Central Administrative Tribunal - Cuttack
Kishore Chandra Subudhi vs East Coast Railway on 2 April, 2025
1 O.A.Nos. 260/00746/2022 & 277/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.Nos. 260/00746/2022 & 277/2023
Reserved on 01.04.2025 Pronounced on 02.04.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
O.A.No. 260/00746 of 2022
Kishore Chandra Subudhi, aged about 59, S/o- Late
BanaBihariSubudhi, at present working as Sr. Travelling
Inspector of Accounts in the office of the PFA, ECOR, Rail
Sadan, Chandrasekharpur, Permanent Resident of At-
Kalarahanga, Plot No-1874/3107, Patia Bhubaneswar,
Pin-751024.
......Applicant
VERSUS
1 Union of India represented through It's Chairman and
CEO, Railway Board, Rail Bhavan, New Delhi-110001.
2 GM, ECOR, At-Rail Sadan, Po-Mancheswar Railway
Colony, Chandrasekharpur, Bhubaneswar-751017.
3 PCPO, ECOR, At-Rail Sadan, Po-Mancheswar Railway
Colony, Chandrasekharpur, Bhubaneswar-751017.
4 PFA, ECOR, At-Rail Sadan, Po-Mancheswar Railway
Colony, Chandrasekharpur, Bhubaneswar-751017.
......Respondents
For the applicant : Mr. T.Rath, Counsel
For the respondents: Ms. K.Pattnaik, Counsel
O.A.No. 260/000277 of 2023
Basanta Kumar Nayak, aged about 62 years, S/o-Late
Madhabananda Nayak, Ex-Sr. Section Officer Accnt. In the
office of the PFA, ECOR, RailSadan, Chandrasekharpur,
2 O.A.Nos. 260/00746/2022 & 277/2023
Bhubaneswar - 751017. Permanent Address At-LP-594,
Prasanti Vihar, Near KIIT Campus, Patia, Po-KIIT S.O.,
Bhubaneswar-751024, Dist-Khurda.
......Applicant
VERSUS
1. Union of India represented through It's Chairman and
CEO, Railway Board, Rail Bhavan, New Delhi-110001.
2. GM, ECOR, At-Rail Sadan, Po-Mancheswar Railway
Colony, Chandrasekharpur, Bhubaneswar-751017.
3. PCPO, ECOR, At-Rail Sadan, Po-Mancheswar Railway
Colony, Chandrasekharpur, Bhubaneswar-751017.
4. PFA, ECOR, At-Rail Sadan, Po-Mancheswar Railway
Colony, Chandrasekharpur, Bhubaneswar-751017.
5. Dy. FA & CAO(G) in the office of PFA, EcoR, At-Rail Sadan,
PO- Mancheswar Railway Colony, Chandrasekharpur,
Bhubaneswar-751017.
......Respondents
For the applicants: Mr. T.Rath, Counsel
For the respondents: Mr. D.R.Swain, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
Since common question of facts and law are involved in both the O.A.Nos. 260/00746/2022 & 277/2023, both the OAs were heard analogously and this common order will govern both the cases. For the sake of brevity, facts of OA No. 260/00277/2023 are delineated hereunder.
3 O.A.Nos. 260/00746/2022 & 277/2023
2. The case of the applicant, Sri Basanta Kumar Nayak, is that he was initially appointed as Accounts Clerk Gr.I/JAA in the scale of Rs. 330-560/- (which was subsequently revised to Rs. 1200-2040/-) vide Office Order 03.06.1984 (A/1). Due to restructuring of cadre, his pay was revised from Rs 1200-2040/- to Rs. 1400-2600 (RPS'86) w.e.f. 29.01.1988 (A/3), however, subsequently, vide Order dated 07.09.1988, the date of revision of pay was antedated to 02.06.1987. Vide Office Order dated 24.09.1994 (A/4), he was promoted to the post of S.O. in the scale of Rs. 1640-2900/-(4th CPC; revised to Rs. 5500- 8000/- in 5th CPC) and to the post of Sr. S.O. (A/Cs) in scale of pay Rs. 6500-10500/- vide Office Order dated 26.05.2000. In the year 2003, pay scale of Rs. 6500-10500/- was replaced to Rs 7450-11500/- with retrospective effect from 01.01.1996. As per 6th CPC, the scale of pay of Rs 7450-11500/- was revised to the scale of Rs. 9300-34800/- with GP Rs.4800/- in PB-2 w.e.f. 01.01.2006. It is submitted that the cadre of SO and Sr. SO were merged together and were put in the scale of Rs. 9300- 34800/- with GP Rs. 4800/- in PB-2 vide RBE No. 124/2008 dated 22.09.2008.
