Central Administrative Tribunal - Bangalore
Gururaj B Mokhasi vs M/O Railways on 24 September, 2019
1 OA.No.170/01336-
01347/2018/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO.170/01336-01347/2018
DATED THIS THE 24TH DAY OF SEPTEMBER, 2019
HON'BLE DR.K.B.SURESH, MEMBER (J)
HON'BLE SHRI C.V. SANKAR, MEMBER (A)
1. Gururaj B Mokhasi, AA/PFA office/SRW/UBL,
S/O Balakrishna B Mokhasi,
Plot No 8, Halyal Layout,
Shanti Nagar, Hubli 580 023
2. S.P. Narasapur, AA/Sr.AFA/W&S/SRW/UBL,
S/O Pandurang,
Plot No. Ews 226, 8th Cross,
Opp. Garden, Navanagar,
Hubli 580 025
3. Jayashir V Naik, Retired AA/Sr. DFM/UBL,
W/O Vijay S. Naik,
308, Commanders Vispa,
Anantpur Village,
S.N. Halli Post, Yelahanka,
Bangalore 560 064
4. Sunil Gumaste, AA/Sr.DFM/UBL,
S/O Udapirao,
House Bo E-9, Madhura Estate,
Keshwapur, Hubli 580 023
2 OA.No.170/01336-
01347/2018/CAT/BANGALORE
5. K. Lashman Singh,
Retired AA/Sr. DFM/UBL
S/O Krishna Singh
4700/1, New No. 16/1, II Cross
Rajhaput Colony, N.R. Moholla,
Mysore 570 007
6. G. Sukumar, AA/PFA Office/SWR/UBL,
S/o Gandham Kantarao,
Plot No 20, Pacific Park,
Gadag Road, Hubli 580 020
7. R.S. Pujar, AA/SR DFM/KESHWAPUR/UBL,
S/O Shridhar,
House No. 57, Sadashivanand Nagar,
Bhairadevar Koppa, Hubli 580 025
8. Srinivas Murthy, AA/SR DFM/KESHWAPUR/UBL,
S/o Timmayya,
Railway Quarters No. 654/B,
Ciment Chawl, Gadag Road, Hubli 580 020
9. V.V. Kanago, AA/SR DFM/KESHWAPUR/UBL,
S/o Venkatesh, Plot No. 1534,
Vanashri Nagar, Sattur, Dharwad 580 009
10. B. Saroja, AA/SR DFM/KESHWAPUR/UBL,
W/O Mastanappa,
Railway Quarters No. 1437/E,
New Vidyarannya Nagar,
Gadag Road, Hubli 580 020
11. S.V. Veerabhadrappa,
AA/Sr.DFM/Divisional Office/MYS,
S/o S.K. Veerayya,
Door No. 109/A, Vantikoppal,
Rly Quarters, Yadavagiri,
Mysore 570 020
12. S. Shailaja,
AA/Sr. DFM/Divisional Office/MYS,
W/o K. Srinivas,
Mda 260, Giriya Bovi Palya,
Shakti Nagar Post, Mysore 570 029 ..... Applicants
(By Advocate M/s S. Kala)
3 OA.No.170/01336-
01347/2018/CAT/BANGALORE
Vs.
1. The Union of India,
Represented by the Chairman,
Railway Board, Rail Bhavan,
New Delhi 110 001
2. The General Manager,
South Western Railway,
Old GM Office Building, Club Road,
Keshwapur, Hubli 580 023
3. The Principal Financial Advisor
South Western Railway,
2nd Floor, Rail Soudha,
Gadag Road, Hubli 580 020
Hubli 580 020 ....Respondents
(By Shri N. Amaresh, Counsel for the Respondents)
O R D E R (ORAL)
(HON'BLE DR. K.B. SURESH, MEMBER (J) Heard. The matter relates to equity and parity in payscales. The matter seems to be covered by the decision of the Hon'ble High Court of Karnataka which upheld our order in a similar matter in Writ Petition No. 101549/2018 and WP No. 104467-496/2018 dated 20.08.2018 which we quote:
"IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 20TH DAY OF AUGUST 2018 PRESENT THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN AND THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD 4 OA.No.170/01336- 01347/2018/CAT/BANGALORE WRIT PETITION No.101549/2018 (S-CAT) & WRIT PETITION Nos.104467-496/2018 BETWEEN:
1. THE UNION OF INDIA REPRESENTED BY THE CHAIRMAN, RAILWAY BOARD, RAIL BHAVAN, RAISINA ROAD, NEW DELHI-110001.
2. THE GENERAL MANAGER SOUTH WESTERN RAILWAY, OLD GM OFFICE BUILDING, CLUB ROAD, KESHWAPUR, HUBBALLI-580023.
3. THE FINANCIAL ADVISER AND CHIEF ACCOUNTS OFFICER, SOUTH WESTERN RAILWAY, OLD GM OFFICE BUILDING, CLUB ROAD, KESHWAPUR, HUBBALLI-580023. ... PETITIONERS (BY SRI. AJAY U PATIL, ADV.) AND:
1. T. DANAPPA S/O T. VEERABASAPPA WORKING AS SR.SO(A) FROM 28.08.1996, O/O.THE FA & CAO/CN/O/BNC SOUTH WESTER RAILWAY, (APPENDIX IIIA-1995 BATCH), RETIRED, AGE:61 YEARS, R/AT NO.560, ANUGRAHA VISVESVARAYA LAYOUT DIVISION 2, NEAR SANTHE BEEDH, HESARAGHATTA MAIN ROAD, CHIKKABNAVARA, BANGALORE-90.
2. JAYANTHI MURTHY D/O. LATE V.SUBRAMANIAM WORKING AS SR.SO(A) FROM 18.09.1992, O/O.THE FA & CAO/CN/O/BNC SOUTH WESTER RAILWAY, (APPENDIX IIIA-1989 BATCH), RETIRED, AGE:61 YEARS,R/AT K1, KAILASH APT.
8TH MAIN,11TH CROSS, MALLESWARAM-560 003.
