Central Administrative Tribunal - Allahabad
Dharam Pal vs General Manager N C Rly on 11 April, 2018
Reserved
(On 13.03.2018)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Dated: This the 11th_ day of April 2018
Original Application No 330/01252 of 2014
Hon'ble Mr. Gokul Chandra Pati, Member - A
Dharam Das, S/o Firuwa, R/o 1562 - D Pandey Ka Farm, Tubwell Road,
Khati Baba, Insaie Tola, Jhansi, District Jhansi (UP).
. . .Applicant
By Adv: Shri S.C. Srivastava
VERSUS
1. Chairman Railway Board, Rail Bhawan, New Delhi.
2. General Manager, North Central Railway (NCR), Head Quarter,
Allahabad (UP).
3. Divisional Railway Manager (Personnel), North Central Railway,
D.R.M. Office, Jhansi.
. . . Respondents
By Adv: Shri B. Tiwari
ORDER
This OA has been filed by the applicant with the following reliefs:-
"i. a order or direction in the nature of certiorari quashing the order dated24.09.2013 passed by the respondent no. 3 (enclosed along with Annexure no. 10 to the original application);
ii. a order or direction in the nature of certiorari quashing the order dated 10.09.2014 passed by the respondent no. 4 (Annexure no. 14 to this original application);
iii. a order or direction in the nature of mandamus commanding the respondent authorities to provide the pay protection to the petitioner as has been done up to 01.10.2004 and accordingly after that period he may be given the annual pay fixation and increment strictly in accordance with law within a period to be specified by this Hon'ble Court;
iv. any other order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case;
v. award costs of the application to the applicant."
2. The brief facts of the O.A. are that the applicant was appointed as a Junior Clerk in the Railways on 19.02.1991 in the pay scale of Rs. 950- 1500. The respondent no. 2 issued a notification for General Departmental Competitive Examination (in short GDCE) on 20.08.1993 (Annexure No. 2 A-1 to the O.A.) to fill up 25% of different Group 'C' posts by way of direct recruitment. On the basis of aforesaid circular dated 20.08.1993, a notification dated 11.02.1994 (Annexure No. 2 to the O.A.) was issued by the respondent no. 3 to fill up 25% quota through GDCE for direct recruitment vacancy of ticket collector and commercial clerk. As the applicant was fulfilling the essential qualifications for the post of Ticket Collector, he applied for the same and after getting requisite training, was declared successful vide office order dated 13.08.1996 (Annexure No. 3 to the O.A.) and was given posting as Ticket Collector in the Grade of Rs. 950-1500. In the aforesaid order the name of the applicant finds place at serial no. 14. The result of section to the post of Ticket Collector was declared on 13.08.1996 but before the aforesaid selection, the applicant was given departmental promotion as senior clerk in the higher pay scale of Rs. 1200-2040 vide order dated 19.09.1995 (Annexure No. 4 to the O.A.). As such the applicant, at the time of selection to the post of Ticket Collector in pursuance of the select list dated 13.08.1996, was getting the pay scale of Rs. 1200-2040. Therefore, when he was given posting as the Ticket Collector, his pay was protected and as such his pay was fixed as Rs. 4430 + 70 (PP) w.e.f. 21.08.1996. Since the pay scale of Rs. 1200- 2040 was revised w.e.f., 01.01.1996 as Rs. 4500-7000 and the pay of the petition as senior clerk was fixed as Rs. 4500/- in the pay scale of Rs. 4500-7000. Hence at the time of posting on the post of ticket collector, with revised pay scale of Rs. 3050-4590 w.e.f., 01.01.1996, the pay of Rs. 4430/- + Rs. 70/- was fixed for the applicant to protect the pay of Rs. 4500/- which the applicant was getting as Senior Clerk.
3. His pay was protected accordingly every year, thereafter, and he was paid salary accordingly up to 01.10.2004 when his pay was fixed as Rs. 5200/-. The entries made in the service register also indicate the fact that the applicant was promoted from Ticket Collector to Travel Ticket 3 Examiner (TTE) w.e.f., 13.10.1998 in the Pay Scale of Rs. 4000-6000 and his basic pay was protected under FR 22 (1) and by giving the pay protection he was allowed the basic pay of Rs. 5200/- upto 01.10.2004. But when the applicant received his salary in the month of March, 2005, he noticed notice that his basic pay had been reduced from Rs. 5200/- to Rs. 4600/- without any information to him. He approached the respondents authority for redressal of his grievance. However, no fruitful answer was given by the respondents. Thereafter, the applicant sought information under RTI Act and vide letter dated 27.08.2008 (Annexure No. A-8 to the O.A.) he was informed that there is no specific instruction with regard to pay fixation of an employee who succeeded in departmental competitive examination. The respondents also vide letter dated 03.11.2008 (Annexure No. 9 to the O.A.) informed the applicant that there are no specific instruction with regard to provision of fixation of pay of an employee on his appointment from a higher grade to lower grade.
