Central Administrative Tribunal - Bangalore
Irlapati Jaya Ramesh vs South Western Railway on 19 March, 2024
1
OA.No.170/00213/2022 &
OA No. 170/00215/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00213/2022
AND
ORIGINAL APPLICATION NO.170/00215/2022
ORDER RESERVED ON 23.02.2024
DATE OF ORDER: 19.03.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
ORIGINAL APPLICATION NO.170/00213/2022
N. Krishna Kumar,
Aged 51 years,
S/o R. Nanjundappa,
Chief Loco Inspector/South Western Railway,
Office of Sr. Divisional Electrical Engineer
(Traction operations)
Bengaluru city - 560 023
Residing at: No. 2, 8th Cross,
Veerasagara main road,
Muneshwara layout 2nd stage,
Attur Yelahanka
Bengaluru 560 064 .... Applicant
(By Shri T.C. Govindaswamy, Advocate)
Vs.
2
OA.No.170/00213/2022 &
OA No. 170/00215/2022/CAT/BANGALORE
1. Union of India
Represented by the Secretary
To the Government of India,
Ministry of Railways (Railway Board),
Rail Bhawan, New Delhi 110 001
2. The General Manager,
South Western Railway,
Headquarters Office, Hubballi,
Dharwad District, Karnataka - 580 020
3. The Senior Divisional Personnel Officer,
South Western Railway,
Bengaluru Division,
Bengaluru 560 023. ...Respondents
(By Shri S. Prakash Shetty, Senior Panel Counsel - through video
conference)
ORIGINAL APPLICATION NO.170/00215/2022
Irlapati Jaya Ramesh,
Aged 44 years,
S/o Alli Baba,
Chief Loco Inspector/South Western Railway,
Satellite Goods Terminal,
Bengaluru 560 067,
Residing at: No. 20/2,
4th Cross, 10th Main Road,
Vivekananda Layout,
Horamavu Road,
Ramamurthy Nagar,
Bengaluru 560 016 .... Applicant
(By Shri T.C. Govindaswamy, Advocate)
Vs.
1. Union of India
Represented by the Secretary
To the Government of India,
3
OA.No.170/00213/2022 &
OA No. 170/00215/2022/CAT/BANGALORE
Ministry of Railways (Railway Board),
Rail Bhawan, New Delhi 110 001
2. The General Manager,
South Western Railway,
Headquarters Office, Hubballi - 580 020
Dharwad District, Karnataka
3. The Senior Divisional Personnel Officer,
South Western Railway,
Bengaluru Division,
Bengaluru 560 023. ...Respondents
(By Shri N. Amaresh, Senior Panel Counsel)
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
Since common and akin issues are involved, both the matters are heard together and disposed of by this common order. OA No. 213/2022 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) Call for the records leading to the issue of Annexure A1, Railway Board order bearing No. 133/2019 dated 16.08.2019, and quash para (f), (g) &
(h) thereof declaring that the same are arbitrary, discriminatory and unreasonable and hence, unconstitutional;
(ii) Declare that the applicant is entitled to stepping up of pay at par with their junior Shri Vangavolu 4 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE Ramarao referred to in his respective representations and direct the respondents accordingly;
(iii) Direct the respondents to grant stepping up of applicant's pay at par with his junior Shri Vangavolu Ramarao referred to in their respective representations with all consequential benefits
(iv) Award costs of and incidental to this application;
(v) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."
2. In OA No. 215/2022, the following reliefs are sought by the applicant:
"(i) Call for the records leading to the issue of Annexure A1, Railway Board order bearing No. 133/2019 dated 16.08.2019, and quash para (f), (g) &
(h) thereof declaring that the same are arbitrary, discriminatory and unreasonable and hence, unconstitutional;
(ii) Declare that the applicant is entitled to have his pay stepped up at par with his junior Shri P. Eswaran referred to in para 4 h above with effect from 08.03.2021/01.07.2021 and direct the respondents accordingly;
(iii) Direct the respondents to stepping up of the applicant's pay on par with his junior Shri P. Eswaran referred to in Para 4 (i) with all consequential benefits, arising therefrom;
(iv) Award costs of and incidental to this application;
(v) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."5
OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE
3. Briefly stated the facts as narrated by the applicant in OA No. 213/2022 are that he is presently working as Chief Loco Inspector (CLI) in level 7 of pay matrix in the Bengaluru division of South Western Railway. The applicant having participated in the competitive examination got selected and promoted as Loco Inspector (revised designation, Chief Loco Inspector) while working as Loco Pilot (Goods), with effect from 14.01.2015. The applicant's junior with whom the comparison is sought in the present OA, Shri Vangavolu Ramarao, continued in the cadre of Loco Pilot (Goods) and was promoted to Loco Pilot (Passenger) and later as CLI with effect from 08.03.2021. At the time of the promotion of the applicant, the said junior was only in the pay matrix level 6 (like the applicant) and drawing less pay than the applicant, however, upon his promotion on and from 08.03.2021, his pay came to be fixed with effect from 01.07.2021 at the cell of Rs. 91,400/-, whereas as on 01.07.2021, the pay of the applicant in the post of CLI was only at a far lower level at the pay of Rs. 74,300/-. The representations submitted by the applicant before the Respondent No. 3 seeking for stepping up of pay on par with his junior promoted as CLI after 01.01.2016 after implementation of 6 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE the recommendations of the 7th Central Pay Commission fetched no response.
