Central Administrative Tribunal - Madras
L K Hariharan vs M/O Railways on 30 July, 2024
1 OA 1001/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01001/2014
Dated, Tuesday, the 30th day of July, Two Thousand Twenty Four
CORAM:
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
&
HON'BLE MR. M. SWAMINATHAN, Member (J)
L.K.Hariharan,
Station Supdt., Guduvancheri,
Chennai division
Southern Railway ...Applicant
By Advocate M/s Ratio Legis
Vs.
1. Union of India rep. By
The Secretary
Ministry of Railways,
Railway Board New Delhi
2. The General Manager,
Southern Railway, Park
Town, Chennai 3
3. The Sr. Divisional Personnel Officer
Chennai Division
Southern Railway ..Respondents
By Advocate Dr.D.Simon
2 OA 1001/2014
ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Member(J)) This OA has been filed by the applicant, seeking the following relief:
"To call for the records related to the orders are MACP No.O/o No.T/OPTG/104/2013 dated 18.09.2013 and to direct the respondents to upgrade the applicant on par with his junior L.Sivakumar who was extended with MACP to the grade pay Rs.4800/- w.e.f 15.01.2009 with all attendant benefits and to pass such other order/orders as this Hon'ble Tribunal may deem fit and proper and thus to render justice."
2. At the outset, the learned counsel for the applicant states that the case of the applicant is squarely covered by the order, dated 21.04.2023, passed by this Tribunal in OA 1286/2014. To show the same, he has drawn our attention to the tabular column in the synopsis filed by him which is extracted hereunder:-
OA 1286/2014 OA 1001/2014Applicant joined the post of Appointed as Assistant Station Assistant Station Master in 1983 Master in 1981 Promoted as Station Master III in Promoted as Station Master III in 1986- Rs.5000-8000 - PB II +GP 1982- Rs.5000-8000 - PB II +GP Rs.4200 Rs.4200 Promoted as Station Master II in Promoted as Station Master II in 1996-Rs.5500-9000 - PB II +GP 1994 - Rs.5500-9000 - PB II + Rs.4200 GP Rs.4200 Promoted as Station Master I in 2003 - Rs.6500-10500 - PB II + GP Rs.4600 Applicant was extended II MACP to the Grade Pay Rs.4600/- w.e.f 01.09.2008 Applicant's junior who joined as Applicant's junior who joined as Station Master III in 1989 as a Station Master III in 1989 as a direct recruit was extended with direct recruit was extended with PB II + GP Rs.4800 as II MACP PB II + GP Rs.4800 as II MACP w.e.f 15.01.2009 and the same w.e.f 15.01.2009 and the same was extended as III MACP to the was extended as III MACP to the applicant w.e.f 24.12.2013 applicant w.e.f 18.07.2012 3 OA 1001/2014
3. Learned counsel for the respondents does not dispute the disposal of the matters. However, he would like to distinguish the present OA from OA 1286/2014 by relying on Paras 16, 17 and 18 of the reply statement which are extracted hereunder:-
"16.The applicant was entitled for third MACP on completion of 30 years, i.e., on 18.07.2012, whereas the junior in terms of clause 5, being in the entry grade and not having any promotion had to be extended with First and Second Financial Upgradations in the Grade Pay of Rs.4600/- and Rs.4800/-.
17.The applicant cannot invoke the provision which is advantage to him and refute the provisions which is disadvantage to him. The applicant having enjoyed the benefit of the MACP Scheme, in RBE No.101/2009, cannot repudiate the same and is bound by the terms and clauses of the entire scheme. Therefore, applying clause 20, the applicant is not entitled to compare with his junior. Even otherwise the junior was drawing less than the applicant on 15.01.2009.
18.Regarding the grounds of the applicant contained in Paragraph 5(f) stating that the applicant's contemporaries and juniors were extended with the benefit of the MACP to the GP of Rs.4800 w.e.f 15.01.2009 denying the same is against the principles laid down under Fundamental Rules 22 which orders that a junior shall not receive more pay than his senior if the conditions specified are fulfilled, it is submitted that this ground is without any merits and baseless as in terms of FR 22 the applicant is drawing more pay than the junior. As on 15.01.2009, Shri L.Sivakumar was drawing Rs.21,130 and the applicant was drawing Rs.21,910 and as on 01.07.2014, Shri L.Sivakumar was drawing the basic pay of Rs.25,260/- whereas the applicant was drawing Rs.27,180/- by virtue of grant of IIIrd MACP to him (Annexure R-III). Thus, there is no violation of FR 22. There is a vast different in the basic pay of the applicant when compared with the junior. Therefore further 4 OA 1001/2014 upgradation/ stepping up is impermissible."
