Delhi High Court - Orders
Ashok Kumar & Ors vs Union Of India & Anr on 13 December, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anoop Kumar Mendiratta
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8581/2016
ASHOK KUMAR & ORS.
..... Petitioners
Through: Mr. Amit Saxena and Mr. Kamaldeep,
Advocates with petitioner nos. 1 & 6
in person.
versus
UNION OF INDIA & ANR.
..... Respondents
Through: Mr. Avnish Singh, Senior Central
Government Counsel, Mr. Santosh
Kumar Yadav, Mr. Aditya Vikram
Dembla, Advocates with Mr. R.K.
Pathak (DPO/Legal) and Mr. D.P.
Singh, (Chief Legal Assistant).
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
% 13.12.2022
1. This petition has been filed by six petitioners challenging the order of the Central Administrative Tribunal, Principal Bench, New Delhi ('Tribunal', for short) dated December 23, 2015 passed in Original Application No.631/2012 whereby their prayer for direction to the respondents to fix their pay in pay scale of ₹5000-8000 w.e.f. January 1, 1996 at par with Goods Driver ('GD', for short) was rejected.
2. The case of the petitioners before the Tribunal was that since 1991, they have been getting running allowances at the same rate at which running allowances was paid to GD. In the 5th Pay Commission Report, the GD were given the pay scale of ₹5000-8000, but the petitioners, who were Tower Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07 Wagon Drivers ('TWD', for short) were given the pay scale of ₹4500-7000. It was their case that, TWD in Allahabad Division were given pay scale of ₹4000-6000. During the period, 1993-1998, they made representations to the respondents to place them in the pay scale of ₹5000-8000. In August 2000, the petitioners along with nine others filed Original Application being O.A. No.1699/2000 before the Tribunal, New Delhi. The same was allowed by the Tribunal on January 27, 2001, directing that the respondents to give, 15 applicants in O.A. No.1699/2000 which includes the petitioners herein, the pay scale equal to the pay scale of GD, i.e., ₹5000-8000 with consequential benefits in view of decision of Calcutta Bench of the Tribunal in the matter namely Jagdish Pandey & Ors. vs. Union of India & Ors. (O.A. No. 321 of 2001) which was upheld by the Supreme Court.
3. It is the submission of Mr. Amit Saxena, learned counsel for the petitioners that the order dated January 27, 2001 passed in the earlier OA filed by the petitioners in O.A. No.1699/2003, was implemented in respect to the applicant Nos.7 to 15 who were working in the Allahabad Division. The petitioners herein who were also part of the same O.A. and working in Delhi Division, have been denied the benefit of the judgment dated January 27, 2001. He submits that, even the writ petition filed by the respondents against the order dated January 27, 2001, W.P.(C) 6925/2002, was dismissed by this Court on November 10, 2010. Even the appeal was dismissed by the Supreme Court being Civil Appeal No.365/2007.
4. Mr. Saxena also submits that the O.A. being O.A. No.321/2001, was decided by the Calcutta Bench of the Tribunal on August 7, 2002, wherein the issue was with regard to the parity sought by the TWD qua GD. The Tribunal has granted the pay scale of ₹5000-8000 to TWD. The said judgment was Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07 challenged before the High Court of Judicature at Calcutta. The writ petition was dismissed and pursuant thereto, the appeal filed by the respondents before the Supreme Court was decided by the Supreme Court by stating as under:
"10. It is a well settled rule that parties are expected to raise specific pleadings before the first forum for adjudication of the dispute. Those pleadings are the basis of the case of the respective parties even before the appellate/higher Courts. The parties would be bound by such pleadings, of course, subject to the right of amendment allowed in accordance with law. In the present case, no such amendment has been carried out even before the High Court and it will be unfair for this Court to get into the controversy of factual matrix of the case at this stage of the proceedings, particularly, when there exists no justification whatsoever on record as to why even these averments were not made before the Tribunal and not even before the High Court, despite the fact that the Tribunal had specifically made comments in this regard in its judgment. Even before this Court but for bald averments no documents, data or cogent material has been placed for appropriate adjudication of the rights of the parties.
11. During the course of arguments this was also brought to our notice that most of the respondents in the present appeal have already retired from service and there exist no justification for affecting any recoveries from their salaries as they have already worked and received their salaries as granted by the Union of India itself."
5. He states that, pursuant to the order of the Supreme Court, the respondents have passed an order dated November 15, 2010, wherein it was stated that the TWD are not eligible for grant of pay scale of ₹5000-8000 at par with the GD and they shall continue to be in scales of ₹4000-6000 and ₹4500-7000.
6. He states that the said order cannot be implemented against the Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07 petitioners herein, inasmuch as in the original application filed by the petitioners being O.A. No.1699/2000, decided on January 27, 2001, more so, when the benefits thereunder have been given to the applicant Nos.7 to 15 who were working under the Allahabad Division. He states that, this action of the respondents is discriminatory and amount to contempt and he seeks parity qua the applicant Nos.7 to 15 in the O.A. being O.A. No.1699/2000.