3. It is submitted by Ld. Counsel for the applicant that the Railway 4 O.A.Nos. 260/00746/2022 & 277/2023 Board vide RBE No 101/2009 dated 10.06.2009 adopted MACP Scheme, which was implemented w.e.f. 01.09.2008 (A/7). Para-5 of the above scheme mandates that the promotion granted to pre-revised scales of Rs 5500-9000/- and 6500-10500/- prior to 01.01.2006 shall be ignored on account of merger of the pre-revised scales of Rs. 5000- 8000/-, Rs. 5500-9000/- and Rs. 6500-10500/-. After implementation of the MACP scheme and, on account of merger of the SO and Sr.SO Cadre, applicant was granted 3rd MACP in PB-2 in the scale of Rs. 9300- 34800/- with GP Rs. 5400/- in Level 9 vide Office Order dated 13.08.2010 (A/8) w.e.f. 01.09.2008.
4. It is submitted by him that this Bench of the Tribunal taking into account the decision of CAT, Madras Bench in OA No. 335 of 2007 (V. Venkataraman Vs Union of India & Others), which was confirmed by the Hon'ble High Court of Madras in W.P No. 21112 of 2009 and was also upheld by the Hon'ble Supreme Court of India in SLP (C) No. 9422 of 2011, vide order dated 25.07.2016 allowed OA No. 247/2014 (Parameswar Biswal Vs UOI & Ors.)[A/9] and directed the respondents therein to consider the case of the Sri Biswal for 3rd financial upgradation under MACP Scheme treating the restructuring of the pay 5 O.A.Nos. 260/00746/2022 & 277/2023 scale Rs. 1200-2040/- to Rs.1400-2600/- as a revision of pay due to restructuring and not tantamounting to promotion. Respondents challenged the same before the Hon'ble High Court of Orissa in W.P. (C) No 5898/2017, which was dismissed on 25.04.2018. SLP No 29243/2018 preferred against the said order was also dismissed on 30.03.2022 (A/11). Hence, claiming similarity in the matter, the present applicant seeks the benefits granted to Sri Biswal and to treat his pay from JAA to AA, i.e. from Rs. 1200-2040/- to Rs.1400-2600/- as revision of pay due to restructuring and to grant him 3rd financial upgradation. Praying as aforesaid, he submitted representation on 10.11.2022 to the PFA, E.Co.Rly., Bhubaneswar to grant him 3rd Financial upgradation under MACP on completion of his 30 years of regular service, i.e. w.e.f. 02.06.2014. Meanwhile, the applicant retired from service on reaching the age of superannuation on 31.05.2020. Since, no action was taken by the respondents on his representation, he filed OA 20/2023 before this Bench, which was disposed of vide order dated 19.01.2023 with direction to Respondent No.4 therein/competent authority to consider and dispose of the representation taking into account the order dated 25.07.2016 in OA 6 O.A.Nos. 260/00746/2022 & 277/2023 247/2014 (A/9) and Annexure-A/10. It is alleged by Ld. Counsel for the applicant that Dy.FA& CAO (G), who is neither the competent authority nor was a party to the OA, acting on behalf of the Respondent No 4, considered and rejected the representation vide order dated 17.03.2023 (A/14). Being aggrieved, applicant has filed this OA praying as under:
"(i) To quash the order at Annexure -A/14.
