Central Administrative Tribunal - Ernakulam
G.R. Mahesh vs Union Of India Represented By on 1 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 03/2012
Tuesday, this the 01st day of January, 2013
C O R A M :
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. G.R. Mahesh, aged 44 years,
S/o. R. Gangadharan,
Loco Pilot (Mail), Southern Railway,
Quilon Juntion, Quilon
Residing at "Remya Nivas",
TKMC P.O., Peroor, Kollam : 691 005
2. K. Pradeep Kumar, aged 51 years,
S/o. V. Kunhiraman,
Loco Pilot (Mail), Southern Railway,
Ernakulam Junction, Cochin : 682 016
Residing at : "Punartham House",
West Chalakudi, Trichur District ... Applicants.
(By Advocate Mr. T.C. Govindaswamy)
v e r s u s
1. Union of India represented by
The General Manager,
Southern Railway, Headquarters Office,
Park Town P.O., Chennai - 600 003.
2. The Chief Personnel Officer,
Southern Railway, Headquarters Office,
Park Town P.O., Chennai - 600 003.
3. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 695 014
4. The Secretary to Government of India,
Ministry of Railways (Railway Board),
New Delhi : 110 001. ... Respondents
(By Advocate Mr. P Haridas)
This O.A. having been heard on 13.12.12, this Tribunal on 01.01.13
delivered the following :-
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicants who are Loco Pilots (Mail), Southern Railway, are aggrieved by the order issued by the respondents withdrawing the benefit of financial upgradation under the MACP Scheme. The promotional avenue for the applicant in the pre-revised hierarchy in the ascending order was from the scale of Rs. 5000-8000 to Rs. 5500-9000 and from Rs. 5500-9000 to Rs.6000-9800. These pay scales were merged into a common replacement Pay Band of Rs. 9300-34800 with Grade Pay of Rs. 4200/-. They were granted financial upgradations under the MACP Scheme vide Annexure A-4 dated 03.09.2012 with effect from 01.09.2008 raising their Grade Pay to Rs.
4600/-. But the same was cancelled vide Annexure A-3 order dated 20.05.2011 in terms of Para 8 of the MACP Scheme. Hence, the applicants have filed this O.A. for the following reliefs:
(i) Call for the records leading to the issue of Annexure A-3 and quash the same to the extent it relates to the applicants;
(ii)Call for the records leading to the issue of Annexure A-2 and quash the same in so far as it affects the applicants herein;
(iii)Call for the records leading to the issue of Annexure A-1 and declare that para 8 of Annexure to Annexure A-1 is arbitrary, unconstitutional and totally unrelated to the object sought to be achieved and hence, unconstitutional;
(iv)Direct the respondents to continue to grant the applicants the benefits as ordered in A-4 and A-5, as if A-3 order has not been issued at all;
(v)Award costs of and incidental to this application;
(vi)Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.
2. The contention of the applicants is that they were promoted to the post of Loco Pilot (Passenger) / Loco Pilot (Mail) prior to 01.01.2006 / 01.09.2008 and that since there was a merger of pay scales, the benefits were granted to them in terms of Annexure A-1 order under para 5 of the MACP Scheme.
Therefore, Annexure A-3 order is illegal.
3. The contention of the respondents is that Para 8 of the MACP Scheme is very much applicable to the case of the applicants disentitling them to the benefit of the MACP Scheme. Para 5 of the MACP Scheme has no applicability to their case. A-4 order issued on wrong understanding of the MACP Scheme was required to be cancelled by issuing Annexure A-3 order on the basis of Annexure A-2 letter of the Assistant Personnel Officer /C&R, Office of the Chief Personnel Officer, Southern Railway, Chennai. The 1st applicant has earned 4 regular promotions and the 2nd applicant earned 3 regular promotions consequent on merger.
4. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mr. P. Haridas, learned counsel for the respondents and perused the records.
5. This O.A is squarely covered by the order of this Tribunal dated 11.04.2012 in R.A. No. 16/2012 in O.A. No. 561/2011. The relevant extract from the said order is reproduced as under :
"13. Arguments were heard and documents perused. Para 5 and 8 of the M.A.C.P. Scheme read as under :-
5. Promotions earned/upgradation granted under the ACP Scheme in the past to those grades which now carry the same grade pay due to merger of pay scales/ upgradations of posts recommended by the Sixth Pay Commission shall be ignored for the purpose of granting upgradations under Modified ACPS.