4. Succinctly stated the facts in OA No. 215/2022 are that the applicant who had participated in the competitive examination got selected and promoted as Loco Inspector (revised designation, Chief Loco Inspector) while working as Loco Pilot (Goods). The promotion of the applicant as CLI was in the then PB-2 + GP Rs. 4600 (Level 7 of the Pay Matrix) with effect from 14.01.2015. The applicant submits that the applicant's junior with whom a comparison is sought in the present OA, Shri P. Eswaran continued in the cadre of Loco Pilot (Goods) and was promoted Loco Pilot (Passenger) and later as CLI with effect from 08.03.2021. The service details of the applicant and the applicant's junior Shri P. Eswaran are tabulated and given herein below:
Name I. Jaya Ramesh P. Eswaran
Assistant Loco Pilot/Date 17.05.1999 17.05.1999
of Appointment
Senior Assistant Loco Pilot 01.11.2003 23.06.2005
Loco Pilot Shunting 18.03.2008 03.06.2010
Loco Pilot Goods 30.08.2011 30.08.2011
Chief Loco Inspector 14.01.2015 LPG
Chief Loco Inspector Loco Inspector 08.03.2021
From LP (P)
Basic Pay as on 01.07.2021 Rs. 74,300/- Rs. 88,700/-
01.01.2022 Rs. 74,300/- Rs. 91,400/-
7
OA.No.170/00213/2022 &
OA No. 170/00215/2022/CAT/BANGALORE
Being aggrieved by the anomaly in pay fixation, the applicants promoted as CLI before 01.01.2016 are seeking stepping up of pay on par with their juniors promoted as CLI after 01.01.2016.
5. Learned counsel Shri T.C. Govindaswamy representing the applicants argued that paras (f), (g) and (h) of Para (3) of RBE No. 133/2019 (Annexure-A1) are arbitrary and unconstitutional. Treating the Loco Pilots (Goods), Loco Pilots (Passenger), and Loco Pilots (Mail/Express) as different cadres for the purpose of stepping up of pay in the cadre of Loco Running Supervisors is arbitrary and factually unsustainable. The said clauses of RBE No. 133/2019 (Annexure-A1) are opposed to the President's decision No. 10 below Rule 1313/1316 which holds that comparison as between the senior and the junior is to be made with reference to the date of promotion of the seniors. The point of time of promotion of the juniors is irrelevant as the senior will be in the higher grade at that time. The posts of Loco Pilots (Goods), Loco Pilots (Passenger) and Loco Pilots (Mail/Express) constitute only intermediary grades and are the feeder posts for promotion to the posts of Loco Inspectors in the loco supervisory cadre. Placing reliance on the judgment of the Hon'ble High Court of Kerala in the 8 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE case of Union of India & Ors. vs. Karunakaran A.V. and Ors. in OP (CAT) No. 1907/2012 (DD: 18.10.2019), learned counsel submitted, the reason for such an anomaly is, the persons who were promoted prior to 2016 as Senior Loco Inspectors had their pay fixed with enhancement of 30% of the pay to compensate the loss of Running Allowance. After 2016, the pay scales of every grade was stepped up and in such circumstances those who were in the lower posts had a larger benefit when 30% of the pay was added to fix their pay in the promoted post.
6. Learned counsel further submitted that the question of resolving the anomaly arising out of the junior drawing more pay than the senior who were promoted as Loco Inspectors arises with every successive Central Pay Commissions and this is taken care of in each of the revised pay rules or the orders issued by the Government thereafter. Accordingly, a committee was constituted by the Ministry of Railways. The report submitted by the said committee was not properly considered by the Railway Board in its true spirit. Having regard to these aspects, the Hon'ble High Court of Kerala in OP (CAT) No. 1907/2012, supra, directed the Ministry of Railways and the Railway Board to look into such anomalies and 9 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE to provide sufficient succour to persons suffering from such anomalies, otherwise, would cause unnecessary disgruntlement in service. In compliance with the directions issued by the said order of the Hon'ble High Court of Kerala, the Railway Board has issued an order dated 22.07.2020, directing stepping up of pay, but yet stepping up is not being extended. The very object of RBE No. 198/1992 would be defeated, if paras (f), (g) and (h) Clause (3) of RBE No. 133/2019 are not quashed.
7. Detailed reply statements are filed on behalf of the respondents in both the cases. Learned counsel Shri N. Amaresh representing the respondents in OA No. 215/2022 submitted that the post of CLI is filled by promotion through a selection process solely on merit basis and seniority has no role in promotion to the said post. The cadre of Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) simultaneously constitute as feeder cadres for promotion to CLI post whereas these three separate Loco Pilot cadres have a relationship of feeder and promotional cadres amongst themselves. Loco Pilot (Goods) is the feeder cadre for the Loco Pilot (Passenger) which in turn is feeder cadre for Loco Pilot (Mail/Express) cadre. Based on selection, a Loco Pilot (Goods) 10 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE having rendered much less service can get promoted straightaway to the post of CLI whereas a Loco Pilot (Passenger) or Loco Pilot (Mail/Express) having rendered much longer length of service may get promoted as CLI in subsequent year and therefore a CLI becomes junior to an employee who has straightaway got promoted from Loco Pilot (Goods) to CLI. On promotion to CLI's post, the pay of the concerned employees is fixed under FR 22-C/Rule 13 of Railway Services (Revised Pay) (RS(RP)) Rules, 2016 with reference to the pay drawn by them in the feeder cadre. Thus, as a logical corollary, the senior CLI who has been promoted from a lower cadre of Loco Pilot (Goods) having rendered much less service would be drawing lesser pay than his junior in CLI's cadre who has been promoted in subsequent year from the higher cadre of Loco Pilot (Passenger)/Loco Pilot (Mail/Express) and consequently would be drawing much higher pay by virtue of his longer length of service.