(ii) Direct the Respondents to grant 3rd financial upgradation under the MACP scheme w.e.f. 02.06.2014 or from any other date as admissible under the MACP scheme by ignoring the so called promotion from JAA to AA and treat the so called 3 rd financial up gradation granted under Annexure-A/8 as 2nd financial upgradation.
(iii) Direct the Respondents to revise the pay of the Applicant accordingly and grant all financial and other benefits including the arrear of pay as per law."
5. Respondents have filed their counter opposing the prayer of the applicant. Contention of the respondents is that on 02.06.1987 applicant was promoted to higher post after completing three years of service in the post of JAA and passing in the Appendix II examination as per eligibility criteria prescribed in the service rule. Further, he was also allowed benefit of pay fixation under FR 22(C) as admissible in case of promotion to higher post having higher duties and 7 O.A.Nos. 260/00746/2022 & 277/2023 responsibilities. He accepted and enjoyed the said benefit without any objection. He was further promoted to the post of SO on 24.09.1994 and was granted 3rd MACP w.e.f. 01.09.2008. After his retirement on 31.05.2020, after more than two years he preferred representation on 10.11.2022 claiming 3rd MACP after 30 years of his regular service by ignoring his promotion from JAA to AA , i.e. from the scale Rs. 1200- 2040/- to Rs. 1400-2600/-. It is submitted that since applicant has already retired, there is no master and servant relationship and he is also precluded from raising the issue after a lapse of more than thirty years. The factual matrix of the case decided by the Hon'ble Madras High Court or by this Hon'ble Tribunal in Parameswar Biswal are not similar to the present case, said decisions are not ratio decidendi. The applicant's reliance on the order of Hon'ble CAT/Madras (OA No.335 of 2007) and W.P. (C) No.21112 of 2009 in the matter of V.Venkatraman is misplaced since the order was passed by the Tribunal and Hon'ble High Court without taking cognizance of the statutory provisions for promotion from JAA to AA posts and relevant clarification regarding ACP Scheme. As such the said order was passed per in curium and hence do not have precedence value. Further, Sri Biswal had filed the 8 O.A.Nos. 260/00746/2022 & 277/2023 case during his service period but the applicant is claiming the relief after retirement. It is submitted that Dy. FA & CAO(G) is authorized on official capacity by the Principal Financial Advisor to dispose of the representation since he is dealing the matter on behalf of the PFA. It is submitted by Ld. Counsel for the respondents that in SLP(C) Nos. 16246-16247/2018 (All India Postal Accounts & Ors Vs UOI & Ors.) involving identical issue, the Hon'ble Supreme Court vide its order dated 06.04.2022 has upheld the orders dated 24.2.2017 of Madras High Court in WP(C) No.20724/2015 wherein the High Court had ruled that the promotion/upgradation of Accountants from 1200-2040/- to 1400-2600/- w.e.f. 01.04.1987 has to be reckoned for the purpose of grant of financial upgradation under ACP/MACP Scheme. Accordingly, respondents have prayed for dismissal of this OA.
6. Heard Ld. Counsel appearing for the respective parties in both the OAs separately and perused the averments made in the OAs, counter and rejoinder and have also gone through the citations relied on by the parties.
