engineer on 17.9.2008. Whereas, applicant No.2 Yogindra Kumar Dubey, joined RCF as Technician Grade-III on 30.4.1987, confirmed on 30.1.1988, promoted as Technician Grade II on 30.9.1991, Technician Grade I on 28.11.1992 and was assigned seniority No. 63/1995. He was promoted as Senior Technician on 11.7.1998 and assigned Seniority No. 35/2007, in the seniority list.
3. Sequelly, their junior Sh. Sadhu Ram, who belongs to SC category, joined RCF as Technician Grade-III on 30.1.1988, promoted as Technician Grade II on 30.9.1991, Technician Grade I on 28.11.1992 and was assigned seniority No. 66/1995. He was promoted as Senior Technician on 26.6.1998 and assigned Seniority No. 37/2007, in the seniority list. He was further promoted as Junior Engineer on 26.7.2013, by the Competent Authority.
4. It was pleaded that a notice for conducting selection to the post of Senior Technician was issued by the respondents on 2.5.1998, to fill up 26 vacancies of Senior Technicians / Shell. After suitability test held on 27.5.1998 and 29.5.1998, select list for promotion as Senior Technicians / Shell was published and Sh. Sadhu Singh, junior to applicants was promoted. The applicants were promoted to the posts of Senior Technician, in continuation of the select list dated 29.6.1998, and their promotion orders dated 17.6.1998 and 11.7.1998 , Annexures A-7 and A-8, respectively, were issued, by the Competent Authority.
5. According to the applicants, that although they were promoted in continuation of the promotion of their junior, Sh. Sadhu Singh, so their pay was required to be fixed at par with him but the respondents have wrongly fixed less pay of the applicants. The representations, for redressal of their grievance, were stated to have been illegally rejected vide impugned orders dated 18.4.2013 (Annexure A-2) read with corrigendum dated 18.5.2013 (Annexure A-3); dated 26.12.2013 (Annexure A-4), dated 26.12.2013 (Annexure A-5) and dated 19.12.2014 (Annexure A-6).
6. Aggrieved thereby, the applicants have filed the instant OA challenging the impugned orders, Annexures A-1 to A-6, and claiming the equal pay, at par with their junior Sadhu Singh, on the following grounds :-
i) That undisputedly, the applicants are senior to Sh. Sadhu Ram in all the cadres Grade-III, Grade-II and Grade-I and they were entitled to be considered for promotion to the post of MCM, now re-designated as Senior Technician. However, instead of considering them, person junior to them was considered and promoted w.e.f. 26/06/1998 and when applicants brought this anomaly to the notice of the authorities, supplementary selection / merit list was prepared and the applicants were promoted vide order dated 11/07/1998 but in continuation of earlier promotion order dated 26/06/1998. Needless to mention that even in the category of Senior Technician, both the applicants are senior to Sh. Sadhu Ram having been assigned Seniority No. 34, 35 of 2007, as compared to seniority No.37 of 2007 of Sh. Sadhu Ram. Once, the applicants have suffered due to fault of the respondents, they have to be restored the benefit as if they were initially promoted from the date the person junior to them has been promoted as Senior Technician. This view was taken by the courts of law in number of cases including in the cases of O.S. Singh Versus Union of India & Union of India Versus K.B. Rajoria inter-alia, holding that the term regular / continuous service, as per the interpretation, does not mean the service actually rendered rather has been interpreted that when notional promotion was given to the candidate for compensation wrong done to him, then the only interpretation is that if a person has been denied his due at the relevant time and gets the same later on, either through successful litigation or his representation having been accepted, then he should not be put to disadvantage as compared to those who got the benefit in time. The contention is further fortified by the Privy Council judgment rendered way back in 1930 in case of Commissioner, Income Tax Versus Bombay Port Trust, wherein it has been held that when a person is deemed to be something, the only meaning possible is that whereas he is not in reality that something but the act treats him as if he were.
(ii) That it is well settled that junior cannot get more pay than the senior particularly when the senior was wrongly promoted earlier to the junior by illegally ignoring them. Even the Honble Supreme Court in the case titled Gurcharan Singh Versus PSEB, has held that junior cannot get more pay than senior. Even otherwise, by applying principle of catch up, applicants have to be treated as having been promoted from the date, their junior Sh. Sadhu Ram has been promoted. From this angle also, they have also to be restored all the benefits by bringing their pay at par with junior.
(iii) That para 2 (d) of Railway Circular dated 07/12/1994 is unreasonable, arbitrary, unconstitutional and does not stand to the test of fairness and equity and on the touch stone of Article 14 and 16 of the Constitution as while it says, if the senior has joined subsequently, his pay cannot be stepped at par with his junior, whereas it is well settled that a mistake can always be rectified and if there is an administrative lapse, senior has to be restored all the benefits which will include stepping up of the pay, if that mistake was of the administration. As a matter of fact, mistake never creates a right. If something has been wrongly granted to an employee, the same can always be withdrawn. By the same analogy, if something due to the employee has been wrongly denied, it has to be restored from due date. As such from this angle also Railway circular, Annexure A-1, which does not lay down the condition correctly and contain arbitrary and unconscionable decision, cannot stand and liable to be quashed so as to restore fair play in the cases where the administration is at fault.
(iv) That the action of the respondents is violative of principles of natural justice.
7. Levelling a variety of allegations and narrating the sequence of events in detail in all, applicants claim that although they were always senior, but their pay was wrongly fixed on lower side, as compared to the pay of their junior Sadhu Ram. On the strength of the aforesaid grounds, the applicants seek to quash the impugned orders, in the manner indicated herein above.
8. However, the respondents refuted the claim of the applicants and filed the written statement wherein it was pleaded that the representations of the applicants were declined, in view of para 2 (c) of the Railway Board Circular dated 7.12.1994 (Annexure A-1). It was alleged that the applicants were not included in the original select list, being not within the zone of consideration. Sh. Sadhu Ram was promoted on 26.6.1998, against the vacancy reserved for SC candidates, after granting him benefit of reservation. Whereas, the applicants were promoted and placed on the select list dated 29.6.1998. According to the respondents, no doubt Sadhu Ram was junior to the applicant but since he was promoted on 26.6.1998, whereas applicants were promoted on 11.7.1998, they were not entitled to parity of pay with him. It will not be out of place to mention, that in order to avoid the repetition of facts, suffice it to say that virtually acknowledging factual matrix and reiterating the validity of the impugned orders, Annexures A-1 to A-6, the respondents have stoutly denied all other allegations and grounds contained in the OA and prayed for its dismissal.
9. Controverting the pleadings of the reply filed by the respondents and reiterating the grounds contained in the OA, the applicants have filed a replication.
10. Having heard the learned counsel for the parties, having gone through the record, with their valuable help & after considering the entire matter, we are of the firm view that instant OA deserves to be accepted in the manner and for the reasons mentioned herein below.
11. At the very outset, in order to appreciate the rival contentions of the learned counsel for the parties, it would be expedient to reproduce the following chart (Annexure A-9):-
Emp. Name & category Father name Emps no.
Date of birth Date of joining Date of entry Grade III Date of entry Grade II Date of Entry Grade I Date of Entry Sr. Tech.
Date of Entry Narender Singh (GN) Gurmukh Singh 485 464 15-6-62 27-5-87 30-1-88 30-9-91 28-11-92 Seniority No. 62/1995 11-7-98 in continuation 26-6-98 5150/- Seniority No. 34/2007 17-9-08 20-2-2008 Yoginder Kumar Dubey (GN) Phool Chand Dubey 492 006 15-8-64 30-4-87 30-1-88 30-9-91 28-11-92 Seniority No. 63/1995 11-7-98 in continuation 26-6-98 5150 Seniority No. 35/2007 Sadhu Ram (SC) Ram Sharan 493 761 15-7-65 12-5-87 30-1-88 30-9-91 28-11-92 Seniority No. 66/1995 26-6-98 5150 Seniority No. 37/2007 26-07-13
12. A perusal of the record would reveal that the applicants remained always senior at every stage than their junior Sadhu Ram. It is not a matter of dispute that a notice for conducting selection to the 26 posts of Senior Technician was issued by the respondents on 2.5.1998. After suitability test, a select list, on promotion as of Senior Technicians (Shell), was published. Keeping in view the inherent irregularity in the assessment of vacancies for promotion, and in the wake of appeal of the applicant no.1, the vacancies were modified / increased on 10th Jun, 1998, in continuation of the earlier circular dated 2.5.1998, vide circular dated 17.6.1998 (Annexure A-7), to fill up two more vacancies. As a consequences thereof, in continuation of the earlier select list dated 29.6.1998, the promotion orders of the applicants were issued on 11.7.1998 (Annexure A-8). However, the respondents have fixed the pay of the applicants at Rs.15,740/-, whereas, pay of their junior Sadhu Ram was fixed as Rs.16,020/-.
13. Thus, it would be seen that the facts of the case are neither intricate nor much disputed and fall within a very narrow compass to decide the real controversy between the parties. Such being the position on record, now the short and significant question, that arises for our consideration in this case is, as to whether the applicants are entitled to the same pay scale at par with their junior Sadhu Ram, in the given facts and circumstances of the case, or not ?.
14. Having regard to the rival contentions of the learned counsel for the parties, to our mind, the answer must obviously be in affirmative, in this regard.