8. Placing reliance on the judgment of the Hon'ble Apex Court in the case of Union of India and Ors vs. O.P. Saxena and Ors. (1997) 6 SCC 360, learned counsel submitted that the claim for stepping up of pay of senior employee involving same loco 11 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE inspector category was rejected. The same view has been reiterated by the Hon'ble Apex Court in the case of Surendra Kumar vs Union of India and Ors in Civil Appeal No. 1022/2001 (DD:
13.01.2005). Reference was also made to the conditions prescribed for stepping up of pay of senior employees under proviso to Rule 1313 (I)(a)(1) (FR 22-C). Thus, the learned counsel submitted that the Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) form three different and distinct units of drivers category and therefore constitute different cadres/posts. Hence, the stepping of pay of senior CLI who had been promoted prior to 01.01.2006 vis-a-vis his junior CLI who was promoted after 01.01.2006 is admissible only when the terms and conditions laid down in the statutory provisions contained under Note 10 of Rule 7 of RS (RP) Rules, 2008 and Board's letter dated 24.07.2009 are fulfilled. Subsequent to dismissal of the SLPs before the Hon'ble Apex Court, as a special dispensation, Railway Board decided to allow stepping up of pay to senior Loco Inspectors appointed prior to 01.01.2006 at par with their juniors appointed after 01.01.2006 who are identically placed to the employees involved in those SLPs. Accordingly, necessary instructions were issued vide Board's letter dated 27.01.2020. This special dispensation given in peculiar 12 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE facts and circumstances cannot be generalised and given as to override statutory provision regarding stepping up of pay.
9. Further, referring to Rule 7 (10) (i) of RS (RP) Rules, 2016, learned counsel submitted that this anomaly of junior employee promoted after implementation of 7th CPC pay structure i.e. with effect from 01.01.2016 and drawing more pay than the senior employee promoted prior to 01.01.2016 has been addressed. In furtherance to the said Rules, RBE No. 133/2019 has been issued by the Ministry of Railways/Railway Board vide letter dated 16.08.2019. One of the relevant condition being both the junior and senior railway servants should belong to the same cadre and the posts in which they have been promoted are identical in the same cadre, but Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) being considered to be three different and distinct seniority units as per RBE No. 133/2019, there cannot be any justification in the claim made by the applicant. Learned counsel has also relied upon RBE No. 161/2009, RBE No. 95/2013, RBE No. 54/2014, RBE No. 108/2019 and RBE No. 196/2019 to substantiate his argument that Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) form three different and 13 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE distinct units and there is a grade and hierarchy and avenue channel (AVC) of feeder posts/promotional posts as well as progression from Loco Pilot (Goods) to Loco Pilot (Passenger) to Loco Pilot (Mail/Express). Reliance is placed on the judgments of the Hon'ble Apex Court in Prabhat Ranjan Singh and Anr. vs. R.K. Kushwaha & Ors. reported in (2018) 18 SCC 1 and The Railway Board & Ors. vs R. Subramaniyam & Ors. reported in AIR (1978) SC 284 as well as the order of this Tribunal dated 19.10.2023 in OA No. 517/2020.
10. Learned counsel Shri S. Prakash Shetty appearing for the respondents in OA No. 213/2022 reiterating the same arguments as aforesaid, sought for dismissal of the OA.
11. We have carefully considered the submissions of the learned counsel appearing for the parties and perused the material on record.
12. The points that arise for our consideration are:
1) Whether paras (f), (g) and (h) of clause (3) of RBE No. 133/2019 dated 16.08.2019 (Annexure-A1) are justifiable?14
OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE
2) Whether the applicants appointed as CLI prior to 01.01.2016 are entitled for stepping up of pay on par with their juniors promoted as CLI after 01.01.2016 with all consequential benefits as claimed?
13. This anomaly in fixation of pay of CLIs appointed prior to 01.01.2016 with reference to their juniors appointed after 01.01.2016 and drawing more pay than the seniors whose pay has been fixed in the 7th CPC pay structure under RS (RP) Rules, 2016, requires to be considered in the background of such repetitive anomalies arisen due to fixation of pay, based on the recommendations of the pay commissions like, 5th CPC & 6th CPC. It transpires that finally, owing to the judicial intervention, the grievance of the senior CLI's has been resorted to. The anomaly has now arisen as a result of implementation of the 7th CPC owing to which the CLI when got promoted after 01.01.2016, on pay fixation, started drawing higher pay than the senior who were promoted prior to 01.01.2016. Such an anomaly arisen on the implementation of the 6th Pay Commission with effect from 01.01.2006 was dealt by the Hon'ble High Court of Kerala at 15 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE Ernakulam in OP (CAT) No. 1907/2012 dated 18.10.2019. In paragraphs 22 to 25 of the said judgment, it is held thus:
"22. In this context, we cannot but notice that there exists an anomaly insofar as the persons who have chosen a fast track promotion having been disadvantaged for only that reason. The reason for such an anomaly occurring in the higher post is also not far to seek. The persons who are promoted prior to 2006 as Senior Loco Inspectors had their pay fixed with enhancement of 30% of the pay to compensate the loss of Running Allowance. After 2006, the pay scales of every grade was stepped up and in that circumstances those who were in the lower posts had a larger benefit when 30% of the pay was added on to facilitate their pay fixation in the promoted post. This has resulted in the anomaly which was considered by the Committee constituted by the Government of India, Ministry of Railways (Railway Board). We have been shown an order which constituted the Committee, bearing No.ERB-1/2008/23/29 dated 13.10.2008.