3.1 Learned counsel for the respondents, in support of his contentions, placed reliance upon the judgment, dated 21.08.2014 of the Hon. Madras High Court, in WP No.12808 of 2014. He also relied upon the RBE No.33/2021, dated 30.04.2021, wherein, in answer to Item No.7, it is held that "As per the fundamental principles of the Scheme, financial upgradation granted under the MACPS is purely personal to the employees, and has no relevance to his seniority position. It has already been provided in the Scheme itself that there shall be no additional financial upgradation to the senior employee solely on the ground that his/her junior in the grade has been granted higher pay or grade pay under the Scheme. This has been reiterated in the instructions issued by this Department from time to time, including OM No.35034/1/97-Estt.(D) dated 04.10.2012 and No.35034/3/2015-Estt.(D) dated 22.10.2019. Therefore, the proposal cannot be agreed to. This action on the item is treated as closed."
4. Having gone through the records of the case and the order passed by this Tribunal in OA 1286/2014, we find that there are striking similarities between the facts of the present case and those in OA 1286/2014.
5. The said order, dated 21.04.2023, in OA 1286/2014, is extracted hereunder:-
"The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following relief:
"To call for the records related to the MACP orders and the seniority dated 28.06.2013 to direct the respondents to upgrade the applicant also on par with his junior on the date which he was bestowed with 5 OA 1001/2014 MACP Rs.4800/ i.e.15.01.2009 with all attendant benefits and to pass such other order/orders as this Hon'ble Tribunal may deem fit and proper and thus to render justice."
2. The brief facts of the case in nutshell are as under:
The applicant was appointed as Assistant Station Master in Chennai division of Southern Railway on the scale of Rs.330-560/1200-2040 w.e.f 20.06.1983 and on successful completion of the training was absorbed as Assistant Station Master on 24.12.1983. He was promoted to officiate as Station Master III in scale Rs.425-640 w.e.f 19.09.1986 and further promoted as Station Master II in scale Rs.1600-2660 w.e.f 16.07.1996. He was further promoted as Station Master Grade I in Pay band Rs.9300-34800 with Rs.4600 grade pay on adhoc basis w.e.f 09.03.2009 and he was granted second financial upgradation in Pay Band Rs.9300-34800 with Rs.4600 grade pay w.e.f 01.09.2008 and on 24.12.2013 he was granted third financial upgradation under the MACP scheme in Pay band Rs. 9300-34800 with Rs.4800 grade pay. The applicant submits that in the class of Station Master the scale of pay Rs.425-640 extended to Station Masters, Grade III was merged with the grade of Rs.455- 700 and a common scale of pay of Rs.1400-2300 was recommended by the IV Pay commission with effect from 01-01-1986 which was revised as Rs.5000-
8000 with effect from 01.01.1996 on the recommendations by the 5th Central Pay Commission. Further the grade of Rs.550-750 provided to the Station Master Grade II which was later revised as Rs.5500-9000 by the V Pay commission with effect from 01-01-1996. After the implementation of the recommendations by the VI Pay commission, the grades Viz.Rs.5000-8000, Rs.5500-9000 were merged and upgraded to Rs.6500-10500 and revised as the Pay Band of Rs.9300-34800 with Rs.4200 grade pay and the grade of Rs.6500- 10500 was upgraded to Rs.7450-11500 and revised the band of Rs.9300-34800 with the grade pay Rs.4600/-, thereby the promotions earned after many years distorted and the juniors and seniors were brought into a block of flock without any service benefits and considering the same, the Pay commission has recommended a scheme as Modified Assured Career Progression with effect from 01-09-2008. Under these circumstances, the applicant was promoted on ad-hoc basis to the grade pay Rs.4600/- with effect from 09.03.2009 which was later regularised vide order dated 06.11.2009 and thereby the applicant was extended with MACP to the Grade Pay Rs.4800/- with effect from 24.12.2013. Although in the entire span of over decades of service the applicant has availed no promotion since his appointment as an Assistant Station Master except the new appointment to the class of Station Master and the regular promotion in 6 OA 1001/2014 2009 to the Grade Pay Rs.4600/- and MACP to the Grade Pay Rs.4800/- with effect from 24.12.2013 whereas his junior L. Sivakumar was extended with II Financial Upgradation to the grade pay of Rs.4800/- on and from 15-01-2009 which is against the principles laid down by the Hon'ble Supreme Court of India in catena of cases and thus on that basis his junior was drawing more pay than himself. Hence the applicant has represented to the respondents on 20.01.2014 and since there was no response from the respondents, he has filed the present OA seeking the above said relief.
