Allahabad High Court
Union Of India & Others vs Shyam Kishore Tripathi & Another on 26 September, 2014
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Ashok Pal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved Case :-WRIT - A No. - 20647 of 2006
Petitioners :- Union Of India & others
Respondents :- Shyam Kishore Tripathi & another
Counsel for Petitioners :- Sri A.K.Gaur
Counsel for Respondents :- Sri Satish Dwivedi,S.C.
Hon'ble Rakesh Tiwari,J.
Hon'ble Ashok Pal Singh,J.
( Delivered by Hon. Rakesh Tiwari, J.) Heard learned counsel for the parties and perused the record.
This writ petition has been preferred by the appellants challenging the validity and correctness of the impugned judgment and order dated 27.4.2005 passed by the Central Administrative Tribunal, Allahabad (hereinafter referred to as 'the Tribunal) in Original Application No. 270 of 2001, Shyam Kishore Tripathi versus Union of India and others, whereby the aforesaid O.A. was allowed.
Brief facts of the case are that respondent no.1 in this petition namely, Sri Shyam Kishore Tripathi was initially appointed as Assistant Station Master on adhoc basis w.e.f. 4.6.1976 in the pay scale of Rs.330-560 by the General Manager, North Frontier Railway, Katihar Division, Katihar. He worked as such from 4.6.1976 to 17.5.1979 and was drawing Rs. 360/- as salary in the year 1979 when he was required to appear for the psychological test in which he failed. Therefore, he was appointed as Guard Grade-III in the pay scale of Rs.330-530 from 18.5.1979 treating him as a fresh appointee.
It appears that he was transferred from Katihar Division to Allahabad Division on his request in 1979 and was placed at the bottom of the seniority. Several representations were made by him to appellant nos. 1 and 2 for fixation of pay and for counting of his past services rendered by him as Assistant Station Master at Katihar Division but in vain. However, in December, 1996 the General Manager (P), Maligaon Guahati seems to have made correspondence with the Executive Director, Railway Board regarding regular appointment of Guard Grade-III. Again, respondent no.1 moved a representation dated 19.6.2000 making a reference to the Railway Board's letter dated 14.4.1980 which specifically provided that ad hoc appointments made during 1974 to 1977 may be treated as regular with effect from the dates on which the applicants were originally appointed. An order dated 01.10/11.2000 was received by respondent no.1 to the effect that his adhoc service as Assistant Station Master w.e.f. 4.6.1976 to 17.5.1979 could be considered only for the purpose of pensionary benefits. Thus, no order was passed with regard to his pay fixation counting of past services.
Aggrieved, he approached the Tribunal by filing O.A. No. 270 of 2001, Shyam Kishore Tripathi versus Union of India and others for counting his past services on the ground of discrimination saying that similarly situated persons in the department of Railways had been allowed the benefit of their past services as ASM while his claim had been ignored. The aforesaid Original Application No. 270 of 2001 was allowed vide judgment and order dated 27.4.2005 by the Tribunal holding thus:-
" First, admittedly, the applicant's pay as of 1979 was Rs.360/- he had not applied for the post of Guard Grade-III but of their own accord the respondents have posted him in that grade without any break. His earlier services as ASM have been considered for this very appointment. As such the applicant, even in the absence of the specific rule, is entitled to the General Rule of pay protection under such circumstances.
Viewed from another angle the respondents have permitted the applicant to count his past services for pensionary benefits. Whatever good grounds are there for counting the past services for the purpose of pensionary benefits are equally available for the purpose of pay fixation. It is apt to quote the words of Lord Asquith in the celebrated case of East India Company which are as under:-.....
"The respondents have contended that the applicant having volunteer for change of division waving his claim for seniority, he cannot be given the benefit of pay fixation. Counting of adhoc service for seniority purpose is one thing, and, counting of adhoc service for pay fixation is another. The former affects the seniority of others while the latter does not. As such the rejection of the claim of the applicant on the ground that the applicant had accepted to be placed at the bottom of the seniority list is acceptable."
