Central Administrative Tribunal - Ernakulam
P P Nandakumar vs M/O Railways on 18 December, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00597/2023
Wednesday this the 18th day of December 2024
CO RAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Ms.V.RAMA MATHEW, ADMINISTRATIVE MEMBER
P.P.Nandakumar,
Aged 56 years,
S/o.late M.P.Madhusoodhanan,
Office Superintendent Personnel Branch,
Southern Railway, Palakkad Division.
Residing at Saphalyam, Kallekulangara Post,
Olavakkode, Palakkad - 678 009. ...Applicant
(By Advocate Mr.S.Radhakrishnan)
versus
1. Union of India
represented by the Secretary to the Government of India,
Ministry of Railways, Rail Bhavan,
New Delhi - 110 001.
2. General Manager,
Southern Railway, HQ Office,
Park Town P.O., Chennai - 600 003.
3. Principal Chief Personnel Officer,
Headquarters, Personnel Department,
Chennai - 600 003.
4. Senior Divisional Personnel Officer,
Southern Railway, Palakkad - 678 002.
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5. Senior Divisional Finance Manager,
Southern Railway, Palakkad - 678 002. ...Respondents
(By Advocate Mrs.O.M.Shalina, SCGSC [R1-5])
This application having been heard on 26 th November, 2024 the
Tribunal on 18th December 2024 delivered the following :
ORDER
HON'BLE Ms.V.RAMA MATHEW, ADMINISTRATIVE MEMBER The factual matrix is as follows :
The applicant was appointed as a Head Constable Trainee on
02.05.1990 and was posted on regular basis as a Constable in the scale of pay of Rs.825-1200 with effect from 02.01.1991. The pay of the RPF Personnel were equated with the pay of the Delhi Police personnel with effect from 04.12.1997 by order dated 01.12.1997 of the Ministry of Railways. Thus, the pay of a RPF Constable was revised to Rs.3050- 4590 with effect from 04.12.1997. On completion of 12 years of regular service the applicant was granted 1 st financial upgradation under the ACP Scheme to scale of pay of Rs.3200-4900 ie., the scale of pay of Head Constable with effect from 02.05.2002. On 07.05.2004 the applicant was medically decategorized and declared fit in C1 and below and placed in supernumerary post. On 13.07.2005 he was posted as Office Clerk in the scale of pay of Rs.3050-4590 in the Personnel Branch and he joined duty A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -3- on the same day itself. In the RPF since the applicant was drawing the basic pay of Rs.3880/- in the scale of pay of Rs.3200-4900 by virtue of the financial upgradation under the ACP Scheme, on joining at Personnel Branch his pay was fixed at Rs.3875/- + Rs.5/- (PP) with effect from 13.07.2005 in the original scale of pay of Rs.3050-4590 without reckoning the benefits of financial upgradation already received. He was granted financial upgradation under the ACP Scheme in the existing hierarchy in the scale of Rs.4500-7000 with effect from 15.07.2007 duly revising the pay already fixed.
2. The applicant had been found entitled for the 2 nd financial upgradation under the MACP Scheme to the Grade Pay of Rs.4200/- based on the hierarchy of Grade Pays in PB Rs.9300-34800 from 02.01.2011 ie., on completion of 20 years of service. Subsequently he had earned normal promotion as a Senior Clerk in the Grade Pay of Rs.2800/- on 21.07.2016 and thereafter as Office Superintendent in the Grade Pay of Rs.4200/- from 20.07.2018, the Grade Pay which had already been allowed to him earlier under the ACP and MACP Schemes. Since the applicant had already been granted the pay fixation benefits, he was not given further pay fixation on his regular promotion to the post of Senior Clerk and Office Superintendent. On completion of 30 years of A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -4- regular service the applicant was granted 3 rd financial upgradation under the MACP Scheme to the Grade Pay of Rs.4600/- with effect from 02.01.2021.
