Central Administrative Tribunal - Ernakulam
K.K.Ravindrakumar vs Union Of India Represented By The ... on 5 December, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00209/2015
Monday, this the 5th day of December, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
K.K.Ravindrakumar,
S/o.K.Unni,
Station Master (SNP)/
Southern Railway/Palakkad.
Residing at House No.15/73,
SMERA, Vidhya Nagar, Kakkanni, Palakkad - 678 009. . . . Applicant
(By Advocate Mr.T.C.Govindaswamy)
Versus
1. Union of India represented by the General Manager,
Southern Railway, Headquarters Office,
Park Town P.O., Chennai - 600 003.
2. The Sr. Divisional Personnel Officer,
Southern Railway, Chennai Division,
Chennai - 600 003.
3. The Sr. Divisional Personnel Officer,
Southern Railway, Palakkad Division,
Palakkad - 678 009.
4. The Divisional Railway Manager,
Southern Railway, Palakkad Division,
Palakkad - 678 009. . . . Respondents
(By Advocate Mrs.K.Girija)
This application having been heard on 4 th November 2016, the
Tribunal on 5th December 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant who is presently working as a Station Master (SNP) in PB-2 + GP Rs.4200/- in the Palakkad Division of Southern Railway is aggrieved by the denial of timely grant of the benefit of the financial upgradation under the ACP/MACP schemes. The applicant was initially appointed as a Probationary Assistant Station Master on 16.8.1988 and later posted against a working post of Assistant Station Master (ASM) on 26.5.1989. The applicant's initial appointment, was in the Hyderabad Division of the South Central Railway. While working in the said Division, the applicant was on 26.6.1991 promoted as a Station Master in the then scale of pay of Rs.1400-2300 (Rs.5000-8000 V CPC). Later the applicant was transferred from Hyderabad Division to the Vijayawada Division in the recruitment grade of an Assistant Station Master in the then scale of pay of Rs.4500-7000. The applicant was thereafter transferred on 22.9.1998 to the Chennai Division on mutual basis in the same grade of Rs.4500-7000. Again, from Chennai Division, the applicant was transferred on mutual basis to the Palakkad Division, where the applicant joined on 25.7.2001.
2. Meanwhile, the Railway Board had, following V CPC recommendations, introduced an Assured Career Progression Scheme (ACPS) with effect from 1.10.1999. In terms of the above orders of the Railway Board, the applicant who was transferred to the Chennai Division in the initial recruitment grade of Rs.4500-7000 ought to have been granted the benefit of the 1st financial upgradation under the ACP Scheme in the then scale of pay of Rs.5000-8000 (revised as PB-2 + GP Rs.4200) on completion of 12 years of service from 26.5.1989 ie, with effect from 26.5.2001.
3. On representations in this regard, the applicant was informed that, though the Railway Board had initially directed to reckon the entire service for the purpose of the benefit of the financial upgradation, there was a subsequent clarification not to grant the benefit of the financial upgradation to those who had come on inter-divisional transfer to a lower grade, on request.
4. After joining the Palakkad Division, the applicant was granted the benefit of PB-2 + GP Rs.4200/- with effect from 1.9.2008 as 2 nd financial upgradation under the MACP Scheme. The applicant's request for ante- dating the benefit to be granted with effect from 26.5.2001 as ACP did not evoke any response. Thereafter the applicant was promoted on functional basis as a Station Master by order dated 17.4.2014 in PB-2 + GP Rs.4200/-. The applicant had completed 20 years of regular service as on 26.5.2009 and, therefore, ought to have been granted the 2 nd financial upgradation under the MACP Scheme in PB-2 + GP Rs.4600/- with effect from that date.
5. The applicant came to know that the OA on identical question pending consideration before this Tribunal were allowed by different orders rendered by this Tribunal. One such order is dated 20.1.2010 in O.A.No.138/2009 produced as Annexure A-2. Annexure A-2 and other order which were allowed by this Tribunal were challenged before the Hon'ble High Court of Kerala which were all dismissed by a common judgment dated 20.3.2012 produced as Annexure A-3. Annexure A-3 was challenged by the official respondents before the Hon'ble Apex Court in SLP(C) No.5415-5420/2013 and the same were also dismissed by a common order dated 24.1.2013 produced as Annexure A-4. Thus the law relating to the issue has now become settled, final and conclusive.
6. The respondents implemented Annexure A-4 judgment during the later part of 2013. Having come to know of the same, the applicant submitted a representation dated 8.11.2013 and 25.2.2015 stating that in the light of Annexure A-2, Annexure A-3 and Annexure A-4 judicial pronouncements, he is entitled to the benefit of the 1 st financial upgradation under the ACP Scheme with effect from 26.5.2001. Counting the service rendered by the applicant in the previous Divisions, he is also entitled to the benefit of the 2nd financial upgradation under the MACP Scheme in PB-2 + GP Rs.4600/- with effect from 26.5.2009.
