Central Administrative Tribunal - Cuttack
Kalipada Das vs M/O Railways on 20 October, 2023
i G4 SHU (R017 7 af S020 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH é id ges ¢ 2 cng gk ee - Eger e ' sy ~ 3 is ~ es Reserved orm: 18.10.2023 Pronounced an: ef /OsFeecs CORAM:
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER {A} HON'BLE MR. RA]NISH KUMAR RAI, MEMBER {J} Kalipada Das, aged about 55 years, Son of Late Jagannath Das, at present working as Technician Grade | (SMW), Office of WPO/CRW/ East Coast Railway/Mancheswar, residence of B.D.A. Colony, MIG-IL/7/6, Chandrasekharpur, Bhubaneswar ~ 23, Odisha.
Applicant VERSUS
1. Union of India, represented threugh the General Manager, East Coast Railway, E.CoR Sadan, Chandrasekharpur, Bhubaneswar, Dist. Khurda-752017,
3. Chief Work Shop Manager, Carriage Repair Workshop, East Coast Railway, Mancheswar, Bhubaneswar, Dist Khurda-
PoL0R 1.
3. Workshop Personnel Officer, Carriage Repair Workshop, E.Co. Rly, Mancheswar, Bhubaneswar, Dist. Khurda-75i007. ooaRespandents For the applicant > Mr N.R.Routray, Counsel For the respondents - Mr, D.Lenka, Counsel 2 QA BOO PRIOT FT wf 2020 g RD ER PRAMOD KUMAR DAS, MEMBER (AL:
The case of the applicant is that he was appointed as a SMW with stipendiary pay of Rs. a50/+ plus allowances In pay scale of Rs. 950+ yso00/- on 12.04.1298" and was regularized against the working post waft, OL041997. He submitted representation praying for grant of financial upgradation under ALP Scheme 1999 by taking into consideration the period of service starting from 12.04.1988. The said representation was considered and rejected vide order dated 17.45.2020 (Annexure-A/7] on the ground that the applicant was posted as Trainee:
Skilled Artisan with stipendiary pay on 12.04,1988 and due to non- availability of regular vacancy he was regularized only wef 0 LO L99o? and, thus, the applicant was not entitled to 1 financial upgradation under ACP wef 12.04.2000 as claimed by him since he did not complete regular service of 1¢ years fram the date of his regular appointment from 01.04.1997. Being aggrieved, the applicant has Aled this GA seeking for a direction to the respondents to grant him 18 financial upgradation wef 11.04.2000 and pay the differential arrear salary as per the arder wt
3 DA CoO HOTTY af 2ha8 dtd, 22.10.2019 of the Hon'ble Apex court in SLP (C) No. 28896 /2019 by guashing the order dated 17.03.2020 (Annexure-A/7) rejecting his representation.
2. itis the specific case of the applicant both in pleadings so also in course of hearing that the sole issue invalved in this OA relating to counting the period of service of the applicant from the date of his initial appointment/joining as a Trainee Artisan for the purpose of grant of 18 Anancial upgradation under ACP Scheme Is set at rest/ne more res integra in view of the authoritative pronouncement of the decision by this Tribunal in OA No. 192/2010 (Chittaranjan Mohanty Vs UO] &Ors. disposed of on22.03.2012) which was upheld by the Hon 'ble High Court of Orissa vide order dated 06.02.2013in W.P(C) No. 12425/2012and by the Hon'ble Apex Court vide order dated 02.08.2019 in SLP Na. 11040 /2013. Further, in similar case, the arder of this Tribunal in GA No. 924 /2013 (Parsuram Nayak Vs UO! &Ors. disposed of on 07.04.2016) has heen upheld by the Hon'ble High Court of Orissa vide order dated 8.03.2017 In W.P{C) No. 19250/2016 and by the Hon'ble Apex Court vide order dated 15.09.2017 in SLP/Diary No. 23168/2017. Hence, according to the applicant, the rejection of the representation without Ex CA REPT af S028 taking note of the aforesaid decision ls bad in law. According ta the Ld Counsel for the applicant, the point of delay and latches taken by the respondents in their counter has no application since grant af financial benefit is a recurring cause of action. However, It has been submitted that in similar matter this Tribunal in MA No.922/2019 (OA 556/2018- Chittaranjan Hota Vs. UOL &Ors} dismissed the application filed for grant of benefit bf ACP on the ground of limitation vide order dated 17.03.2021. The Hon'ble High Court quashed the order of dismissal an the ground of limitation and allowed the case af the applicant for grant of ACP vide order dated 06.12.2022. The sald order was implemented by the railway granting the benefits to the applicant therein. Therefore, the ground of delay and latches taken by the respondents has no application to the present case. Hence, the Ld. Counsel for the applicant has reiterated grant of relief in this QA.