5 OA.No.170/01336-01347/2018/CAT/BANGALORE
3. NAGAMANI SURATH D/O. S.BHASKAR RAO, WORKING AS SR.SO(A)/TA/SBC FROM 20.10.2003 O/O.SR.AFA/T/SBC, SOUTH WESTER RAILWAY, (APPENDIX IIIA-1993 BATCH), RETIRED, AGE:62 YEARS,R/AT D.NO.31, 3RD BLOCK, BEHIND VENUGOPALASWAMY TEMPLE, DODDA BOMMASANDRA, VIDYARANYAPURA POST, BANGALORE-560 097.
4. P.SATAYANARAYAN S/O. LATE P.NARAYANA MURTHY, WORKIED AS SR.SO(A) FROM 30.06.1997 IN O/O.THE FA & CAO/CN/O/BNC SOUTH WESTER RAILWAY, (APPENDIX IIIA-1992 BACTH), RETIRED, AGE:65 YEARS,R/AT D.NO.21-3-12, OPP:SRMT MAIN ROAD, KAKINADA AP STATE, PIN-533 001
5. M.J.S. ABRAHAM S/O. T.T.ABRAHAM WORKING AS SR.SO(A) FROM 30.10.2003 O/O.THE SR.DFM/SBC.
SOUTH WESTER RAILWAY, (APPENDIX IIIA-1994 BACTH), RETIRED, AGE:60 YEARS, R/AT NO.26, BHAUANI NAGAR, RAILWAY LAYOUT, I CROSS, I MAIN, ULLAL MAIN ROAD, MALLATHALI, BANGALORE-560 056
6. ELIZABETH GEORGE D/O.P.V.CHERIAN WORKING AS SO(A) FROM 20.10.1987 IN THE O/S.SR.AFA/T/SBC, SOUTH WESTER RAILWAY, (APPENDIX IIIA-1985 BACTH), RETIRED, AGE:54 YEARS, R/AT NO.17, NEAR SUNRISE SCHOOL, HEBBAL KEMPAPURA BANGALORE-560024
7. LIY VIJAY, W/O. VIJAYA KUMAR, WORKING AS SR.SO(A) FORM 04.01.1991, O/O. OF THE SR.DFM/O/SBC, SOUTH WESTER RAILWAY, (APPENDIX IIIA-1988 BACTH), RETIRED, AGE:60 YEARS, R/AT 115, 1ST CROSS, 18TH MAIN, 6TH BLOCK, KORAMANGALA, BANGALORE-95.
6 OA.No.170/01336-01347/2018/CAT/BANGALORE
8. V KRISHNA KUMAR S/O. K.VASU.
WORKING AS ,SR.SO(A) FROM 27.11.1997, C/O. THE SR.DFM/O/SBC, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1992 BACTH), RETIRED, AGE: 60 YEARS, R/AT 46-A, RAILWAY QUARTEERS, BENSOR TOWN (POST), BANGALORE CONTONMENT.
9. A.J.JOAM S/O A.C.JOSEPH WORKING AS SR.SO(A) FROM 21.10.2003, O/O.THE SR.AFA/T/SBC, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1994 BATCH), AGED ABOUT 51 YEARS, RESIDING AT 138, 2ND MAIN, A.GS COLONY, BANGALORE 560024.
10. LAIJU C.MATHEW S/O C.E.MATHEW WORKING AS SR.SO(A) FROM 31.05.2002, O/O.THE SR.DFM/O/SBC, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1999 BATCH), AGED ABOUT 45 YEARS, R/AT 181/D, NEW RAILWAY COLONY OPP TO MEI, YESHWANTHPUR, BANGALORE 22.
11. USHA MURTHY D/O K.S.MURTHY, WORKING AS SR.SO(A) FROM 31.10.2003, O/O. THE SR.DFM/O/SBC, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1994 BATCH), AGED ABOUT 50 YEARS, RESIDING AT MF8, FLAT NO.6 BDA FLATS, BTM LAYOUT, BANNERGHATTA ROAD, BANGALORE 560076.
12. P.SOMASHEKARA S/O LATE PUTTALINGAPPA WORKING AS SR.SO(A) FROM 30.10.2003 O/O.THE SR.DFM/O/SBC, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1994 BATCH), AGED ABOUT 57 YEARS, RESIDING AT 6, 16TH CROSS 1ST MAIN, NEAR LIC COLONY, BK NAGAR, YESHANTHPUR, BANGALORE 560022
13. M.RAVI S/O A.MUNISWAMY WORKING AS SR.SO(A) FROM 31.10.2005, O/O. THE SR. AFA/T/SBC, 7 OA.No.170/01336- 01347/2018/CAT/BANGALORE SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1999 BATCH), AGED ABOUT 50 YEARS, RESIDING AT 492, 4TH MAIN ROAD, MILK COLONY, MALLESHWARAM WEST, BANGALORE 560055.
14. LALITHA M.K. D/O.LATE KUPPUSWAMY M. WORKING AS SR.SO(A) FROM 03.12.2004, O/O.THE FA & CAOS/O/CN/BNC, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1995 BATCH), AGED ABOUT 50 YEARS, R/AT 1572, 9TH CROSS, KUMURASWAMY LAYOUT, BANGALORE 560078
15. D.KRISHNA URS S/O S.DEVARAJA URS WORKING AS SR.SO(A) FROM 31.10.1989 O/O.THE SR.DFM/O/SBC, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1986 BATCH), AGED ABOUT 60 YEARS, R/AT H 003, HM TAMBOURINE, KANAKAPURA ROAD, BANGALORE 560078
16. PRABHU DAS V. S/O LATE U. KOTIAH, WORKING AS S.SO(A) FROM 01.01.1994, O/O.THE SR.DFM/O/SBC, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1992), AGED ABOUT 59 YEARS, RESIDING AT 164/D, TYPE III, OPPOSITE CANTONMENT RAILWAY STATION, VASANTH NAGAR, BANGALORE 560052
17. K.VIJAYAKUMAR S/O K.T.KAMALAKANNAN WORKING AS SR.SO(A) FROM 27.02.1992, O/O.THE SR.DFM/O/MYS, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1988 BATCH), AGED ABOUT 58 YEARS, RESIDING AT DOOR NO.2776/1, N.S.ROAD, CHAMUNDIPURAM, MYSORE 570004
18. H.G.RAMESH S/O H.S.GUNDAPPA WORKING AS SR.SO(A) FROM 26.09.1991, O/O.THE SR.DFM/O/MYS, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1988 BATCH), 8 OA.No.170/01336- 01347/2018/CAT/BANGALORE AGED 54 YEARS, R/AT NO.8, 13TH BLOCK, BEML NAGAR, SRIRAMPURA II STAGE, MYSORE 570023.