7. Insofar as point of delay raised by the respondents, Ld. Counsel for the applicant has filed MA 382/2024 seeking condonation of delay 9 O.A.Nos. 260/00746/2022 & 277/2023 by stating that submission of the respondents that the case is barred by limitation of 30 years is totally misconceived since the MACP Scheme itself was introduced in the year 2009 and the applicant was wrongly given 3rd MACP vide Office Order dated 13.08.2010 (A/8) w.e.f. 01.09.2008 whereas it should have been 2nd MACP and the applicant is claiming 3rd MACP w.e.f. 02.06.2014 on completion of 30 years of regular service from his initial appointment on 03.06.1984 based on the decision of the Hon'ble Apex Court in the case of V.Venkataramana in SLP No. 9422/2011. Further, this Bench taking into account the decision of CAT, Madras Bench in OA No. 335 of 2007 (V. Venkataraman Vs Union of India & Others), which was upheld by the Hon'ble Supreme Court of India in SLP (C) No. 9422 of 2011, vide order dated 25.07.2016 allowed OA No. 247/2014 (Parameswar Biswal Vs UOI & Ors.) directing respondents therein to consider the case of Sri Biswal for 3rd financial upgradation under MACP Scheme treating the restructuring of the pay scale Rs. 1200-2040/- revised to Rs.1400- 2600/- as a revision of pay due to restructuring and not tantamounting to promotion. Similar decision of this Bench in OA No. 381/2014 (Rabi Narayan Satpathy Vs UOI & Ors) was also upheld by the Hon'ble Apex 10 O.A.Nos. 260/00746/2022 & 277/2023 Court in SLP (C) No. 8205/2023 vide order dated 24.03.2023. Further, present applicant's request was rejected by the authorities only on 17.02.2023. It is submitted that since the applicant is on the similar footing and the benefits under MACP is a recurring cause of action, delay, if any, may be condoned. In view of the submissions made by Ld. Counsel for the applicant that benefits to be granted under MACP Scheme is a financial matter, which gives rise to a recurring cause of action, we have no hesitation to hold that in the peculiar facts and circumstances of the case, the delay in filing this OA needs to be condoned. Accordingly, MA 382/2024 is allowed and disposed of.
8. With regard to the merit of the matter, the case of the applicant is that he is seeking 3rd financial upgradation under MACP Scheme treating the restructuring of the pay scale Rs. 1200-2040/- to Rs.1400- 2600/- as a revision of pay due to restructuring and not tantamounting to promotion from JAA to AA on the basis of the decision of CAT, Madras Bench in OA No. 335 of 2007 confirmed by the Hon'ble High Court of Madras in W.P No. 21112 of 2009 and upheld by the Hon'ble Supreme Court of India in SLP (C) No. 9422 of 2011. It is submitted that similar prayer was also allowed by this Bench to one Sri Parameswar 11 O.A.Nos. 260/00746/2022 & 277/2023 Biswal in OA No. 247/2014. Writ Petition as well as SLP preferred by the respondents have already been dismissed. Respondents on the other hand submits that reliance made by the applicant on the decision of V.Venkatraman (supra) is misplaced since the order was passed by the Tribunal and Hon'ble High Court without taking cognizance of the statutory provisions for promotion from JAA to AA posts and relevant clarification regarding ACP Scheme and, as such, the order is per in curium and do not have precedence value. Further, the facts of the cases of Sri V.Venkatraman and Sri Parameswar Biswal are not similar to the present case and said decisions are not ratio decidendi. However, after going through the facts noted in the order passed by this Bench in Parameswar Biswal case, there is no iota of doubt that the facts as well as ground for challenge of that case is similar to the facts in the present case. The objection raised by the respondents that Sri Biswal had raised the issue during his service career and the applicant filed this OA after his retirement is no ground in view of the fact that the delay in filing this OA has already been condoned as aforesaid. Further, objection of the respondents is that in SLP(C) Nos. 16246-16247/2018 (All India Postal Accounts & Ors Vs UOI & Ors.) involving identical issue, the 12 O.A.Nos. 260/00746/2022 & 277/2023 Hon'ble Supreme Court vide its order dated 06.04.2022 has upheld the orders dated 24.2.2017 of Madras High Court in WP(C) No.20724/2015 wherein the High Court had ruled that the promotion/upgradation of Accountants from 1200-2040/- to 1400-2600/- w.e.f. 01.04.1987 has to be reckoned for the purpose of grant of financial upgradation under ACP/MACP Scheme. To this, it is profitable to place on record that, after the aforesaid order as relied on by the respondents, in another similar matter filed by Sri Rabi Narayan Satapathy (supra), the Tribunal allowed the OA directing the respondents to extend similar benefit to Sri Satapathy as has been extended to Sri Parameswar Biswal, which order has also been upheld by the Hon'ble High Court of Orissa as well as by the decision of the Hon'ble Apex Court in SLP (C) Diary No. 8205/2023 dated 24.03.2023. We are further reminded by the fact that in a similar matter in OA No. 260/00169/2014 (Raghunath Parida Vs UOI & Ors.), the Full Bench this Tribunal vide order dated 19.10.2023 decided the issue as under:
"16. Therefore, we are of the considered opinion that the point on which the respondents have rejected the claim of the applicant was as such considered in an identical case by the Hon'ble High Court of Orissa ie. in WP (C) No. 5898 of 2017 (Union of India, represented through the General Manager, East Coast Railway, Bhubaneswar &ors. v.13 O.A.Nos. 260/00746/2022 & 277/2023
Parameswar Biswal) decided on 25.4.2018 and having territorial jurisdiction on this Bench (ie. CAT, Cuttack Bench) the said judgment passed by the Hon'ble High Court of Orissa is binding and squarely applicable in the present case.
