Rajesh Mehta vs M/O Railways on 15 January, 2018

[Cites 19, Cited by 0]

Central Administrative Tribunal - Chandigarh

Rajesh Mehta vs M/O Railways on 15 January, 2018

1. The challenge in the instant Original Application (OA), instituted by applicant Rajesh Mehta S/o Sh. Sudarshan Kumar, Constable in the Railway Protection Force (RPF), is to the impugned order dated 30th April, 2016, (Annexure A-1), whereby his valid and legal claim for grant of benefit of first Assured Career Progression (ACP) and second Modified 2 O.A.No.060/00678/2016 Assured Career Progression (MACP), in the Pay Bands of Rs.5200-20200 + grade pay of Rs.2800/- and Rs.9300-34800 + grade pay of Rs.4200/- respectively, was stated to have been illegally rejected by the Competent Authority.

2. The matrix of the facts and the material, which needs a necessary mention, for the limited purpose of deciding the core controversy involved in the instant OA, and exposited from the record, is that the applicant was initially appointed as a Constable in the RPF on 28.9.1987, in the pay scale of Rs.825-1200, as revised to Rs.2750-4400 w.e.f. 1.1.2006. As luck would have it, during the course of his employment, the applicant was stated to have suffered some injury in an accident and was declared medically unfit for service in RPF on 29.10.2007. The applicant was drawing the salary in the pay scale of Rs.3200-4900 (under ACP Scheme), as revised to Rs.5200-20200 + GP of Rs.2400, prior to the accident.

3. After his medical unfitness, the applicant was offered the alternative job for the post of Junior Clerk/ Typist on 9.3.2009, carrying the pay scale of Rs.3050-4590, as revised to Pay Band-I of Rs.5200-20200 + GP Rs.2000, vide office order dated 9.3.2009 (Annexure A-2). It was alleged that with repeated efforts, the pay of the applicant was ultimately protected under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)Act, 1995 (hereinafter to be referred to as "Disability Act"). Thereafter, the Railway Board has issued clarificatory letters dated 9.5.2005 (Annexure A-8) and 3.8.2006 (Annexure A-9), that entire past service is to be counted for the purpose of grant of ACP/MACP, even in cases of medically declared unfit constables of RPF. 3 O.A.No.060/00678/2016

4. The case set up by the applicant, in brief, in so far as relevant, is that, in view of the pointed circulars, many similarly situated employees have been granted financial up gradation of 1st ACP and 2nd MACP according to their entitlement but the applicant has been discriminated, in this regard, although, he was entitled to 1st ACP in the clerical grade, in the Pay Band of Rs.5200-20200 + grade pay of Rs.2800/- instead of grade pay of Rs.2400/-, w.e.f. 4.4.2009 and 2nd MACP in Pay Band of Rs.9300-34800 + grade pay of Rs.4200/-, instead of Grade Pay of Rs.2800/- w.e.f.1.10.2009, as was given to other similarly situated employees, such as Salwinder Singh and Manoj Kumar, who were granted similar benefits, vide letter dated 14.12.2009 (Annexure A-10). Even this fact was acknowledged by the respondents, under RTI Information dated 9.8.2011 (Annexure A-11 Colly).

5. According to the applicant, that once his pay was protected under section 47 of the Disability Act, he is entitled to the same benefit of 1 st ACP and 2nd MACP, after considering his previous pay scale, and period of service as such, in the Railways, but the same benefit was illegally denied to him, and he was discriminated in this regard, by the competent authority.

6. Aggrieved thereby, the applicant has preferred the instant OA challenging the impugned order dated 30.4.2016 (Annexures A-1), inter- alia, on the following grounds :-

(i) That the impugned order dated 30.04.2016 (Annexure A-1) is totally vague, non speaking and cryptic and has been passed on totally unsustainable grounds, that pay of the applicant under MACP has been fixed in accordance with para 8 of Railway Board‟s letter dated 10.6.2009 and letter dated 1.2.2006 regarding benefit under ACP Scheme is not applicable, whereas letter dated 10.6.2009 makes it clear that Scheme is operational w.e.f. 1.9.2008 only.

(ii) That as per letter dated 1.2.2006, since Pay scale of RPF Constable was Rs.3050-4590, the grant of benefit under ACP Scheme is to be given in next higher grade pay of Rs.4500-7000 and Rs.5000-8000.

(iii) That as per letter dated 10.6.2009, the MACP Scheme is operative w.e.f. 1.9.2008 and as such financial up gradation under ACP Scheme of 1999 would be granted till 31.8.2008. Since he has been granted 1st ACP w.e.f. 4.4.2009 and 2nd ACP on 1.10.2009, one fails to understand as to how said clause is 4 O.A.No.060/00678/2016 applicable to his case and as such impugned order suffers from total misreading and misconstruing the letter dated 10.6.2009.