19. KAMALAKSHA S/O T.V.PURSUSHOTHAMA, WORKING AS SR.SO(A) FROM 15.03.1991, O/O.THE O/O DY CE/CN/HAS, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1988 BATCH), AGED ABOUT 59 YEARS, R/AT LAKSHMINARAYANA NILAYA, DOOR NO.323, 4TH CROSS, JAYANAGAR, 2ND STAGE, HASSAN 573201.
20. C.M.CHENGAPPA S/O LATE C.S.MONNAPPA WORKING AS SR.ISA FROM 26.09.1991, O/O.THE SR.AFA/W&S/MYS, SOUTH WESTERN RAILWAY, (APPENDIX IIIA-1989 BATCH), AGED ABOUT 54 YEARS, R/AT NO.14, 7TH BLOCK, SHAKTI NAGAR, MYSORE, KARNATAKA 570029.
21. C.D.SREENATH S/O K.P.DAS WORKING AS SR.SO(A) FROM 04.11.2003, O/O.THE SR.AFA/W&S/MYS, SOUTH WESTERN RAILWAY, (APPENDIX IIIA 1994 BATCH), AGED ABOUT 50 YEARS, RESIDING AT NO.2984, 23RD CROSS, 24TH MAIN, VIJAYANAGAR, 2ND STATE, MYSORE 570017
22. P.S.KRISHNAMANI D/O SEETHARAMA ROAD, WORKING AS SR.SO(A) FROM 27.03.1997, O/O THE SR.AFA/W&SMYS, SOUTH WESTERN RAILWAY, (APPENDIX IIIA 1991 BATCH), AGED ABOUT 59 YEARS, R/AT NO.315, 1ST MAIN, 2ND CROSS, NEW KANTHARAJ URS ROAD, NIVEDITHA NAGAR, MYSORE.
23. R.RAGHU S/O LATE RANGASWAMY WORKING AS SR.SO(A) FROM 03.12.2004, IN THE O/O SR.DFM/MYS, SOUTH WESTERN RAILWAY, (APPENDIX IIIA 1995 BATCH), 9 OA.No.170/01336- 01347/2018/CAT/BANGALORE AGED ABOUT 45 YEARS, RESIDING AT NO.80, SREE SIDDHI VIVEKANAND BLOCK, RADHAKRISHNA NAGAR, MYSORE 570029.
24. D.VENUGOPAL S/O A.D.DAMODARAM WORKING AS SR.SO(A), FROM 28.04.1988, O/O THE FA&CAOUBL SOUTH WESTERN RAILWAY, RETIRED AS AFA ON 31.07.2015, (APPENDIX IIIA 1984 BATCH), AGED ABOUT 61 YEARS, RESIDING AT FLAT #2, II FLOOR, D BLOCK, RAMDATT APARTMENTS, KESHWAPUR, HUBLI 580023.
25. V.R.PANDURANGI S/O.R.H.PANDURANGI, WORKED AS SR.SO(A) FROM 28.04.1988, O/O THE FA & CAO/UBL SOUTH WESTERN RAILWAY, RETIRED ON 31.10.2013, (APPENDIX IIIA 1984 BATCH), AGED ABOUT 63 YEARS, RESIDING AT PLOT NO.30-A-1, LAXMI NIVAS, RAGHAVENDRA COLONY, BENGERI EXTENSION, SHANTI NAGAR, SULLA ROAD, HUBLI KARNATAKA 580023.
26. V.JAGANNATH S/O VENKATARAM WORKED AS SR.SO(A) FROM 28.04.1988, O/O THE SR.DFM/O/UBL SOUTH WESTERN RAILWAY, RETIRED, (APPENDIX IIIA 1984 BATCH), AGED ABOUT 60 YEARS, R/AT NO.101, PARAMESHWARI APARTMENTS, RAGHAVENDRA COLONY, BENGERI, HUBLI, KARNATAKA 580023.
27. V.P.DIVATE S/O P.M.DIVATE WORKED AS SR.SO(A) FROM 10.04.1989 TO 30.09.2013, O/O THE AFA/W&S/UBL SOUTH WESTERN RAILWAY, RETIRED, (APPENDIX IIIA 1985 BATCH), AGED ABOUT 63 YEARS, R/AT INDRA DHANU, H.NO.16, LINGRAJ NAGAR (NORTH), NEAR SAMUDAYA BHAVAN, HUBLI 31
28. D.SAMUEL S/O D.P.JOSEPH WORKING AS SR.SO(A) FROM 30.07.1993, 10 OA.No.170/01336- 01347/2018/CAT/BANGALORE O/O THE SR.DFM/O/UBL, SOUTH WESTERN RAILWAY, (APPENDIX IIIA 1987 BATCH), AGED ABOUT 55 YEARS, R/AT PLOT NO.62, KARUNYA COLONY, MOTHER TERESA ROAD, HUBLI 20
29. M.S.VEERABHADRAPPA S/O M.V.SHIVASHIMPAR WORKING AS SR.SO(A) FROM 28.10.1994 O/O THE DY.FA&CAO/CONSTN/UBL, SOUTH WESTERN RAILWAY, (APPENDIX IIIA 1989 BATCH), AGED ABOUT 59 YEARS, R/AT H.NO.185, 5TH MAIN, MORARJI NAGAR, GOKUL ROAD, HUBLI 580030.
30. A.N.PARAMESHWARAPPA S/O A.M.NARAPPA O/O THE SR.AFA/S/O/UBL, SOUTH WESTERN RAILWAY, RETIRED (APPENDIX IIIA 2008 BATCH), AGED ABOUT 63 YEARS, R/AT NO.20, BASAVA NAGAR, HEGGERI EXTENSION, HUBLI 580024
31. MICHAEL REBELLO S/O LATE T.X.REBELLO WORKING AS SR.SO(A) FROM 31.12.1999, O/O. THE SR.DFM/O/UBL, SOUTH WESTERN RAILWAY, (APPENDIX IIIA 1995 BATCH), AGED ABOUT 47 YEARS, RESIDING AT NO.37, JAUZ LAYOUT, BENGERI EXTENSION, HUBLI 580023
32. BANDI MURALI KRISHNA S/O LATE SHRI VEERA RABHAVULU, WORKING AS SR.ISA FROM 18.02.1999, O/O THE SR.AFA/S/UBL, SOUTH WESTERN RAILWAY, (APPENDIX IIIA 1995 BATCH), AGED ABOUT 52 YEARS, RESIDING AT NO.116, 1ST PHASE, AKSHAY COLONY, HUBLI 580030 ... RESPONDENTS (BY SRI. V. M. SHEELAVANTH, ADV. FOR C/R1-R32) THESE WRIT PETITIONS ARE FILED PRAYING TO QUASH THE ORDER DATED: 07.09.2017 PASSED IN O.A.Nos.170/00049-00080/2016 11 OA.No.170/01336- 01347/2018/CAT/BANGALORE ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE (PRODUCED VIDE ANNEXURE-"A").
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 6.8.2018 COMING ON FOR PRONOUNCEMENT THIS DAY THROUGH VIDEO CONFERENCE, B.M. SHYAM PRASAD J., MADE THE FOLLOWING:
ORDER The Union of India (represented by the Chairman, Railway Board), the General Manager, South Western Railway and the Financial Adviser and Chief Accounts Officer (together referred to as 'South Western Railway') have filed these writ petitions impugning the order dated 7.9.2017 passed by the Central Administrative Tribunal, Bangalore Bench (for short, 'the Learned Tribunal') in OA Nos.170/00049-00080/2016. The Learned Tribunal by the impugned order dated 7.9.2017 has allowed the applications filed by the respondents holding that the South Western Railway shall extend to the respondents all the benefits in pari-materia with the benefits extended to the others (Sic) and that such benefits shall be extended within a period of three months.
A brief statement of the facts that would be necessary for deciding the controversy in these writ petitions is as follows:
In the year 1985, the respondents entered services with the South Western Railway as Accounts Clerks. In the year 1993, they were promoted as Junior Accounts Assistants (JAAs). Meanwhile, the respondents had passed the prescribed Appendix-IIA and IIIA (IREM) examinations. In 1996, the respondents were further promoted as Accounts Assistants (AAs) and later as Senior Section Officers (Sr. SOs) in the same year.
Further, certain employees with the South Western Railway, who were also appointed as Accounts Clerks in the year 1987 (and thus were juniors to the respondents), were promoted as Junior Accounts Assistants (JAAs) in the year 1995 after they had also successfully cleared aforementioned Appendix-IIA and IIIA (IREM) examinations. In the year 1999, these employees, who were juniors to the respondents, were directly promoted as Senior Section Officers (Sr.SOs). Interestingly, these employees, who were juniors to the respondents, were directly promoted as Senior Section Officers (Sr.SOs), without intermediary promotion as Accounts Assistants (AAs). This is a material difference insofar as the present controversy is concerned.
The South Western Railway accepted the Modified Assured Career Progression (MACP) Scheme recommended by the VI Central Pay Commission with effect from 1.9.2008 with certain modifications. The benefit of the MACP Scheme was not extended to the respondents on the ground 12 OA.No.170/01336- 01347/2018/CAT/BANGALORE that the respondents, who were working as Accounts Clerks had received three promotions viz., firstly as (JAA)s, secondly as Accounts Assistants (AAs), and thirdly as Senior Section Officers (Sr. SOs) between 1993 and 1996. The respondents filed their representations before the competent authorities. When such representations did not yield any result, the respondents filed the aforesaid Original Applications before the Learned Tribunal primarily on the ground that the denial of the benefit under such MACP Scheme to them was anomalous inasmuch as their juniors, who were appointed in the year 1987, and who were promoted as Senior Section Officers in the year 1999, (as against the respondents who first entered the service in the year 1985 and were promoted as Senior Section Officers in the year 1996), were given the benefit of MACP Scheme. Consequentially, the junior officers were drawing salary higher than the respondents. In continuation of this contention, it was also urged that the Railway Board was cognizant of this anomaly and by its Communication dated 26.08.2013; it recommended examining the admissibility of stepping up of pay to the respondents at par with their juniors who were extended the benefits of the MACP Scheme.
The Learned Tribunal by its impugned order dated 7.9.2017 allowed the applications; the Learned Tribunal directed the South Western Railway to extend to the respondents the benefits on pari-materia with the benefits extended to others (Sic). The Learned Tribunal allowed the applications on the basis that another Original Application, namely Nos.170-00866- 00873/2015, filed by similarly placed employees as the respondents, were allowed by the Learned Tribunal on 8.6.2016 with similar directions. Moreover, the order dated 8.6.2016 was upheld by a Division Bench of the Madras High Court in WP Nos.2531-75/2016. Even the SLP filed before the Hon'ble Supreme Court was dismissed. Thus, the Learned Tribunal's directions, in such similar applications, had become final.
