Central Administrative Tribunal - Hyderabad
P. Govindrajulu S/O P. Harischandra Rao vs Union Of India (Air 2005 Scc 2531) on 26 September, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH : AT HYDERABAD
OA No. 862 of 2004
Date of Order : 26-09-2008.
Between:-
1. P. Govindrajulu S/o P. Harischandra Rao,
Aged about 55 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
2. Khaja Mohiddin S/o Sheikh Mahaboob (V.R. Saheb,
aged about 55 years, Occ: Goods Guard, Vijayawada
Divn., SC Rlys, Vijayawada.
(Retired voluntarily on 14.12.2003)
3. Shaikh Satter S/o Shaikh Musthafa,
aged about 55 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
4. M.V.R. Chalapathi Rao S/o Venkateshwarlu,
aged about 52 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
5. V. Sambi Reddy S/o Subba Reddy,
aged about 50 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
6. V. Subramanyam, S/o Venkata Subbiah,
aged about 53 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
7. C.B. Rajendra Prasad S/o Ch. Venkanna,
aged about 53 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
8. A.S. Murthy S/o A. Jawaharlal,
aged about 37 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
9. Y. Durgaprasad S/o Y.V. Narayana Rao,
aged about 47 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
10. Clement Denmic S/o Anapillai Denmic
aged about 50 years, Occ : Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
11. P. Verabhadrarao S/o P. Jaggarao,
aged about 58 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada.
12. G. Anjaiah S/o G. Rameswara Rao,
aged about 57 years, Occ: Goods Guard,
Vijayawada Divn., SC Rlys, Vijayawada. .Applicants
And
1. Union of India, Rep: by the Secretary to Govt.,
Railway Board, M/o Railways, Rail Bhavan,
New Delhi.
2. General Manager, SC Rlys, Rail Nilayam, Sec'bad.
3. The Chief Personnel Officer, SC Rlys, Rail Nilayam,
Sec'bad.
4. The Sr. Divisional Personnel Officer, SC Rlys,
Divisional Office, Vijayawada, Krishna Dist., ....Respondents
Counsel for the Applicant : Sri K. Siva Reddy
Counsel for the Respondents : Sri N.R. Devaraj, Sr. Counsel for Rlys
CORAM:
THE HON'BLE MR.JUSTICE P. LAKSHMANA REDDY:VICE-CHAIRMAN
THE HON'BLE MR.R. SANTHANAM : MEMBER (ADMN)
O R D E R
( per Hon'ble Mr. R. Santhanam, Member (A) )
---
Heard Sri K. Siva Reddy, learned counsel for the applicants and Sri N.R. Devaraj, learned senior counsel for Railways.
2. The applicants in this OA, who were rendered surplus due to administrative reasons and absorbed in alternative posts, have assailed the alleged failure of the Respondents in implementing Master Circular No. E(NG)II/19/RE-1/Master Circular, dated 27-3-1991 wherein Respondent No. 1 had issued several instructions regarding protection of pay and seniority.
3. There are 12 applicants in this OA all of whom were recruited as Asst. Station Master / Train Clerk / Traffic Apprentice on different dates between 1971 and 1991. They earned their promotions and while they were discharging the duties of Dy. / Chief Yard Masters / Yard Masters / Asst. Yard Masters, the posts held by them had become surplus due to partial closure of the yard. The Respondents have a policy of absorbing the surplus employees in alternative posts and the guidelines are given in the Master Circular dated 27-3-1991. The Respondents 2 to 4 called for options from the applicants. It is the case of the applicants that it was not mentioned at the time of exercise of the option that the applicants are to take bottom seniority. After completing the formalities, the applicants were absorbed as Goods Guards. But contrary to the Master Circular, it was mentioned in the proceedings that the applicants should take bottom seniority. The applicants, except applicants No. 9 and 10, claim that they were drawing more pay than the maximum of the grade in which they were absorbed. It is the applicant's case that the transfers of the applicants were on administrative grounds and the Respondent's action in treating them as request transfers is highly illegal and contrary to the facts of the case. The applicants also claim that in the provisional seniority list of Goods Guards in the scale of Rs.4500-7000 issued by Respondent No.4, they have been shown in the wrong place by treating their transfer as request transfer and placing them in bottom seniority. The applicants have questioned the failure of the Respondents to protect their pay and seniority and in refusing them transfer allowance on the following additional grounds :
(i) the Respondents 2 to 4 ought to have protected the pay last drawn by the applicants in the absorption grade even if the pay so drawn exceeds the maximum of the grade in which they were absorbed by keeping the difference as Personal Pay in accordance with Rule 1305 of IREC which was framed under Article 309 of the Constitution of India;
(ii) the Respondents ought to have protected the pay of the applicants as per Master Circular dated 27.3.1991 by granting premature increments as per 1321 of IREC (FR 27);
(iii) the Respondents ought to have given identical treatment to the applicants as was given to persons who were medically decategorized and absorbed in alternative posts as per IREM 1313;
(iv) the applicants never consented for bottom seniority and the option exercised by them has been misconstructed by the Respondents. Even if any undertaking had been given by the applicants, it did not take away the rights accrued to them under Master Circular dated 27.3.1991.