3. Another employee Shri.Vinod.A.P., who was a Constable in the RPF and who was absorbed in an alternative post on medical decategorization submitted a representation on 13.08.2019 claiming stepping up of pay on par with the applicant herein who was his junior in the RPF. At the time of medical decategorization Shri.Vinod.A.P was posted as a Record Sorter in the pay scale of Rs.825-1200 on an alternative employment on 28.02.1996 as the pay scale of Constable post then was Rs.825-1200 due to which it was not permissible to post him as junior on an alternative employment as the scale of pay of Junior Clerk then was Rs.950-1500, which is higher than that of a Constable. It is to be noted that Shri.Vinod.A.P., was decategorized and granted alternative employment on 28.02.1996 before the rationalization of the rank structure and pay scales of Central Police Organizations and granting them parity with Delhi Police Service which came into effect only from 04.12.1997. It is also noted that the said Shri.Vinod.A.P later came to ministerial cadre as Clerk through departmental channel promotion available to Peon category and was posted at S&T Workshop, Podannur.
A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -5- He came to Personnel Branch seniority only in the year 2018 on mutual transfer. The representation dated 13.08.2019 was forwarded to the Principal Chief Personnel Officer, Chennai for clarification as per letter dated 14.07.2021. The Principal Chief Personnel Officer, Chennai vide letter dated 02.08.2021 found that the pay fixation done in the case of Shri.Vinod.A.P was in order and therefore needs no revision and in the case of the applicant it was recommended to verify the correctness of allowing him 2nd financial upgradation under the MACP Scheme in the Grade Pay of Rs.4200/- as his entitlement for 2 nd MACP was only for Grade Pay of Rs.2000/- as per the hierarchy of Grade Pay and that in view of his subsequent promotion as Office Superintendent on 20.07.2018 in Grade Pay of Rs.4200/- he was not entitled for 3 rd MACP to the Grade Pay of Rs.4600/-. Hence, it was directed to verify and refix the pay of the applicant.
4. Accordingly, the entire fixation on account of financial upgradation under the ACP and MACP Schemes was revisited by the Administration. This was including the verification of the service register of the applicant and it was noted that he was granted 1st ACP twice, ie., first on completion of 12 years service on 02.05.2002 he was granted the 1st financial upgradation under the ACP Scheme to A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -6- the pay scale of Rs.3200-4900 which was the pay scale of Head Constable with effect froom 02.05.2002 and on posting as Junior Clerk also his pay was refixed granting him 1 st financial upgradation under the ACP Scheme to the grade of Rs.4500-7000 which was the pay scale of Senior Clerk, the next higher grade from Clerk in the ministerial cadre with effect from 15.07.2005. It was felt that this was an erroneous understanding of Annexure A-4 and Annexure A-4(a) Railway Board letters on the granting of ACP Scheme on medical decategorization and that on re-examination the Railways felt that the 1st financial upgradation granted under the ACP Scheme with effect from 02.05.2002 was found to be proper. However, the further grant of one financial upgradtion under the ACP Scheme was erroneous.
5. After going through the convoluted factual matrix, there are four questions which needs to be addressed. First is whether Rule 1313 of the Indian Railway Establishment Manual (IREM) asks for direct fixation of the pay in the pay scale. Second question which we need to address is whether when a ACP is granted on a inter departmental transfer on medical decategorization to the officer to a lower scale even when pay is protected and when his pay scale is A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -7- not protected, does the ACP which has been granted in the previous position continue to subsist. The third question which needs to be addressed is if the ACP is cancelled in the previous position whether he is eligible for ACP in the hierarchy of his new position. Obviously, if it is deemed that the ACP has already been granted in the previous position then he is not eligible for any ACP in the new position. The fourth question which needs to be addressed over here is whether or not arrears over a period of more than 20 years can be recovered from the retirement benefits of a person. However, that would stand marred by the decision of the Hon'ble Supreme Court in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) 2014 (8) SCC 883 and in the case of Thomas Daniel vs. State of Kerala & Ors., (2022) SCC Online SC 536. We will be addressing these questions one by one. With reference to the factual matrix once the rule position is clear correctness or otherwise of what has happened in the factual matrix will become absolutely crystal clear.
6. The Railway Board Memorandum dated 05.07.2006 in tune with the RBE No.78/2005 dated 09.05.2005 produced as Annexure A-4 which states as follows :
A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -8- " Hence a medically decategorized RPF Head Constable (Rs.3200-4900) absorbed as Junior Clerk (Rs.3050-4590) should be given first financial upgradation under the ACP Scheme in the grade of Rs.4500-7000 which is the next higher grade in the Ministerial Cadre."