3. After notice, the respondents have entered appearance through their counsel and filed a detailed reply statement opposing the relief claimed by the applicant in the OA stating therein that comparison cannot be drawn between the applicant and his junior Shri L. Sivakumar. Shri L. Sivakumar, was selected by the Railway Service Commission for the post of Traffic Apprentice in scale 455-700. After completion of two years training, absorbed as Station Master in scale Rs. 1400-2300, with effect from 15.1.1989. He was further promoted as Station Master Grade II in scale Rs.5500-9000 with effect from 1.11.2003 on account of cadre restructuring. In terms of the MACP scheme, in RBE No.101/2009, Shri L.Sivakumar, having not earned any promotion in his entire career, was granted Financial Upgradation to the Grade Pay of Rs.4600/- and Rs.4800/- and his pay was fixed at Rs. 15,720/- + Rs.4600/- Rs.20,320/- with effect from 1.9.2008 and Rs. 16,330/- + Rs.4800/ Rs.21,130/with effect from 15.1.2009. The said junior was not similarly appointed as trainee Assistant Station Master, when compared with the applicant. In terms of Clause 20, there cannot be any comparison with the junior. In this case, the junior was granted 2nd MACP to the Grade Pay of Rs.4800/- with effect from 15.1.2009 and his pay was fixed at Rs.21,130/-, whereas the applicant was drawing the pay of Rs.20,700/- on 15.1.2009. Even otherwise clause 20 prohibits stepping up of pay in the MACP Scheme. Further the applicant was entitled for 2nd and 3rd MACPs i.e. on completion of 20/30 years with effect from 1.9.2008 / 24.12.2013 respectively, whereas the junior in terms of clause 5, being in the entry grade and not having any promotion had to be extended with First and Second Financial Upgradations in the Grade Pay of Rs.4600/- and Rs.4800/- and there cannot be any comparison with his junior who had no promotion at all and who stood at the entry level of his service, even after completion of 20 years of his service. The respondents submit that in terms of FR 22, the applicant is receiving more pay than the junior. As on 15.1.2009, Shri L.Sivakumar was drawing Rs.21,130/- and the applicant was drawing Rs.20,700/-. As on 1.7.2014, Shri L. Sivakumar, the junior was drawing the 7 OA 1001/2014 basic pay of Rs. 25,260/- whereas the applicant was drawing Rs.25,680/- by virtue of the grant of 3rd MACP to him. Thus, there is no violation of FR 22 and this ground is without merits and baseless. There is a vast difference in the Basic pay of the applicant when compared with the junior. Therefore further upgradation/stepping up is impermissible. Hence they prayed for dismissal of the OA.
4. Heard M/s.Ratio Legis for the applicant and Mrs.R.Sathyabama for the respondents and perused the OA along with relevant records.
5. The applicant in support of his case has relied upon the following decisions:
(i) The decision of the Hon'ble Supreme Court dated 06.04.2022 in CA Nos.2087-2088/2022 in the matter of UOI Vs. C.R.Madhava Murthy & Anr.
(ii) Order of this Tribunal in OA 370/2015 dated 23.09.2016 & OA 670/2015 dated 12.09.2016 & OA 1029/2014 dated 06.10.2016.
(iii)The order of Hon'ble High court of Madras in WP No.24548 of 2017 dated 26.09.2018.
6. The respondents in support of their contention has relied upon the following decisions:
(I) The decision of the Hon. High court of Madras in W.P.No.12808/2014 dated 21.08.2014
(ii) The order passed by the Ernakulam Bench of this Tribunal in OA 1103/2011 dated 22.03.2013
(iii) The order passed by this Tribunal in OA 951/2011 & batch dated 31.10.2014.
7. It is to be noted that the applicant was appointed as Assistant Station Master w.e.f 24.12.1983 and after three years he was subsequently promoted to the post of Station Master Grade III on 19.09.1986. His further promotion to the post of Station Master Grade II on 16.07.1996 was annulled by the merger of the scales in the consequent pay commission. Therefore he is eligible for second financial upgradation to the Grade Pay of Rs.4600 w.e.f 19.09.1996, i.e., 10 years from 19.09.1986, but he was given promotion as Station Master I to the said Grade Pay of Rs.4600 w.e.f 09.03.2009 only. He is eligible for the 3rd financial upgradation to Grade Pay of Rs. 4800 w.e.f 19.09.2006, i.e., 20 years from the date he became eligible for 2 nd upgradation and he ought to be granted his 3rd financial upgradation w.e.f 01.09.2008, i.e., from the date of introduction of the MACP Scheme. The above said position was upheld by this 8 OA 1001/2014 Tribunal in OA 370/2015 dated 23.09.2016 & OA 670/2015 dated 12.09.2016 & OA 1029/2014 dated 06.10.2016. The order dated 06.10.2016 in OA 1029/2014 has been upheld by the Hon'ble High court of Madras in WP No.24548 of 2017 dated 26.09.2018, the relevant paras of the said judgment is extracted hereunder:
7. It is seen that the first respondent was selected as Assistant Station Master on 29.11.1980 and promoted as Station Master Grade-III on 01.08.1982 and promoted as Station Master Grade-II on 01.11.2003.