In view of the above the OA succeeds. The applicant is entitled to fixation of pay on the post of Guard Grade-III in the pay scale of Rs.330-560 with his initial pay fixed at Rs.360/- w.e..f. 18.5.1979 by taking into consideration his pay in the Grade of ASM as on 17.5.1979. Consequently, he is also entitled to pay fixation in the replacement of scale w.e.f. 1.1.1986 and from 1.1.1996 in accordance with the recommendation of IV and V Pay Commission respectively. The respondents are directed to work out the pay of the applicant from 18.5.1979 and pay the individual the arrears of pay and allowance. This drill shall be carried out within a period of six months from the date of communication of this order.
Under these circumstances, no order as to costs."
On limitation the learned counsel for the petitioners contends that the cause of action had accrued to respondent no.1 on 14.4.1981 pursuant to Railway Board letter received by him on 15.4.1981, as such O.A. No. 270 of 2001 was barred by time by 19 years and in the circumstances, no direction could have been issued by the Tribunal for payment of arrears and salary and other allowances to him w.e.f. 18.5.1979. In this regard he has placed reliance upon the decisions rendered by the Apex Court in Ravindra Nath Bose versus Union of India and others, AIR 1970 SC-470 and in State of Orissa versus P. Samantaray, AIR, 1976 SC-2617 as well as upon 2006 SCC (L & S) 791, Karnataka Power Corporation Ltd. through its Chairman & Managing Director and another versus K. Thangappan and another. He has also relied upon the judgment rendered in JT 2002(5) SC-367 E. Parmasivan & others versus Union of India and others in this regard. Secondly, he also submits that it is trite law that question of limitation in filing the original application was to be seen but the Tribunal committed error in entering into the merits of the case without condoning the delay. He has relied upon the decisions rendered in Ramesh Chand Sharma versus Udham Singh Kamal and others, 2000 SCC (L &S) 53 and Union of India through Chairman, Railway Board, New Delhi & another versus H.H.P.Pandey, (Civil Misc. Writ Petition No. 62037 of 2011) decided on 4.3.2014 in this regard.
On merits it is argued by him that the pay scale of Assistant Station Master was Rs.330-560 whereas that of Guard Grade 'C' was Rs. 330-530, therefore, no direction could have been given to fix the pay of respondent no.1 on the post of Guard Grade-III in the pay scale of Rs.330-560; that the Tribunal has committed a grave error in giving the benefit of Railway Board's Circular dated 14.4.1980 to respondent no.1 inspite of the fact that he had appeared in the selection for the post of Assistant Station Master but had failed to qualify the same as also admitted by him in para 4.6 of his Original Application; that even otherwise, the cause of action arose to respondent no.1 vide North Frontier Railway's letter dated 15.4.1981. However, he kept mum and did not agitate his cause at the relevant point of time and after more than 19 years submitted a representation dated 19.6.2000 and when his representation was again rejected vide order dated 1.10/11.2000, he preferred the aforesaid O.A. No. 270 of 2001;
He also submits that the Tribunal has failed to consider that the erstwhile parent department of respondent no.1 was North Frontier Railway and fixation of pay was originally done in terms of its letter dated 6.4.1979 as referred to in the North Frontier Railway, Katihar letter dated 15.4.1981 and as such the General Manager, North Frontier Railway Maligaon, Guahati and Divisional Railway Manager (Personnel), North Frontier Railway, Katihar both were necessary parties in the original application but they were not impleaded as parties therein, hence, the OA was not maintainable for non-joinder of parties and was liable to be dismissed on this ground alone; that respondent no.1 had not challenged the order dated 6.4.1979 issued by the North Frontier Railway or the letter dated 15.4.1981 by which his claim had been rejected by it, hence, the OA could not have been allowed and no direction could have been given to the Northern Railway for fixing the pay of respondent no.1 at Rs.360/- w.e.f. 18.5.1979 as revised on 1.1.1986 and 1.1.1996.