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3. Respondents filed their counter contesting the case of the applicant and by placing reliance on the counter, Ld. Counsel! for the respondents submits that since the applicant was appointed as Temporary Trainee Skilled Artisan on stipendiary pay on L244. 1988, his appointment from that date cannot be said to be on regular basis. His § GA 26D /OOOL7T of 2020 appointinent was subject to the successful completion of the period of training. Since there was no sanctioned post available, applicant, along with other trainees, were allowed to continue as Trainee Skilled Artisan which was extended subsequently for want of regular posts. In the meantime, applicant and others fled OA 427/1989, which was disposed of by this Tribunal vide order dated 15.10.1990 directing respondents to get them absorbed in regular cadre of Skilled Artisan Gr, IH] within a period of 3 months by doing the needful. However, only 11 could be absorbed against the available vacancies. Unabsorbed candidates, alleging non-compliance of the order of this Tribunal, filed CP 10/91, which was dropped on 09.11.1992 granting liberty to the petitioners to file representation in respect of bonus and other service benefits and competent authority was asked to explore possibility of absorption of the rest of the candidates within 30 days and if the applicants refuse to accept the offer, then it will be at their own risk and no further offer would be given. Subsequently, all the applicants in OA 427/1989, including the present applicant, were absorbed against the regular vacancies. Since there was no regular vacancy In Mancheswar Warkshop, the applicant could not be regularized on completion of six months _ & OS SHU OINIIT? of S020 training and, accordingly, the training period of extended. Applicant was regularized as Skilled Artisan Gr-lll (SMW) at CRW/ Mancheswar vide Office Order dated 01.04.1997. He was promoted to the post of Tech, Gr-
Hh (SMW), Tech. Gr-l (MW) wef 06.10.2012 and O1.09.2016 respectively. As a matter of policy, the Govt. of India, on acceptance of the recommendation of the 5% CPC intreduced Scheme for granting two financial upgradations under ACP at the interval of 12 and 24 years of continuance regular service without any promotion, which was duly accepted and implemented by the Railways vide RBE No. 233/1999, Since, the initial engagement of the applicant was as a Trainee Skilled Artisan on stipendiary basis with payment of Rs. 950/-, he is not entitled to count the 12 years of regular service w.ef the date he was engaged on consolidated amount of Rs. 950/- plus other allowances, Le. from 12.04.1988 till regular appointment on 01.04.1997, Hence, there was no wrong in the decision taken by the respondents rejecting his claim.
4, We have considered the submissions noted above and perused the records.