4. The Respondents filed a reply statement explaining the background of calling for options and contesting the claims of the applicants that they are eligible for pay protection and seniority. The applicants filed a rejoinder. With the permission of the Court, the Respondents filed an additional reply affidavit for which another rejoinder was filed by the applicants.
5. In their affidavits, the respondents have stated that the origin of the case dates back to the year 1995 when it was proposed to surrender the Signalers category and Yard Category to some extent as the work load in some divisions had come down. The Zonal Headquarters sent a circular dated 23.1.1995 to all divisions directing to call for options from staff belonging to Signalers category and Yard Category for absorbing them in alternative posts such as Section Controllers in the scale Rs.1400-2300, Goods Guards in the scale Rs.1200-2040, Ticket Collectors in the scale Rs.950-1500, Asst. Station Masters in scale Rs.1200-2040 etc., so that the staff can be accommodated in these choicest posts and surrender the surplus posts. The applicants working as Yard Masters, Chief Yard Masters and Asst. Yard Masters had opted for alternative posts. In Vijayawada Division, though there was no physical surplus in the Yard Category as on that date, options were still called for to take care of any surrender in future. The modalities to be observed while absorbing the optees were communicated by the Headquarters vide letter dated 2.6.1995 wherein it was advised that the options procedure from Yard category for alternative posts had been approved by the competent authority to redeploy them in the posts opted by them against bottom seniority against Direct Recruitment Quota duly following the other formalities such as pay fixation as per extant rules. Though it was proposed to surrender nine posts of Asst. Yard Masters, some of the persons who had submitted their options originally for absorption in the category of Enquiry-cum-Reservation (ECRC) went back on it as they were not prepared to get absorbed as ECRC on bottom seniority and hence the option did not materialize.
6. The Respondents have further stated that during the year 1999, the SC Railway Employees Sangh (SCRES) raised the issue at Headquarters level to give alternative posts to the Yard staff in the Direct Recruitment quota in view of the limited career progress of Dy. Chief Yardmasters / Yardmasters / Asst. Yardmasters. The Chief Personal Officer, Sec'bad, in consultation with other Trade Unions i.e. SCRM Union had taken a decision to examine the issue. Based on the above, SCRE Sangh forwarded fresh options received from 19 Dy. Yardmasters / Yardmasters / Asst. Yardmasters to go as Goods Guards / ECRC / SCORS on bottom seniority vide leter dated 12.1.2000. These applications were forwarded to CPO / SC vide letter dated 3-7-2001 since change of category from technical to non-technical is not entertained and any deviation from this should be brought to the personal notice of the General Manager. The General Manager (P) / SC communicated the approval of the competent authority for change of category of 18 Dy. Chief Yardmasters / Yardmasters / Asst. Yardmasters against the existing vacancies on direct recruitment quota vide letter dated 10.10.2001 (Annexure R-VII) wherein it was clearly mentioned that the employees will take bottom seniority in the new seniority units to which they are transferred and they are not eligible for any transfer benefits. Accordingly those who had given option were asked to submit clear declarations accepting all the terms and conditions stipulated in letter dated 10-10-2001 and they have submitted willingness letters which were enclosed as Annexure R-IV to the reply statement. The Respondents have further stated that the pay of the employees who were absorbed in the alternative post as per the Headquarters decision was protected in terms of Sl. Circular No. 140/1992. The Respondents have also stated that the Yardmasters category was not totally made surplus. Only seven posts of Asst. Yardmasters were rendered surplus including the applicants 9, 10 and 12. When the Secretary, SCRE Sangh took up the matter of pay protection of Yardmasters / Asst. Yardmasters of Vijayawada and the grant of transfer allowance at the zonal PNM meeting held on 17/18-3-2003, the matter was explained to them in terms of Railway Board circular letter dated 9.11.2001 and the subject was closed.