According to him, the Tribunal has failed to consider that if respondent no.1 was granted the pay scale of Rs. 330-560 on the post of Guard Grade-III w.e.f. 18.5.1979 and his pay was fixed at Rs. 330/-, seniors to him shall be effected and they will start claiming parity in pay on the principle of 'stepping up of pay' viz-a-viz their junior i.e. respondent no.1 and it will create administrative as well as financial chaos in the Northern Railway, Allahabad Division and North Frontier Railway, Katihar; that in the circumstances, the impugned judgment and order dated 27.4.2005 is illegal, arbitrary, perverse and is wholly without jurisdiction, hence the same is liable to be set aside by this Court.
Per contra, learned counsel appearing for respondent no.1 submits that the cases cited by the learned counsel for the petitioners are not applicable as they are clearly distinguishable by the facts and circumstances of this case. It is stated that in these citations it is held that repeated representations will not condone the delay in approaching the Court and if a representation preferred is decided the cause of action to the employee concerned would accrue from the date when the first of such representations is decided. He has also placed before us paragraph 3 of the OA with regard to limitation and paragraph 4 of counter by the Railways before the Tribunal.
In so far as the question of limitation raised by the learned counsel for the petitioners before this Court is concerned, suffice it to say that the applicant in paragraph 3 of his original application had declared that the application was well within the limitation as prescribed in Section 21 of the Central Administrative Tribunal Act, 1985. Paragraph 3 of the original application reads thus:-
"3. LIMITATION:
The applicant declares that this application is well within the limitation prescribed in Section 21 of the Central Administrative Tribunal Act, 1985."
The aforesaid paragraph 3 of the original application has not been specifically denied. It has been replied in paragraph 4 of the counter affidavit in the original application thus:-
"4. That the contents of paragraphs 1 to 5 of this original application needs no comment being matter of records."
It is argued that cause of action arose on the basis of Railway Board Circular dated 14.4.1980 the service rendered by respondent no.1 as ASM deserves to be counted for the purpose of fixation of pay and he ought to have been treated as regular employee w.e.f. 4.6.1976; that the Tribunal has not committed any error in allowing the OA holding that he was entitled for fixation of pay on the post of Guard Grade-III in the pay scale of Rs.330-560 with his initial pay fixed at Rs. 360/- w.e.f. 18.5.1979 by taking into consideration his pay in the grade of ASM as on 17.5.1979; that he was also entitled to pay fixation in the replacement of scale w.e.f. 1.1.1986 and from 1.1.1996 in accordance with the recommendation of IV and V Pay Commission respectively and the appellants were directed to work out the pay of respondent no.1 from 18.5.1979 and to pay his arrears of pay and allowances. In the circumstances, there is no illegality or infirmity in the impugned judgment of the Tribunal, hence no interference is required by this Court.
After hearing learned counsel for the parties and on perusal of the record we think it appropriate to reproduce the Railway Board's Circular dated 14.4.1980, which reads thus:
" Sub:- Regularization of adhoc appointment.
A reference is invited to para 4.1 of the Board's letter No./E (NG) III-77/LGS/1 dated 23.7.1977 in which it was inter-alia stated that appointments made-
I.in excess of the 20% quota for sons and daughters of loyal staff.
II.in excess of sports quota.
III.persons who did not satisfy the standard laid down by RSCD as current on the date of appointment; and IV.others appointed as per Ministry of Railways orders:-
be treated adhoc appointments. A list indicating the approximate number of such appointments in class III as advised by the Railways as enclosed.
2. The matter has been reconsidered by the Ministry of Railways carefully and it has been decided that all such appointments made during 1974 to 1977 may be treated as regular with effect from the dates on which they were originally appointed. Similar appointments made in class IV, if any, may also be regularized. Necessary action may now be taken accordingly.