Therefore, the first respondent herein is eligible for second and third financial upgradation as on 01.08.1982 and 01.08.2002 spanning 10 years each. Since MACP came into force on 01.08.2008, both second and third financial upgradation ought to have been given effect on 01.08.2008. It appears from the records that the Railways gave only two MACP on 01.08.2008 which was found fault by the Central Administrative Tribunal.
8. After perusal of the paragraph No.28 of the MACP scheme which came into force on 01.08.2008, when a promotion is granted earlier than 10 years than subsequent upgradation will be with effect from 10 years from that date and therefore, there is no need a person to wait for 30 years to grant such benefit. A similar interpretation given by the Central Administrative Tribunal does not suffer from any illegality or irregularity warranting interference by this Court.
9. In this view of the matter, this writ petition is liable to be dismissed and accordingly, the same is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
8. It is not in dispute that the applicant's junior L.Sivakumar has been given 2nd financial upgradation to the Grade Pay of Rs.4800 w.e.f 15.01.2009 and his basic pay as on 15.01.2009 is Rs.21,130 whereas the applicant's basic pay on 15.01.2009 is admittedly Rs.20700/- which is lower than that of his junior and he was given 3rd financial upgradation to the said Grade Pay of Rs.4800 only w.e.f 24.12.2013. Had the respondents given the 3 rd financial upgradation to the applicant in the Grade pay of Rs.4800 w.e.f 01.09.2008 , the anomaly of junior drawing more pay than the senior would not have arisen. Moreover, while dealing with the issue of junior getting more pay than the senior on account of upgradation under ACP/MACP Scheme, the Hon'ble Supreme Court in CA Nos.2087-2088/2022 in the matter of UOI Vs. C.R.Madhava Murthy & Anr. by order dated 06.04.2022 has held as under:
"4. Having heard Ms Madhvi Divan,learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on 9 OA 1001/2014 promotion drawing a less pay than their juniors.
5. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under:
"(22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior-(a) As a result of application of FR 22-C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1 4 1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:
(a)Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b)The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of FR 22 C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer."
The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under FR 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay. [G.I., M.F.,O.M. No.F.2 [78) E.III (A)/66, dated the 4th February, 1966)".
6. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore,the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for.
7.In view of the above and for the reasons stated above, the present appeals deserve to be dismissed and the same are dismissed, accordingly."
11. In view of the above observations of the Hon'ble Supreme Court the ratio of the case laws relied upon by the respondents is not applicable to the present case and we are of the considered opinion, that the applicant is entitled for grant of 3rd financial upgradation to the Grade pay of Rs.4800 as 10 OA 1001/2014 granted to his junior Shri L.Sivakumar w.e.f 15.01.2009, as the applicant is also eligible and entitled to the said benefit. The respondents are directed to consider the claim of the applicant for grant of the said financial upgradation granted to his junior Shri L.Sivakumar, in the light of the judgment of the Hon'ble Supreme Court in CA Nos.2087-2088/2022 in the matter of UOI Vs. C.R.Madhava Murthy & Anr. by order dated 06.04.2022 and pass appropriate orders. The said exercise shall be carried out within a period of three months from the date of receipt of a certified copy of this order. OA is allowed as above. No order as to costs."
6. In view of the decision of this Tribunal, in a similar matter, i.e., in OA 1286/2014 as quoted above, we deem it fit and proper to dispose of the present OA as under:-
The applicant is entitled to grant of third financial upgradation to the Grade Pay of Rs.4800, as granted to his junior, Shri L.Sivakumar, w.e.f 15.01.2009. The respondents are directed to consider the claim of the applicant for grant of the said financial upgradation granted to his junior, Shri L.Sivakumar, in the light of the judgment of the Hon'ble Supreme Court in CA Nos.2087- 2088/2022 in the matter of UOI Vs. C.R.Madhava Murthy & Anr., by order, dated 06.04.2022, and pass appropriate orders.
The said exercise shall be carried out within a period of three months from the date of receipt of a certified copy of this order.
OA is allowed as above. No order as to costs.
7. The OA is allowed as above. No order as to costs.
(M.SWAMINATHAN) (VARUN SINDHU KUL KAUMUDI)
MEMBER (J) MEMBER(A)
MT 30.07.2024