7. The issues that arise for consideration are (i) whether the applicants are entitled to pay protection consequent on their transfer to alternative posts (ii) whether the applicants are entitled for retention of their original seniority by treating that their transfer was on administrative grounds and (iii) if not, to what relief are the applicants entitled.
8. Issue No. (i) : The applicants claim that the pay last drawn by them before absorption should have been protected even if it exceeds the maximum of the grade in which they were absorbed by keeping the difference as personal pay in accordance with Rule 1305 of IREC. They have also claimed that as per Master Circular No. 22 dated 27.3.1991 they should have been granted premature increments as per 1321 of IREC (FR 27). The learned counsel for the applicants also argued that the applicants are on a better footing than the persons who are medically decategorized and whose pay is protected wherever they are absorbed in alternative posts on medical decategorization as per para-1313 of IREM.
9. The Master Circular dated 27.3.1991 deals with absorption of surplus staff consequent on change of traction and full or partial closure of steam locosheds, marshalling yards, goods sheds and other redundant assets. This circular is nothing but consolidation of the various circulars / instructions issued from time to time. Para - 19 (1) of this circular deals with fixation of pay when staff recruited through RRBs are rendered surplus. The sub-paragraph relied upon by the applicants is extracted below :-
"(1) WHEN STAFF RECRUITED THROUGH RRB ARE RENDERED SURPLUS :
a. When appointment is from a higher to a lower or equivalent alternative post :
Increments equal to the number of years of service rendered in the post from which the Railway servant has been rendered surplus should be given in the post in which he has been absorbed.
b. If the appointment is to an alternative post carry an identical time scale :
Pay should be fixed under the normal rules".
But the Respondents have pointed out that these instructions have been superseded by Sl. Circular No. 140/1992 issued on 14.10.1992. In terms of para-2 of Sl. Circular No. 140/1992, "the pay of the surplus staff on absorption in the lower alternative posts shall be fixed at the stage equivalent to pay drawn by him in the post from which he had been rendered surplus and if there is no such stage available in the scale of new post held by him at the stage next below, the difference to be treated as personal pay to be absorbed in future increments. However, these orders shall be subject to the condition that the pay so fixed should not exceed the maximum of scale of the post in which the surplus staff is being absorbed". Since the pay of the Yardmasters drawing higher pay than the pay scale of the new post i.e. Goods Guard in scale Rs.4500-7000 had been fixed at the maximum of the scale Rs.7000/- and in respect of Yardmasters drawing less than the maximum of the pay scale i.e. below Rs.7000/-, the pay had been fixed at equal stage and in case no such stage was available in the scale of post at the stage next below and the difference was given as personal pay, the Respondents claim that the pay of the applicants was protected in terms of instructions in para-2 of Sl. Circular No. 140/1992. The applicants claim that this circular is not relevant to their case since it was issued to govern the situation under para-603 of IREM Vol. I i.e. fixation of pay for employees who were retrenched and re-appointed afresh and the persons who were transferred from one department to another Department in Railways and from government offices to Railways. But we do not agree with the contention of the applicants. A careful reading of Sl. Circular No. 140 / 1992 shows that though a reference has been made to provisions contained in para-603 (2) of IREM Vol. I, the circular is about protection of pay of surplus staff when absorbed in lower alternative posts. Para-1 is only a preamble to the circular and paras 2 & 3 are the substantive portions of the circular.