5. 'The anly questien that arises for consideration in this OA ts as to whether the period from the date of applicant's initial engagement as ? QA 260 /0008 7 F of O20 Trainee Artisan till regularization shall be counted towards qualifying serving for the purpose of counting 12 years regular service for grant of first financial upgradation under ACP. In this connection, it is profitable to place reliance on the decision of this Tribunal in OA Na. 192/2010 (Chittaranjan Mohanty Vs UO! &0rs. disposed of on 22.03.2012) upheld by the Hon'ble High Court of Orissa vide order dated 06.02.2013 in W.PEC) No. 12425 /2012 and by the Hon'ble Apex Court vide arder dated 02.08.2013 in SLP No. 11040/2012. Subsequently, in OA No. 924/2013 (Parsuram Nayak Vs UOI &Ors, disposed of on 07.04.2016) has also been upheld by the Hon'ble High Court of Orissa vide order dated 08.03.2017 in WLP(C}) No. 19250/2016 and by the Hon'ble Apex Court vide order dated 15.09.2017 in SLP/Diary Na. 23168/2017. The relevant portion of the order of this Tribunal In OA 192 /2010 ts as under:
"6, This was abjected to by Learned Counsel for the Applicant on the ground that the applicant was appointed as Trainee Artisan in a particular scale of pay (Rs.950-1500/-}. He has been granted annual Increment since 29.03.1988 and, as such the period of service from 1988 onwards should be reckoned for the purpose of counting reckonable service for grant of ACP Although the applicant was appointed as Trainee Artisan on a stipend of Rs.950/-, subsequently vide order under Annexure-A/1 dated 03-09- 1991 he was allowed the scale of pay of Rs 950-1500/- from the date of the order. During the course of hearing, Learned res) tA 2607000277 af 2026 Standing Counsel for the Respondents produced before us the service sheet of the applicant. On perusal of this document it reveals that increment has been granted to the applicant on Annual basis wef, 29.09.1988 in terms of Establishment Srl No.109/92 and his pay was accordingly refixed. We have perused the Estt. Srl No. 109/92 whereunder the Railway have decided that the period of training will be treated as duty for the purpose of grant of increments to those railway servants who have undergone such training on or after 01-01-1986. It has further been provided therein (Estt. Srl. No.109/92) that the benefit of counting the period for pay will be admissible on-notional basis from 11.1966 and on actual basis from 01-10-1990. In view of the above the contention of the Respondents that the period spent by the applicant a Trainee Artisan and hence is not reckonable for the purpose of ACP cannot be accepted, Since the period from 1988 onwards has been treated as duty and pay has been refixed allowing annual increments though on notional basis, there cannot be any ambiguity on the issue that the said period of service cannot be taken Into account for the purpose of reckonable service for grant of ACP, ? As far as the contention of the Respondents' counsel that this case being covered by the order of this Tribunal in OA No, 190/10, can be disposed of by leaving the matter to the authorities to examine the case of the applicant, as directed in the aforesaid OA, we do not find justifiable reason to do so because in the earlier OA, we had no occasion to peruse the Estt. S80 No. 109/92 and the service sheet of the said applicant while passing order in OA No. 190/10.
8 In view of the discussions made above, the order of rejection af Annexure-A/? cannot be held to be justified and the same is accordingly quashed. The Respondents are hereby directed to count the period of service of the applicant from 29.3.1988 for the purpose of grant of ACP and allow the applicant financial benefits under ACP if he ANPP IDE ETE sae delat gece
6. 2 OA 260/000 177 of BIg fulfils the other conditions required for grant of financial up-gradation under ACP, Respondents are further directed to complete the entire exercise within a period of 90 days from the date of receipt of copy of this order."
The Hon'ble High Court of Orissa in W.P.{C) No. 19250/2016 (UQL & Ors. Vs. Parsuram Nayak) observed as under:
"In this writ petition, the petitioners, Le, East Coast Railway and its functionaries have challenged the order dated Q7.04.2016 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in Q.A. No. 924 of 2013, wherein the Tribunal had directed the present petitioners to calculate the period undergone towards training while granting ist financial up-gradation, Present opposite party no. entered to the Railway Service on 30.03.1988 as a Skilled Artisan/Welder Grade-Ill, Thereafter he was sent for in-service training. While continuing as such, since he completed 12 years of qualifying service on 29.03.2000 and the benefit of 1s financial upgradation was not extended in his favour, he was rejected by the railways vide order dated 25.11.2013 an the ground that since the applicant was regularized as Tech. Gr-HI (Welder) with effect from 04.09.1997, therefore, 12 year is to be counted from 04.09.1997 and period from 30.03.1988 ta 03.09.1997 is to be counted towards training. The said order dated 25.11.2013 was challenged by the applicant in OLA. No. 921 of 2013, The Tribunal while disposing 0.A. No. 924 of 2013 taken into consideration of the fact that such an issue has no longer res-integra in view of the decision in OA. No. 192 of 40 QA SAO ONO TTF of 2020 2010, which was confirmed by this Court in W.P.{C) No. ig4z5 of 2012 and by the Apex Court in SLP No, 11040 of 2013. The Tribunal therefore quashed the order of rejection dated 25.11.2013 and directed the respondents to grant Ist financial upgradation with effect fram 29.03.2000 with the consequential financial benefits in favour of the applicant.
Since the issue has already been settled by the Apex Court and basing on that, the impugned order was passed, we do not find any Hlegality or irregularity in the impugned order to be interfered with."
Hon'ble High Court in another similar matter Le. W.P {C) No. 16565 of 2016 + batch case (Union of India vrs Bhagaban Mishra) vide order dated 01.05.2017 while dismissing the writ petition had held:
"On the basis of the admitted position that the apposition parties - applicants have been appointed in pursuance to the advertisement No. M8/476/MCS/R&S, as such there is no dispute about the fact that they have been appointed after getting either ITI certificate or apprenticeship certificate under the Apprenticeship Act, 1961 and got their engagement in pursuance to the said advertisement as trainees and on successful training they have been taken under regular establishment on different dates, as such we are not in hesitation to hold on the basis of this factual aspect which has been placed before us that the said training period is in service training.
It is not res integra/ that In service training period would not be counted for counting the length of service, learned Sr. Counsel for the East Coast Railway has submitted that it is the pre service training as has been obtained hy them under the Apprenticeship Act, 14961, this argument is not acceptable to us in the view of the admitted position in the case that the applicants have been appointed in MI GA SQN PY of 2020 pursuance to the advertisement No. M3 /476/MCS/RES which requires minimum qualification to have ITI or the certificate of apprenticeship, hence we are of the considered view that the training obtained by them is during service period and as such the said period would not in any stretch of imagination not be counted for the purpase of counting the length of period of service."
The SLP No. 28896 /2019 filed by the respondents challenging the above order of Non'ble High Court was dismissed by Hon'ble Apex Court vide order dated 22.10.2019 with the following observations:
"We find no ground to interfere with the impugned order {s} passed by the High Court on the ground that the petitioners were given the regular pay scale and the increments were also given to them right from day ane, Even during the training period, increments were given to them. We have considered the policy pertaining to ACP. On perusal of the same, we find no ground to deny the benefit oftraining period, which was after appointment.
The Special leave petitions are, acco rdingly, dismissed,"
The decision of the Hon'ble Nigh Court of Orissa in WLPYC) 2718/2021 dated 06.12.2022, so far as delay is concerned, reads as under:
"This matter is taken up through hybrid mode.
«. Heard Mr. N.R.Routray, learned counsel appearing for the petitioner and Mr, J. Nayak, Central Government Counsel appearing for the Union of India-~oppasite parties, eve egses t2 GA 2SO ARNE T? of BORO
4. The petitioner has Aled this writ petition challenging the order dated 17.03.2021 under Annexure? series in MLA, No.o22 of 2019 farising out of OA. NaSS6 of 2018), by which the Central Administrative Tribunal, Cuttack Bench, Cuttack has rejected the claim of the petitioner for grant of benefit of ACF on the ground of delay and laches, and further seeks to issue direction to the opposite parties ty grant Ist Nnancial upgradation wef, 03.04.2000 under ACP scheme with all consequential and Anancial benefits.
4. Mr. NLR .Routray, learned counsel appearing for the peliSoner contended that the TNbunal, vide order dated 20.03.2018 in OLA. No.260/00321 of 2014 (Girish Chandra Rabat vs. Union of India and others) allowed the benefit of ACP. Against the said order, the Union of india had approached this Court by Aling WP no.l3677 of 2018 and this Court after due adjudication, vide order dated 20.07 2022, dismissed the said writ petition, relying upon the order passed by the Apex Court in SLP(C) no. 11040 of £013. Therefore, the rejection of the claim of the petitioner by the Tribunal on the ground of delay and laches cannat he sustained In the eye of law. It is further contended that there is continuity of cause of action for the petitioner to claim the benefit of ACP, S. Mr. |. Nayak, learned Central Gavernment Counsel appearing for the Union of India-opposite parties admits the fact that this Court dismissed WIR{E) No.13677 of 2018 Nled by the Union of India relying upon the order passed hy the Apex Court in SLP{C} No. 11040 of 2013.