4. As the reply dated 03.11.2008 given by the respondents was vague and did not clarify the correct position of law, the applicant again sought information under RTI Act upon which the respondent no. 3 vide his letter dated 22.11.2013 (Annexure No. 10 to the O.A.) the applicant was informed that, as the applicant himself had accepted the pay scale of Rs. 3050-4590 which was lower than the grade of Rs. 4500-7000/- as senior clerk, due to non-completion of two year service as senior clerk, no pay protection is permissible to the applicant. The applicant came to know about the order dated 24.09.2013 passed by respondent no. 3 by which the benefit of pay protection was denied. After the order dated 24.09.2013, the respondent no.4 also issued an order dated 10.09.2014 (Annexure No.
14) that wrong payment made to the applicant w.e.f., 1994 to 2004 shall be recovered in 40 installment. The applicant has filed this O.A. 4 challenging the arbitrary method of pay fixation by which the salary of the applicant has been reduced without any authority.
5. The contention of the applicant in the OA is that the applicant was appointed as Ticket Collector under departmental competitive examination as per the policy of the Railway Board and when the applicant was given appointment on 13.08.1996, he was already promoted as Senior Clerk in the revised pay scale of Rs. 4500-7000/-.
6. Learned counsel for the respondents filed counter affidavit by which it has been stated that the applicant's pay was fixed @ 4430/- + 70 (PP) from 21.08.1996 by mistake, whereas as per Railway Board's letter dated 24.02.1995 and 20.08.1999, the applicant was not entitled for pay protection as per rule in lower grade i.e., 1200-2040 (PRS) to 950-1500 (RPS) because the applicant had not completed two years in higher grade i.e., 1200-2040 (PRS). After being selected in said selection, pay was wrongly protected and fixed @ 4430 + 70 (PP) w.e.f., 21.08.1996 but later on it has come to notice of Railway Administration that applicant's pay was wrongly fixed. Therefore, re-fixation was made as per rule and pay was fixed correctly @ Rs. 3275/- & accordingly pay was reduced from 5200/- to 4600/- w.e.f., July, 2006. It has been further stated that in reply to RTI vide letter dated 27.08.2008, it was clarified that no separate specific rule of pay fixation was applied but pay fixation Rule FR-22 uniformly was applied to all employees who have been selected and promoted in GDCE.
7. Learned counsel for the applicant filed rejoinder affidavit basically reiterating the facts stated in the O.A.
8. Heard learned counsel for the applicant who submitted that the benefit of pay protection given to the applicant has been withdrawn 5 treating the appointment as ticket collector from the post of senior clerk as transfer to a lower post on his own request and in such cases, as per the Railway Board circular dated 20.08.1999, the benefit of pay protection is available if the employee has completed 2 years or more in the post carrying higher pay. In this case, the applicant had not spent more than 2 years in the post of senior clerk, hence, the respondents contended that he is not entitled for pay protection. Learned counsel for the applicant argued that the case should not be treated as transfer on own request as per the letter dated 29.05.1998 of the Railway Board (Annexure No. 13 to the OA), where a Policy decision was taken to treat the appointment of the employees who qualify for 25% of direct recruitment vacancies under GDCE as not the appointment or transfer on own request and the concerned employees would be entitled for TA on transfer, if posted to a different station. Accordingly, the case of the appointment of the applicant as ticket collector after qualifying the prescribed departmental test, should not be treated as transfer on own request. Since it is not to be treated as transfer on own request, the circular dated 20.08.1999 is not applicable.
9. Learned counsel for the respondents submitted that the issue was whether the pay of the applicant as ticket collector would be fixed as per FR 15 or FR 22(b). The respondents have treated it as a case of transfer on own request where the benefit of pay protection is available if the applicant would have worked for 2 years or more in higher pay scale as senior clerk. Hence, it was argued that the decision to reduce the pay of the applicant is correct as it was fixed at a higher level wrongly.