7. On the other hand, learned counsel for the respondents would contest the petition by stating that the petitioners are not entitled to the pay scale of ₹5000-8000. This according to him, in view of the order passed by the Railway Board dated November 15, 2010, pursuant to the directions given by the Supreme Court.
8. He has drawn our attention to the order dated November 15, 2010 to contend that the respondents have considered various aspects, like recruitment rules, nature of duties performed etc. to hold that TWD are not entitled to the pay scale of ₹5000-8000. He also states that, even the writ petition filed by the respondents against the judgment dated January 27, 2001 against the O.A. 1699/2000 filed by the petitioners, though dismissed by this Court on November 10, 2010, but the same was in view of the judgment passed by the Supreme Court in Civil Appeal No.365/2007, which granted liberty to the respondents to pass an appropriate order in relation to the pay scale applicable to the any class of employees including the respondents (therein) afresh and in accordance with law and the Railway Board having passed that order clearly holding that the TWD are not entitled to the said pay scale, the petitioners were rightly not granted the pay scale of ₹5000-8000.
9. He submits that insofar as the benefit granted to the applicant Nos.7 to 15, who were the applicants in O.A.1699/2000, is concerned, the benefits Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07 were granted by the Allahabad Division, where they were working. He states the petitioners herein cannot seek a benefit, which they otherwise are not entitled to. He seeks the dismissal of the writ petition.
10. Having heard the learned counsel for the parties, the short issue that arises for consideration is whether the petitioners are entitled to pay scale of ₹5000-8000. The petitioners had filed the O.A. No.1699/2000, which was disposed of by the Tribunal on January 27, 2001, based on the judgment of the Calcutta Bench of the Tribunal in O.A.321/2001 dated January 18, 2002, which was finally decided by the Supreme Court in terms of the order dated July 8, 2010. The operative portion of the said judgment has been reproduced above. The fact that pursuant thereto, the Railway Board has come to the following conclusion, the Tribunal was justified in denying the prayer to the petitioners herein:-
"Keeping in view the specific observation of Honble Supreme Court regarding the position of the Respondents involved in this case, it has been decided to comply with as special case. Further, in compliance of the above observations of Hon‟ble Supreme Court the issue regarding grant of pay parity to Tower Wagon Drivers with Goods Train Drivers has been considered by the Competent Authority and it has been observed as under: -
2.1 That as regards eligibility and, the mode of filling up the post, it is seen that that the post of Goods Drivers is filled up from Shunter/Asstt. Drivers on promotion. Further, in terms of Board's orders RBE No.152/2001, educational qualification for the post is Matriculate and Act Apprentice passed or ITI passed or Diploma in Mech./Elect./Electronics in lieu of ITI. Whereas, the post of Tower Wagon Drivers are filled up from the existing Motor Vehicle Driver for which educational qualification is class VIII Pass with ability to read and understand the traffic rules and other electrical safety rules along with heavy Motor Driving License.Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07
2.2 That the nature of duties &responsibilities of Goods Drivers in much more strenuous and difficult vis-a-vis that of Tower Wagon. Drivers (TWDs). While Goods Drivers have immensely greater responsibility of driving a Goods Train independently with large number of wagons and the job calls for great amount of alacrity and concentration.
Tower Wagon Driver sing Motor Car only on specified area to carry staff for attending brake downs in their jurisdiction within about 30 kms.
2.2.1 That normal duty hours of Goods Drivers are 10 hours, while that of TWDs is 8 hours.
2.2.2 That Goods Drivers are responsible for running extremely heavy duty Locomotives varying from 38,50
- 6000 Horse Power, while the type of Tower Wagon Driven by TWDs are of a maximum of 530 Horse Power.
2.2.3 That a Goods Driver has to study lock book and inspect the Locomotive (Engine) and follow other instructions as laid down in the Operating Manual of the particulars class of Locos, No such work is required to be done by TWDs.
2.2.4 That several other technical aspects are Involved In the job profile of a Goods Driver such as careful examination of the State of CHE of his own line and lines In proximlly the Under-Gear, the brake of the train, lower the Pantograph and earth the Locomotive before carrying out any work In the high tension compartment. TODS are not required to perform any such technical or specialized work.
2.2.5 That Goods Driver have to work with different load likes 58 „N‟/Loaded, 40 BCN, 40BOX, 41BRH Loaded/empty. They have to also keenly observe signal, the vacuum and pressure Gauge, etc. to ensure that everything is in order.
2.2.6 That while taking change of the train, Goods Driver has to check continuity Integrity/completion of rack. Brake continuity test ensuring adequate, brake power, revalidation of brake power/vacuum Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07 certificate. On the contrary, WDs are not required to perform any such responsibility.
2.2.8 That at the time of signing on duty, a Goods Driver has to read various register such as, On Duty register, Green Notice register, Caution register, Currently Safety Instruction, Currently Technical Circulars, Breath Analyser Test register. Line abnormalities register etc. No such reading of books or registers is done by TWDs.
2.3 That in view of the onerous responsibility and more sensitive nature of the job profile of Goods Driver, a training period of 90 days is prescribed for them despite the fact that they are from the same Loco feeder stream i.e. Asstt. Driver. The training period of Tower Wagon Drivers is of merely 30 days.