7. The reliefs sought by the applicant is to declare that he is entitled to be granted the 1st financial upgradation under the ACP Scheme in scale Rs.5000-8000 (PB-2 + GP Rs.4200) with effect from 26.5.2001 and 2 nd financial upgradation under the MACP Scheme in PB-2 + GP Rs.4600/- with effect from 26.5.2009 and direct further to grant all the consequential arrears of pay and allowances arising therefrom.
8. Respondent argues that applicant is seeking 1 st financial upgradation under ACP Scheme in scale Rs.5000-8000 with effect from 26.5.2001 and 2nd financial upgradation under MACP Scheme in PB-2 + GP Rs.4600/- with effect from 26.5.2009 and the applicant has moved this Tribunal only in the year 2015. The claim for benefit under ACP Scheme has been raised after an elapse of 14 years. The claim for benefit under MACP Scheme has been raised after a lapse of 6 years. No plausible reason has been adduced for the inordinate delay in raising the claim before this Tribunal. The applicant has stated that he had submitted two representations at Annexure A-5 and Annexure A-5 (a) in this regard. The representation at Annexure A-5 does not appear to have been received by the respondent. Annexure A- 5 (a) is dated 25.2.2015 and OA has been filed within 10 days of making the said representation. In none of the representations the applicant has a grievance that he was denied ACP benefit with effect from 26.5.2001.
9. In State of Karnataka and others Vs. Kottayya and others (1996) SCC (L&S) 1488 the Apex Court has held that there must be proper explanation to justify the condonation of delay and the explanation must relate to failure to avail the remedy within the limitation period. In Ramesh Kumar Vs. Union of India and others (2003) 4 SCC 69 it was held that Administrative Tribunal Act 21 and 19 (1) delay - condonation of delay - scope of jurisdiction under Article 21 to condone the delay. Scope is very limited. There must exist sufficient grounds for the satisfaction of the Tribunal to condone only a reasonable delay, filing of repeated representations will not enlarge the period of filing an application under Act nor it will provide a sufficient ground and reason for condonation of delay. Entertaining of belated claims by the Tribunals will defeat the very object of speedy disposal of service disputes of the Government employees.
10. The applicant was initially appointed as ASM in scale Rs.1200-2040 in Hyderabad Division of South Central Railway on 30.5.1989. Afterwards he was promoted as ASM Grade I in scale Rs.1400-2300/5000-8000 w.e.f. 14.7.1991 and his pay was fixed at Rs.1400. While working so, he was transferred to Vijayawada Division on Inter Divisional request transfer on bottom seniority in the lower grade of Rs.1200-2040/4500-7000/-. Vth Pay Commission pay scales came into effect from 1.1.1996. On implementation of Vth P.C., and subsequently on transfer to Vijayawada Division in the lower scale of Rs.4500-7000, his pay was fixed as under :
Pay Scale w.e.f. 1560 1400-2300 1.7.95 5150 5000-8000 1.1.96 (Vth P.C.fixation) 5300 5000-8000 1.7.96 5250+50 PP 4500-7000 8.7.96 (on transfer to Vijayawada Dn.)
11. The respondent argues that the pay drawn by the applicant in the higher promoted grade of Rs.1400-2300/5000-8000 was protected on his inter divisional request transfer on bottom seniority in the lower grade of Rs. 1200-2040/4500-7000 w.e.f. 8.7.96. While working in Vijayawada Division, the applicant was transferred to Madras Division of Southern Railway as Assistant Station Master on mutual request in same pay and grade i.e. Rs. 1200-2040/4500-7000 on 18.9.1998. Afterwards he was transferred to Palghat division as Assistant Station Master on inter- divisional mutual transfer in the same pay scale i.e. Rs.4500 7000 on 16.7.2001. The equivalent Pay Band and Grade Pay in Sixth Pay Commission for the pay scale of Rs.4500-7000 (Vth P.C.Scale) effective from 1.1.2006 is Rs.5200-20200 + Rs.2800(GP).
12. It is submitted that in respect of ACP Scheme, Railway Board have clarified vide letter dated 13.12.04 that where the person has been appointed to a lower post after earning one promotion in parent organization, while the past service is to be counted, the employee would not be entitled for first financial upgradation, as the promotion earned before transfer would be offset against entitlement for the first ACP in the new organization. On completion of 24 years service, one would be entitled to second financial upgradation if in the meantime the employee has not earned two regular promotions. The applicant while working as ASM in Hyderabad Division in scale Rs.1200-2040 was granted promotion as ASM Gr.I in scale Rs.1400- 2300 and subsequently he was transferred to Vijayawada Division at request as ASM in the lower scale of Rs.1200-2040. Hence in terms of clarification dated 13.12.04, the applicant will be eligible only for 2 nd financial upgradation under ACP Scheme. It was further decided by Railway Board vide letter dated 14.12.2004 that training period prior to appointment shall not count towards the 12/24 years of regular service for the purpose of ACP Scheme.
13. The issue regarding grant of ACP was challenged before this Tribunal in OA Nos. 519/08, 578/08, 646/08, 626/08, 138/09 etc. and this Tribunal allowed the said OAs. The applicant has produced the order dated 20.1.2010 of this Tribunal in OA No.138/09 as Annexure A-2 wherein it was held in Para 18 as under :
'18. For working out the pay on 1st and 2nd ACP, therefore, the cases are to be divided as under :
(a) Where no promotion has been granted to the applicants in the new Division :
For affording the first financial upgradation from the date of completion of 12 years reckoned from the date of initial appointment or 1.10.1999 whichever is later, their pay in the grade of Rs.330-560/1400-2300/4500- 7000 from initial date of appointment till the date of the first ACP should be worked out and the same would be taken into account to fix their pay in accordance with the ACP Scheme in the grade of Rs.5000-8000. In case, such a pay so fixed happens to be less than the pay actually drawn on that date, the difference shall be treated as personal pay absorbable in future increments. With the annual increments attached to the pay scale of Rs.5000-8000 added for subsequent years, grant of second ACP in the scale of Rs.5500-8000 shall be based on the pay as on completion of 24 years of service from the initial date of appointment and by any chance, if the pay so arrived happens to be less than the pay drawn on that date, then, the difference shall be treated as personal pay to be absorbed in the future increments.
(b) Where one promotion in the present division is granted :
The second ACP shall be from the date the applicants complete 24 years of service reckoned from the date of initial appointment. The pay that would be fixed should be
(i) if in the past, notional increments at the lower stage had been already granted twice (or even more than two) then, there shall be no further notional increment under FR 22(1)(a)(i) at the time of fixation of pay in the scale of Rs.5500-9000.
(ii) Where so far only one notional increment had been granted in the past, while fixing the pay at the time of second financial upgradation, one notional increment at the lower stage has to be granted.
19. All the OAs are allowed to the above extent. Respondents shall effect grant of first/second ACP admissible to the applicants on the basis of the above and work out the pay and allowances accordingly and pay the arrears arising out the same.'
14. The applicant has not been granted any promotion after his transfer to new Division, he is governed by Para 18(a) of Annexure A-2 order of this Tribunal. On fixation of pay as per Para 18(a) of Annexure A-2, his pay will come as under :
Pay w.e.f.
1200 30.5.1989 (Appointment)
1230 1.5.1990
1260 1.5.1991
1290 1.5.1992
1320 1.5.1993
1350 1.5.1994
1380 1.5.1995
4500 1.1.1996 (Vth P.C.) (pay should have been Rs.5000)
4625 1.5.1996
4750 1.5.1997
4875 1.5.1998
5000 1.5.1999
5125 1.5.2000
5250 1.5.2001
5600 30.5.2001 (On grant of 1st ACP after
completing 12 years of service duly
allowing pay fixation under Rule
1313 FR 22(a)(i).
15. As per entries in his Service Register, the applicant has already been granted Rs.5750/- in scale Rs.4500-7000 w.e.f. 1.7.2000 and Rs.5875/- in scale Rs.4500-7000 w.e.f. 1.7.2001 due to protection of his pay on inter divisional request transfer to Vijayawada division in the lower scale produced by respondent as Annexure R-2. Thus, as on 30.5.2001, the applicant has already been granted higher pay of Rs.5750/- instead of Rs.5600/- as envisaged in Para 18 (a) of Annexure A-2 order of this Tribunal. Respondent would argue that the applicant is not entitled to get any benefit of 1st ACP even on the basis of Annexure A-2 order of this Tribunal. Therefore, the claim of the applicant for 1 st ACP is liable to be rejected. As per Annexure A-1 the entitlement for 2 nd financial upgradation under ACP will arise on completion of 24 years of service. In the case of the applicant, he will complete 24 years of service on 30.5.2013.
