Central Administrative Tribunal - Bangalore
Tijo Thomas And Others vs South Western Railway on 3 March, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00163/2023
DATED THIS THE 3RD DAY OF MARCH, 2025
HON'BLE MRS. JUSTICE S. SUJATHA ...MEMBER(J)
HON'BLE DR.SANJIV KUMAR ...MEMBER(A)
1. Shri Tijo Thomas,
Aged 31 years,
S/o K.K.Thomas,
Assistant Loco Pilot,
South Western Railway,
Krishnarajapuram R S & P O.,
Residing at: # 20, 1st Main,
4th Cross, Balaji Layout,
Babusapalya,
Bengaluru-560043.
Karnataka.
2. Shri Rohith R.,
Aged 28 years,
S/o Rajendran S.,
Assistant Loco Pilot,
South Western Railway,
Krishnarajapuram R S & P O.,
Residing at: #34 Subha Nilayam,
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Kaveri Street, Vijinapura,
Opp. Jubilee School,
Bengaluru-560016, Karnataka.
3. Shri Athul K.,
Aged 28 years,
S/o Viswan K.,
Assistant Loco Pilot,
South Western Railway,
Krishnarajapuram R S & P O.,
Residing at: #59 Second Floor,
3rd Cross, LB Nagar,
B.Channasandra,
Bengaluru-560043.
4. Shri Nikhil N. Kurup,
Aged 29 years,
S/o Narayanakurup R.,
Assistant Loco Pilot,
South Western Railway,
Krishnarajapuram R S & P O.,
Residing at: 2/36, 2nd Cross Road,
Gayathri School Road,
Vijanapura,
Bengaluru-560016.
5. Shri Ranjul O.,
Aged 28 years,
S/o Raman O.,
Assistant Loco Pilot,
South Western Railway,
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Krishnarajapuram R S & P O.,
Residing at: #59 Second Floor,
3rd Cross, LB Nagar,
B Channasandra,
Bengaluru-560043.
6. Shri Praveen P Nair,
Aged 29 years,
S/o Prasannan Nair T.K.,
Assistant Loco Pilot,
South Western Railway,
Krishnarajapuram R S & P O.,
Residing at: #34 Subha Nilayam,
Kaveri Street, Vijinapura,
Opp. Jubilee School,
Bengaluru-560016,
Karnataka.
7. Shri G.Suresh,
Aged 27 years,
S/o G.Vasu,
Assistant Loco Pilot,
South Western Railway,
Krishnarajapuram R S & P O.,
Residing at: #A8 Second Floor,
Vijinapura, Dooravani Nagar,
Bengaluru-560043. ...Applicants
(By Advocate, Shri T.C.Govinda Swamy)
Vs.
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1. The Union of India,
Represented by the General Manager,
South Western Railway,
Headquarters Office,
Hubballi-520020,
Dharwar Dt., Karnataka.
2. The Chief Personnel Officer,
South Western Railway,
Headquarters Office,
Hubballi-520020
Dharwar Dt., Karnataka.
3. The Senior Divisional Personnel Officer,
South Western Railway,
Bengaluru Division,
Bengaluru-560023.
4. The Senior Divisional Personnel Officer,
South Central Railway,
Secunderabad Division,
Secunderabad-500025,
Telangana.
5. The Senior Divisional Personnel Officer,
South Central Railway,
Guntakkal Division,
Guntakkal -515801.
Andhra Pradesh. ...Respondents
(By Advocate, Shri K.Gajendra Vasu for Respondents)
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ORDER (ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicants have filed this original application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) Call for the records leading to the issue of Annexure A1 Memorandum bearing No.B/P.524/V/RNG/Pay Fixation/2019 dated 24.03.2023, issued on behalf of the third respondent, and quash the same to the extent it relates to the applicants;
(ii) Declare that the applicants are entitled to have the pay of Rs.25,500/- last drawn by them in the South Central Railway as Senior Assistant Loco Pilots protected w.e.f. the dates they had joined the Bangalore Division of South Western Railway in terms of Rule 1313(I)(a)(2) and (3) of IREC Vol.II read with Rule 227 of the IREC Vol.I and Annexure A6, without insisting that they should have rendered one year of service in the higher post in the previous division.