From the above position, it is clear that in terms of appointment, recruitment qualifications, nature of duties and level of responsibilities and also training period. WDs are not comparable with Goods Drivers.
Further, the Hon'ble Supreme Court, in their judgments on various occasions, have held that unless there is wholesale and complete identity between the two categories, there lies no case for pay parity amongst them.
In view of the above observations, the competent authority have decided that Tower Wagon Drivers were not entitled for grant of pay scale of Rs.5000-8000 at par with that of Goods Drivers and they, shall continue to be in the scales of Rs.4000-6000 and Rs.4500-7000."
11. The plea of Mr. Saxena is that the petitioners being successful in O.A.1699/2000 and the writ petition being W.P.(C) 6925/2002, having been dismissed by this Court in view of the judgment of the Supreme Court, the respondents were required to implement the judgment passed in favour of the petitioners on January 27, 2001 is not appealing for the reason, this Court had dismissed the writ petition filed by the respondents in view of the order Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07 passed by the Supreme Court., which we reproduced as under:-
"C.M. No.11369/2010 (early hearing) in WP (C) No.6925/2003 Learned counsel for the petitioner/Union of India has entered appearance. In view thereof, the request made by the respondent for early hearing of the matter is allowed and the writ petition is taken on board for disposal.
Application stands disposed of.W.P.(C) No.6925/2003
The matter has been passed over once and called for second time.
None has appeared for the respondents though the application for early hearing was filed by them.
We may note that the early hearing is sought on the plea that the impugned order is predicated on a decision of the Central Administrative Tribunal, Calcutta Bench dated 18.1.2002 in O.A. No.321/2001 which was affirmed by the Division Bench of the Calcutta High Court on 2.3.2005 and now the Special Leave Petition filed against the said order of the Calcutta High Court which was registered as Civil Appeal No.365/2007 also stands dismissed by a speaking order.W.P.(C) No.6925/2003
It is thus prayed by the respondents that the present writ petition be dismissed in view of the judgment in Civil Appeal No.365/2007 of the Hon‟ble Supreme Court.
We have heard the learned counsel for the petitioner who cannot seriously dispute that the controversy in question is covered in the aforesaid Civil Appeal No.365/2007.
We thus dismiss the writ petition in view of the judgment passed in Civil Appeal No.365/2007 by the Hon‟ble Supreme Court. C.M. No.12049/2003 in W.P.(C) No.6925/2003 In view of the order passed in writ petition the application does not survive and the same is disposed of."
12. In other words, the order of the Supreme Court granting liberty to the respondents to pass order in relation to the pay scale applicable to any class of employees including the respondents (in that case) afresh and in accordance Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07 with law and the respondents having passed the said order, the order of the Railway Board is equally applicable to the case of the petitioners herein. We have seen the order dated November 15, 2010 which we have reproduce above. It clearly demonstrate that the TWD cannot be equated with GD for various reasons including on the basis of recruitment rules, nature of duties and responsibilities etc. The law is well settled that the recruitment rules, nature of duties and the responsibilities to the post not being identical, there cannot be any comparison.
13. The other submission of Mr. Saxena is based on the benefit granted to certain TWD employees, who were part of the O.A. being O.A. No.1699/2000. Suffice to state, the applicant cannot take benefit of the said decision of the Allahabad Division as the same was contrary to the decision of the Railway Board dated November 15, 2010. In any case, the petitioners cannot claim negative equality that they are not entitled to the pay scale in law.
14. That apart, the petitioners having filed a fresh O.A. challenging the order dated November 15, 2010 passed by the Railway Board and being unsuccessful, the order cannot be faulted. We are of the view that the Tribunal was right in dismissing the original application filed by the petitioners by stating as under:
"12. We are of the opinion that since the Hon'ble Supreme Court had given liberty to the respondents to examine this question of grant of pay scales of Rs.5000-8000 to the applicants de novo, the respondents were entitled to take a fresh view and the order of the Kolkatta/Principal Bench of this Tribunal or Hon'ble High Court of Kolkatta/Deihi High Court would not be binding on them. Secondly, the objection of learned counsel for the applicants that at no stage have the Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07 respondents demonstrated the difference in work and responsibilities, recruitments, qualifications etc. between Goods Train Drivers and Tower Wagon Drivers is also not substantiated as the respondents in their counter affidavit as well as in their aforesaid impugned order have clearly brought out the distinction. While the applicants may dispute whether the academic qualification is Class Xth or Class-VIIIth, it is clear to even a lay person that the two posts are completely different as regards work, responsibilities, recruitment qualification, etc. Therefore, on sheer merit of the case, we find no reason to interfere with the order dated 15.11.2010 issued by the respondents. Moreover, as has been rightly pointed out by learned counsel for the respondents, the settled law is that the Tribunal should not Interfere in fixing of pay scales and that should be left to the Government to be decided on the advice of expert bodies, like Pay Commissions."
15. Accordingly, the present writ petition is without any merit and the same is dismissed.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J.
DECEMBER 13, 2022/aky Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:17.12.2022 17:51:07