We have also been shown the Report of the "Committee constituted to study the issues relating to Loco Inspectors allowances and other benefits". The specific anomaly was taken into account by the Committee. The Committee noticed that the pay fixation for Loco Inspectors was done by adding a 30% element in their existing basic pay as a Loco Pilot (as pay element of running allowance) and placing them at the appropriate stage in the pay scale of Loco Inspector. Though this fixation ensured that the basic pay of a Loco Inspector is always more than his junior drivers, the Sixth Pay Commission merged both the grades of Loco Inspectors as one and has also merged the three grades of Loco Pilots and placed these categories in the new pay band. It is, hence, the Loco Inspectors who were promoted after 01.01.2006 drew salaries higher than those promoted prior to 01.01.2006. The Committee made an elaborate discussion of the above factors and set forth three alternatives. The first of such alternatives was to give a step up of pay to all Loco Inspectors promoted prior to 01.01.2006 with that of his erstwhile juniors who are promoted as Loco Inspector after 01.01.2006. The second alternative was to employ a multiplication factor of 2.118 for fixation of pay of a Loco Inspector as is applicable to Loco 16 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE Pilots. Both of these were found to be not worthy of recommendation.
23. The Committee on its third alternative was of the definite opinion that:
"... under no circumstances should a Loco Inspector promoted prior to 01.01.2006 draw lesser salary than an erstwhile junior who continues to work as a Loco Pilot".
The recommendation which was eventually made is as extracted herein below:
"(i) A notional basic pay, as on 01.01.2006 should be worked out for Loco Inspectors promoted prior to 01.01.2006 in the pre 6th CPC scales. This notional basic pay would be calculated, based on the following:
(a) The basic pay he would have drawn as a Loco Pilot, but for his promotion as a Loco Inspector.
(b) Benefits of notional promotion to higher grades viz.5500-9000 and 6000- 9800 to be given, if and where applicable. This notional promotion(s) would be based on the premise that a Loco Inspector would have been promoted to the higher categories of LP in selections where his juniors have been promoted. This is a logical deduction considering the fact that they had qualified in the selection for a higher scale of pay of Loco Inspector.
(ii) An initial notional fixation of pay in the new PB-2 should be done by adopting the same criteria as laid down for LPs, based on the notional basic pay as calculated vide (I) above.
(iii) The final fixation of the pay should be done by adding a 30% element to the pay worked out in (ii) above, on the same lines as would be applicable for Loco Inspectors promoted after 01.01.2006.
(iv) If by adopting the above procedure, the pay fixation of a Loco Inspector is lower than the pay fixation as per present instructions, the latter fixation should be allowed to prevail.17
OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE
(v) No arrear of any kind would be applicable for any period prior to 01.01.2006 based on the notional fixation of the basic pay".
Obviously the said recommendations were considered before the decision was taken by the Railway Board. The terms of the step-up as decided by the Railway Board however, substantially differ from that found in the recommendation. Since none of the applicants challenge the decision of the Board and on the contrary, claim under it, we have no choice but to decline the prayers. We would only direct the Ministry of Railways (or the Railway Board) to look into such anomalies and the recommendations, to provide sufficient succor to persons situated as the applicants herein and those similarly situated to them which, otherwise, would cause unnecessary disgruntlement in service. The fast track scheme was also adopted by the Railway Board to ensure sufficient Supervisors and that too by a scheme of selection which ensured the promotion of the meritorious in the feeder category. It cannot be then contended that they should have remained as running staff and obtained due promotions to the various posts of drivers and only later sought for promotion to the post of Loco Running Inspectors. This would defeat the very scheme devised by the Railways for ensuring sufficient number of meritorious candidates for the purpose of supervisory duties in the higher post.
24. We have to notice that in O.P(CAT) No.3762 of 2013 the respondents-applicants have taken a different contention insofar as their claim is to step up their pay with that of one S.Sakthivel, who was Goods Driver when promoted to the post of Loco Running Inspector and had been an admitted junior to the applicants. This anomaly is squarely covered by the decisions of the Railway Board which we have extracted and Note 10 of Rule 7. In such circumstances, we dismiss O.P(CAT) No.3762 of 2013.
25. In OP(CAT)No.3250 of 2012, the petitioners have taken a contention that they are entitled to be considered for step up of pay at par with one N.B.Sasikumar, who is said to have been promoted even prior to 01.01.2006. It is specifically asserted 18 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE that N.B.Sasikumar was promoted on 31.12.2005, i.e., before the Sixth Pay Commission recommendations were brought in. If that be so, the claim of those applicants who seek parity with Sasikumar has to be considered and we direct the same to be considered. In the nature of the direction issued we have to reject the claim of pay parity with Issakhi, which was allowed by the Tribunal, and challenged by the Railways in O.P(CAT) No.2247 of 2012. We hence modify the order of the Tribunal in O.P(CAT) No.2247 of 2012 and 3250 of 2012 and direct consideration of this aspect, ie: pay parity with Sasikumar, based on the manner in which Sasikumar's pay fixation was carried out on promotion, if it be on the pay scales prior to 01.01.2006. While allowing O.P(CAT) 2247 of 2012, filed by the Railways, we dispose of O.P(CAT) 3250 of 2012."
14. In Review Petition No. 153/2020 in OP (CAT) No. 1907/2012 and connected cases filed by the review petitioners/respondents in OP (CAT) No. 1907/2012, the Hon'ble High Court of Kerala has observed thus:
"6. It is to be noticed that in our judgment we also noticed the specific anomaly by which the seniors who had opted a fast track promotion were prejudiced with a lesser pay than their own juniors, who were admittedly their juniors in the lower category and the promoted category. We also pointed out that the anomaly was occasioned for the reason of the new pay scales introduced from 01.01.2006 onwards. The 6th Pay Commission of 2006 introduced pay bands with grade pay, where there were merger of various categories in a particular pay band with differing grade pays or similar ones. We also noticed that a Committee constituted by the Government of India, Ministry of Railways (Railway Board) had made some recommendations through an order bearing No.ERB- 1/2008/23/29 dated 13.10.2008. We noticed that one of the recommendations would have mitigated the grievance of the applicants, which though considered by the Railway Board was 19 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE not accepted when deciding the terms of the step up. It was only since none of the applicants had challenged the decision of the Railway Board, we declined the prayers.