3. Please acknowledge receipts.
4. HIndi version will follow."
In order to appreciate the contention of learned counsel for the petitioners that the petitioners have not either challenged the order dated 6.4.79 or the letter dated 15.4.1981 by which their claim was rejected and the claim of respondent no.1 could not have been allowed by the Tribunal directing to fix pay at Rs.360/- w.e.f. 18.5.79 as revised from time to time, we may now reproduce the letter dated 15.4.1981 in which reference of order dated 6.4.79 has been made.
" Copy of letter No. EC/Misc./Gd.(T) dated 15.4.1981 from D.R.M./P Katihar N.F. Rly. to D.R.M. ALD.
Sub: Rate of pay of Sri S.K. Tripathi, Gd/C/MLDT now in ALD Divn.
Ref: Your letter no. 729E/Gd(c) S.K. Tripathi/ALD dt. 73/12 16.2.81.
In reference to your above mentioned letter this is to inform you that Sri S.K. Tripathi was originally appointed as Sub. A.S.M. in scale of Rs.330-560/- (RS) on 4.6.76 on pay Rs.330/- and consequent on his failure in recruitment selection for the post of ASM he was absorbed as Gd/C on 18.5.79 on pay Rs.290/- in scale of Rs.530/-. Subsequently, scale of pay rate has been revised as 330-530 w.e.f. 1.1.78 and Sri Tripathi's pay has been fixed at Rs.330/- as Gd/C w.e.f. 18.5.79 i.e. the date of his absorption as Gd/C. Although Sri Tripathi was drawing pay @ Rs. 360/- as ASM, his pay on absorption as Gd/C was fixed at the minimum of the time scale of Rs.330/- in terms of C.P.O. PNO's L/No. E/227/68/2 (Rectt) dated 6.4.79 which may be seen in his S/sheet. Due to inadvertence of the Bill Clerk his pay as Gd/C was however, drawn as Rs. 354 plus 6 PP shown as Rs. 254 plus 6 PP in his LPC.
Thus, there has been an over payment of pay of Rs.251.73 ( for the period from 18.5.79 to 10.1.80) which may kindly be recovered from your end advising this office. Similarly, any over payment that may have been made from your end on the basis of LPC issued by this office, may also be recovered. His increment that was due from 1.5.80 onwards may also be regulated accordingly.
The inconvenience caused to your office for the above is regretted. His P/case and S/Book are sent herewith."
On perusal of the aforesaid circulars dated 14.4.80 of the Railway Board and 15.4.1981 of D.R.M./P. Katihar N.F. Railway written to D.R.M., Allahabad would show that the Railway Board had considered the matter of adhoc appointments during the period 1974 to 1977 and had decided that " all such appointments made during the period 1974 to 1977 may be treated as regular appointments with effect from the dates on which they were originally appointed." Similarly perusal of letter dated 15.4.1981 shows that respondent no.1 was drawing salary of Rs.360/- as ASM but on absorption as Guard Grade-C his pay was fixed at the minimum of the time scale of Rs.330/-. A perusal of letter dated 15.4.1981 further shows that respondent no.1 on absorption as Guard Grade-C was initially drawing at Rs. 354 + 6 PP as per his last pay certificate and instead of pay protection it appears from the letter dated 29th April, 1983 of Sri Mithai Lal, D.P.O.(C), regarding assignment of correct seniority of Sri S.K. Tripathi, Guard Grade-C, Allahabad, working in the office of Divisional Railway Manager, Allahabad written to Shri A.N.Mittal, S.P.O. (Gr.)/ Northern Railway, Baroda, New Delhi that fixation of pay as claimed by Sri S.K. Tripathi, respondent no.,1 relates to the period while he was working in Northern Frontier Railway from where he came on transfer to the Divisional Railway, Allahabad on his own request, therefore, it was not possible to review his case at this level and further it was considered fit to refer the matter to N.F. Railway. The letter dated 29th April, 1983 was in reference to D.O. letter dated 13.4.1983 for assignment of correct seniority to Sri S.K. Tripathi, Guard Grade-C Allahabad written to Sri A.N. Mittal, S.P.O. ( Gr.)/N. Rly. and not regarding his pay fixation.