So this answers Question No.1 as to what is to be done in the case of medically decategorized employee when he is posted on medically decategorization in the Clerical Cadre at a lower pay scale which would effectively nullify the 1st ACP he has already got. Arguing that the pay protection which was granted at the time of redeployment but on a lower scale of pay amounted to pay scale protection and therefore this Railway Board Memorandum/the clarification issued by the Railway Board would not apply in this case does not appear to be correct in this regard. It has also been noticed that there has been an order issued at that time itself to recover the excess payment paid between 2002 to 2005 on account of the ACP benefit amounting to Rs.8583/- and there is a dispute whether this amount has been recovered or not. But there is no doubt that the order has been issued at that point of time itself which makes it amply clear that it was very much the intention of the Railways that the ACP benefits earlier would be nullified and fresh ACP benefit would be granted and this would be the correct rule position.
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7. It is submitted that Annexure A-4 Railway Board letter is regarding counting of past service for grant of financial upgradation under ACP Scheme on medical decategorization wherein it is stated that even where a person had earned one financial upgradation prior to medical decategorization and appointment to a lower post, since the transfer is not on own volition, there is no objection to counting of the past service including for the period he held a higher service on promotion, for deciding the two financial upgradations as per the hierarchy of the new post. In the instant case, the applicant had not rendered any service in the promotional post of Head Constable but was only granted a financial upgradtion under the ACP Scheme in the pay scale Rs.3200-4900 ie., the pay of a Head Constable which does not confer the designation RPF Head Constable on him which is specifically stipulated in Condition No.6 of the ACP Scheme, as per which old designation is retained on grant of financial upgradation under the Scheme. Moreover, on medical decategorization he was not appointed to a lower post, the pay scale of Constable and Junior Clerk being the same. Annexure A-4 (a) Memorandum dated 05.07.2006 based on which the applicant was granted ACP in the clerical cadre states that a medically decategorized RPF Head Constable in the pay scale of Rs.3200-4900 absorbed as a Junior Clerk (Rs.3050-4590) should be given first financial upgradation A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -10- under the ACP Scheme in the grade of Rs.4500-7000, which is the next higher grade in the ministerial cadre and since the applicant was not a RPF Head Constable by designation but only a recipient of the benefit of ACP Scheme in the scale of RPF Head Constable. Hence, the Annexure A-4 and Annexure A-4(a) clarifications are not applicable in his case as the letter clearly referred to the case of RPF Head Constable. It was hence found that the applicant was granted the financial upgradation under the ACP Scheme twice, that too, within a span of three years ie., in 2002 and 2005 which is in violation of the ACP Scheme. There are no clarifications/instructions to nullify/change the financial upgradation granted under the ACP Scheme on the date of completion of 12 years after regular absorption to a later date except in the case of non qualifying service.
8. It is argued that on misinterpretation of Annexure A-4 and Annexure A-4 (a) Circulars the applicant was again granted 1 st financial upgradation under the ACP Scheme as per Annexure A-6 without cancelling or ignoring the 1st financial upgradation under the ACP Scheme already granted to him. Therefore, Annexure A-16 show cause notice was issued dated 01.08.2023 on the ground that the applicant was granted two financial upgradations under the ACP Scheme ie., 1 st A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -11- financial upgradation under the ACP Scheme was granted twice which is incorrect. On the response of the applicant to the show cause notice the respondents had considered and disposed of the same stating that the competent authority issued a memorandum to refix the pay of the applicant which is the subject matter of this O.A.
