Central Administrative Tribunal - Delhi
Dhanpat Singh vs Union Of India Through on 6 July, 2010
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2507/2009
MA-1696/2009
New Delhi this the 6th day of July, 2010.
Honble Sh. N.D. Dayal, Member (A)
Honble Dr. K.B. Suresh, Member (J)
1. Dhanpat Singh,
S/o Sh. Deep Chand,
Working as Store Khallasi,
Diesel Shed, Tughlakabad,
New Delhi.
2. Sh. Lekh Raj,
S/o Sh. Bulaki Ram,
Working as Store Khallasi,
Diesel Shed, Tughlakabad,
New Delhi.
3. Sh. Dasrath Prasad,
S/o Sh. Bhuvenshra Ram,
Working as Store Khallasi,
Diesel Shed, Tughlakabad,
New Delhi.
4. Sh. Malkiat Singh,
S/o Sh. Niranjan Singh,
Working as Fuel Khallasi,
Diesel Shed, Tughlakabad,
New Delhi.
5. Sh. Kundan Lal,
S/o Sh. Naurang Mal,
Working as Store Khallasi,
Diesel Shed, Tughlakabad,
New Delhi. . Applicants
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
the General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. The Divisional Railway Manager,
Northern Railway, Delhi Division,
State Entry Road, New Delhi.
3. Divisional Personnel Officer,
Northern Railway, Delhi Division,
State Entry Road, New Delhi. . Respondents
(through Sh. Satpat Singh, Advocate)
O R D E R
Sh. N.D. Dayal, Member(A) The applicants in this OA are working as Store Khallasi and Fuel Khallasi in the Delhi Division of Northern Railway. It is submitted that they were appointed in 1971-1973 and have received no promotion. They have completed more than 24 years of service and become eligible to the benefit of ACP Scheme on completion of 12 and 24 years of service. It is complained that the respondents wrongly treated the reclassification in the year 1982 by which 30% of the posts of Khallasi were put in the higher pay scale as a promotion, and granted only one financial upgradation in the pay scale of Rs. 2650-4000 from the pay scale of Rs. 2610-3540. It is stated that the next higher post in the hierarchy is in the grade of Rs. 3050-4590/- and therefore they are entitled for first financial upgradation in that scale and second upgradation in the pay scale of Rs. 4500-7000/-.
2. The applicants state that they had approached the Tribunal earlier in OA-3008/2004 to seek upgradation in the pay scale to Rs. 3050-4590/- which according to the applicants was allowed with the following observations:-
9. Having regard to the facts and circumstances of the case as also discussion made above, OA is allowed, directing the respondents to replace the scale of Rs.2650-4000 allocated to the applicants in pursuance of ACP Scheme by the scale of Rs. 3050-4590 w.e.f. 1.10.99 with all consequential benefits including arrears of pay and allowances. No costs. No copy of this order of the Tribunal has been enclosed by the applicants. It is stated that the judgment was implemented by order dated 22.05.2006 granting the first financial upgradation in the pay scale of Rs. 3050-4590 from 01.10.1999. A copy of said order placed at Annexure A/2 does not make any mention that this pay scale was being granted as first financial upgradation.
3. The applicants further bring to notice that they again filed OA-582/2008 before the Tribunal which was disposed of by directing the respondents to treat the OA as a representation regarding the claim of second ACP and pass a speaking order. However, by the impugned order dated 10.11.2008 their prayer has been rejected. The applicants are aggrieved that the respondents have treated the applicants as having received two promotions from pay scale of Rs. 2550-3200/- to Rs. 2610-3540 and again to the pay scale of Rs. 3050-4590/-, the latter being pay scale of Lab Assistant. They submit that there is no channel of promotion from the post of Store Khallasi in the scale of Rs. 2550-3200/- to pay scale Rs.2610-3540/- which was actually re-classification and cannot be treated as promotion. This issue stands decided in OA-182/2005 as well as implemented. Copy of this OA has been enclosed with the OA at Annexure-A4.
4. It is further contended that the next promotional post from Store Khallasi is Store Clerk in pay scale of Rs. 3050-4590. Since classification of post or cadre restructuring of 1982 is not promotion, placing the applicants in the pay scale of Rs.2610-3540/- should not be treated as promotion. The applicants rely on an order passed by the Tribunal in the case of Unreserved Employees Association (Registered) Rail Coach Factory Kapurthala Vs. UOI & Ors., 2005(1) ATJ as well as DoP&T O.M. dated 24.09.2001. No copy of this O.M. has been produced.
5. In view of such averments the applicants seek the following relief:-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 10.11.2008 A/1 declaring to the effect that the whole action of the respondents not granting the 2nd financial upgradation under Old ACP scheme to the applicants is illegal and arbitrary consequently pass an order directing the respondents to grant the second upgradation under ACP scheme to the applicants in the scale of Rs.4500-7000 from the date of completion of 24 years of service, with all the consequential benefits, with arrears and interest.
(ii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation.