7. If now the Railway Board has taken a decision to grant the step up even to persons similarly situated like the applicants, there is no reason why our judgment should stand in the way of such step up being granted. Similarly placed persons have been granted step up based on the aforesaid decision of the Railway Board. We, hence, make it clear that if similarly placed Senior Loco Inspectors who have been appointed prior to 01.01.2006 have been granted step up of pay to make them at par with their identified juniors, necessarily the applicants should also be granted the same despite our rejecting that relief. On the basis of the recommendation of the Committee, we had issued a direction to the Ministry of Railways (Railway Board) to look into the anomaly to provide sufficient succor to persons similarly situated as the applicants herein. The said direction would suffice insofar as the implementation of the order dated 27.01.2020 even in the case of the applicants herein, provided they are similarly placed to the ones who were allowed the benefit of step up."
15. This Tribunal, Mumbai Bench in OA No. 119/2012 and connected matters (DD: 04.01.2019) has held thus:
"26. The respondents have strongly placed reliance on the judgment of Hon'ble Supreme Court in Union of India and others vs. O.P. Saxena (C.A. No.8852 of 1996 and other cases) wherein, it was held that stepping up of senior's pay with reference to junior's pay will not be applicable while the seniors were promoted from Driver Grade-C to Loco Supervisor while junior was promoted from Driver Grade-A to Loco Supervisor. This judgment is not applicable to the present OAs wherein the anomaly had arisen on account of the revision of the pay scale, not on account of promotion from Driver Grade-A to Loco Supervisor. The reliance on O.P Saxena's 20 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE case (supra) by the respondents is misconceived. In this connection, it is stated that they the respondents have no dispute that the applicants are the seniors and that they are now being paid far lesser than the pay being drawn by the juniors."
16. The Hon'ble High Court of Delhi in Writ Petition (C) No. 2052/2012 & C.M. No. 4471/2012 (DD: 05.09.2017) in the case of Union of India and Ors. vs. Surinder Kumar Dhingra, noticing the decision of the Hon'ble Apex Court in O.P. Saxena, supra, subsequently followed in Surendra Kumar, supra, and also the Hon'ble High Court of Delhi in Union of India & Ors. vs. Gurbax Singh (Writ Petition (C) No. 2163/2002), considering the relief of stepping up of pay granted to similarly situated persons who had approached the Tribunals in other parts of the country and in all those cases the Hon'ble Apex Court dismissing the SLPs preferred by the Union of India, more particularly, dismissal of the Review Petition by the Hon'ble Apex Court filed by the Union of India in the case of Shyamapada Roy & Ors. and K.S. Rajendra Kumar, dismissed the petition filed by the Union of India challenging the order passed by this Tribunal - Principal Bench in OA No. 3857/2010 whereby the Original Application was allowed by the Tribunal directing the Union of India and others to step up 21 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE the pay of the applicant therein on par with his junior with effect from the date of the promotion granted to the junior to the post of Loco Inspector. In the said judgment, the Hon'ble High Court of Delhi has referred to the dismissal of the SLPs by the Hon'ble Apex Court preferred against the decision of the Ernakulam Bench of the Tribunal in OA No. 134/2012 decided on 25.09.2012 and the SLPs titled as Union of India and Ors vs V. Murugesan and anr related to another similar order passed by the Hon'ble High Court of Madras in Writ Petition (C) No. 3528/2013 (DD: 19.02.2013). It has been categorically held that the respondent therein being senior to one Shri Ravinder Sharma, the denial of stepping up of pay to the respondent therein was clearly discriminatory where the pay of the said Shri Ravinder Sharma was fixed at Rs. 29,290/- as on 20.12.2006 whereas that of the respondent therein, who was senior, was fixed at Rs. 25,050/- on account of fixation of pay under the Sixth Pay Commission report.
17. Thus, SLP's preferred by the respondents against many of the judgments of the respective Hon'ble High Courts affirming the view of various benches of this Tribunal upholding stepping up of pay of seniors on par with juniors relating to the anomaly created 22 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE by revision of pay scale as recommended by the 6th CPC have been rejected.
18. Recently, the Patna Bench of this Tribunal in OA No. 935/2019 in the case of Dinesh Kumar and Ors vs Union of India & Ors, (DD: 06.07.2023), while considering the identical issue of the anomaly arising due to the implementation of 7th Pay Commission, placing reliance on the judgment of the Hon'ble High Court of Delhi in Surinder Kumar Dhingra, supra, and the decision of the Hon'ble High Court of Rajasthan in Civil Writ Petition No. 4330/2019 (Union of India & Ors. vs. Jagdish Kumar Bulchandani & Anr.) as well as the dismissal of the SLPs before the Hon'ble Apex Court observed thus:
"17. In the light of above discussions, I am inclined to hold that this case is squarely covered by the judgment of Delhi High Court dated 05.09.2017 in WP(C) No. 2052 of 2012 and Rajasthan High Court dated 26.03.2019 in Civil Writ Petition No. 4330/2019. These judgements have attained finality and the ratio can be directly applied in the instant case. Also, Railway Board itself, after issuing clarification on 14.11.2019 that the posts of Loco Pilot (Goods), Loco Pilot (Passenger), Loco Pilot (Mail) etc. are from separate cadre for the purpose of promotions, allowed stepping up of pay of seniors LIs promoted before 01.01.2016 at par with junior LI promoted after 01.01.2016 as special dispensation condoning the conditions of same cadre. Further, North West Railway, taking cue from the 23 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE Railway Board order dated 27.01.2020 allowed stepping up of pay of CLI promoted before 01.01.2016 at par with their juniors who were promoted after 01.01.2016 and were getting more basic pay than the senior CLIs. Different Railway Zones cannot have different norms for promotions/financial benefits to their employees as that would be discriminatory and against the law.