17. It is worthwhile to mention that the Hon'ble Apex Court in the case of G.C. Ghosh & ors. v. UOI & ors. (1991) Supp. (2) SCC 497 while considering the claim of the petitioners therein who were employees of Eastern Railway for grant of identical benefits granted to their counterparts in the Northern Railway in pursuance of the decision rendered by the Allahabad High Court which has become final, the Hon'ble Apex Court held as under:
"......In the light of command of Article 14 and 16 of the Constitution of India, the same treatment is required to be accorded to the petitioners regardless of the fact that they are serving in Eastern Railway unless it is shown that there is some distinguishing feature, for according a different treatment. Lid. Additional Solicitor appearing for the Railway Administration is not in a position to contend that there is any such special distinguished feature to justify denying of uniformity in treatment. The prayer of the Writ Petition must accordingly be granted to the aforesaid extent. It is therefore directed that petitioner should be accorded the same treatment as their counterparts are being accorded in the Northern Railway in regard to treating the running allowance granted to the running staff as part of the pay when they are transferred or promoted to a stationary post during the period they hold the officiating in the stationary post to the same extent and in the same manner as enjoyed by the Allahabad High Court pursuant to the aforesaid judgment."
18. In the present case, as discussed hereinabove, undisputedly the similarly placed Accounts Assistant has been extended the benefit of 3 MACP in light of the order passed by the CAT, Madras Bench in O.A. 335 of 2007 as 14 O.A.Nos. 260/00746/2022 & 277/2023 well identical relief has been granted to a similarly situated employee i.e. Mr. P. Biswal by this Tribunal in O.A. No. 247/2014 dated 25.7.2016 as well as to the applicant of O.A. 381/2014 dated 21.6.2018 decided by Division Bench of the CAT, Cuttack Bench and, hence, this applicant being similarly situated cannot be discriminated in light of the law laid down by the Hon'ble Apex Court in the case of G.C.Ghosh &ors. (supra). Thus, we hold that the order passed by the Division Bench of this Tribunal în O.A. 247 of 2014 dated 25.7.2016 is squarely applicable to the facts and circumstances of the present case being identical and similar in nature.
19. In view of the aforesaid factual matrix, more particularly, since the order passed in O.A. No. 247/2014 dated 25.7.2016 has attained finality, it is not open for this Bench to disagree with the findings recorded by the Division Bench in O.A. No. 247/2014 that the applicant therein is entitled for the relief as granted in O.A. No. 335 of 2007 before the Madras Bench (vide order dated 26.8.2008) and to question whether it is a correct law which can be used to decide the present O.A. No. 169/2014."
9. In view of the facts and law discussed in detail as above, since the present issue is no more res integra being already settled and set at rest, we are not inclined to take any divergent view in the matter. Accordingly, while quashing the impugned order dated 17.03.2023, both the OA Nos. 260/00746/2022 & 277/2023 are allowed with direction to the respondents to consider the cases of the applicants for granting 3rd financial upgradation under MACP treating the restructuring of pay scale of Rs. 1200-2040/- to Rs. 1400-2600/- as 15 O.A.Nos. 260/00746/2022 & 277/2023 revision of pay due to restructuring not tantamounting to promotion. However, the entire exercise shall be completed within a period of 60 days from the date of receipt of a copy of this order.
10. In the result, both the OAs stand allowed leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS