Central Administrative Tribunal - Bangalore
Thimmegowda C A vs South Central Railways on 1 December, 2022
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OA.No.170/1694/2018/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/01694/2018
DATED THIS THE 1ST DAY OF DECEMBER, 2022
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Thimmegowda, C.A.,
S/o Arethimmaiah,
Aged about 61 years,
Residing at Flat No.308,
"Surabhi", Meghamaaney Apartments,
Omkar Nagar, Dr.Vishnuvardhan Road,
R.R.Nagar, Bangalore-560 059. ..Applicant.
(By Advocate Shri B.S. Venkatesh Kumar)
Vs.
1. Union of India represented by
General Manager,
South Central Railways,
Sanchalan Bhavan,
Secunderabad, Telangana.
2. The Divisional Railway Manager/P/SC
Personnel Branch, 4" Floor,
Sanchalan Bhavan,
Secunderabad.
3. The Senior Divisional Personnel Officer,
South Central Railways,
Personnel Branch,
4th Floor, Sanchalan Bhavan,
Secunderabad. ....Respondents
(By Shri N. Amaresh, Advocate for Railways)
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OA.No.170/1694/2018/CAT/Bangalore Bench
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"To quash and set aside the impugned communication No.SCR/P.SC/220/Engg. Bills/2018 dated 11.7.2018 (Annexure A-6) passed by the 3rd respondent and further direct the respondent to grant appropriate scale of pay of Rs.5500-9000 from the date of redeployment of the applicant and to extend all consequential benefits viz., MACP benefits and retiral benefits to the applicant."
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was appointed and joined duty as Assistant Teacher (Kannada) in Railway ATP School, Bidar on 15.6.1993 in the then existing scale of Rs. 1200-2040. This scale was replaced in V CPC by pay scale of Rs.4500-7000 w.e.f. 1.1.1996. He was also granted the next higher scale of pay of Rs. 5500-9000 w.e.f. 15.6.2005 on promotion.
b) The Railway ATP School, Bidar was closed down and the applicant was rendered surplus. Consequently, the applicant was redeployed as Senior Clerk in the scale of Rs.4500-7000 in Civil Engineering Department in the initial recruitment grade of Rs.4500-700 as per the CPO South Central Railway letter dated 23.8.2007. The applicant was 3 OA.No.170/1694/2018/CAT/Bangalore Bench subsequently promoted as Office Superintendent Grade II w.e.f.
30.12.2009 in the VI CPC scale of Rs.9300-34800 plus grade pay of Rs.4200. The applicant was also granted MACP II with grade pay of Rs.4600 w.e.f. 23.7.2013 as per the order dated 26.4.2016.
c) The applicant submitted a representation on 07.1.2016 to the 3rd respondent contending that as he has been working from 1993 and drawing Rs.4200 in 6th CPC scales he should be granted MACP I and II with grade pay of Rs.4600 and Rs.4800.
d) The applicant retired from Railway service w.e.f. 31.8.2017. The applicant submitted another representation on 29.1.2018 for grant of appropriate pay scale and for refixation of his pay, pension and other retiral benefits. The applicant submitted yet another representation on 06.2.2018 requesting for rectification of pay when the pay of the applicant was brought down on redeployment in October 2007 and for all consequential refixation of pay and allowances and pension and other terminal benefits.
e) The respondents have sent a reply dated 11.7.2018 rejecting the representations of the applicant, stating that as he has already been given two MACPs, and he is not eligible for further financial upgradation under MACP scheme.
f) At the time of closure of the Kannada Medium School, the applicant was in receipt of the pay scale of Rs.5500-9000 w.e.f. 15.6.2005. The applicant did not seek change of cadre, but only because the school 4 OA.No.170/1694/2018/CAT/Bangalore Bench was closed, the applicant was deployed. Under the circumstances, the respondents should have granted the scale of Rs.5500-9000 instead of the grade of Rs.4500-7000 on redeployment.
3. The respondents have filed their written statement wherein they have averred as follows:
a) The applicant was appointed as Assistant Teacher (Kannada Medium in scale Rs.4500-7000 (RSRP) at Railway School, Bidar on 15.6.1993 and subsequently promoted as Assistant Graduate Teacher in scale of Rs.5500-9000 (RSRP) w.e.f. 15.6.2005.
b) Consequent upon closure of A.T. Primary School at Bidar, the applicant was rendered surplus and re-deployed as Sr. Clerk in scale Rs.4500-7000 (RSRP) in initial recruitment grade in Civil Engineering department of SC division as per extant rules. The applicant had accepted the same without any protest.
c) Subsequently, the applicant was promoted to the post of Office Superintendent in scale Rs.9300-34800+4200/- (GP) w.e.f.
30.12.2009. Further, the applicant was also granted 1st MACP w.e.f. 01.09.2008 (4200/- GP) and 2nd MACP w.e.f. 23.7.2013 (4600/- GP) vide orders dated 26.4.2016 (Annexure R-1).
d) The applicant was appointed on 15.6.1993 and retired from service on superannuation on 31.8.2017. Therefore, the length of service rendered by the applicant from Date of Appointment to Date of Retirement is 24 years, 02 months and 16 days subject to AWP/LWP 5 OA.No.170/1694/2018/CAT/Bangalore Bench if any. Accordingly, the applicant had been granted 1st MACP (4200/- GP) w.e.f. 01.09.2008 (as the scheme was introduced w.e.f. 01.09.2008 in VI CPC) and 2nd MACP (4600/- GP) w.e.f. 23.7.2013, as the applicant completed 20 years of qualifying service on that date.
e) The applicant, consequent upon being rendered surplus, was re-
deployed in scale Rs.4500-7000 with 2800 as Grade Pay as per extant rules. Hence, he is eligible for grant of 4200/- as 1st MACPS and 4600/- as 2nd MACPS in the hierarchy of Grade Pay in terms of Railway Board's letter No.PC-V/2009/ACP/2 dated 10.6.2009. The applicant is not eligible directly for 4600/- & 4800/- as claimed by him.
f) As per extant instructions, staff rendered surplus are to be redeployed either in grades having an element of direct recruitment or in intermediate grades where no element of direct recruitment exists. In the cadre of ministerial category, the post of Sr. Clerk is a direct recruitment post against 13 1/3 recruitment quota.
g) The applicant was drawing pay in PB II (Rs. 9300-34800) with GP of 4200 (Rs.12160+4200=16360) at the time of being rendered surplus. As per RBE No.210/2009 circulated under CPO/SC's SC No.10/2011 (Annexure R-III) his pay in band pay Rs.12160 has been protected and GP of Rs.2800/- attached to the post of Sr. Clerk was drawn while absorption as Sr. Clerk in PB.I Rs.5200-20200. The pay drawn by the applicant as Teacher had been protected while absorbing him as Sr. Clerk on re-deployment in terms of CPO/SC's SC No.10/2001. 6
OA.No.170/1694/2018/CAT/Bangalore Bench
h) As per RBE No.206/2010 circulated under CPO/SC's SC No.10/2001 surplus staff working in intermediate grades shall be deployed in immediate lower direct recruitment grades. The applicant had never agitated against that and accepted the same without any protest during his service.
4. In the rejoinder to the reply, the applicant has pleaded as follows:
a) The applicant was working in a post carrying grade pay of Rs. 4200 as per VI CPC scales. He should be granted MACP I and MACP II with respective grade pay of Rs.4600 and 4800. The respondents only stated in their reply that they have granted promotion/MACP in the grade pay of Rs.4200 and Rs.4600 respectively, whereas the contention of the applicant is that the applicant is entitled for grade pay of Rs.4600 and Rs.4800/- when he was granted MACP I and MACP II respectively w.e.f. 01.9.2008 and 23.7.2013.
b) The applicant was working in the pay scale of Rs.12160+4200=Rs.16360 in PB II in the pay scale of Rs.9300-
34800+4200 grade pay of Rs.4200. Mere protection of pay but reducing the grade pay to Rs.2800 is unjust and arbitrary. If the applicant was granted Rs.4200 grade pay on his redeployment, he would have become entitled to grade pay of Rs.4600 and Rs.4800 on 01.9.2008 and 13.7.2013.
c) The total pay (including grade pay) brought down while protecting the basic pay drawn, where such posts carry lower grade pay, is 7 OA.No.170/1694/2018/CAT/Bangalore Bench permissible only in cases where the posting is on own request. (Reference page 13 para 2). However, when transfer to a lower post is made subject to certain terms and conditions, then the pay may be fixed according to such terms and conditions. In the present case, the applicant was posted as Senior Clerk on the school being closed and not on the request of the applicant. In such circumstances, the application of para 2 Annexure R3 may not be correct. The applicant's pay should have been fixed with grade pay of Rs.4200 and consequently he would have become entitled to get grade pay of Rs.4600 and 4800 in his I/II MACP being granted.
d) The respondents had granted grade pay of Rs.2800, when the applicant was working in the grade pay of Rs.4200, on his redeployment on closure of the school. If he had continued in the school, he would have continued in the grade pay of Rs.4200 and would have automatically become entitled to enhanced grade pays of Rs.4600 and Rs.4800 when he got the MACP I and MACP II benefits.