18. Taking the entirety of facts and legal aspects discussed above into consideration, it deems that interest of justice would be served if the applicants who were promoted as CLI prior to 01.01.2016 get their pay at par with their juniors who were promoted in 2018. Accordingly, the Office order dated 16.09.2019 (Annexure A/7) is quashed and set aside and the Office order No. 265 of 2019 (Annexure A/3) is restored to its original status. Respondents are directed to fix the present salary of the applicant accordingly and pay the arrears within four months of receipt of copy of this order."
However, the Patna Bench has not expressed any opinion on the legal sustainability of the order impugned therein, the Railway Servants (Revised Pay) Rules, 2016 notified on 28.07.2016 and the Railway Board order dated 16.08.2019 (RBE No. 133/2019).
19. Note 3 to Clause 3 of RBE No. 196/2019 dated 14.11.2019 reads thus:
"Note 3: For the purpose of selection/promotion and pay fixation, it is made clear that each of the functional categories of Loco Pilot (Goods), Loco Pilot (Passenger), Senior Motorman, Loco Pilot (Mail) etc., constitute separate and 24 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE distinct cadres/seniority units within the overall classification of Loco running staff."
This clarification has been issued by the Railway Board pursuant to the doubts raised in certain quarters with regard to the meaning and purview of the term "cadre" in the context of Loco running staff as mentioned in paras 136 (ii) to 140 of IREM Vol. I. Much emphasis is placed on this OM, by the learned counsel appearing for the respondents to contend that the feeder posts of CLI constitute separate and distinct cadre.
20. It is true that in Prabhat Ranjan Singh and anr, supra, it has been held that the IREM has statutory force and has been issued in exercise of powers vested under proviso to Article 309 of the Constitution. Similarly, in R. Subramaniyam, supra, the Hon'ble Apex Court has held that the decision of the Railway Board embodying the rules of general application to a particular class of non-gazetted railway servants has the force of a rule made under Rule 157 of the Indian Railway Establishment Code. There is no cavil on the aforesaid propositions. But as admitted by the respondents in the reply statement, and in the course of arguments, the post of CLI is filled by promotion through a selection process 25 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE solely on merit basis and seniority has no role in promotion to this post. The cadre of Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) simultaneously constitute as feeder cadres for promotion to CLI's post.
21. The applicant's junior with whom a comparison is sought in OA No. 213/2022, Shri Vangavolu Ramarao is shown as under:
Name N. Krishna Kumar Vangavolu Ramarao Assistant Loco Pilot/Date 14.06.1999 10.03.2000 of appointment Senior Assistant Loco 01.11.2003 01.11.2003 Pilot Loco Pilot Shunting 22.02.2006 22.02.2006 Seniority position as loco Sl. No. 04 Sl. No. 15 pilot shunting on 22.02.2006 Loco pilot Goods 22.02.2008 Working as Loco Pilot (Officiating) Shunting on 22.02.2008 Basic pay on 13.09.2008 Rs. 14520/- Rs. 14520/- From 13.09.2008 (Loco Pilot Goods officiating) Loco Pilot Goods Regular 30.08.2011 30.08.2011 Seniority position as loco Sl. No. 26 Sl. No. 35 pilot goods on 30.08.2011 Seniority position as loco pilot goods on 01.02.13 Sl. No. 57 Sl. No. 67 Date of promotion of Working as Chief Promoted as Loco Pilot Junior as Loco Pilot Loco Inspector from (Passenger) 13.08.2015 (Passenger) 14.01.2015 in GP in GP 4200 (6th CPC) 4600 (6TH CPC) Chief Loco Inspector 14.01.2015 GP: Working as Loco Pilot 4600 (6TH CPC) Goods GP: 4200 (6TH CPC) 26 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE Chief Loco Inspector Loco Inspector Promoted as loco w.e.f. 14.01.2015 inspector w.e.f th Level-7 in 7 CPC 08.03.2021 From Loco Pilot Passenger from level 6 to level 7 (7th CPC) Basic pay as on Rs. 74,300/- Rs. 91,400/- 01.07.2021 01.01.2022 Rs. 74,300/- Rs. 94,100/-
22. The vacancies in the cadre of CLI ought to be filled through competitive examination from the feeder cadre of Loco Pilots Mail/Express/Passenger/Goods. The panel is prepared purely based on the competitive examination and selection. The relevant paras of RBE No. 198/1992 reads as under:
"3.1 The posts of Loco Inspectors, Crew Controllers and Power Controllers will be exclusively filled only from the Loco Running Side. The posts of ALF and LF will be exclusively filled from the loco maintenance side.
xxx xxx 3.4 There shall be a common selection from the Loco Running Side for filling up the posts of Loco Inspectors, Crew Controllers and Power Controllers in grade Rs. 2000-3200. The staff will be drawn from the following categories:
(i) Mail/Express Driver (Rs. 1640-2900)
(ii) Passenger Driver (Rs. 1600-2660)
(iii) Goods Driver (Rs. 1350-2200) with at least five years experience as Driver."27
OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE
23. Clause (3) of RBE No. 133/2019 dated 16.08.2019 reads thus:
"3. Therefore, in accordance with Rule 7(10) of RS(RP) Rules, 2016, it has been decided that the anomaly be resolved by granting stepping up of pay to the seniors at par with the juniors subject to the following conditions:-
(a) Both the junior and the senior Railway servants should belong to the same cadre from which they have been promoted to the higher post and the posts in which they have been promoted should be identical in the same cadre;
(b) The existing pay structure and the revised pay structure of the lower and higher posts in which they are entitled to draw are identical;
(c) The senior Railway servants at the time of promotion are drawing equal or more pay than the junior;
(d) The stepping up of pay will be allowed to running staff appointed as Chief Loco Inspectors only in whose cases extant quantum of pay element (at present 30%) is reckoned for pay fixation. The stepping up of pay will not be admissible to the non-running staff appointed as Loco Running Supervisors as in their cases the question of pay element in the running allowance does not arise;
(e) If even in the lower post, revised or pre-revised, the junior was drawing more pay than the senior by virtue of advance increments granted to him or otherwise, stepping up will not be permissible;
(f) In cases where the conditions are not met, stepping up of pay would not be admissible. For instance a Chief Loco Inspector promoted from Loco Pilot (Goods) prior to 1.1.2016 and the junior promoted to Chief Loco Inspector from Loco Pilot (Passenger) or from Loco Pilot (Mail/Express) [i.e. from a different post/cadre] 28 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE after 1.1.2016 are not identical and such would not come under the purview of instructions relating to stepping up of pay.