9. If we go simply by the factual matrix which has been argued thus far, the applicant has been a Constable from 02.01.1991 and was given pay parity with the Delhi Police Service on 04.12.1997 in the scale of Rs.3050-4590 and was given a benefit of ACP Scheme on 02.05.2002 in the scale of Rs.3200-4900 which is happened to be the pay scale of Head Constable and the applicant continued to remain a Constable till medical decategorization on 13.07.2005. It should be noted that the applicnt was posted as a Junior Clerk in the pay scale of Rs.3050-4590, which effectively nullifies the first financial upgradation which is granted under the ACP Scheme in 2002. It is also to be noted that there is a Memorandum of recovery of the differential excess amount paid on account of the ACP benefit between 2003 and 2005 and subsequently the first financial upgradation under the ACP Scheme was granted to him in the clerical grade in the scale of pay of Head Clerk Rs.4500-7000 corresponding to the Grade Pay of Rs.2800/- with effect from 15.07.2007 A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -12- ie., the scale of pay of Senior Clerk, which is the next higher scale in the ministerial cadre. Therefore, the claim of the respondents that the applicant drew the pay fixation benefits of the ACP Scheme twice does not appear to be factually correct based on this factual matrix. It should be noted that the second financial upgradation under the MACP Scheme to the Grade Pay of Rs.4200/- in PB Rs.9300-34800 from 02.01.2011 on completion of 20 years of service is correct and consequent to this it appears that the fixation of pay in the Senior Clerk on his normal promotion in the Grade Pay of Rs.2800/- with effect from 19.07.2016 and in the post of Office Superintendent in the Grade Pay of Rs.4200/- with effect from 20.07.2018, the Grade Pay of which having already been allowed to him under the MACP Scheme was without pay fixation benefit and, therefore, on completion of 30 years of regular service the granting of third financial upgradation under the MACP Scheme to the Grade Pay of rs.4600/- from 02.01.2021 appears to be correct.
10. The attempt to draw parity with Shri.Vinod.A.P who was absorbed in an alternative post on medical decategorization does not appear to be correct for the simple reason that Shri.Vinod.A.P was attempting to get stepping up of pay on par with the applicant herein as his junior in the RPF whereas Shri.Vinod.A.P was decategorized on an alternative A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -13- employment on 28.02.1996 prior to the fixation of the parity of Constable with the Delhi Police Service scale and that his alternative career path subsequent to that date when he came to the ministerial cadre as Clerk was through departmental channel promotion available to Peon category in 2018 on mutual transfer. The stepping up of pay of Shri.Vinod.A.P is not the subject matter of the O.A here so we do not propose to go into any discussion on the correctness or otherwise of his claim on the subject. We will restrict our discussion as to whether or not the applicant's pay was correctly fixed.
11. Given our observations in the paragraphs above, it appears that the entire confusion which has arisen on the misperception that the applicant was the recipient of two ACP pay fixation benefits whereas the fact of the matter is the first ACP benefit was nullified at the time of his medical decategorization and the differential amount recovered from him at the time of giving him the ACP benefit in the clerical cadre based on his decategorization and hence that fixation was definitely not incorrect and the confusion appears to be that this misconception has extended to the grant of first ACP, second and third MACP fixation benefit and it has been attempted to be correct by saying that the third MACP was incorrectly granted.
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12. Based on the above observations, the O.A succeeds. The relief prayed for at (b) to (g) is granted. In view of the above all recoveries made from the salary/pension of the applicant would be incorrect and the same should be refunded within a period of three months from the date of receipt of a copy of this order. In view of the order in the O.A., M.A.No.180/976/2024 for production of documents is closed. No order as to costs.
(Dated this the 18th day of December, 2024) V.RAMA MATHEW JUSTICE SUNIL THOMAS ADMINISTRATIVE MEMBER JUDICIAL MEMBER asp A S PEETHAMBARAN 2024.12.19 12:14:48+05'30' -15- List of Annexures in O.A.No.180/00597/2023
1. Annexure A-1 - A copy of the Memorandum No.J/P.524/VI/Vol.IV dated 28.11.2023 issued by the Sr.DPO, Palakkad.
2. Annexure A-2 - A copy of the Memorandum No.J/XP.11/Vol.III dated 13.07.2005.
3. Annexure A-3 - A copy of the Order No.J/P.535/VI/ACP dated 11.12.2007.
4. Annexure A-4 - A copy of the RBE No.78/2005 dated 09.05.2005.
5. Annexure A-4(a) - A copy of the Memorandum No.PC- V/2006/ACP/PNM/NFIR/1 dated 05.07.2006.
6. Annexure A-5 - A copy of the relevant extract of Annexure B of RBE No.108/2008 dated 11.09.2008.
7. Annexure A-6 - A copy of the Memorandum No.J/P.535/VI/ACP dated 11.11.2009 issued by the Sr.DPO Palakkad correcting the 1 st financial upgradation of the applicant.