16. Meanwhile, ACP Scheme was scrapped and replaced by MACP Scheme with effect from 1.9.2008 and hence he is not entitled to get 2 nd financial upgradation benefit under ACP Scheme. Since the applicant had carried the financial benefit of promotion as ASM Gr.I at the time of his unilateral transfer to Vijayawada Division to the lower grade, he is eligible for only 2nd financial upgradation under MACP Scheme. Prior to implementation of Vith P.C. w.e.f. 1.1.2006, the applicant was in scale Rs.4500-7000, for which the equivalent Grade Pay in VIth P.C. was Rs.2800/- in Pay Band Rs.5200-20200. Hence respondent admits that applicant who was promoted as ASM Grade I in scale Rs.5000-8000 with effect from 14.7.1991 was being given scale of Rs.4500-7000. Therefore he was entitled to 1st ACP on completion of 12 years as his first promotion stood negated. The MACP Scheme merely envisages placement in the immediate next higher Grade Pay in the hierarchy of the revised Pay Band. The next Grade Pay in the hierarchy is Rs.4200/- in Pay Band Rs.9300- 34800. The applicant has been granted 2 nd financial upgradation to Grade Pay Rs.4200/- in Pay Band Rs.9300-34800 w.e.f. 1.9.2008 i.e. date of commencement of MACP Scheme. Hence the financial upgradation due to the applicant under MACP Scheme was also extended to him. Based on his turn for promotion, the applicant was regularly promoted as Station Master in Pay Band Rs.9300-34800 + GP Rs.4200/- w.e.f. 1.11.2013. The applicant will become eligible for 3rd financial upgradation under MACP Scheme to Grade Pay Rs.4600/- only on completion of 30 years of regular service or on completion of 10 years of regular service from the date of grant of earlier MACP which is on 1.9.2008 as per extant instructions. It is submitted that on medical examination, the applicant was found unfit in Medical clssification 'Aye Two', which is the prescribed medical fitness for the post of Station Master, and found fit in Medical classification 'Bee one' and below as per Medical Certificate dated 1.12.2014. Hence he has been charged against a Special Supernumerary post w.e.f. 1.12.2014. For gainful utilization of his service, the applicant was posted to work as Cash Witness in Cash Office pending absorption in a suitable alternative post.
17. Heard the counsel for applicant and respondents and perused the written submissions made. It is submitted that the applicant was selected for appointment to the post of Probationary Assistant Station Master and after successful completion of initial training, he was posted against a working post of Assistant Station Master (ASM) in Hyderabad Division of South Central Railway on 30.5.89 and not on 26.5.89 as contended by the applicant. He was promoted as ASM Grade I in scale Rs.1400- 2300/5000- 8000 (Vth P.C.) w.e.f. 14.7.91 and not 26.6.91 as stated by the applicant. On such promotion, his pay was fixed in the promoted grade of Rs.1400- 2300/5000-8000. The applicant was thereafter transferred to Vijayawada Division on Inter divisional request transfer on bottom seniority in the lower grade of Rs.1200-2040/4500-7000 (Vth PC). At the time of joining the Vijayawada Division, the pay drawn by the applicant in the promoted higher scale of Rs.1400-2300/5000-8000 was protected by fixation of pay in lower scale and Rs.50/- personal pay to cover the amount arrived at as a consequence of fixation in lower scale of pay. Hence while he was working in a lower post his last pay drawn was protected but nowhere does respondent contend that the promotional pay scale of Rs.5000-8000 was also protected.
18. ACP Scheme envisaged that employees will be eligible for two financial upgradations on completion of 12 and 24 years of service, if in between no regular promotions were granted to them. The applicant was promoted as Assistant Station Master Grade I in scale Rs.1400-2300/5000- 8000 on 14.7.1991 but went on inter-divisional request transfer to Vijayawada Division in the lower scale of Rs.1200-2040. Applicant was promoted from pay scale of Assistant Station Master Rs.1200-2040 to Assistant Station Master Gr.I in scale Rs.1400-2300. The applicant went on inter-divisional transfer in 1996 and from pay table provided in para 19 we note that the pay drawn (Vth PC) by applicant on 1.1.1996 is Rs.4500/- and on date of next increment ie. 1.5.1996 applicant is drawing Rs.4625/- and Rs.4750 on 1.5.1997 etc.. We note that Rs.4500-7000 was not the Vth CPC replacement scale for Rs.1400-2300 which the applicant was drawing on promotion as Assistant Station Master Gr.I. The replacement scale for Rs.1400-2300 as admitted by respondents themselves in para 15 of the reply statement was Rs.5000-8000. Hence pay on Vth CPC introduction on 1.1.1996 should have been Rs.5000 and not Rs.4500 as shown in table in para 19 of the reply statement. Hence it is observed that the last pay drawn only was protected by granting personal pay and not the higher pay scale of the erstwhile post on inter-divisional transfer.
19. In the light of what is stated above the prayer of the applicant is allowed by granting him the 1 st financial upgradation under the ACP Scheme in scale Rs.5000-8000 with effect from 26.5.2001 and 2 nd financial upgradation under the MACP Scheme in PB-2 + GP Rs.4600/- with effect from 26.5.2009. However, arrears of pay and allowances arising therefrom shall be restricted to a period of 3 years immediately prior to the date of filing of OA as held by the Supreme Court in Union of India & another Vs. Tarsem Singh, reported in (2008) 8 SCC 648. The above exercise shall be completed within a period of three months from the date of receipt of a copy of this order. No costs.
(Dated this the 5th day of December 2016)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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