(g) In this connection, it is stated that LP (Goods), LP (Passenger) and LP (M/E) form three different and distinct seniority units and would, therefore, constitute different cadres/posts in the context of clause (a) above as clearly brought out in (f) above.
(h) Stepping up will be allowed only once, the pay so fixed after stepping up will remain unchanged;
(i) The senior shall be entitled to the next increment on completion of his required qualifying service with effect from the date of refixation of pay."
24. Sub-Rule (10) of Rule 7 of RS (RP) Rules, 2016 reads thus:
"(10) (i) In cases where a senior Railway servant promoted to a higher post before the 1st day of January, 2016 draws less pay in the revised pay structure than his junior who is promoted to the higher post on or after the 1st day of January, 2016, the pay of senior Railway servant in the revised pay structure shall be stepped up to an amount equal to the pay as fixed for his junior in that higher post and such stepping up shall be done with effect from the date of promotion of the junior Railway servant subject to the fulfilment of the following conditions, namely:-
(a) both the junior and the senior Railway servant belong to the same cadre and the posts in which they have been promoted are identical in the same cadre;29
OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE
(b) the existing pay structure and the revised pay structure of the lower and higher posts in which they are entitled to draw pay are identical;
(c) the senior Railway servants at the time of promotion are drawing equal or more pay than the junior;
(d) the anomaly is directly as a result of the application of the provisions of Rule 1313 (FR 22) of Indian Railway Establishment Code, Volume II or any other rule or order regulating pay fixation on such promotion in the revised pay structure:
Provided that if the junior officer was drawing more pay in the existing pay structure than the senior by virtue of any advance increments granted to him, the provisions of this sub-rule shall not be invoked to step up the pay of the senior officer.
(ii) The order relating to re-fixation of the pay of the senior officer in accordance with clause (i) shall be issued under Rule 1321 (FR 27) of Indian Railway Establishment Code, Volume II and the senior officer shall be entitled to the next increment on completion of his required qualifying service with effect from the date of re-fixation of pay."
25. As per Clause (3) (f) of RBE No. 133/2019, CLI promoted from Loco Pilot (Goods) prior to 01.01.2016, could be treated on par with his junior promoted as CLI from Loco Pilot (Goods) after 01.01.2016 but not from Loco Pilot (Passenger)/Loco Pilot (Mail/Express). This is nothing but an artificial classification. If CLI from Loco Pilot (Goods) prior to 01.01.2016 is entitled to pay fixation on par with his junior promoted after 01.01.2016 from 30 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE Loco Pilot (Goods), why not on par with Loco Pilot (Passenger) or Loco Pilot (Mail/Express). Similarly with the other two feeder posts when the feeder posts for CLI is by selection from all the three posts viz., Loco Pilot (Goods)/Loco Pilot (Passenger)/Loco Pilot (Mail/Express) when the pay structure of these posts are identical. This artificial classification does not pass the test of muster under Article 14 and Article 16 of the Constitution of India.
26. It is well-settled that Article 14 is no longer to be equated with the principle of classification. It is primarily a guarantee against arbitrariness in State action and the doctrine of classification has been evolved only as a subsidiary rule for testing whether a particular State action is arbitrary or not. If a law is arbitrary or irrational it would fall foul of Article 14. Article 14 permits reasonable classification but prohibits class legislation. The classification must not be 'arbitrary, artificial or evasive'. A classification is reasonable when the twin tests as laid down by the Hon'ble Apex Court in State of West Bengal vs. Anwar Ali Sarkar (1952 SCR 284) are fulfilled, i.e., (i) the classification must be based on the intelligible differentia, (ii) the differentia must have a rational relation to the object sought to be achieved by the Statute. 31
OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE There must be nexus between the basis for classification and the object of the Act which makes the classification. If there is no reasonable basis for a classification, that classification can be declared discriminatory. Classifying only one cadre of Loco Pilot i.e. Goods/Passenger/Mail/Express as equal when admittedly the CLI post is filled by promotion through a selection process on merit basis amongst the feeder cadre of posts Loco Pilot (Goods)/Loco Pilot (Passenger)/Loco Pilot (Mail/Express), is highly arbitrary and irrational. All the feeder cadre posts must get equal treatment. When the selection to the post of CLI is on merit, through competitive examination, and the pay structure of the feeder posts is the same. RBE No. 196/2019 would not come to the assistance of the respondents to contend that Loco Pilot (Goods)/Loco Pilot (Passenger)/Loco Pilot (Mail/Express) form separate and distinct cadre while addressing the anomaly of pay fixation pursuant to the 7th CPC recommendations which is issued in furtherance to RBE No. 133/2019, the same being discriminatory and perverse, vitiates the selection process.