8. Annexure A-7 - A copy of the Letter No.P/483/PGT/E2/Misc dated 21.01.2010.
9. Annexure A-8 - A copy of the Representation submitted by the applicant dated 21.03.2011 to the Sr.DFM Palakkad.
10. Annexure A-9 - A copy of the Letter No.483/PGT/E.Genl/Pay fixation dated 22.03.2011 issued by the Sr.DFM to the Sr.DPO.
11. Annexure A-10 - A copy of the Memorandum No.J/P/535/XII/MACP dated 20.01.2011.
12. Annexure A-11 - A copy of the Office Order No.J/PB 12/2016 dated 19.07.2016.
13. Annexure A-12 - A copy of the Pay fixation on implementation of RS(RP) Rules 2016 dated 15.12.2016 certified by the Sr.DFM, Palakkad.
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14. Annexure A-13 - A copy of the Order No.J/PB16/2018 dated 17.07.2018.
15. Annexure A-14 - A copy of the Order No.J/PB/11/2011 dated 26.04.2021 granting him 3rd financial upgradation to GP Rs.4600/-.
16. Annexure A-15 - A copy of the Memorandum No.J/P524/VI/MACP/Vol.III dated 26.04.2021 fixing the pay of the applicant in PML 7 at Rs.53600/- with effect from 02.01.2021.
17. Annexure A-16 - A copy of the Show Cause Notice No.J/P.524/VI/Vol.IV dated 01.08.2023 issued by the Sr.DPO, Palakkad.
18. Annexure A-17 - A copy of the Representation dated 22.09.2023 submitted by the applicant.
19. Annexure A-18 - A copy of the DoPT O.M.F.No.18/03/2015-Estt. (Pay-I) dated 02.03.2016.
20. Annexure A-19 - A copy of the Letter No.J/P-509/IX/PGT/PPN dated 27.01.2010 issued by the Senior DPO Palakkad to the Divisional Finance Manager Palakkad along with the working sheet.
21. Annexure R-1(A) - A copy of the Railway Board's Circular RBE No.171/1997 dated 04.12.1997.
22. Annexure R-1(B) - A copy of the 'As drawn' and 'To be drawn' particulars of the applicant.
23. Annexure R-1(C) - A copy of the Letter No.J/P.524/VI/PB/Pay fixation dated 14.07.2021 along with the representation dated 13.08.2019.
24. Annexure R-1(D) - A copy of the Letter No.P(R)11/P/Vol.VII dated 02.08.2021 of the 3rd respondent.
25. Annexure R-1(E) - A copy of the Letter No.J/P.524/VI/Vol.IV dated 28.11.2023 issued by the 4th respondent.
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26. Annexure R-1(F) - A copy of the Office Memorandum No.18/26/2011-Estt.(Pay-I) dated 06.02.2014 issued by the DoPT and circulated as per Railway Board's Circular RBE No.72/2016 dated 22.06.2016.
27. Annexure R-1(G) - A copy of the Note dated 06.11.2024 along with relevant page of the Service Record of the applicant.
28. Annexure R-1(H) - A copy of the Memorandum No.X/P OA.1081/BU/14 dated 08.03.2023 along with Memorandum dated 13.03.2023 refixing the pay of the applicant in O.A.No.180/1081/2011.
29. Annexure R-1(I) - A copy of the relevant pages of Railway Services (Revised Pay) Rules, 2008.
30. Annexure R-1(J) - A copy of the Chapter 13 of IREM Vol.I (Revised Edition 1989).
31. Annexure R-1(K) - A copy of the RBE No.89 of 1999 dated 29.04.1999 along with Advance Correction Slip No.77.
32. Annexure R-1(L) - A copy of the Master Circular No.25.
33. Annexure R-1(M) - A copy of the Railway Board Letter No.E(NG)I-2001/RE-3/8 dated 01.07.2003 along with Advance Correction Slip No.148.
34. Annexure R-1(N) - A copy of the RBE No.210/2005 dated 07.12.2005 along with Advance Correction Slip No.179.
35. Annexure R-1(O) - A copy of the ACP Scheme for Railway Servants issued vide RBE No.233/1999 dated 01.10.1999.
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