Central Administrative Tribunal - Ernakulam
T.J. Benjamin vs Union Of India on 19 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 339 of 2012
Monday, this the 19th day of November, 2012
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
T.J. Benjamin, aged 53 years, S/o. T.C. Ouseph,
Mate/Office of the Deputy Chief Engineer/Construction,
Southern Railway/Ernakulam Junction, Residing at
Thandiackal House, Near Civil Station, Irinjalakuda North PO,
Trichur District, Pin:680 125. ..... Applicant
(By Advocate - Mr. T.C.G. Swamy)
V e r s u s
1. Union of India, represented by the General Manager,
Southern Railway, Headquarters Office, Park Town PO,
Chennai-600 003.
2. The Sr. Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Thiruvananthapuram-695 014.
3. The Deputy Chief Engineer/Construction,
Southern Railway/Ernakulam Junction Railway Station,
Cochin-682 016.
4. The Chief Administrative Officer/Construction,
Southern Railway, Egmore, Chennai-600 008. ..... Respondents
(By Advocate - Mr. Thomas Mathew Nellimoottil)
This OA having been heard on 5.11.2012, the Tribunal on 19.11.2012
delivered the following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member-
The applicant, a casual labourer in the construction organization under the Southern Railway, was granted temporary status with effect from 1.1.1984. His service was regularized by providing lien as Trackman in the Trivandrum Division with effect from 10.3.1997. He is working as Mate in the Construction organization on adhoc basis in the pay band of Rs. 5200- 22000/- with grade pay of Rs. 1900/- fixing his lien as Trackman in the pay band of Rs. 5200-20200/- with grade pay of Rs. 1800/-. He had filed OA No. 946 of 2011 for the benefits of ACP/MACP. Accordingly he was granted financial upgradations resulting in Annexure A1 order. Aggrieved by the reduction in pay as per Annexure A1 order he has filed this OA for the following reliefs:-
"(i) Call for the records leading to the issuance of Annexure A1 and quash the same;
(ii) Direct the respondents to fix the applicant's pay in the higher scale of pay/GP with reference to the pay applicant had drawn as Technical Mate/Mate and direct further to grant all the consequential benefits arising therefrom;
(iii) Award costs of and incidental to this application;
(iv) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."
2. The applicant contended that Annexure A1 order results in reduction of pay with retrospective effect. It has not been preceded by an opportunity to show cause. This Tribunal vide Annexure A2 order dated 31.1.2001 in OA No. 443 of 1998 had held that the applicant's pay shall not be reduced merely on the ground of absorption and also retention in construction organization itself. Annexure A2 order has become binding and conclusive. Even in the event of being absorbed in the lower post of open lien his pay shall not be reduced going by the decisions of the Hon'ble Apex Court in 2005 (11) SCC 301 - Inderpal Yadav's case, 2005 (11) SCC 298 - Bhadei Rai's case & 2005 (11) SCC 304 - Badri Prasad's case.
3. The respondents in their reply statement submitted that the applicant is working as a Mate with grade pay of Rs. 1900/- on ad hoc basis only. The pay of the applicant was not reduced retrospectively but the substantive pay of the applicant was notionally arrived at by allowing increments in his substantive post since the benefits under ACP/MACP have to be granted on substantive pay only. The applicant in this OA has got his adhoc promotion earlier to the implementation of the MACP scheme and enjoyed more monetary benefits than the financial benefits under the MACP scheme. Having filed OA No. 946 of 2011 with a prayer to grant the benefits under the MACP and after the fixing of pay was done as prayed for by the applicant he cannot claim that the action of the respondents is unlawful, arbitrary and discriminatory. As long as the applicant is continuing in the construction organization the present benefit of adhoc pay may be continued if the sanction exists for continuing on adhoc promotion.
4. We have heard the learned counsel for the parties and perused the records.
5. When the service of the applicant was regularized by granting him lien as Trackman in the open line his pay was directed to be protected as per order of this Tribunal dated 31.1.2001 in OA No. 443 of 1998, following the decision of this Tribunal in OA No. 905 of 1997 and connected cases. The operative part of the order of this Tribunal dated 30th August, 2000 in the aforesaid OA is reproduced as under:-
"8. In the result, all these applications are disposed of with the following declaration and directions:
i. The applicants in all these cases shall be considered for regularization in Group 'C' according to their qualification and entitlement giving them the benefit of Railway Board's order dated 9.4.97.
ii. So long as the applicants are retained in the construction organization for performing the work which they have been doing prior to their empanelment by order dated 10/11.3.97 they shall be continued to be paid at the same rate as they were being paid till that date. Respondents shall consider the regularization of the applicants in Group 'C' giving them the benefit of the Railway Board's circular dated 9.4.97 as expeditiously as possible and till the resultant orders are issued they shall not be disturbed from the present posting. No costs."
(emphasis supplied) So long as the applicant is in the construction organization, his pay is protected inspite of his pay fixation in the open line.
6. The Hon'ble Supreme Court in 2006 SCC (L&S) 89 - Bhadei Rai Vs. Union of India & Ors. held as under:-
"11. Relying, therefore, on the decision of this Court in the case of Inder Pal Yadav the present appeal is partly allowed by modifying the orders of the Central Administrative Tribunal and of the High Court. It is directed that the appellant's pay which he was last drawing on the date of his repatriation from Group 'C' post to Group 'D' post, shall be protected. It is further directed that the appellant shall be considered for promotion to Group 'C' post in his turn with others, with due regard to the fact of his having passed the screening test and his work and performance for long twenty years on the post of Rigger in Group 'C'."
(emphasis supplied) Further in 2006 SCC (L&S) 92 - Badri Prasad & Ors. Vs. Union of India & Ors. the Hon'ble Supreme Court has held as under:-
"15. Without disturbing, therefore, orders of the Tribunal and the High Court the appellants are held entitled to the following additional reliefs. The pay last drawn by them in Group 'C' post shall be protected even after their repatriation to Group 'D' post in their parent department. They shall be considered in their turn for promotion to Group 'C' post. The period of service spent by them on ad hoc basis in Group 'C' post shall be given due weightge and counted towards length of requisite service, if any, prescribed for higher post in Group 'C'. If there is any bar of age that shall be relaxed in the case of the appellants."
(emphasis supplied)
7. In the light of the above judicial pronouncements the settled law is that the pay of the applicant in the construction line is to be protected on his repatriation to a lower post in the open line. Respondents have correctly given ACP/MACP benefits as per Annexure A1 order taking into account the pay of the applicant in his substantive post. But the applicant's higher pay in the construction line has to be protected on his repatriation to the open line as and when it takes place. Therefore, it is ordered as under:-
Annexure A1 order dated 3.2.2012 is set aside. The pay of the applicant in the construction organization at the time of repatriation to a lower post in the open line should be protected.
8. The Original Application is disposed of as above. No order as to costs.
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"