Illustration The pre-revised hierarchy (in ascending order) in a particular organization was as follows :
Rs.5000-8000, Rs.5500-9000 & Rs.6500-10500.
(a) A Railway servant who was recruited in the hierarchy in the pre-revised pay scale Rs. 5000-8000 and who did not get a promotion even after 25 years of service prior to 1.1.2006, in his case as on 1.1.2006, he would have got two financial upgradations under ACP to the next grades in the hierarchy of his organization, ie., to the pre-revised scales of Rs. 5500-9000 and Rs. 6500-10500.
(b) Another Railway servant recruited in the same hierarchy in the pre-revised scale of Rs. 5000-8000 has also completed about 25 years of service, but he got two promotions to the next higher grades of Rs. 5500-9000 & Rs. 6500-10500 during this period.
ln the case of both (a) and (b) above, the promotions/financial upgradations granted under ACP to the pre-revised scales of Rs. 5500-9000 and Rs. 6500- 10500 prior to 1.1.2006 will be ignored on account of merger of the pre-revised scales of Rs. 5000-8000, Rs. 5500-9000 and Rs. 6500-10500 recommended by the Sixth CPC. As per the RS(RP) Rules, both of them will be granted grade pay of Rs. 4200 in the pay band PB-2. After the implementation of MACPS, two financial upgradations will be granted both in the case of (a) and (b) above to the next higher grade pays of Rs. 4600 and Rs. 4800 in the pay band PB-2.
6. ln the case of all the employees granted financial upgradations under ACPS till 01.01.2006, their revised pay will be fixed with reference to the pay scale granted to them under the ACPS.
6.1 ln the case of ACP upgradations granted between 01.01.2006 and 31.08.2008, the Railway servant has the option under the RS (RP) Rules, 2008 to have his pay fixed in the revised pay structure either (a) w.e.f. 01.01.2006 with reference to his pre-revised scale as on 01.01.2006; or (b) w.e.f. the date of his financial upgradation under ACP with reference to the pre-revised scale granted under ACP. ln case of option (b), he shall be entitled to draw his arrears of pay only from the date of his option i.e. the date of financial upgradation under ACP.
6.2 ln cases where financial upgradation had been granted to Railway servants in the next higher scale in the hierarchy of their cadre as per the provisions of the ACP Scheme of October, 1999, but whereas as a result of the implementation of Sixth CPC's recommendations, the next higher post in the hierarchy of the cadre has been upgraded by granting a higher grade pay, the pay of such employees in the revised pay structure will be fixed with reference to the higher grade pay granted to the post. To illustrate, in the case of Jr. Engineer in CPWD, who was granted 1st ACP in his hierarchy to the grade of Assistant Engineer in the pre-revised scale of Rs.6500-10500 corresponding to the revised grade pay of Rs.4200 in the pay band PB-2, he will now be granted grade pay of Rs4600 in the pay band PB-2 consequent upon upgradation of the post of Assistant Engineers in CPWD by granting them the grade pay of Rs.4600 in PB-2 as a result of Sixth CPC's recommendations. However, from the date of implementation of the MACPS, all the financial upgradations under the Scheme should be done strictly in accordance with the hierarchy of grade pays in pay bands as notified vide RS (RP) Rules, 2008.
7. With regard to fixation of his pay on grant of promotion/financial upgradation under MACP Scheme, a Railway servant has an option under Rule 1313(1)(a)(i) of the Indian Railway Establishment Code - Volume II, (Sixth Edition 1987 - 2nd Reprint, 2005) [FR 22 (I) (a) (i)] to get his pay fixed in the higher post/ grade pay either from the date of his promotion/upgradation or from the date of his next increment viz. 1st July of the year. The pay and the date of increment would be fixed in accordance with clarification no.2 of Railway Board's letter No.PC-VI/2008 dated 25.9.2008 (PC-VI/22, RBE No.132/2008).
8. Promotions earned in the post carrying same grade pay in the promotional hierarchy as per Recruitment Rules shall be counted for the purpose of MACPS.
8.1 Consequent upon the implementation of Sixth CPC's recommendations, grade pay of Rs. 5400 is now in two pay bands viz., PB-2 and PB-3. The grade pay of Rs. 5400 in PB-2 and Rs.5400 in PB-3 shall be treated as separate grade pays for the purpose of grant of upgradations under MACP Scheme.
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18. It is with the above broad principles of interpretation, that the two provisions i.e. para 5 and para 8 of the scheme are to be interpreted. Para 5 talks of promotions granted in the past to some posts, the pay scales of which have since been merged and the said para requires that such promotions granted should be ignored for the purpose of MACP. Para 8, on the other hand states that if there be two posts carrying the same grade pay and one is the promotional post of the other, and if promotion to such post takes place, the same shall be taken into account for the purpose of MACP. There may be a seeming conflict between the two provisions, whereas, it is not so. The difference in the two is that para 5 applies to a situation where there is merger of two or more pay scales, while such a merger is not there in respect of the pay scales of promotional post and the feeder posts in respect of para 8. The two provisions are in fact functioning in two different planes and are compatible.
19. The underlying reason in such provisions (a) to ignore the promotions granted when the two or more pay scales have been merged vide para 5 of the Scheme (b) but to take into account the promotions even if grade pay is the same in respect of two promotions vide para 8 is not far from comprehension.
20. Where there is a merger of pay scales, in future cases, promotion from the feeder grade would be only in the merged pay scale which would constitute only one promotion making eligible the persons for one or two MACPs thereafter , whereas, for the past cases, unless the promotions are ignored, the same would account for two or more promotions which would disentitle them from the benefit of MACP. In so far as the other case referred to in para 8 of the scheme, there being no merger of pay scales, be it the past promotion or future promotion, entitlement or otherwise to MACP would be identical. If the promotions are to be accounted for in respect of merged posts whose pay scales have been merged into a single one, then, such a situation would result in a calamitous disparity in the pay of the seniors and juniors (juniors getting more pay than the seniors!). And, as held in the case of Gurcharan Singh Grewal (supra) such a situation cannot be allowed to permeate.
21. The respondents were right when they had earlier granted MACP to the applicants ignoring the promotions granted earlier as such promotions fell under the provisions of para 5 of the scheme. It is only due to the erroneous clarification issued by the CPO that the respondents have taken action for recovery of alleged excess payment. We render our finding here that the applicants are all entitled to the MACP already awarded and withdrawal of the same and effecting recovery on account of the withdrawal are thoroughly illegal and unjust.
22. In view of the above, all the O.As succeed. The grant of MACP in all such cases was in order and rescinding of the said order under MACP and consequent recovery are declared illegal. Respondents are directed to ensure that the financial upgradation granted under the MACP scheme to all the applicants in the above O.As are restored and amounts if any recovered shall be refunded forthwith. As the legal issue involved in this case is discussed and decided, identical matters should also be dealt with by the respondents accordingly, without forcing the employees to rush to the Tribunal for an identical relief. That would be keeping in tune with the recommendations of the V Central Pay Commission in para 126.5 thereof which reads as under:-
"126.5 - Extending judicial decisions in matters of a general nature to all similarly placed employees. - We have observed that frequently, in cases of service litigation involving many similarly placed employees, the benefit of judgment is only extended to those employees who had agitated the matter before the Tribunal/Court. This generates a lot of needless litigation. It also runs contrary to the judgment given by the Full Bench of Central Administrative Tribunal, Bangalore in the case of C.S. Elias Ahmed and others v. UOI & others (O.A. Nos. 451 and 541 of 1991), wherein it was held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties to the original writ. Incidentally, this principle has been upheld by the Supreme Court in this case as well as in numerous other judgments like G.C. Ghosh v. UOI, [ (1992) 19 ATC 94 (SC) ], dated 20-7-1998; K.I. Shepherd v. UOI [(JT 1987 (3) SC 600)]; Abid Hussain v. UOI [(JT 1987 (1) SC 147], etc. Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other identical cases without forcing the other employees to approach the court of law for an identical remedy or relief. We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of Government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee."
23. It is worth citing at this juncture the observations of the Apex Court in the case of Lakshmi Ram Bhuyan vs Hari Prasad Bhuyan (2003) 1 SCC 197 wherein, the Apex Court has observed -
"An inadvertent error emanating from non-adherence to rules of procedure prolongs the life of litigation and gives rise to avoidable complexities. The present one is a typical example wherein a stitch in time would have saved nine."
24. No costs."
6. Following the above decision, this O.A is allowed as under. Annexure A/3 is quashed to the extent it relates the applicants. The respondents are directed to continue to grant the applicants the benefits as ordered in Annexure A-4 as if Annexure A-3 order has not been issued at all.
Appropriate order in this regard should be issued within a period of 60 days from the date of receipt of a copy of this order.
7. No order as to costs.
(Dated, the 01st January, 2013)
K.GEORGE JOSEPH JUSTICE P.R. RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.