Andhra Pradesh High Court - Amravati
M.Niranjan Rao, vs General Manager, on 5 December, 2022
Author: M. Ganga Rao
Bench: M. Ganga Rao
HONOURABLE SRI JUSTICE M. GANGA RAO
AND
HONOURABLE SRI JUSTICE V. SRINIVAS
Writ Petition No.8734 of 2005
ORDER:(order as per Hon'ble Justice M.Ganga Rao,J) The petitioner filed this writ petition challenging the order dated 07.01.2005 wherein and whereby, the claim of the petitioner (Applicant No.2) along with 30 others for fixation of pay taking 40% weightage, including admissible running allowance while fixing the pay as on 01.01.1976 is rejected as being illegal and arbitrary and contrary to Office Memorandum/Personal Branch Special Circular dated 17.06.992.
2. The case of the petitioner is that while he was working as Fitter Grade III during 1994-95 in Vijayawada Division of South Central Railway, he was transferred to Electrical Department as Grade III Fitter on 04.10.1989 and while working as Electric Fitter Grade III in the scale of Rs.950-1500 in Electrical Loco Shed, Vijayawada, the petitioner volunteers for posting as Apprentice Diesel/Electrical Assistant Driver in the Mechanical running category against the 20% quota reserved for lateral induction of shed staff. Based on the written and viva-voce test, the petitioner was empanelled vide letter dated 03.07.1995 and was deputed for training for a period of 18 months from 18.08.1995 in the scale of Rs.950-1500 (Revised as Rs.3050-4590 under Vth Pay Commission Scales). Due to exigencies of service, the training period of 18 months was curtailed and after completion of traction training, 2 including General and Subsidiary rules, the petitioner was issued with the posting order as Electric Assistant Driver vide letter dated 04.07.1996 (Annexure-R-III). The said order is provisional. In the said order it is also stated that after completion of 18 months prescribed training, the petitioner would be absorbed as Electrical Assistant Driver and was granted the benefit of increments in his substantive post of Electrical Fitter/Grade III as per the instructions contained in Circular No.86/92 & 177/90 and the pay fixation was done as per the recommendations of Vth Pay Commission in the substantive post of Electrical Fitter Grade-III with 40% weightage. The claim for fixation of pay in the scale of Rs.950- 1500 (Rs.3050-4590) as Electrical Assistant Driver with weightage of 40% running allowance was rejected on the ground that his absorption in the said posts was from 18.0.1997 after expiry of 18 months training period. The petitioner along with 30 others approached the Central Administrative Tribunal, Hyderabad Bench in O.A.No.1487 of 1999 to declare the action of the Respondent Railways in not fixing the pay in the scale of Rs.3050-4590 as recommended by Vth Pay Commission as illegal and unconstitutional and for a consequential direction to fix the basic pay by adding 40% to the basic pay while fixing the pay on the basis of the Vth Pay Commission recommendations with effect from 01.01.1996 with all consequential benefits. As per the directions in O.A.No.1487 of 1999 dated 28.09.1999, the representation of the petitioner was disposed of vide letter dated 10.10.2000 stating that the petitioner was selected as Trainee Diesel Assistant from Khalasi Helper/Khalasi (non-running 3 cadre) and belong to stationary group of staff and posted as Diesel Assistant (Running Cadre) after May, 1996 and as on 01.01.1996 the petitioner is not holding the post of Running cadre and the Vth Pay Commission scales came into effect from 01.01.1996 and the petitioner is drawing the pay in the original scale/stipend (stationary grade) and, therefore, fixation is in order. The Tribunal affirmed the said contention while dealing with the contentions of the petitioners' in O.A.No.1169 of 2001 holding that the petitioner/applicant's claim that his pay shall be fixed by taking 40% weightage, including the admissible running allowance while fixing the pay as on 01.01.1996 could not be sustained. The impugned clearly states that they were posted as Diesel Assistant through running cadre and as on 01.01.1996 they were not holding running cadre and the fact that Vth Pay Commission was given effect from 01.01.1996 and on that day they were drawing pay in the original post/stipendiary grade and, therefore, fixation of pay in their case is in order as per the respondents. The proceedings passed on fixation of pay of the applicants in the year 1997 remains unchallenged and has been put into effect by the respondents without any objection and the applicant cannot be permitted to say that they should be absorbed without even completing the required training period since that would be the minimum qualification required for promotion/absorption.