However, there could not have been any such conflict in view of the Railway Board's letter dated 14.4.1980 which provided that adhoc appointments made during the period 1974 to 1977 be treated as regular from that date and necessary action to be taken accordingly.
Admittedly, the appointment of respondent no.1 as ASM was made on adhoc basis w.e.f. 4.6.74 to 17.5.79, hence, his services would be deemed to be regularized in terms of letter dated 14.4.80 issued by the Railway Board. His failure to pass the test of ASM, in our considered opinion, would not come in the way for even if he has not undergone test. At the most, it can be said that he could not have worked on the post of ASM in the railway after 17.5.79 but his continued appointment and absorption as Guard Grade-C thereafter is not affected at all by his failure in the test of ASM which was a different post. In our view, the seniority and pay fixation of respondent no.1 would not be effected in view of the Railway Board's letter dated 14.4.80.
We may now consider the judgments cited by the learned counsel for the petitioners.
The case of Ramesh Chand Sharma (supra) was one wherein condonation of delay was not sought under Section 21(3) of the Administrative Tribunal Act, 1985 for moving a time barred original application and in that situation the Court held that-
" In our opinion, the OA filed before the Tribunal after expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunal Act, 1985. The law in this behalf is now settled (see Secretary to Government of India versus Shivram Mahadu Gaikwad.)"
The facts of the case of Union of India & another versus H.H.P. Pandey were that the order of Central Administrative Tribunal dated 31.3.2011 made in Original Application No. 808 of 2007 was challenged before the Court by the petitioners on the ground that the original application under Section 19 of the Administrative Tribunal Act was made by the applicant no.1 in the year 2007 and the Tribunal under order impugned had proceeded to pass an order for promotion being granted to the applicant in senior scale with retrospective effect from 1992 with all consequential benefits. This benefit of promotion since 1992 had been granted with reference to one Mansoor Ahmad who according to the respondent-applicant was junior to him.
It is in the above circumstances that the Court held thus:-
"Counsel for the petitioner appears to be justified in contending that the litigant who is sitting on the fence watches the proceeding cannot draw� supported claim� benefit of an order which is passed in the case of vigilant litigant. He is right in contending that the Tribunal should have examined that since the petitioner has retired in the year 2005 why he took two years thereafter to approach the Tribunal. The period of limitation as provided under Section 21 of the Act for approaching the Tribunal, if the� representation goes unheard and has not even been taken note of."
This case is clearly distinguishable from the present case in hand where OA had been filed within one year of passing of the impugned order dated 01.10/11. 2000 from that of respondent no.1 in that case who had approached the Tribunal in the year 2005 after his retirement for his retiral benefits. Moreover, it is apparent from the OA as well as the judgment that the applicant was ever vigilant regarding his claim and had moved representation at the first opportunity.
We then come to the case of Karnataka Power Corporation Ltd. (surpa) relied upon by the learned counsel for the petitioners for the purpose of limitation. It was a case where the High Court was exercising its powers under Article 226 of the Constitution and not the case where the delay was being considered under the Specific provisions for limitation under Central Administrative Tribunal Act, 1985. While considering Article 226 of the Constitution in respect of Writ Petition the Court opined that exercise of discretionary power under Article 226 of the Constitution may be refused to be exercised if negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances causes prejudice to the opposite party. This case is also clearly distinguishable from the facts of the present case. As stated earlier, we find that not only the applicant had been vigilant about his right and had moved representations but the respondents also in their counter affidavit before the Tribunal had never disputed that question of limitation was involved at all .