Mr. Ajay U. Patil, the learned counsel for the South Western Railway, pleads that the Learned Tribunal ought to have seen that the respondents were not given the benefits under MACP Scheme because of the terms of the Scheme. But even then, the respondents, who claim to be aggrieved by the terms of the MACP Scheme and the consequential denial of benefits, have not challenged the relevant terms of the MACP Scheme. So long as the terms of the MACP Scheme remained unchallenged, the respondents cannot claim benefits contrary to the terms of the MACP Scheme. The learned counsel urged that significance of this facet of the South Western Railway's case is not considered by the Learned Tribunal in the earlier proceedings. As such, the Learned Tribunal could not have allowed the respondents' applications only on the ground that certain applications were allowed and the directions issued therein were implemented.
The learned counsel for the respondents, on the other hand, asserted that the respondents in the present petitions and the applicants in the earlier proceedings before the Learned Tribunal were similarly placed. For, the 13 OA.No.170/01336- 01347/2018/CAT/BANGALORE seniors were refused the benefits under MACP Scheme while extending the benefits under such scheme to the juniors. Resultantly, the juniors were receiving a higher pay than the seniors. Therefore, the decision in the earlier proceedings would apply in all force to the respondents' claim.
The learned counsel also emphasized that the Railway Board had taken note of the anomaly resulting in the implementation of the MACP Scheme as aforesaid. It had recommended examining the admissibility of stepping up of pay to the seniors on par with the juniors. Further, the VII Central Pay Commission also noted this anomaly, and recommended that where the senior employees had cleared both Appendix-IIA and IIIA (IREM) examinations much before the date the juniors cleared such examinations, the pay of senior employees vis-à-vis juniors should be stepped up by fixing the senior employees in the higher pay matrix. It is on the strength of these submissions, the learned counsel for the respondents contended that no grounds are made out for interfering with the Tribunal's impugned order.
The learned counsel for the South Western Railway did not join issue with the respondents on the assertion that the respondents in the present case and the applicants in the earlier proceedings before the Tribunal in OA Nos.170-00866-00873/2015 are similarly placed inasmuch as the respondents, despite being seniors vis-à-vis their juniors, who entered service and received promotion as Senior Section Officers much later than the respondents, are drawing a much lower salary than the juniors only because the benefit of MACP Scheme is extended to such juniors and denied to the respondents.
Further, it is also undisputed that the Railway Board considered the anomaly of the seniors receiving a lower pay than the juniors despite being similarly situate in every aspect including the successful clearance of Appendix-IIA and IIIA (IREM) examinations except insofar as the respondents having received an intermediary promotion as Accounts Assistants. And, that the Board and VII Central Pay Commission also recommended the consideration of admissibility of stepping up of pay of the senior employees vis-à-vis juniors and fixing the senior employees in the appropriate pay matrix wherever seniors have cleared both Appendix-IIA and IIIA (IREM) examinations before such juniors.
If these essential facts remain undisputed, there would be no justifiable reason to deny to the respondents the benefits of the decision/directions in the earlier proceedings in OA Nos.170-00866- 00873/2015 that have attained finality with the Madras High Court confirming the decision of the Learned Tribunal, and the dismissal of the SLP preferred by the Union of India/South Western Railway against such orders by the Hon'ble Supreme Court. This would be especially so because it is also undisputed that the earlier order by the Learned Tribunal insofar as the similar applications have been implemented.
14 OA.No.170/01336-01347/2018/CAT/BANGALORE The contention that the respondents would not be entitled for the benefit of step up in the pay vis-à-vis their juniors and fixation of the seniors in higher pay matrix because they have not challenged the terms of MACP Scheme that impede grant of benefit thereunder is too tenuous in the face of the subsequent recommendations by the Railway Board as well as the VII Central Pay Commission and the implementation of the directions issued by the Learned Tribunal in the case of the applicants who were, undisputedly, similarly placed as the respondents. In fact, these undisputed facts and circumstances of the case lend credence to the respondents' claim for being given the benefits in parimateria with other similarly placed employees as recommended by the VII Central Pay Commission.
Thus, in the totality of the facts and circumstances of the case, this Court is not persuaded to interfere with the order of the Learned Tribunal. Therefore, the writ petitions are liable to be rejected.
Accordingly, the writ petitions stand rejected."
2. Apparently the matter is also covered by the decision of the Hon'ble High Court of Madras in Writ Petition No. 1078/2012 and other connected cases dated 03.04.2014 which we quote:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-4-2014 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN WRIT PETITION Nos.1078, 10046 to 10049 and 18262 of 2012 and M.P.Nos.1, 1, 1, 1, 1 and 1 of 2012
1.The Government of India Ministry of Personnel Public Grievances and Pensions Represented by its Secretary Department of Personnel and Training North Block, New Delhi.
2.The Financial Adviser and Chief Accounts Officer 15 OA.No.170/01336- 01347/2018/CAT/BANGALORE Southern Railway Headquarters Park Town, Chennai. .. Petitioners in WP 1078/2012
3.The Union of India Represented by the Secretary Ministry of Railways Railway Board, New Delhi.
4.The General Manager Southern Railway Park Town, Chennai 3.