3. Sri K.S.Murthy, learned counsel for the petitioner would contend that the fixation of pay scale is continuous cause of action and rejection order passed by the Railway Administration and by the Tribunal rejecting 4 the petitioner's claim for fixation of pay taking 40% weightage, including the admissible running allowance while fixing the pay as on 01.01.1996 and if the petitioner's running allowance is added to the basic pay to fix the pay scale as on February, 1997, the basic pay would be Rs.4020/-. However, the petitioner was put under basic pay of Rs.3,600/- in the scale of Rs.3650-4090 thereby, it would cause continuous monetary loss and further payments in the scale. He would further contend that as per the Personal Branch Special Circular No.86/92 dated 17.6.1992 issued referring to Board's letter dated 04.02.1991, the Government of India issued orders regarding counting of training period for the purpose of increments effective from 01.10.1990 and the training period before 01.10.1990 will therefore, not count for the purpose of increments. The matter has been considered in the National Council/JCM and it has been decided with the approval of the President that the benefit of treatment of such training as duty for the purpose of increment may be allowed in the case of those railway servants also who had undergone such training on or after 01.01.1986. However, in such cases, the benefit of counting period for pay will be admissible on notional basis from 01.01.1986 and on actual basis from 01.10.1990 and the fixation of pay of the petitioner at Rs.3050/- in the scale of Rs.3050-4090/- vide proceedings dated 13.11.1997 is contrary to the Circular dated 01.07.1990.
3. Sri N. Harinath, learned Deputy Solicitor General of India appearing for the Respondent No.2 would contend that the petitioner was empanelled vide Letter dated 03.07.1995 and was deputed for training for 5 a period of 18 months from 18.08.1995 in the scale of Rs.950-1500 (Revised as Rs.3050-450- under Vth Pay Commission Scales). Due to exigencies of service, the training period of 18 months was curtailed and after completion of traction training, including general and subsidiary rules, the petitioner was issued with posting order as Electrical Assistant Driver vide Letter dated 04.07.1996 clearly indicating therein that his posting as Electrical Driver is provisional. The said order will not confer any right to claim for continuance, absorption, seniority etc. The absorption would be after completion of 18 months prescribed training in terms of Para-302 of Indian Railway Establishment Manual, Vol.-I, 1990 and have to successfully complete the remaining part of the training. The petitioner was granted benefit of increment in his substantive post of Electrical Fitter/Grade III as per the instructions contained in Serial Circular Nos.86/92 and 177/90 and the pay fixation was done as per the recommendations of the Vth Pay Commission in the substantive post of Electrical Fitter Grade III with 40% weightage. The respondents and the Tribunal rightly rejected the claim of the petitioner for fixation of pay in the scale of Rs.950-1500 (Rs.3050-4590) as Electrical Assistant Driver with weightage of 40% running allowance by giving cogent reasons that the petitioner was posted as Diesel Assistant (Running Cadre) after May, 1996, after 01.01.1996, the date on which the Vth Pay Commission recommendations came into effect. The petitioner's fixation of pay in the original post /stipendiary (stationary grade) was done rightly and prays to dismiss the writ petition.
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4. Having considered the facts and circumstances of the case, submissions of the counsel and perused the record, this Court found that the petitioner was empanelled vide Letter dated 03.07.1995 and was deputed for training for a period of 18 months from 18.08.1995 in the scale of Rs.950-1500 (Revised as Rs.3050-450- under Vth Pay Commission Scales). Due to exigencies of service, the training period of 18 months was curtailed and after completion of traction training, including general and subsidiary rules, the petitioner was issued with posting order as Electrical Assistant Driver vide Letter dated 04.07.1996 clearly mentioning therein that his posting as Electrical Driver is provisional and will not confer any right to claim for continuation, absorption, seniority etc. The absorption would be only after completion of 18 months prescribed training in terms of Para-302 of Indian Railway Establishment Manual, Vol.-I, 1990 and have to successfully complete the remaining part of the training. The petitioner was granted benefit of increment in his substantive post of Electrical Fitter/Grade III as per the instructions contained in Serial Circular Nos.86/92 and 177/90 and the pay fixation was done as per the recommendations of the Vth Pay Commission in the substantive post of Electrical Fitter Grade III with 40% weightage. The petitioner contend that he should be treated as having come into the regular cadre even when he was a trainee as on 01.01.1996, which makes it clear that the petitioner is trainee as on 01.01.1996 and was subsequently given working post. Thus, the claim of the petitioner that his pay is to be fixed by taking 40% weightage, 7 including admissible running allowance while fixing the pay as on 01.01.1996 could not be countenanced. The respondents and the Tribunal rightly rejected the claim of the petitioner for fixation of pay in the scale of Rs.950-1500 (Rs.3050-4590) as Electrical Assistant Driver with weightage of 40% running allowance by giving cogent reasons that the petitioner was posted as Diesel Assistant (Running Cadre) after May, 1996, which goes to show that the petitioner is not holding the post of running cadre as on 01.01.1996, the date on which the Vth Pay Commission recommendations came into effect. There is no error of fact or error of law in rejecting the claim of the petitioner, which warrants interference exercising the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is devoid of merits and is liable to be dismissed and is accordingly dismissed. No order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
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M. GANGA RAO, J
____________________
V. SRINIVAS, J
Date: .12.2022
CSR
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HONOURABLE SRI JUSTICE M. GANGA RAO
AND
HONOURABLE SRI JUSTICE V. SRINIVAS
W.P.No.8734 OF 2005
DT: .12.2022
CSR