(iv) That while passing the impugned order, respondents have not taken into consideration provisions of Section 47 of the Disability Act, which has over riding effect and it provides that no promotion shall be denied to a person merely on the ground of his disability. Thus, applicant cannot be put to any disadvantageous position as he is entitled to all the service benefits and consequent promotion etc. which would have been available to him had he not been rendered medical unfit for the post of Constable.

(v) That in the representation dated 21.10.2015, the applicant has given reference to various documents and also to the cases of similarly situated employees but the same neither finds any reference nor consideration in the impugned order. The authorities are under obligation to pass reasoned and speaking order.

(vi) That the employees of the Railways and RCF Kapurthala are governed by the Rules and the notification issued by the Railway Board from time to time. All the employees working n the Railways irrespective of their posting from one homogenous class and they cannot be discriminated on any ground, whatsoever, including the posting. The applicant has given reference to various employees, who are similarly situated and have been granted the financial up-gradation as being claimed by him but the same do not find any mention in the impugned order, thus, he has suffered hostile discrimination.

7. Levelling a variety of allegations and narrating the sequence of events in detail, in all, the applicant claims that he is entitled to the grant of pointed benefit of 1st ACP and 2nd MACP, on completion of 20 years of service with all the consequential benefits. On the strength of the aforesaid grounds, the applicant seeks to quash the impugned order dated 30.4.2016 (Annexure A-1), in the manner, indicated herein above.

8. On the contrary, the respondents have refuted the claim of the applicant and filed the reply, wherein, it was pleaded that the applicant was rightly granted 2nd MACP in the grade pay of Rs.2800, vide order dated 12.3.2014 (Annexure A-5), and his pay was accordingly fixed, vide order dated 28.3.2014 (Annexure A-6). He is not entitled to the benefit of ACP/MACP, as per letters dated 1.2.2006 (Annexure A-7) and 10.6.2009 (Annexure A-3) of the Railway Board. The applicant was granted benefit of 1stt ACP, after completion of 12 years of service w.e.f. 1.10.1999, in the pay scale of Rs.3200-85-4900 which was further revised to Pay Band of Rs.5200-20200 + G.P.Rs.2400 w.e.f. 1.1.2006. According to the respondents, since the applicant, on account of an accident, was medically declared unfit to perform the duties as Constable, so he was 5 O.A.No.060/00678/2016 posted in the alternative job and was assigned the duty in Security Room, Reader Office and Headquarters Office within RPF. However, he objected to the alternative job after medical de-categorization, and made a request to review his case for suitable alternative job, vide representations dated 19.5.2008 (Annexure R-1), 20.11.2008 (Annexure R-2), dated Nil (Annexure R-3) and 28.2.2009 (Annexure R-4). In all, the respondents claim that the applicant is not entitled to either the grade pay of Rs.2800 as 1st ACP, by applying Section 47 of the Disability Act, nor he was entitled to the benefit of 2nd MACP in grade pay of Rs.4200. Instead of reproducing the contents of the reply in toto, and in order to avoid repetition of facts, suffice it to say that while virtually acknowledging the factual matrix and reiterating the validity of the impugned order, the respondents have stoutly denied all other allegations and grounds contained in the OA, and prayed for its dismissal. That is how we are seized of the matter.

9. Having heard the learned counsel for the parties at quite some length, having gone through the record with their valuable help and after considering the entire matter, we are of the firm view that the instant OA deserves to be partly accepted, in the manner, and on the grounds, mentioned herein below.

10. As depicted hereinabove, the facts of the case are neither intricate nor much disputed and fall within a very narrow compass, in this regard. It is not a matter of dispute that the applicant is entitled to all the financial benefits of the pay, including the benefit of ACP/MACP, once his pay was protected under section 47 of the Disability Act. As per above mentioned circulars, the period of service of applicant as constable in RPF, even after offering alternative appointment, has to be considered for the grant of benefit of ACP and MACP.

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11. The main contention of the learned counsel for the respondents that since the applicant had applied for suitable alternative job vide representations, Annexures R-1 to R-4, so he is not entitled to the benefit of ACP/2nd MACP as such, is not only devoid of merit but mis- conceived, as well. As mentioned hereinabove, once the pay of the applicant was protected under section 47 of the Disability Act, in that eventuality, he would naturally be entitled to all the benefits, arising out of previous pay scale and past service, from time to time. The mere fact that he has applied for suitable alternative job, vide representations, Annexures R-1 to R-4, ipso facto, is no ground, much less cogent, to deny the indicated benefits to the applicant.