6. The respondents by their counter-affidavit have submitted that the promotion given to the applicants in pay scale of Rs. 2610-3540/- from 01.08.1982 was a regular promotion against vacant posts and the pay was also fixed under the then FR 22-C. It is stated that the pay scale of Rs. 196-232/- was replaced by the scale of Rs. 2550-3200/- as per 5th CPC. Thereafter they have received a promotion in Group-D in the pay scale of Rs. 2610-3540/- w.ef. 01.08.1982 and subsequently the pay scale of Rs. 3050-4590/- from 01.10.1999 was extended under ACP Scheme. They clarify that for Store Khallasi the next higher post is Helper Store Khallasi/Helper Fuel Khallasi in the pay scale of Rs. 2610-3540/- and thereafter as Clerk in the pay scale of Rs. 3050-4590/- instead of Rs. 2650-4000/-. In response to notice dated 20.01.2006 the applicants had appeared in written test for availing the benefit of second ACP as per their acknowledgement in Annexure R-III. It is contended that the order of the Tribunal in OA-182/2005 is not relevant to the applicants case and since they have already been given the benefit of second ACP in the pay scale of Rs. 3050-4590/- in terms of the directions of the Tribunal, their claim is not tenable. The respondents have enclosed a copy of judgment in OA-3008/2004 at Annexure R-I.
7. In the rejoinder filed by the applicants they have reiterated their claim on the grounds already put forward and denied the stand taken in the counter-affidavit. They insist that the higher pay scale given on 01.08.1982 was not by promotion but was only a re-classification by placing in higher pay scale against 30% posts. Mere fixation in higher scale does not mean promotion.
8. We have heard the learned counsel for both sides and perused the pleadings.
9. The main ground taken by the applicants is that the higher pay scale of Rs. 2610-3540/- was given on the basis of reclassification of the post of Khallasis in the year 1982 by which 30% were to be placed in higher scale of Rs. 200-250/2610-3540 and the remaining in the scale of Rs. 196-232/2550-3200/-. As such this was not a higher scale given on promotion but due to reclassification and percentage distribution of the posts of Khallasis. In this connection the applicants have relied upon order of this Tribunal dated 17.02.2006 in OA-182/2005 which was a case in which also there was a reclassification in the year 1984 of the posts of Lab Khallasis by giving two grades of Rs.2550-3200 and Rs. 2650-4000/-. The Tribunal having noticed the law relevant to the question held that mere fitment in the scale of pay w.e.f. 01.01.1984 could not be treated as promotion to the next higher post or higher grade. Significantly, a copy of OA-3008/2004 decided on 29.07.2005 enclosed by the respondents with the reply reveals that the present applicants, who were also applicants therein, had claimed second financial upgradation under the ACP Scheme in the pay scale of Rs.3050-4590/- which was the pay scale of clerk. It was noticed therein that the applicants had been accorded second financial upgradation in the pay scale of Rs. 2650-4000/- but because the next post in the hierarchy for Store Khallasis and Fuel Khallasis was the Store Issue Clerk and Fuel Issue Clerk in the pay scale of Rs. 3050-4590/-, the second financial upgradation under the ACP Scheme should have been granted to such higher post in the hierarchy in pay scale Rs. 3050-4590/- instead of in the next replacement scale of Rs. 2650-4000/-. Accordingly, having considered the submissions made before it the Tribunal found the applicants entitled to the financial upgradation under the ACP Scheme in the pay scale of Rs. 3050-4590/- in the existing hierarchy. As such directions were given to replace the scale of Rs. 2650-4000/- allocated to the applicants in pursuance of ACP Scheme by the scale of Rs.3050-4590/- from 01.10.1999 with all consequential benefits including arrears of pay and allowances.
10. It is clear from the above that the applicants had raised no plea in OA-3008/2004 contesting their promotion to the pay scale of Rs. 2610-3540/-. Instead the prayer was for second financial upgradation in the higher pay scale of Clerk instead of pay scale of Rs. 2650-4000/-, which was allowed by the Tribunal. Annexure R-III further supports such contention of the respondents. It is, in fact, no longer open to the applicants to take this plea now being barred by constructive resjudicata by saying that the grant of pay scale of Rs.2610-3590/- was merely the result of reclassification under 30%. The applicants have also concealed the details mentioned by the Tribunal in OA-3008/2004 by not filing a copy of the same with this OA. They have further sought to mislead by saying that implementation of this order of Tribunal Annexure A2 was grant of first financial upgradtion.
11. A perusal of three additional documents placed by the learned counsel for the applicants shows that one of them, which is of November 1983, is illegible whereas the other two of 17.08.1990 and 04.01.2002 are regarding avenue of promotion to the grade of Clerk and extension of benefit of ACP Scheme after trade test. The names of the applicants are not traceable in the latter. The relevance of both to the case of the applicants is not clear.
12. In view of the above, we find that the OA cannot succeed and it is therefore dismissed. The five applicants are saddled with costs of Rs.1000/- each to be paid by them within four weeks from the date of receipt of a certified copy of this order to the Library of the Tribunal for purchase of books.
(Dr. K.B. Suresh) (N.D. Dayal) Member(J) Member(A) /vv/