5.The Financial Adviser & Chief Administrative Officer Southern Railway Park Town, Chennai 600 003. .. Petitioners in WP 10046, 10047, 10048, 10049 and 18262/2012 vs
1.The Registrar Central Administrative Tribunal Madras Bench, Chennai 600 104. .. 1st Respondent in WP 1078, 10046, 10047, 10048, 10049 and 18262/2012
2.N.Subramanian
3.V.Rangarajan
4.V.Palanichamy
5.S.Mahalingam
6.I.Francis Joseph
7.R.Prakash
8.Grace Nelson
9.C.Selvin Jeyapandi
10.R.Kannian
11.P.Valarmathi
12.A.Anandaraj
13.M.Balasundaram
14.V.Kumaravelu
15.D.Raju
16.R.Ganesah
17.M.Sethuandiappan
18.K.Sridhar
19.K.Jothivel
20.D.Arulvani 16 OA.No.170/01336- 01347/2018/CAT/BANGALORE
21.B.Raghavan
22.K.C.K.Sampathkumar
23.Mumtaz Mohamed Nazim
24.S.Raman
25.Jebakumari Gunasekaran
26.R.Sridhar
27.P.Balakannan
28.S.Ganesan
29.Mariaa Seelan .. Respondents 2 to 29 in WP 1078/2012
30.R.Elankovan .. 2nd Respondent in WP 10046/2012
31.Esther Chelladurai
32.K.Poongothai
33.Umadevi Elangovan
34.S.Amal Raj
35.L.Lalitha
36.R.Selvarani
37.J.Revathi
38.Rose Mary Miranda
39.V.Sekar
40.A.Viswanathan
41.K.Venkatramani
42.P.Subramanian .. Respondents 2 to 13 in WP 10047/2012
43.R.Venkataramanan
44.M.K.Loganathan
45.Alphonse Michael
46.Lalitha Sundar
47.Jeshintha Joseph
48.J.Nagarajan
49.Nalini Padmanabhan
50.R.Rangarajan
51.P.Jayanthi
52.R.Bhaskaran
53.Shyamala Mahadevan .. Respondents 2 to 12 in WP 10048/2012
54.G.Sivakumar
55.G.Balaji
56.V.Kannan
57.K.V.Krishnan
58.S.R.Gopinath
59.P.Ramanathan 17 OA.No.170/01336- 01347/2018/CAT/BANGALORE
60.J.Mary Mallika
61.S.Radhakrishnan
62.S.Shanthi
63.R.Kalyanasundaram
64.P.Malathimani
65.T.G.Thayalan .. Respondents 2 to 13 in WP 10049/2012
66.R.K.V.Ravindran
67.R.Sridhar
68.Mohanraj Ebenezar
69.N.K.Joseph Gnanaolivoo
70.V.Gunasekaran
71.R.Mohankumar
72.V.Padmanabhan
73.P.Murali
74.K.Vijayalakshmi
75.V.S.Muralidhar
76.Hemalatha Unnikrishnan
77.J.Umesh Ravi Devaram .. Respondents 2 to 13 in WP 18262/2012 Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorari calling for the entire records of the first respondent in O.A.No.1075, 993, 1009, 1008, 1007 and 1063 of 2010 including the orders dated 5.8.2011, 7.10.2011 and 21.11.2011, respectively and quashing the same .
For Petitioners : Mr.V.Radhakrishnan Senior Counsel for Mr.V.G.Suresh Kumar For Respondents : R1 - Tribunal Mr.V.Prakash Senior Counsel for Mrs.S.Kala for RR2 to 29 in WP 1078/12, for R2 in WP 10046/12, for RR3, 4 and 6 to 13 in WP 10047/12, for RR2 to 10 and 12 in WP 10048/12, for RR3 to 5 and 7 to 13 in WP 10049/12 and for RR2 to 13 in WP 18262/12 COMMON ORDER 18 OA.No.170/01336- 01347/2018/CAT/BANGALORE (Order of the Court was made by M.SATHYANARAYANAN, J.) The official respondents in O.A.Nos.1075, 993, 1009, 1008, 1007 and 1063 of 2010 respectively, had filed these writ petitions challenging the final orders passed by the Central Administrative Tribunal, Madras Bench, in the above said Original Applications.
2.O.A.Nos.1063 and 1075 of 2010 were filed by the respective private respondents in W.P.Nos.1078 and 18262/2012 seeking to declare Clause 10 and para 20 of Annexure I of Office Memorandum No.35034/3/2008 Estt (D) dated 19.5.2009, as ultra vires and to quash the order dated 17.6.2010, passed by the Railway Board Service, New Delhi, with a consequential prayer for re-fixation of the pay by granting financial upgradation on the basis of length of service in the post of SO/Sr.SSO/Sr.ISA with consequential benefits. O.A.Nos.993, 1007, 1008 and 1009 of 2010 were filed by the respective private respondents in W.P.Nos.10046 to 10049/2012 seeking to quash the Office Memorandum dated 5.11.2009, issued by the third respondent/third petitioner herein viz. The Financial Adviser and Chief Administrative Officer, Southern Railway, Chennai, and to direct the respondents therein to extend the Grade Pay of Rs.5400/- with effect from the date, on which, their juniors were upgraded or with effect from 1.1.2006, with reference to their date of entry in the post of Senior Section Officers on the principle placing the Section Officers in the next higher grade carrying Grade Pay of Rs.4800/- in pay band PB-2 of Rs.9300-34800 that corresponds to the pre-revised pay scale of Rs.7450-11500, which places the posts of Section Officer and Assistant Accounts/Audit Officer in an identical pay scale, thus necessitating the upgradation of the latter category which were merged in the pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.5400/-, whichever is earlier.
3.The facts necessary for the disposal of these writ petitions, are as follows:
3(i) The original applicants in the above said Original Applications, who are arrayed as private respondents in these writ petitions respectively, had joined in the cadre of Accounts Clerks/Clerks Grade II and got three promotions to the cadre of Junior Accounts Assistants and Accounts Assistants and at the time of filing the Original Applications, were working as Senior Section Officers (Accounts)/Senior Inspector of Stores Accounts and were placed in the Pay Band II Rs.9300-34800/- with Grade Pay of Rs.4800/- as per V Central Pay Commission Recommendations. The private respondents had availed three promotions and therefore, they were not considered for financial upgradation under Modified Assured Carrier Progression (MACP) Scheme.19 OA.No.170/01336-
01347/2018/CAT/BANGALORE 3(ii) The private respondents expressed views that persons, who were appointed as Junior Accounts Officer (Direct Recruits) and working as Senior Section Officer (Accounts), Senior Inspector of Stores Accounts and Senior Travelling Inspector of Accounts, and who were juniors to them, were considered for financial upgradation and they have been granted Grade Pay of Rs.5400/- and challenging the correctness of Clauses 10 and 11 and Paras 8 and 20 of Annexure I of MACP Scheme, O.A.No.519/2010 was filed before the Central Administrative Tribunal, Chennai Bench, and the Tribunal vide final order dated 26.4.2010, directed the respondents therein to consider and dispose of the representations and in compliance of the order, the Railway Board had considered the claim made by the private respondents/original applicants, and rejected the same and therefore, they filed the above said Original Applications.