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. In the present case, the applicant is seeking a direction to the respondents to grant him the scale of pay of Rs.5500-9000 from the date of his redeployment as Senior clerk in the scale of Rs. 4500-7000 vide orders dated 23.8.2007. He is also seeking MACP 1 and MACP 11 benefits in the Grade Pay of Rs. 4600/- and 4800/ accordingly.
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OA.No.170/1694/2018/CAT/Bangalore Bench
7. The applicant has contended that he was drawing the pay scale of Rs.5500- 9000 w.e.f. 15.6.2005 after getting his first promotion. However, after being declared as surplus, he was redeployed as Senior Clerk in the lower pay scale of Rs.4500-7000. He was subsequently promoted as Office Superintendent Grade-II w.e.f. 30.12.2009 in the VI CPC scale of Rs.9300-34800 plus grade pay of Rs.4200. He was also granted MACP II in scale of Rs. 9300-34800 with Grade Pay of Rs.4600 w.e.f. 23.7.2013 vide orders dated 26.4.2016.
8. The respondents have stated that subsequent to the closing of the Primary School where he was working as a teacher, the applicant was rendered surplus and redeployed as Senior Clerk in the scale of Rs.4500-7000, which is the initial recruitment grade in Civil Engineering department of SC division as per extant rules.
9. The respondents have further stated that the staff rendered surplus are to be redeployed either in the grades having element of direct recruitment or in the intermediate grades where no element of direct recruitment exists. Moreover, the pay of the applicant of Rs.12,160/-, was protected at the time of absorbing him as Sr. Clerk on redeployment with Grade Pay of Rs.2800/-, which was attached to the post of Sr. Clerk where he was absorbed. The pay drawn by him in the higher pay scale (excluding the Grade Pay) had been protected while absorbing him in the lower pay scale in terms of CPO/SC's SC No.10/2001.
10. The applicant had never agitated against his absorption with pay protection along with the lower Grade Pay attached to the post, at the time of his 9 OA.No.170/1694/2018/CAT/Bangalore Bench absorption and had accepted the same without any protest during his entire service. The applicant retired on superannuation on 31.8.2017. The present OA has been filed subsequent to his superannuation, seeking protection of Grade Pay at the time of his redeployment.
11. The applicant had served for a total period of 24 years 2 months and 16 days. Hence, he would have been entitled to only two up-gradations under the MACP scheme. He has been granted 1st MACP w.e.f. 01.9.2008 and the 2nd MACP w.e.f. 23.7.2013, after completion of 20 years of qualifying service.
12. It has been observed that the promotion granted to the applicant as a teacher on 15.6.2005 has not been counted while granting the two MACPs, since he had been redeployed to a lower post of Senior Clerk. However, he has been granted MACP after counting his entire service including that of teacher in the Railway School at Bidar.
13. The prayer of the applicant that he should be granted MACP I and II in the respective Grade Pay of Rs. 4600 and 4800 is misplaced. He had already received a promotion as teacher prior to his absorption as a clerk on 15.6.2005. If that promotion is taken into account, then he would have been entitled to MACP II only after completion of 20 years of service. However, his up-gradation in GP 5500-9000 as a teacher has not been counted due to the fact that he was absorbed on a lower post. He had accordingly been granted MACP I (4200) w.e.f. 01.9.2008 and MACP II (4600) after completing 20 years of service on 23.07.2013. He is not 10 OA.No.170/1694/2018/CAT/Bangalore Bench entitled to MACP III since he attained superannuation before completing 30 years of service.
14. The absorption of the applicant in the lower pay scale having lower grade pay with pay protection is fully covered as per Railway Rules specified in circular No.10/2001. The rules provide for protection of pay in the Pay Band without protection of Grade Pay at the time of absorption. After being rendered surplus, the applicant is absorbed in the direct recruitment pay scale of the new post.
15. The prayer of the applicant to grant protection of grade pay on redeployment besides being contrary to the Railway rules, also suffers from enormous delay and laches, since the cause of action arose at the time of his absorption i.e. 23.8.2007. The applicant has chosen to file the present OA on 22.10.2018.
16. Keeping the above points in view, there is no merit in the OA and it deserves to be dismissed on account of lack of merit as well as on account of suffering from delay and laches.
17. Accordingly, the OA is dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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