The last case E. Parmasivan (surpa) relied upon by the learned counsel for the petitioners was one where plea as to whether cause of action was continuing one or not. In that case, the writ petitioners had retired as Officers of MES between 1st January, 1974 to 31.5.1995 and had moved an application before the Tribunal in the year 1995 i.e. after 10-21 years of their retirement for fixation of pay in terms of an office memorandum. On a plea of limitation being raised by the respondents the original application was dismissed on this ground. It is in that context that the plea had been taken by the petitioners that the cause of action was continuing one, hence question of limitation was not involved, was considered by the Court. It is in these circumstances that the Apex Court held that the Tribunal was right in dismissing OA on the ground of limitation. From the facts of that case it is clear that before the Tribunal the applicants in that case had taken a plea that the cause of action was continuing one and respondents had opposed the same on ground of limitation.
The matter of limitation in the instant case may be looked into from another angle also. Admittedly, representations made by the employee since 1979 and thereafter from time to time were pending before the Employer for pay fixation and counting of his past services. The Railway Board by means of order dated 01.10./11.2000 informed him that his adhoc services w.e.f. 4.6.76 to 15.5.79 could be considered only for the purpose of pensionary benefits, thus granting him part of relief of counting his past services for this specific purpose and denying him pay fixation, seniority etc. on basis of such past services rendered by him as ASM for aforesaid period.
Had the order dated 01.10/11.2000 not been passed, the petitioners may have drawn a parallel with the judgments cited by him provided he had taken plea of limitation before the Tribunal that OA is barred by limitation. But once his representation was decided by the order dated 01.10/11. 2000, the limitation would be counted from the said date and not from the date of representation made by the employee. Admittedly, the OA was filed within one year of the said order, hence was within limitation prescribed under Section 21 of the Central Administrative Tribunal Act, 1985. Perhaps it was for this reason that petitioners did not dispute the statement of the employee in para 3 of the OA that it was within limitation.
The applicant had challenged the order no. 727-E/E.T.3/Guard/Vivid dated 1.10/11.2000 passed by the Divisional Personnel Officer, Northern Railways, Allahabad whereby the prayer of the applicant for counting his past services for fixation of pay had been denied by the department. Therefore, viewed from this angle the original application was well within time. The fact that the limitation was never an issue raised before the Tribunal as is also reflected from paragraph 3 of the judgment of the Tribunal wherein it has noted the contentions and the case laws of the petitioners. Paragraph 3 of the judgment reads thus:-
"3. The respondents have contested the OA. They have contended that the applicant was given adhoc appointment as Trainee ASM and he has failed in the recruitment selection for the post of Trainee ASM and the North Railway Recruitment Committee taking a sympathetic view proposed for absorption of Trainee Guard (C) in the Grade of Rs.330-530 w.e.f. 19.5.1979 as a fresh appointee. It has also been stated by them that the applicant of his own violation, switched over to Allahabad Division accepting the bottom seniority. As regards applicability of order dated 14.4.1980, the respondents have stated that the same applies to casual labour Group 'D' while the applicant is neither a casual labour nor a Group 'D' employee. As regards different treatment viz-a-viz similarly situated person, the same has also been denied by the respondents."
It appears from above that the question of limitation has been raised on second thought only to defeat the fruit of the decision of OA which has been decided on merits in favour of the employee by the Tribunal.
We have perused the various judgments cited by the learned counsel for the petitioners in this regard and are of the considered view that in view of the fact that the point which has never been raised by the petitioners who acquiesced before the Tribunal to the plea of OA having been filed within the period of limitation could not have raised it subsequently as a second thought in the writ petition.
For all the reasons stated above, we are of the considered opinion that the Tribunal has rightly protected the pay of respondent no.1 on his absorption as Guard Grade-C and that his failure in the test of ASM would not affect his pay. In the facts and circumstances of the case, we do not find any illegality or infirmity in the impugned judgment of the Tribunal.
Accordingly, the writ petition is dismissed. The petitioners are directed to comply with the order and judgment dated 27.4.2005 of the Tribunal within a period of two months from the date of production of a certified copy of this order. No order as to costs.
Dated:- 26.9.2014 CPP/-