3(iii) The official respondents in their reply statement, took a stand that MACP Scheme came to be formulated as a "safety net"
to deal with the problem of genuine stagnation and hardship faced by employees due to lack of adequate promotion and was introduced based on the recommendations made by the VI Central Pay Commission, and was also accepted by the Government of India.
3(iv) MACP Scheme envisages financial upgradation counted with reference to the direct entry grade of employees on completion of 10, 20 and 30 years of service and the original applicants, who had joined the service in the cadre of Accounts Clerks/Clerk Grade II, had earned three promotions and were placed in the Pay Band II of Rs.9300-34800/- with Grade Pay of Rs.4800/- as per VI Central Pay Commission Recommendations.
3(v) Insofar as the stand taken by the original applicants/ private respondents herein that their juniors were considered for third upgradation and granted Grade Pay of Rs.5400/- as against the Grade Pay of Rs.4800/- given to them, it is the stand of the official respondents that the MACP Scheme contemplates merely placement on personal basis in the immediate higher Grade Pay/grant of financial benefits only and shall not amount to actual/functional promotion to the employee concerned and it is purely personal to the concerned employee and shall have no relevance to the seniority position and therefore, it is not open to the original applicants to make a complaint in that regard.
3(vi) The sum and substance of the stand taken by the official respondents, is that the original applicants had earned three promotions, whereas the persons, who have been conferred with a Grade Pay of Rs.5400/-, got stagnated and the conferment of such benefits is purely personal to them and has no relevance to the 20 OA.No.170/01336- 01347/2018/CAT/BANGALORE seniority position and hence stepping up of pay in the Pay Band or Grade Pay would be inadmissible to them.
3(vii) The Central Administrative Tribunal has considered the said issue and by placing reliance upon its earlier orders dated 29.12.20010, made in O.A.Nos.966 and 967/2009 respectively, found that the applicants in the above said original applications/private respondents herein, are similarly placed like that of the applicants in O.A.Nos.966 and 967/2009. The Tribunal also found that one T.V.Krishnan, Assistant Accountant, has been granted Grade Pay of Rs.5400/- with effect from 2.2.2010, by virtue of MACP Scheme and he is in the feeder category of Assistant Accountant, whereas the original applicants are in the promotional category of Section Officer, Inspector of Stores Accounts and Senior Section Officers and therefore, they are entitled to financial upgradation by fixing Grade Pay of Rs.5400/-. The Tribunal citing the said reasons, had allowed the original applications directing the official respondents/petitioners herein to grant revised pay to the applicants by extending the benefit of MACP Scheme in their favour by fixing their Grade Pay of Rs.5400/- from the date, on which, the said benefit was extended to their juniors and to disburse the accrued arrears if any, to the applicants within a period of four weeks from the date of receipt of copy of the respective order and aggrieved by the same, the present writ petitions are filed.
4.Mr.V.Radhakrishnan, learned Senior Counsel appearing for the petitioners/official respondents, has drawn the attention of this Court to the Office Note dated 11.11.2013, written by the Department of Personnel and Training, Establishment (D), Government of India, wherein, the anomaly faced by the incumbents of the Accounts Department of Ministry of Railways, consequent to implementation of the MACP Scheme, was considered and it was opined that the instant anomaly brought forward by the referring Department (Ministry of Railways) cannot be attributed to the ACP/MACP policy, but due to faulty cadre structure and therefore, the referring Department may be advised to restructure the Accounts cadre to rectify the anomaly, and would contend that appropriate steps will be taken in that regard.
5.The fact remains that consequent to the implementation of the MACP Scheme, senior employees, who got promotion, are deprived of third MACP, whereas their juniors are availing the benefit of the same by getting Grade Pay of Rs.5400/-, but their seniors are getting Grade Pay of Rs.4800/- only. The Tribunal in the impugned orders passed in the Original Applications, has referred to its earlier orders passed in O.A.Nos.966 and 967 of 2009, and following the same, has allowed the Original Applications.
21 OA.No.170/01336-01347/2018/CAT/BANGALORE
6.The official respondents in the said Original Applications, aggrieved by the orders passed in O.A.Nos.966 and 967/2009, filed W.P.Nos.18611 and 18612 of 2011 and the Division Bench of this Court (N.P.V.,J. & M.S.N.,J.) has considered the issue in extenso and by placing reliance upon the judgment rendered by the Apex Court reported in (1989) 2 SCC 290 (STATE OF ANDHRA PRADESH V. G.SREENIVASA RAO), held as follows:
"11. The appellants herein, under the guise of MACP scheme dated 19.05.2009 coupled with the clarification dated 09.11.2009, seeks to deprive the benefit of FR-22(1)(a)(i) to the private respondents and in the considered opinion of the Court, it is unsustainable as it violates equality and it also offends Article 14 of the Constitution of India and the MACP scheme dated 19.05.2009 as well as the impugned order dated 03.08.2009 do not spell out any reason the applicability of FR- 22(1)(a)(i), has excluded for the persons like private respondents who are ultimately aggrieved/affected.
12. The Government of India passed series of orders issuing clarification in respect of FR-22(I)(a)(i) and as per Clarification No.23(d), the pay anomaly should be directly as a result of the application of the provisions of Fundamental Rule 22 or any other rule or order regulating pay fixation of such promotion in the revised scale.
(emphasis supplied)
13. In the case on hand, the private respondents 4 to 26 in the original applications are admittedly juniors to the private respondents in these writ petitions and they did not qualify on time for getting their promotion and consequently got stagnated and on account of the same, they are not conferred with higher grade pay of Rs.5,400/-. The Tribunal has taken into consideration of the fact that admittedly the private respondents 4 to 26 did not pass the departmental tests on time and got stagnated at the level of Senior Accountants and since they have been conferred with higher grade pay of Rs.5,400/-, has rightly granted the said relief in their favour. It is to be pointed out at this juncture that the private respondents 4 to 26 in the original applications have not been put to any prejudice and what the Tribunal done was, merely stepped up the pay scale of the original applicants to that of the private respondents 4 to 26 and it is in tune with the principle of parity and equity enshrined in Article 14 of the Constitution of India."