10. The applicants in their rejoinder have cited the examples of Sri N. Moshe, Sr. Box Boy and Sri N.R.C.S. Sastry, Ex-Yardmaster of Guntakal Division whose pay had been protected by giving personal pay on request transfer. The Respondents in their reply affidavit have admitted that it was done erroneously and the pay in respect of both these cases had since been re-fixed as per rules vide proceedings No. B/P.536/I/Pay fixation/Gr.'D' dated 3-08-2007, No. G/P.524/1/Guards, dated 15.2.08 respectively.
11. The learned counsel for the applicant referred to the judgment of the Hon'ble Supreme Court in the case of Badri Prasad Vs. Union of India (AIR 2005 SCC 2531), in which the Hon'ble Supreme Court had held that in the case of the appellants who were working in a Group-C post as Store man which is a higher post carrying higher scale of pay and were reverted to the Group-D post of Khalasi in the open Line, the pay last drawn by them in Group-C shall be protected even if they are repatriated to Group-D post in their parent department. The learned counsel argued that similar pay protection should be given to the applicants in this case who were transferred from a higher post to a lower post on administrative grounds. In the case cited by the learned counsel the appellants who had temporary status in Group-D post were utilized on a higher Group-C post for unduly long periods exceeding 10 years. It was contended by them that they should not be repatriated to the Group-D post and they should be regularized in the Group-C post. The Hon'ble Apex Court held that the appellants cannot be granted the relief of regularizing their service in the post of Store man / Clerk merely on the basis of their adhoc promotions from the Open Line in the Project or Construction side. However, they are entitled to claim age relaxation and the long experience of working on a higher Group-C post. It was also held that the higher pay drawn by them in Group-C post shall be protected even if they are repatriated to group 'D' post in their parent department. It is seen that the facts and circumstances of the case cited by the learned counsel for the applicant are totally different from the facts of the case before us. In the present case, the applicants have gone to a lower post on their own request keeping in view their career prospects, pensionary benefits etc., and pay fixation has been done strictly in accordance with the rules. Therefore, we do not find any merit in the argument of the learned counsel for the applicant.
12. The applicants have also invited our attention to the pay protection given to medically decategorized employees when they are absorbed in alternative posts as per IREM 1313. The learned counsel for the applicants argued that the applicants are on a better footing and their pay should also be protected. The Respondents have pointed that the pay protection given to medically decategorized staff in the case of their absorption in the suitable alternative post is an exception and that there are specific provisions in IREM to that effect but there is no rule to protect the pay beyond the maximum of the scale of the post in which absorbed in respect of others. In the absence of any provision, it is not possible to extend the benefit to the applicants. We see some force in the arguments of the Respondents. The applicants have not been able to show any rule apart from quoting Master Circular dated 27.3.1991 for protection of pay. The Respondents have also invited attention to the instructions in Sl. Circular No. 236/2002. The instruction under clause (iii) of the above said circular is categoric that "when appointment on transfer from a higher post to a lower post is made on his own request under 227 (a)(2) R-1 (FR 15-a(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, in accordance with FR 22(1)(a)(3)". It is relevant to quote FR 22(1)(a)(3) here, which states as follows :
"When appointment to the new post is made on his own request under Sub-Rule (a) of Rule-15 of the said rules 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".
It is seen from the instructions issued by the Railway Board that it is also in accordance with the above stated provision in the Fundamental Rules. In view of the rule position as stated in the forgoing paragraphs, we are of the considered view that the applicants are not entitled for pay protection on transfer to a lower post on request.
13. Issue No. (ii) : The applicants claim that they never consented for bottom seniority and the option exercised by them has been misconstructed or misconstrued by the Respondents. They further claim that even if any undertaking had been given by the applicants, it did not take away the right accrued to them vide Master Circular dated 27.3.1991. Para-17 of Master Circular dated 27.3.1991 deals with seniority of staff rendered surplus on redeployment to other units / departments. The Respondents claim that there were no surplus posts as claimed by the applicants. The applicants were transferred in view of the request made by one of the organized Labour Unions to give alternative posts in direct recruitment quota keeping in view of the limited career prospects for serving Dy. Chief Yardmasters / Yardmasters / Asst. Yardmasters. The Union had forwarded the fresh options received from the applicants to accommodate them in alternative posts such as Guards and Section Controllers on bottom seniority. While giving approval to these requests, it was clearly mentioned that the employees will take bottom seniority in the new seniority units to which they are transferred and they are not eligible for any transfer benefits. Accordingly, they were asked to submit a clear declaration accepting all the terms and conditions stipulated in letter dated 10.10.2001. This letter mentions following conditions :-
"1. They will not seek retransfer to their parent Cadre viz. AYMs/YM/Dy.CYMs at a later date.