12. As is evident from the record, that the applicant has made a detailed representation dated 21.10.2015 (Annexure A-12), raising valid issues including the grant of benefit of 1st ACP and 2nd MACP, after expiry of requisite service, with all the consequential benefits, on the basis of the Section 47 of the Disability Act and various circulars issued by the authorities. Not only that, the applicant has also claimed parity of benefits, already granted by the Railways to similarly situated persons namely Salwinder Singh and Manoj Kumar. Strangely enough, the claim of the applicant was negated without application of mind, and by a very brief impugned order dated 30.4.2016 (Annexure R-1), which reads as under :-

"RAIL COACH FACTORY/KAPURTHALA.

Office of the Chief Manager (P), RCF/Kapurthala.

No.14-E/RCF/DE-CATEGORY/VOL-II. Dated: 30.04.2016 Shri Rajesh Kumar, Office Supdt./Stores, Emp. No. 082477, General Branch.

Sub : Fixation of pay in Grade Pay Rs.4200/-

Ref: Your representation dated 21.10.2015.

7 O.A.No.060/00678/2016

Your representation under reference has been considered by the Competent Authority. On examination it has been found that your Pay in Grade Pay Rs.2800/- under MACPS has been fixed correctly in accordance to Para 08 of Railway Board‟s letter No. PC-V/2009/ACP/2 dated 10.06.2009. However, Railway Board‟s letter No. PC-V/2005/ACP/5/NR dated 01.02.2006 regarding benefits under ACP Scheme is not applicable in your case of grant of MACP.

Hence, your representation is devoid of merit and rejected.

Sd/-30/4 (Harbhajan Lal) Sr. Personnel Officer-I, For General Manager (P)"

13. That means, the Competent Authority has not, at all, adhered to the important and valid issues raised by the applicant in his representation dated 21.10.2015 (Annexure A-12), which goes to the root of the case. Once the applicant has claimed the benefit of ACP &MACP, on the basis of the statutory provisions of Section 47 of the Disability Act, above mentioned instructions / orders and on the basis of parity, in that eventuality, the Competent Authority was required to examine the mater in right perspective, to deal with all the issues and to pass a detailed and speaking order, which is totally lacking in the present case. As mentioned herein above, his claim was rejected, without assigning any cogent reason, in this regard.

14. Meaning thereby, the impugned order is sketchy, non-speaking and the result of non-application of mind. Even, the relevant authority has not adhered to consider a single point/issue raised by the applicant in his representation dated 21.10.2015 (Annexure A-12) and passed the impugned order in a very casual manner, without assigning any cogent reasons. Such authority is required to consider the entire matter contained in the representations, in the right perspective, and then to pass a speaking & reasoned order to decide the grievance of the applicant, which is totally lacking in the present case.

15. Exhibiting the necessity of passing of speaking orders, the Hon‟ble Apex Court in the well celebrated case of M/s Mahavir Prasad Santosh 8 O.A.No.060/00678/2016 Kumar Vs. State of U.P. & Others 1970 SCC (1) 764 which was subsequently followed in a line of judgments. Having considered the legal requirement of passing speaking order by the authority, it was ruled that "recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just". It was also held that "while it must appear that the authority entrusted with the quasi-judicial authority has reached a conclusion of the problem before him: it must appear that he has reached a conclusion which is according to law and just, and for ensuring that he must record the ultimate mental process leading from the dispute to its solution". Such authorities are required to pass reasoned and speaking order.

16. Similarly, in the case of Ram Chander vs. Union of India and Others, 1986 SCC (L&S) 383, the Hon'ble Supreme Court has held that it is of utmost importance after the Forty Second Amendment as interpreted by the majority in Tulsiram Patel Vs. Union of India etc. (1985 SCC (L&S)672) that the Appellate Authority must not only give a hearing to the government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. The reasoned decisions will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the 9 O.A.No.060/00678/2016 final orders that may be passed on his appeal. Considerations of fair play and justice also require that such a personal hearing should be given. The Apex Court in the aforesaid judgement further held that the word 'consider' in Rule 22(2) in the Railway Servant (Discipline & Appeal) Rules, 1968, means an objective consideration after due application of mind which implies giving reasons for decision.

17. Sequelly, in the case of S.N. Mukherjee Vs. Union of India, 1990 (5) SLR 8 (SC), the Apex Dispensation has observed as under :-

"38. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities.xxx

39. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision."

18. Identical view was also taken in the decisions in MMRDA Officers Association Vs. Mumbai Metropolitan Regional Development Authority & Another, 2005 (2) RSJ, 362 SC and Divisional Forest Officer, Kothagudem Vs. Madhusudhan Rao JT 2008 (2) SC 253.

19. Again, an identical question came to be decided by the Hon‟ble Apex Court in the case of State of Uttranchal Vs. Sunil Kumar Singh Negi, 2008 (2) SCT 429, and the Court has ruled as under :-

"6.xxxx The absence of reasons has rendered the High Court order not sustainable. Similar view was expressed in State of U.P. vs. Battan and Ors. (2001) 10 SCC 607). About two decades back in State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, the desirability of a speaking order was highlighted. The requirement of indicating reasons has been judicially recognized as imperative. The view was reiterated in Jawahar Lal Singh vs. Naresh Singh and Ors. (1987) 2 SCC 222.

7) In Raj Kishore Jha vs. State of Bihar and Ors. (2003) 11 SCC 519, this Court has held that reason is the heartbeat of every conclusion and without the same, it becomes lifeless.

8) Right to reason is an indispensable part of a sound judicial system;

reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the 10 O.A.No.060/00678/2016 decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made.

20. Still further, in the decision in the case of State of Haryana Vs. Ramesh Kumar, 2009 (2) SCT 145 (SC), the Hon‟ble Court has ruled as under:-

"6. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable. Similar view was expressed in State of U.P. v. Battan and Ors (2001 (10) SCC 607). About two decades back in State of Maharashtra v. Vithal Rao Pritirao Chawan (AIR 1982 SC 1215) the desirability of a speaking order while dealing with an application for grant of leave was highlighted. The requirement of indicating reasons in such cases has been judicially recognized as imperative. The view was re-iterated in Jawahar Lal Singh v. Naresh Singh and Ors. (1987 (2) SCC 222). Judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by any authority or Court, be it even the Highest Court in a State, oblivious to Article 141 of the Constitution of India, 1950 (in short the `Constitution').

7. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. Chairman and Managing Director United Commercial Bank and Others Vs. P.C. Kakkar, 2003 (4) SCC 364 : [2003(2) SLR 445 (SC)."

21. Not only that, the Hon‟ble Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others (2009) 4 SCC 240 has in para 8 held as under:-

"8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation".

11 O.A.No.060/00678/2016

22. Sequelly, the Hon‟ble Apex Court has held in M/s Kranti Associates Pvt. Ltd. & Another Vs. Sh. Masood Ahmed Khan & Ors, 2010 (4) RCR (Civil) 600 (SC), has held as under :-

a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

b. A quasi-judicial authority must record reasons in support of its conclusions.

c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi- judicial and even by administrative bodies.

g. Reasons facilitate the process of judicial review by superior Courts.

h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

j. Insistence on reason is a requirement for both judicial accountability and transparency.

k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.

m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).

n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of 12 O.A.No.060/00678/2016 giving reasons for the decision is of the essence and is virtually a part of "Due Process".

23. Even Hon‟ble High Court of Punjab and Haryana has taken similar view in a number of cases including in Dhani Ram Chaudhary Vs. State of Haryana, 1998 (3) RSJ, 609 (DB) and Balbir Singh Dharni Vs Union of India & Others, 2002 (2) RSJ 197 DB P&H.

24. There is yet another aspect of the matter, which can be viewed entirely from a different angle. A perusal of the record would reveal that the applicant has specifically pleaded that similar benefits of ACP/MACP have been granted to similarly situated persons, who were offered alternative job, but the applicant was discriminated, in this relevant connection, by the competent authority. If that is so, then the applicant is also legally entitled to same very treatment and parity, in similar circumstances of the case, under Articles 14 and 16 of the Constitution of India, in view of the ratio of law laid down by Hon‟ble Apex Court in case of Man Singh Vs. State of Haryana and others AIR 2008 SC 2481, wherein it was observed that "Equal is to be treated equally even in the matter of executive or administrative action. As a matter of facts, the Doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of governmental action. The administrative action is to be just on the test of „fair play‟ and reasonableness." Again, the same view was reiterated by Hon‟ble Apex Court in case of Rajendra Yadav Vs. State of M.P. and Others 2013 (2) AISLJ 120.

25. What to talk of dealing with each and every aspect of the matter, even the competent authority has not mentioned the fact of parity and discrimination raised by the applicant, in his representation, as is clear from the impugned order dated 30.4.2016 (Annexure A-1), which is not legally permissible.

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26. Therefore, thus seen from any angle, the impugned order cannot legally be sustained.

27. In the light of the aforesaid prismatic reasons, and without further commenting anything on merit, lest it may prejudice case of either side, during the course of fresh consideration, the instant O.A. is partly accepted. The impugned order dated 30.4.2016 (Annexure A-1) is hereby set aside, in the obtaining circumstances of the case. As a consequences thereof, the case is remitted back to the competent authority to consider all the indicated issues raised by the applicant in his representation, after providing adequate opportunity of hearing to him and then to decide the issues in the right perspective, by passing a speaking/reasoned order, and in accordance with law, within a period of two months from the date of receipt of a certified copy of this order. However, the parties are left to bear their own costs.

(P. GOPINATH)                                   (JUSTICE M.S. SULLAR)
  MEMBER (A)                                          MEMBER (J)
                                                      15.01.2018


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