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(iii) Direct the respondents to fix the initial pay of the applicants in the Bangalore Division of South Western Railway at the stage of Rs.25,500/- the pay last drawn by them in the South-Central Railway, w.e.f. the dates they had joined the Bangalore Division of South Western Railway in terms of Rule 1313(I)(a)(2) and (3) of IREC Vol.II read with Rule 227 of the IREC Vol.I without insisting that they should have rendered one year of service in the higher post in the previous Division;
(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. Briefly stated the facts as narrated by the applicants are that Applicants Nos.1 to 6 commenced their service initially in the Secunderabad Division of South Central Railway as Assistant Loco Pilots in Level-2 of the Pay Matrix. The 7th applicant was appointed in the Guntakkal Division of the same South Central Railway. The applicants were thereafter promoted on regular basis S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 7 OA 163/2023/CAT/BANGALORE BENCH as Senior Assistant Loco Pilot in Level-4 of the Pay Matrix.
Accordingly, the applicants took over the higher responsibility of the post of Senior Assistant Loco Pilot on regular basis immediately after their promotion. The request of the applicants for their Inter-
Zonal/Inter-Divisional mutual transfer to Bangalore Division was considered and they were transferred and relived to Bangalore Division on various dates. Accordingly the applicants joined the Bangalore Division on 19.10.2022, 18.10.2022, 19.10.2022, 18.10.2022, 22.08.2022, 14.11.2022 and 02.11.2022 respectively.
The applicants' claim that on the date of their relief to Bangalore Division, they were drawing a basic pay of Rs.25,500/- in Level-4 of the Pay Matrix. The basic pay drawn in the erstwhile Division of South Central Railway in Level-4 of the Pay Matrix was initially protected in Bangalore Division in terms of Rule 227 read with Rule 1313 of the Indian Railway Establishment Code (IREC).
However, Memorandum dated 24.03.2023 (Annexure A1) was issued reducing the applicants' pay from Rs.25,500 to Rs.21,100/-
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with effect from the date of their joining the Bangalore Division.
Being aggrieved, the applicants have preferred this OA.
3. Learned Counsel Shri T.C.Govinda Swamy appearing for the applicant argued that the respondents have failed to protect the last drawn pay of the applicants for the reason that the applicants had not completed their period of probation of one year in the erstwhile Division, in terms of the Railway Board order bearing RBE No.161/2019 dated 30.09.2019. Placing reliance on Rule 1313((I)(a)(2) read with Rule 1313(I)(a)(3) of Indian Railway Establishment Code, Vol.II , learned Counsel submitted that Level-
4 pay applicable to Senior Assistant Loco Pilots begins from the stage of Rs.25,500/- . Under that Level-4, the applicants were drawing the basic pay of Rs.25,500/- as on the date of their relief on transfer to Bangalore Division of South Western Railway. Level-2 of the Pay Matrix in which the applicants were posted on being transferred to Bangalore Division, begins from the stage of Rs.19,900/- and proceeds upto Rs.63,200/-. As such the pay of Rs.25,500/-, as drawn by the applicant is much below the S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 9 OA 163/2023/CAT/BANGALORE BENCH maximum of the scale of pay/pay matrix applicable to the applicants as Assistant Loco Pilot. In terms of Rule 1313((I)(a)(2) read with Rule 1313(I)(a)(3) of the IREC Vol.II, the applicants are entitled to have their pay fixed/protected. Reliance is also placed on the order passed by this Tribunal, Ernakulam Bench in OA No.975/2012 [(DD: 12.12.2013) (Basaveswaran K. vs. Union of India and others)] confirmed by the Hon'ble High Court of Kerala in OP (CAT) No.113/2014 [(DD: 05.04.2023) (Union of India and others vs. Basaveswaran K.)] .
4. Learned Counsel Shri K.Gajendra Vasu representing the respondents submitted that the applicants are seeking relief to protect their pay of Rs.25,500/- last drawn by them in South Central Railway as Senior Assistant Loco Pilot with effect from the date they have joined the Bangalore Division of South Western Railway on Inter-Railway mutual transfer basis on unconditional willingness to come on reversion as Assistant Loco Pilot in Level-2 of VII CPC Pay Matrix in recruitment grade on bottom seniority without challenging the clarification issued by the Railway Board vide S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 10 OA 163/2023/CAT/BANGALORE BENCH Annexure A5 dated 30.09.2019 (RBE No.161/2019), which is not permissible, as all the Zonal Railways are bound to follow the instructions/guidelines/clarifications issued by the Railway Board from time to time in this regard. Learned Counsel further submitted that the applicants have directly approached this Tribunal without exhausting the alternative remedy available under service rules i.e., filing representation before the authorities. Reliance is placed on Para-9 of RBE No.8/2019 dated 11.01.2019 issued by the Railway Board regarding comprehensive policy on mutual transfer of non-
gazetted staff on the Zonal Railways. The copies of RBE No.148/2001 and RBE No.32/2017 as well as the Railway Board letter No.E(NG)I/88/CNS/2 dated 20.01.1989 referred to in the impugned order of pay fixation are placed before the Tribunal.
Accordingly, learned Counsel justifying the impugned order seeks for dismissal of the OA.
5. Heard the learned Counsel for the parties and perused the material on record.
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6. The moot question that arises for our consideration is, whether for the purpose of protection of pay on own request transfer from higher post to lower post, completion of probation period in the higher post is mandatory as envisaged in RBE No.161/2019 dated 30.09.2019?
7. The factual aspects are not in dispute. The issue that arises for our adjudication is only a pure question of law that too in the light of settled legal position enunciated by this Tribunal in OA No.975/2012 supra, confirmed by the Hon'ble High Court of Kerala at Ernakulam in OP (CAT) No.113/2014, supra. Hence the objection raised by the learned Counsel for the respondents as regards the applicants approaching this Tribunal sans filing any representation before the authorities deserves to be negated.
8. It is an admitted fact that no protection of pay drawn by the applicants has been given by the respondents, only for the reason of not completing the probation period in the promoted post of Senior Assistant Loco Pilot.
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9. Para-9 of the RBE No.8/2019 dated 11.01.2019 reads thus:
"9. Mutual Transfer on reversion:- It has been decided that Mutual transfers may also be permitted between staff in two different grades but only in the recruitment grade of the cadre and not in intermediate grades. Both the employees seeking mutual exchange shall have to give a written undertaking accepting reversion unconditionally and willingly in their own interest to the recruitment grade and bottom seniority in their respective new Unit in order to avoid future litigation. The expression mentioned in preceding lines, should necessarily be incorporated in the applications submitted by the employee concerned. The "Note" below Para 2(b)(iii) of Board's letter No.E(NG)I- 2017/TR/24 dated 22.09.2017 as mentioned in para 1 above stands deleted. Other terms and conditions for mutual exchange including community restrictions contained in Board's letters No.E(NG)I-2004/TR/16 dated 14.08.2007 & 22.10.2007 remain. (Board's letter No.E(NG)I-2018/TR/08 dated 26.10.2018 refers)."
10. There is no dispute with the recruitment grade and bottom seniority in the respective new Unit to which the applicants have S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 13 OA 163/2023/CAT/BANGALORE BENCH been transferred on their request for mutual transfer. Similarly, RBE No.148/2001 dated 02.08.2001 which deals with amendment of probation period of 12 months instead of 24 months in all grades of promotion, do not specify about completion of probation period as the regular service to avail the benefit of protection of last pay drawn on mutual transfer reversion. Again RBE No.32/2017 dated 06.04.2017, which refers to OM dated 31.03.2017 issued by the DOP&T clarifying regarding fixation of pay in case of employees who seek transfer to a lower post under FR 15(a), is silent about the protection of pay on mutual transfer and the relevant para therein reads thus:
2. Consequent upon the implementation of 7th CPC Report and CCS(RP)Rules, 2016, the concept of new Pay Matrix has replaced the existing Pay Bands and Grade Pays system. Accordingly, in partial modification of this Department's OMs dated 5th November, 2012 and 21st October, 2009 ibid, the method of pay fixation in respect of a Government Servant transferred to a lower post under FR 15(a) on his/her own request w.e.f 1.1.2016 will be as under:
S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 14 OA 163/2023/CAT/BANGALORE BENCH 'In case of transfer to a lower Level of post in the Pay Matrix under FR 15(a) on his/her own request w.e.f. 1.1.2016, the pay of the Government Servant holding a post on regular basis will be fixed in the revised pay structure at the stage equal to the pay drawn by him/her in the higher Level of post held regularly. If no such stage is available, the pay will be fixed at the stage next below in the lower Level with respect to the pay drawn by him/her in the higher Level of post held regularly and the difference in the pay may be granted as personal pay to be absorbed in future Increment(s).
If maximum of the vertical range of pay progression at the lower Level in which he/she is appointed, happens to be less than the pay drawn by him/her in the higher Level, his/her pay may be restricted to that maximum under FR 22(I)(a)(3)."
11. Now the issue boils down to RBE No.161/2019 issued by the Railway Board dated 30.09.2019 (Annexure A5) and the relevant paras are extracted hereunder:
"In the letters, referred above, mention has been made "of an employee holding a higher post on regular basis and has S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 15 OA 163/2023/CAT/BANGALORE BENCH completed a minimum period of 24 months in that higher post" / "Government Servant holding a post on regular basis."
2. In this regard clarification was sought from the Establishment Directorate, who have clarified as follows "Vide E(NG)'s letter no. E(NG)1-98/CN5/1 dated 02.08.2001 probation period is now 12 months in each grade (non-gazetted staff), Therefore, for the purpose of protection of pay as circulated by F(E)'s instructions on own request transfer from higher post to lower post, "regular" service will denote 12 months completion of service (i.e. probation period) in the higher post without any adverse action, unless duration of probation has specifically been provided for a particular post in rules",
12. The relevant portion of IREC Vol-II 1313 (FR-22)(I) reads thus:
"(2) When the appointment to the new post does not involve such assumption of duties and responsibilities by greater importance, he shall draw as initial pay, the stage of the time scale which is equal to his pay in respect of the old post held by him on regular basis or if there is no such stage S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 16 OA 163/2023/CAT/BANGALORE BENCH the stage next above his pay in respect of the old post held by him on regular basis.
Provided that where the minimum pay of the time scale of the new post is higher than his pay in respect of the post held by him regularly, he shall draw the minimum as the initial pay.
Provided further that a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an increment the time scale of the old post in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time scale of the new post.
On appointment on regular basis to such a new post, other than to an ex-cadre post on deputation, the Railway servant shall have the option to be exercised within one month from the date of such appointment, for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.
(3) When appointment to the new post is made on his own request under [Rule 227 (a)(2) -R1 (FR-15(A)(2)] and the maximum pay in the time scale of that post is lower S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 17 OA 163/2023/CAT/BANGALORE BENCH than his pay in respect of the old post held regularly he shall draw that maximum as his initial pay."
13. In OA No.975/2012 supra, Ernakulam Bench of this Tribunal referring to OA No.1064/2010 has observed thus:
"5. The issue for determination in this OA is whether the applicant in the facts and circumstances of the case is entitled for protection of pay on his inter-divisional transfer on request. This issue has been dealt with in a number of OAs. One such case, OA No.1064 of 2010 was allowed in favour of the applicant therein. The relevant part of the order is extracted as under:
"6. The issue of protection of pay on inter divisional transfer on request in a lower post has been considered by this Tribunal in a number of cases. In the common order in OA No. 701 and 703 of 2005 it was held as under:-
"7. Arguments were heard and documents perused. Under Rule 227 transfer on request for inter divisional posting is permissible and according to the latest clarification by the DOPT, pay drawn in the higher pay scale shall be S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 18 OA 163/2023/CAT/BANGALORE BENCH protected at the stage of pay in the lower pay scale. For an inter divisional transfer the loss sustained by the railway servant will be loss of seniority and he being placed at the lower pay scale. However, the pay drawn prior to such transfer has to be protected and fixation of pay shall be as contained in paragraph 2 of the OM dated 14.2.2006. There cannot be any other possibility for fixation of pay."
7. In the order in OA No. 893 of 1997 this Tribunal has held as under:-
"5. Coming to the argument of the respondents that the applicant was not holding a lien on a permanent post, we find that Rule 1313 as amended on 12.12.1991 does not prescribe the qualification of holding a lien on the permanent post. Hence, the argument also has to be rejected."
8. In the order in OA No. 1041 of 1995 it was held that the administrative instruction varying from Rule 1313 of Indian Railway Establishment Code Volume-II issued by the Chief Personnel Officer was S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 19 OA 163/2023/CAT/BANGALORE BENCH unsustainable as the Chief Personnel Officer was not competent to issue such an instruction dated 21.12.1994.
9. In OP No. 15340 of 2002 and connected cases the Hon'ble High Court of Kerala held as under:-
"8. This was hotly contested, and for two reasons. The first was that as per the norms, after promotion, the employee could have claimed the substantive pay for the post as of right only after a period of two years, during which period he was to be put on observation. Therefore, legally he could not have carried with him pay scale of Rs. 5500-9000/- when he opted for transfer, and to a lower post. The second submission was that rules did not permit an employee, who opted for reversion as junior most in a cadre, to claim salary of the higher post as the transfer was on his request alone and carried with it the disabilities including a reduction in pay. No rule required the Administration to pay salary admissible for the higher post to a person who opted to go over to a lower post, and admissibility S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 20 OA 163/2023/CAT/BANGALORE BENCH of such claims would have resulted in repercussions, far and wide.
9. The Tribunal had held that the two year rule would not have been applicable at all, since these were orders passed by the Senior Personnel Officer and could not have been treated as law, which enable the Administration to enforce such orders contrary to the prescriptions of the statutory rules, including the Railway Establishment Manual. The contention, therefore appears to have been overruled by the Tribunal by pointing out that in a series of cases such a view had been taken by the Tribunal and the Administration had not bothered to challenge any such orders and they had to be treated as having become final. The position after the amendment of Rule 1313 of the Indian Railway Establishment Code Vol. I had been considered by a Division Bench of the Tribunal in OA No. 1041 of 1995, where it had been held that:
"Sub Rule (a)(3) of Rule 1313 only prescribed a condition that the old post should have been held regularly. There is no mention of any S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 21 OA 163/2023/CAT/BANGALORE BENCH condition prescribing two years as a necessary service in the old post to qualify for the benefit granted by Sub rule (a)(3) of the Rule 1313."
Tribunal observed that it was impermissible for the Administration to overreach the above legal position declared, which had become final. It had also been noticed that the decision in OA No. 1041 of 1995 had been followed by the Tribunal in OA No. 893 of 1997 as also in OA No. 403 of 1997.
10. This seems to be a reasonable approach, as the two year rule does not appear to be one intended to do away with the settled rights of employees. Apart from the copy of the letter No. E(NG) I/88/CN5/2/RBE No. 23/89 dated 20.1.1989 from the Joint Director/Establishment (N)/Railway Board to the General Managers of All Indian Railways (Ext.P3), no other authority had been pointed out by Mr. Radhakrishnan for imposition of such stipulation. But, these administrative instructions had come in the effort of the Railway Board for simplification of S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 22 OA 163/2023/CAT/BANGALORE BENCH confirmation procedure for non-gazetted staff. A practical approach alone was being resorted to whereby the confirmation procedure was to be confined at entry cadre, and later on non- availability of permanent posts was not to create a career block. What had been proposed was a 'rigorous screening of his performance' and a possibility of reversion. This could not have, therefore, interfered with the rights of an officer to claim the salary on transfer or even in the case of a reversion, if otherwise rules permitted for such pay protection."
10. In view of the above settled legal positions the prescription of two years service in the old post to qualify for the benefit granted by other provisions is not to be applied. Following the above decisions we hold that the applicant is entitled to protection of pay without completing two years of regular service in the promoted higher grade of Station Master Grade-III in the scale of pay of Rs. 1400-2300/- (IVth CPC)/Rs. 5000-8000/- (Vth CPC). But in view of the long delay on the part of the applicant in making the claim for protection of pay, payment of arrears will have to be S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 23 OA 163/2023/CAT/BANGALORE BENCH restricted to 3 years prior to the filing of this OA on 29.11.2010. Accordingly, the Original Application is allowed as under.
11. The respondents are directed to fix the pay of the applicant w.e.f. 3.12.1996 duly protecting the pay of Rs. 5150/- drawn by him with all consequential benefits arising there from with arrears of pay restricted to three years prior to filing of this OA and thereafter and to issue appropriate orders in this regard within a period of sixty days from the date of receipt of a copy of this order. No order as to costs."
6. The settled legal position is that a Railway employee is entitled to protection of pay without completing two years of regular service in the promoted higher grade. It does not matter whether the probation period is one year or two years. Annexures A1 and A2 circulars of the Railway Board make it amply clear that on transfer to lower post under FR 15(a) the pay of an employee holding the post on regular basis will be fixed at a stage equal to the pay drawn by him in the higher grade. If no such stage is available the pay will be fixed at the stage next below the pay drawn by him in the higher post and the difference may be granted as personal pay to be absorbed in future increments. The applicant in the instant OA is entitled to the benefit granted by the Railway Board as above."
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14. Hon'ble High Court of Kerala in OP (CAT) No.113/2014 supra, filed against the order in OA No.975/2012 observed thus:
"8. The employee/applicant has requested a transfer from the Bangalore division to the Palakkad division of Southern Railway, accepting reversion. The transfer is as per Rule 227 of the Indian Railways Establishment Code, which reads as follows:
"227. Conditions Of Transfer:- A competent authority may transfer a Railway servant from one post to another provided that, except: (1) On account of inefficiency or misbehavior, or (2) On his written request.
A Railway servant shall not be transferred to, or except in a case or dual charge, appointed to officiate in a post carrying less pay than the pay of the post on which he holds a lien."
9. Annex.A1 office memorandum clarifies the fixation of pay in case of an employee seeking transfer to a lower post under FR 15(a). It clarifies that on transfer to a lower post scale under FR 15(a), the pay of a Government servant holding a post on a regular basis, will be fixed at a stage equal to the pay drawn by him in the higher stage. If no S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 25 OA 163/2023/CAT/BANGALORE BENCH such stage is available, the pay will be fixed at a stage next below the pay drawn by him in the higher post, and the difference may be granted as personal pay to be absorbed in future increments. If the maximum of pay scale of lower scale is less than the drawn by him in the higher post, the pay may be restricted to the maximum under FR 22(1)(a)(3). Thus Rule 1313 FR(22)(I) deals with the Railway Fundamental Rules regarding pay and increments. Sub rule 3 reads as follows:
"(3) When appointment to the new post is made on his own request under (Rule 227 (a) (2)-RI (FR-15A) (2)) and the maximum pay in the time scale of that post is lower than his pay in respect of the old post held regularly, he shall draw that maximum as his initial pay."
10. This court had an occasion to consider a similar issue in O.P. No.15340 of 2002. It held that the two-year rule does not appear to be one intended to do away with the settled rights of the employee. Therefore, it was held that the pay has to be protected even though it was held that though the employee has not completed two years of probation, he is entitled to the protection of his pay even in inter divisional transfer. Relying on the judgment of this court, S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 26 OA 163/2023/CAT/BANGALORE BENCH the Tribunal has held that it is settled law that the twoyear period of service in the old post to qualify for the benefit granted by the other provisions is not to be applied. Therefore, it was held that the applicant is entitled to succeed, and the respondents were directed to fix the pay scale with effect from 20.3.2006 duly protecting his pay in the scale of Rs.4000-6000 (PB-1) plus grade pay of Rs.2,400/. The Tribunal has clearly held that Annex.A1 and A2 circulars of the Railway Board make it clear and FR 15
(a) also protects the pay of the employee holding the post on a regular basis will be fixed at the stage equal to the pay drawn by him in the higher grade. We have gone extensively through the order of the Tribunal as well as Annex.A5 similar order in O.A. 1064 of 2010 and the relevant rules of the Indian Railway Establishment Code. We are fully convinced that the Tribunal has correctly applied the applicable rule and has held that the employee's pay has to be protected. We do not find any ground to interfere with the order of the Tribunal under Article 227 of the Constitution of India. Accordingly, the Petition fails."
15. Thus in the light of the aforesaid law declared by the Hon'ble High Court of Kerala confirming the order of this Tribunal (Ernakulam Bench) in OA No.975/2012, the respondents relying on S SARALADEVI S CAT, BANGALORE SARALADEVI2025.03.10 11:40:48-12'00' 27 OA 163/2023/CAT/BANGALORE BENCH RBE No.161/2019 dated 30.09.2019 to deny the protection of pay to the applicants for not completing 12 months of probation period in the promoted higher grade on transfer to the lower post under FR 15(a), is illegal. It is trite that statutory Rule 1313(I)(a)(2) and (3) prevails over the administrative instructions RBE No.161/2019.
16. For the reasons aforesaid, the impugned memorandum dated 24.03.2023 issued on behalf of the 3rd Respondent (Annexure A1) is set aside. The respondents are directed to re-fix the initial pay of the applicants in the Bangalore Division of South Western Railway at the stage of Rs.25,500/-, the last pay drawn by them in the South Central Railway with effect from the date they had joined the Bangalore Division of South Western Railway in terms of Rule 1313(I)(a)(2) and (3) of IREC Vol.II read with Rule 227 of the IREC Vol-I without insisting that they should have rendered one year of service (completed the probation period) in the higher post in the previous Division. Compliance shall be made in an expedite manner, in any event not later than 12 weeks from the date of receipt of certified copy of the order. Ordered accordingly.
S SARALADEVI
S CAT, BANGALORE
SARALADEVI2025.03.10
11:40:48-12'00'
28 OA 163/2023/CAT/BANGALORE BENCH
17. With the aforesaid observations and directions, OA stands disposed of.
No order as to costs.
sd/- sd/-
DR.SANJIV KUMAR (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
S SARALADEVI
S CAT, BANGALORE
SARALADEVI2025.03.10
11:40:48-12'00'