15. As is evident from the record, the applicants always remained senior to Sadhu Ram. Undoubtedly, Sadhu Ram was promoted on 26.6.1998 but when the irregularity in calculation of vacancies was brought to the notice, the competent authority, in continuation of the earlier select list, also promoted the applicants. Once the applicants and their juniors were promoted, in pursuance of the same notice, and in continuation of the same select list, in that eventuality, the applicants are entitled to the same pay scale as was granted to their junior, Sadhu Ram, by the competent authority. This matter is no longer res-integra and is now well settled.
16. An identical question came to be decided by the Honble Apex Court in the case of Er. Gurcharan Singh Grewal & Another Vs. Punjab State Electricity Board & Others, Civil Appeal No. 65-67 of 2009 @ SLP ) Nos. 12512-12514 of 2007 decided on 9.1.2009 wherein it was ruled as under :-
3. Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2.
14. We are unable to accept the reasoning of the High Court in this regard or the submissions made in support thereof by Mr. Chhabra, since the very object to be achieved is to bring the pay scale of the appellant No.1 at par with that of his junior. We are clearly of the opinion that the reasoning of the High Court was erroneous and the appellant No.1 was also entitled to the same benefits of pay parity with Shri Shori as has been granted to the appellant No.2.
15. We, accordingly, allow the appeals and set aside the judgment of the High Court. Consequently, the writ petition is also allowed and the respondents are directed to extend the benefits of pay parity with Shri Shori to the appellant No.1, as was done in the case of the appellant No.2.
17. This not the end of the matter. Again an identical issue was considered in the case of Dev Raj S/o Late Sh. Bhajan Singh & Others Vs. Union of India & Another, O.A.No. 1067-JK-2013 decided on 28.10.2014, by a coordinate Bench of this Tribunal (which has attained finality) wherein, under similar circumstances, while dealing with the same objection, as raised by respondents in the present case, it was held as under :-
4. In the written statement filed on behalf of the respondents, the facts of the matter have not been disputed. Reliance has been placed on Govt. of India, Ministry of Finance letter no.10/02/2011-EIII/A, dated 19.03.2012, wherein it was decided that in relaxation of stipulation under Rule 10 of CCS (RP) Rules, 2008, those Central Govt. Employees who were due to get their annual increment between February to June during 2006, may be granted one increment on 01.01.2006 in the pre-revised pay scale as a onetime measure and thereafter will get the next increment in the revised pay structure on 01.07.2006 as per Rule 10 of CCS (RP) Rules, 2008. The pay of the eligible employees may be re-fixed accordingly (Annexure R-1). Further under Rule 7, Note 7 of RPR 2008 (6th CPC), the pay of Govt. servant who, in the existing scale was drawing more pay immediately before 01.01.2006 than another Govt. servant junior to him in the same cadre, gets fixed in the revised pay band at the stage lower than that of such junior, his pay shall be stepped up to the same stage in the revised pay band as that of the junior. The applicants were getting equal pay to their junior on 31.12.2005, as such, these employees are not eligible for any benefit under the said Rules (Annexure R-2).
5. Arguments advanced by the learned counsel for the parties were heard when both sides reiterated the facts and grounds taken in the OA, rejoinder and the written statement respectively.
6. We have given our thoughtful consideration to the matter. It is evident from the material on record that while the applicants and their junior Sh. Jeet Ram were getting equal pay prior to 31.12.2005 due to the operation of the instructions dated 19.03.2012 (Annexure A-2). Sh. Jeet Ram, who is junior to the applicants was getting higher pay since 01.01.2006. It is indeed a settled principle of law that a senior employee in the same cadre cannot be paid less than his junior and hence the impugned order dated 17.01.2013 is set aside. The respondents are directed to step up the pay of the applicants to bring the same at par with their junior Sh. Jeet Ram and the arrears due to the applicants on this account may be released within a period of three months from the date of receipt of a certified copy of this order being served upon the respondents. No costs.
18. Therefore, it is held that the applicants are also entitled to the same pay, at par with the pay of their junior Shri Sadhu Ram, in the obtaining circumstances of the case. The contrary argument of the learned counsel for the respondents, strict sensu, deserves to be and is hereby repelled. The ratio of law laid down by Honble Apex Court and this Tribunal in the aforesaid judgments is, mutatis mutandis, applicable to the facts of the present controversy, and is a complete answer to the problem in hand.
19. In the light of aforesaid reasons, the OA is hereby accepted. The impugned orders, Annexures A-1 to A-6, relatable to denial of indicated benefit to the applicants, are set aside. At the same time, the respondents are directed to step up the pay of the applicants, at par with the pay of their junior Sadhu Ram, within a period of three months from the date of receipt of a certified copy of this order. However, the parties are left to bear their own costs.
(RAJWANT SANDHU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
Dated: 06.03.2017
HC*
1
(OA No. 060/00062/2015)