6. Having heard learned counsel for the parties and afer going through the records, this Court Ainds that since the claim of the petitioner for grant of ACP has been adiudicated Qn merits and the decision of this Court has been confirmed by the Apex Court in SLP(C} No.1 1040 of 2013, there is no valid and fustifiable reason on the part of the Central fad bat DA SO/OQOLTY af 2G Administrative Tribunal, Cuttack Bench, Cuttack to reject the claim of the petitioner on the ground of delay and laches, ?, In the above view of the matter this Court disposes of this writ petition on the basis of the observations made in Paragraph-4 of the order dated 20.07.2022 passed in WP.{C) No S677 of 2018, which are extracted helow.
"4. On a perusal of the impugned order, it is seen that learned Tribunal has passed the impugned order relying wpon the decision in 0.4. No.92 of #0190, which has been confirmed by this Court in W.P(C]) No.i2425 of 2012 and alse by the apex Court in SLPIC) No.11040 af 2013. The operating portion of the impugned order is extracted hereunder:
5. The above point has already been settled by the decision of this Tribunal dated 22.03.2012 in OA, No.192 of 2010 as the same has heen upheld by the Hon'ble High Court vide order dated 06.02.2013 in W.P.C. No.d2425 of 2012 and thereafter, the matter on being appealed of in SLP(C} No.11040 of 2013, the Hon'ble Supreme Court dismissed the same vide order dated 02.08.2013. Following the above decision, this Tribunal, later on also granted similar relief to the applicant in 0.4. No4t of 20741, Therefore, in our considered views, the point in issue being set at rest, we have to hesitation to hold that the period spent under training tll the date of regularization of his service is reckonable for the purpose of grant of Ist financial yu pgradation under the ACP Scheme, Accordingly, we quash the impugned order dated 09.01.2014 (A/8) and direct the respondent-Railways to reconsider the claim of the applicant for grant of ist ACP on completion of 12 years service from 08.04.1988, by conducting a review Screening Committee meeting and subject to 14 UA 260 FQ000 FF oF 2E80 fulfllliment of other conditions, he be so granted with consequential financial benefits."
8. Accordingly, the order dated 17.03.2021 passed by the Tribunal in MLA. No.G22 of 2019 [arising out of OLA. No S56 of 2018) rejecting the claim of the petitioner is hereby quashed and the opposite parties are directed to grant ACP in favour of the petitioner, as due and admissible to him, within a period of four months from the date of receipt of this order, 4 Issue urvent certified copies as per rules."
In view of the decision of the Hon'ble High Court of Orissa in the case of Chitaranjan Hota(supral, quoted above, this Tribunal is not impressed upon that this case is Hable to be dismissed for being suffered from delay and laches. Nence, the said plea is over ruled. [n se far as merit of the matter, It is seen the issue for counting 12 years service Is Hable to taken into consideration from the date of initial joining as Trainee Skilled Artisan and not from the date of regularization, we do not have any hesitation or any jota of doubt to hold that counting of 12 years period for granting financial upgradation under ACP wef the date of regularization is flegal. Accordingly, the order of rejection dated17.03,.2020 under Annexure-A/? is quashed and the Respondents are directed to consider/re-consider the case of the applicant for oy a8 QA INO /OHOLT? of L080 granting him ACP by counting the period of service of the applicant from the date he was engaged as Trainee Skilled Artisan and all ather financial benefits under ACP. of course, after fulfilling the other conditions required for grant of financial upgradation under ACP. Respondents are further directed to complete the entire exercise within a period of 90 (ninety) days from the date of receipt of a copy of this order.
10, In the result this GA stands allowed to the extent stated above.
There shall be no order as to costs.
ey <S eo x 8 ae . NS eon : | {Rajnish Kumar Rai) (Pramod Kumar Das) Member (ludl.} Member (Admn.)