7.The point involved in these writ petitions, is similar to one raised in W.P.Nos.18611 and 18612/2011 filed by the Union of India, Represented by Secretary to Government, Ministry of Personnel, 22 OA.No.170/01336- 01347/2018/CAT/BANGALORE Public Grievances & Pension, (Department of Personnel & Training), North Block, New Delhi, and two others, wherein, this Court has upheld the orders passed by the Tribunal in O.A.Nos.966 and 967/2009, and dismissed both the writ petitions filed by the official respondents therein. The Tribunal has also placed reliance upon its earlier orders passed in the above said Original Applications, and granted the relief.
8.In the light of the reasons assigned above, this Court finds that there are no merits in these writ petitions.
9.In the result, these writ petitions are dismissed confirming the orders passed by the Central Administrative Tribunal, Madras Bench in O.A.No.1075, 993, 1009, 1008, 1007 and 1063 of 2010, dated 5.8.2011, 7.10.2011 and 21.11.2011. No costs. Consequently, connected MPs are also dismissed."
3. Now the issue arisen in this matter is whether can we resolve the apparent conflict between the Fundamental Rights stipulation which states that a junior cannot draw more pay than the senior without an equalisation being brought in. Shri N. Amaresh, learned counsel for the respondents, also points out that in this case there is one distinction that the juniors, even though admittedly junior, came in as direct recruits at a higher level and therefore they were able to get benefit of MACP also whereas the seniors came in at a lower level and since they got 3 promotions they were not eligible to get MACP and that is why difference in pay.
4. The Hon'ble High Court of Madras in paragraph 13 of its judgment in WP Nos. 18611 and 18612/2011 had explained it and held that even for such a situation by virtue of the equivalence and equity canvassed by Article 14 of Constitution of India the elevation of payscale of the senior to that of a junior who has superseded him has to be granted.
23 OA.No.170/01336-01347/2018/CAT/BANGALORE
5. Thereafter the matter was taken up before the Hon'ble Apex Court in SLP CC No. 17241-17246/2014 dated 07.11.2014 which we quote:
"ITEM NO. 13 COURT NO. 5 SECTION XII SUPREME COURT OF INDIA RECORD OF PROCEEDINGS Petition (s) for Special Leave to Appeal (C) . . . . CC No (s). 17241- 17246/2014 (Arising out of impugned final judgment and order dated 03/04/2014 in WP No. 1078, 10046 to 10049 and 18262 of 2012 passed by the High Court of Madras) GOVT. OF INDIA AND ORS Petitioner (s) VERSUS N SUBRAMANIAN AND ORS Respondent (s) (With appln. (s) for c/delay in filing SLP and office report) Date: 07/11/2014 These petitions were called on for hearing today.
CORAM:
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR HON'BLE MR. JSUTICE ARUN MISHRA For Petitioner (s) Mr. P.S. Patwalia, ASG Mr. V.N. Subramaniam, Adv.
Mr. Shreekant N. Terdal, Adv.
For Respondent (s) Upon hearing the counsel the Court made the following ORDER Heard learned Additional Solicitor General appearing on behalf of the petitioners.
Delay condoned.
No ground for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India.
The special leave petitions are accordingly dismissed."
6. Thereafter the matter was taken up further by the respondents in Review Petition No. 1325-1330/2015 dated 11.08.2015 which we quote:
"IN THE SUPREME COURT OF INDIA 24 OA.No.170/01336- 01347/2018/CAT/BANGALORE CIVIL APPELLATE JURISDICTION REVIEW PETITION (C) NOS. 1325-1330 OF 2015 IN SPECIAL LEAVE PETITION (C) NOS. 30919-30924 OF 2014 Govt. of India and Anr. Etc Etc ... Petitioners Versus N. Subramanian and Ors. Etc. Etc. .... Respondents ORDER Delay of 4 days in filing the review petitions is condoned.
The present petitions have been filed by the petitioners for review of order dated 7.11.2014 passed by this Court in SLP (C) Nos. 30919-30924 of 2014 (arising out of CC Nos. 17241-17246 of 2014), which were dismissed after hearing learned Additional Solicitor General, who appeared on behalf of the petitioners.
We have carefully perused the petitioners for review, the order impugned and the papers annexed therewith. We do not find any error apparent on the face of record of this Court warranting reconsideration of the order impugned in the instant petitions.
The review petitions are, accordingly, dismissed."
7. Apparently thereafter the matter was implemented. As the applicants herein are also on the same situation as the applicants in other cases, they are also entitled to the same benefits of equivalence with the juniors in the matter of grade pay.
8. At this stage it is submitted that after the 7th Pay Commission was implemented similar matters had arisen in Railway Board also and all these anomalies were corrected and implemented. Therefore, there does not seem to be any obstacle in the way of implementation.
25 OA.No.170/01336-01347/2018/CAT/BANGALORE
9. The OA is allowed. This has to be implemented within two months next. No order as to costs.
(C.V. SANKAR) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
/ksk/
Annexures referred to by the applicant in OA No. 170/01336-1347/2018 Annexure A1: Copy of the Railway Board circular dated 10.06.2009 26 OA.No.170/01336- 01347/2018/CAT/BANGALORE Annexure A2: Copy of the order in OA No. 1075/2010 dated 05.08.2011, WP No. 1078/2012 dated 03.04.2014, SLP CC No. 17241- 17246/2014, in Review Petition No. 1325-1330/ 2015 Annexure A3: Copy of the order of Central Administrative Tribunal, Bangalore Bench in OA No. 49/2016 dated 07.09.2017 Annexure A4: Copy of the representation dated 10.01.2018 Annexure A5: Copy of the reply dated 24.01.2018 Annexures referred in reply statement Annexure R1: Copy of the Chapter-I of IREM Vol-I *****