10. The submissions and the pleadings of both the parties have been carefully considered by me. It is seen that the applicant's contentions in para 4(xxi) of the OA about the letter dated 29.05.1998 of the Railway Board (Annexure No. 13 to the OA) under which the cases of appointment 6 of the staffs under 25% departmental quota in DR vacancies were not to be treated as transfer on own request, have not been contradicted by the respondents vide para 16 of the counter reply. Hence, the appointment or transfer of staffs who qualify in the departmental tests for 25% quota of DR vacancies are not to be treated as transfer on own request for the purpose of TA and allowances applicable for transfer.
11. The respondents have not furnished any rule or circular of the Railway Board in support of their contention that the appointment of the applicant as ticket collector after his passing the GDCE against 25% quota for DR vacancies are to be treated as transfer on own request for the purpose of fixation of pay. For fixation of pay on promotion or on transfer / appointment to a different post, para 12 of the Master Circular No. 56 of the Railway Board states as under:-
"12. Fixation of pay-on transfer from one post to another when the appointment does not involve assumption of higher responsibilities.
12.1 As per clause (a) (2) of FR 22(1), when a Govt. servant holding post, other than a tenure post, in a substantive, temporary or officiating capacity is appointed in a substantive temporary or officiating capacity, as the case may be, to another post which does not involve assumption of duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the new post should be fixed at the stage which is equal to his pay in respect of the old post held by him on regular basis and he will draw his next increment in the new post on the date on which he would have received an increment in the time scale of the old post. If there is no such equal stage in the time scale of the new post, his initial pay in the new post will be fixed at the stage next above his pay in respect of the old post and he will draw his next increment in the new post on completion of the period when an increment is earned in the time scale of the new post.
12.2 The above proviso is also applicable in the case of appointments to non-functional selection grade posts.
12.3 As per the first proviso to cl. (a)(2) of FR 22(I), if 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, his initial pay should be fixed at the minimum the new post."
12. In case the post of ticket collector is considered to be the post carrying higher responsibility than the post of senior clerk, then also the benefit of pay protection is available under FR 22 and para 11 of the Master Circular No. 56 of the Railway Board, which states as under:- 7
"11. Pay on promotion/ appointment i. Fixation of pay of a Govt. servant on promotion/ appointment from one post to a higher post.
As per clause (a) (I) of FR 22, when a Govt. servant holding a post, other than a tenure post, in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, to another post carrying duties and responsibilities of greater importance then those attaching to the post held by him, his initial pay in the time scale of the higher post should be fixed at the stage above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage, at which such pay has accrued or rupees twenty five whichever is more. In doing so, as applicable w.e.f. 1.1.1986, if there is an EB falling between the two stages, in the scale of pay of the lower post no orders for crossing EB are necessary for the purpose of fixing the pay in the higher post. This provision is applicable to all cases of promotions to higher posts without any monetary limit."
13. In view of the instructions of the Railway Board as discussed above and in absence of any rule or instructions of the Railway Board to treat the appointment of the staffs under 25% departmental quota for DR vacancies as transfer on own request for the purpose of pay fixation, I am not able to accept the contentions of the respondents that the pay protection benefit was wrongly allowed to the applicant. Moreover, before taking a decision to reduce the pay of the applicant adversely affecting his salary, a show cause notice should have been issued and he should have given an opportunity of being heard. There is nothing on record to show that this has been done. Hence, there is a violation of the principle of natural justice.
14. In view of above discussions, the impugned order dated 10.09.2014 (Annexure No. 14 to the OA) withdrawing the benefit of pay protection to the applicant in violation of the principles of natural justice, based on the presumption that the appointment of the applicant as ticket collector was transfer on own request, is not legally sustainable in absence of any specific rule or instructions of the Railway Board to that effect. Hence, the said impugned order dated 10.09.2014 is liable to be set aside and quashed. Accordingly, the said order is set aside and quashed and the respondents are directed to restore the benefit of pay protection extended 8 to him till 01.10.2014 with consequential benefits within three months from the date of receipt of a copy of this order. However, in case after compliance of this order if it is found by the respondents that the applicant is drawing a higher pay than his entitlement as per the existing rules, then the respondents are at liberty to rectify the error as per the provisions of the rules / instruction of the Railway Board, after giving an opportunity to the applicant of being heard and after following the procedure laid down under the rules / instructions of the Railway Board.
15. The OA is allowed as above. No order as to costs.
(Gokul Chandra Pati) Member (A) /pc/