2. The employees will take bottom seniority in the new seniority units to which they are transferred in scale Rs.5500-9000 (RP)/Rs.4500-7000 (RP) as per extant orders applicable for such transfer.
3. As the change of Category ordered at their own request they will not be eligible for any transfer benefits.
4. The change of category is also subject to obtaining clear declaration from the employees accepting all the terms and conditions stipulated above.
5. They should be free from DAR/SPE/Vig. cases on the date of relief".
The applicants had submitted their willingness letters which have been enclosed as Annexure R-IV to the reply statement filed to the OA. They have stated that they are accepting all the terms and conditions laid down and also agreed to take bottom seniority protecting basic pay in the new seniority unit to which they are transferred as per extant rules applicable for such transfer. But in the instant case, their pay was not protected, though they had made a request to that effect while giving the undertaking, because the rules did not provide for extending such a benefit, as discussed supra. It is also relevant to point out here that as against the 18 employees from whom specific declarations have been called for, 16 Yardmasters had accepted the terms laid down and they were sent to the Zonal Training Center, Moulali, for undergoing prescribed training and on completion of the training, they were posted as Goods Guards in the scale of Rs.4500-7000 on bottom seniority duly indicating the change of cadre against the existing vacancies of direct recruitment quota. It is also to be noted that two of the employees did not opt to change their cadre on bottom seniority. Therefore, the option was clearly available to the applicants. The Respondents have also pointed out that as Goods Guards, the applicants were entitled for 30% of their pay in addition to their normal pay for the purpose of calculating DA, HRA, CCA, NDA, TA etc., thereby drawing more emoluments than what they would have drawn had they continued as Yardmasters. They have cited the example of the 2nd applicant whose pay was fixed at Rs.7000/- on his joining as Guard whereas he was drawing Rs.8,100/- in the Yard cadre. On the Rs.7,000/- so fixed, he was entitled for 30% of pay drawn as Guard for the purpose of DA, HRA, CCA etc., and his pay was reckoned as Rs.9,100/- (i.e. Rs.7000/- + Rs.2,100/-). Further, on his retirement, 55% of pay was added to his basic pay for calculating the retiral benefits. The 2nd applicant who has since retired, received his settlement benefits calculating on pay Rs.7,000/- + Rs.3,850/- = Rs.10,850/-. If he was to retire as Yardmaster, his pensionary benefits would have been calculated on his pay drawn at Rs.8,100/- as Yardmaster. The Respondents have stated that the enhanced benefits are equally true in the case of the other applicants. It is obvious from the above discussion that the applicants have taken a conscious decision for change of cadre fully weighing the comparative benefits as pointed by the Respondents.
14. Apart from the fact that the applicants had given an undertaking agreeing to take bottom seniority, the provisions in IREM also support the contention of the Respondents. As per provisions under para-312 of IREM Volume.I, 1989, "the seniority of Railway Servants transferred at their own request from one Railway to another should be allotted below that of the existing confirmed, temporary and officiating Railway Servants in the relevant grade in the promotion group in the new establishment irrespective of the date of confirmation or length of officiating service of temporary staff of the transferred Railway Servants". It is further provided under Note-1 of the said provision that the above provision also applies to the case on transfer on request from one cadre / division to another cadre / division on the same Railways. Since the applicants had been transferred from the technical to non-technical cadre, they are covered by the provisions under para-312 of IREM Vol.I, 1989. Therefore they are not entitled for retention of their original seniority since they have not made out a case that they were transferred on administrative grounds. Accordingly, the second issue is also decided against the applicants.
15. Issue No. (iii) : Since both the first and second issues are decided against the applicants, they are not entitled to any relief.
16. In the result, the O.A. is dismissed as devoid of merits. Parties will bear their own costs.
(R.SANTHANAM) (P.LAKSHMANA REDDY)
Member (Admn) Vice-Chairman