27. It is categorically admitted by the respondents that the post of Loco Supervisor/CLI is filled by a common selection 32 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE conducted amongst Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) and the meritorious amongst them get promoted as CLI. Irrespective of the grades from which they get promoted, on promotion to the post of CLI, their pay is fixed under FR 22 (1) (a) (i) or Rule 1313 of the Indian Railway Establishment Code, (erstwhile Rule FR 22 (c)). The principle of stepping up of pay is intended to overcome a situation where a junior is promoted to the post to which the senior was earlier promoted and his pay fixed at a stage higher than the pay drawn by the senior. On promotion whether the junior was getting more pay or not is to be compared with reference to point of time of promotion of the senior and not at the time of promotion of junior. Even otherwise, in the instant cases, the juniors were drawing lesser pay than the applicants at the time of juniors' promotion. The anomaly had arisen not because of longer length of service or any higher pay drawn by the juniors at the time of their promotion but only because 30% of the pay drawn by the juniors at the time of their promotion is added to their pay. In order to overcome such a situation, the Railway Board has issued series of orders for stepping up of pay with reference to the junior who was promoted to the cadre of CLI.
33
OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE
28. It is significant to note that Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) all carry the same scale of pay/pay band and grade pay i.e., PB-2 with Grade Pay Rs. 4200/- at the time of promotion of junior. As per RBE No. 95/2013 dated 12.09.2013, fixation of pay on promotion in revised pay structure on or after 01.01.2006 is governed by Rule 13 of RS (RP) Rules, 2008. As a consequence of implementation of recommendations of Sixth Central Pay Commission, various pre- revised scales have been merged and got replaced by same revised pay structure (same Pay Band and Grade Pay) leading to merger of corresponding posts. Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) constitute a common class as defined in IREM at Para 103. Hence, O.P. Saxena, supra, is distinguishable. The applicants who were more meritorious at the time of selection to the post of CLI cannot be deprived of the benefit of stepping up of pay on par with their juniors whom they were supervising all along, including working as Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) etc. Hence, even on the ground of equity, justice and precedence, stepping up of pay of the applicants is warranted. However, the applicants fulfil all the conditions mentioned under Rule 7 (10) (i) 34 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE of RS (RP) Rules, 2016 namely, 1) the applicants and juniors belong to the feeder cadre of posts to CLI and in the same scale of pay i.e., in Level 6 of the pay matrix, 2) the existing pay structure and revised pay structure of the lower and higher post in which they are entitled to pay are identical, 3) the senior railway servants (applicants) were drawing at the time of their promotion and even at the time of promotion of the juniors more pay than the juniors and 4) the anomaly was as a result of application of Rule 1313 of Indian Railway Establishment Code. Any artificial classification created by the respondents stating that Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) constitute different cadres cannot deny the legally entitled rights of the applicants. Thus, treating Loco Pilot (Goods)/Loco Pilot (Passenger)/Loco Pilot (Mail/Express) as three different and distinct seniority units constituting different cadres/posts in the context of clause (a) as provided in Clause (3) (g) of RBE No. 133/2019 is arbitrary. Similarly, the condition of allowing stepping up once as enumerated in clause (h) is violative of Articles 14 and 16 of the Constitution. Identical anomaly arisen on revision of pay fixation made on the recommendations of earlier pay commissions having been resorted to, the identical issues requires to be resorted to in 35 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE similar manner. Rights of the CLI cannot be curtailed in an arbitrary manner. Hence, Paras (f), (g) and (h) of Clause (3) of RBE No. 133/2019 are declared arbitrary and discriminatory, hit by Articles 14 and 16 of the Constitution of India.
29. It would have been different if the claim of the applicant happens to be when he did not enjoy comparable pay scales and even before promotion the junior was getting higher pay than the seniors. It is in such a case only stepping up could be denied as held by this Tribunal, Ernakulam Bench in OA No. 134/2012 (DD:
25.09.2012) [K.S. Rajendra Kumar & another vs. Union of India & Ors.). In the light of the order passed by this Tribunal, Patna Bench, in OA No. 935/2019, supra, the applicants are entitled for stepping up of pay as claimed. We have no reasons to differ from the aforesaid findings of this Tribunal. The judgments of various Hon'ble High Courts conformity the stepping up of pay of seniors on par with juniors relating to earlier pay commission anomalies, having been approved by the Hon'ble Apex Court in dismissing the SLP's filed by the respondents, applicants are entitled to similar reliefs.36
OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE
30. Order passed by this Tribunal in OA No. 517/2020 is distinguishable. In the said case, the junior Shri K.S.S. Naik was drawing more pay than the applicant therein, prior to 01.01.2006. In the lower post, revised or pre-revised, the junior was drawing more pay than the senior by virtue of advance increments granted to him. Paras (c) & (e) of Clause (3) of RBE No. 133/2019 were attracted. Hence, the said order is not applicable to the facts of the present case where the applicants - seniors were drawing equal or higher pay than their juniors at the time of their promotion as CLI.
31. For the reasons aforesaid, both the points formulated in paragraph (12) are answered in affirmative.
32. Hence, we pass the following:
:ORDER:
1) The Paras (f), (g) and (h) of Clause (3) of RBE No. 133/2019 dated 16.08.2019 (Annexure-A1) issued by the Railway Board in OA No. 213/2022 and OA No. 215/2022 are set aside.
2) The respondents are directed to re-consider the representations/requests of the applicants and pass 37 OA.No.170/00213/2022 & OA No. 170/00215/2022/CAT/BANGALORE appropriate orders, stepping up the pay of the applicants on par with their respective juniors who have been promoted as CLI after 01.01.2016 namely, Shri Vangavolu Ramarao in OA No. 213/2022 and Shri P. Eswaran in OA No. 215/2022.
3) The arrears of pay and allowances arising out of such stepping up be made available to the applicants.
4) Compliance shall be made in an expedite manner, in any event, not later than eight weeks from the date of receipt of the certified copy of the order.
5) OAs are allowed to the extent indicated above.
No order as to costs.
In view of the disposal of the OAs, all the pending MAs stand disposed of accordingly.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/