Central Administrative Tribunal - Allahabad
Sandeep Kumar Thakur vs North Central Railway on 27 February, 2025
Reserved on 18.2.2025
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
ALLAHABAD this the 27th day of February 2025.
Present:
HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER (A)
ORIGINAL APPLICATION NO. 330/253/2024
Sandeep Kumar Thakur, aged about 58 years, S/o Late Shri B.N.
Thakur, Presently posted as Chief Loco Inspector, Prayagraj.
...........Applicant.
Versus
1. Union of India, through General Manager (P), North Central
Railway, Prayagraj.
2. Divisional Railway Manager, North Eastern Railway, Prayagraj.
3. Senior Divisional Personnel Officer/D.R.M. (P), North Central
Railway, Prayagraj.
4. Senior Divisional Electrical Engineer, North Central Railway,
Prayagraj.
5. Adesh Kumar Mishra, Assistant Personnel Officer O/o DRM
(P)/Sr. D.P.O. North Central Railway, Prayagraj.
.......Respondents
Present for the Applicant: Shri K.K. Mishra
Present for the Respondents: Ms. Rachna Dubey
ORDER
BY HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
By means of present Original Application, the applicant has
sought the following reliefs:-
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"(i) That this Hon'ble Court may graciously be pleased to quash and
set aside the impugned order dated 20.02.2024 issued by respondent No.5
(Annexure A-1 with Compilation No.1).
(ii) That this Hon'ble Court may graciously be pleased to direct the
respondents not to reduce the pay scale of applicant from Rs. 1,30,400/-
to 1,05,900/- and refund the amounts which is deducted on account of
reducing the basic pay from Rs. 1,30,400/- to 1,05,900/-
(iii) That this Hon'ble Court may further be pleased to pass such
other and/or further order as deem fit, proper and necessary in the
circumstances of the case.
(iv) Award costs to the applicant".
2. The facts in brief in this case are that applicant has been initially
appointed as per the recruitment Rules of the Railway Recruitment
Board on the post of Assistant Loco Pilots w.e.f 19.09.1987. He has
been promoted as Chief Loco Inspector in the panel of 2009. From the
Seniority List of Chief Loco Inspectors published on 19.4.2022, it is
clear that Shri J.N. Tiwari who stands at Sl. No. 78 is much junior to the
applicant. After a gap of more than seven years, respondent No. 5
without any reason raised the dispute of pay fixation, which has been
granted by the Competent Authority after 01.01.2016 and stepped up the
pay of the applicant. Vide letter dated 07.2.2024, respondent No.5
issued a show cause notice to 35 CLIs treating them to be ineligible
Chief Loco Inspectors in respect of fixation of pay on account of
stepping up after 01.01.2016. Applicant submitted his representation.
Without considering the representation of the applicant, respondent No.
5 passed the impugned order dated 20.02.2024 informing the applicant
that amendment in pay fixation on the basis of stepping up and recovery
of excess payment on the basis of stepping up is under process in the
light of letters dated 12.01.2024 and 13.10.2023 respectively. Aggrieved
against the impugned order, applicant filed the present original
application.
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3. Per contra, learned counsel for the respondents filed counter
affidavit wherein it has been stated that applicant was appointed as
Assistant Loco Pilots and was promoted as Loco Pilot Goods then Loco
Pilot Passenger and subsequently promoted as Chief Loco Inspectors.
Juniors of applicant namely Shri J.N. Tiwari has been promoted as
Chief Loco Inspectors from the post of LPM on 08.02.2016 although
applicant has been promoted from LPP, thus, the pay of the applicant
became fixed more than his senior who were promoted earlier from
different categories of Loco Running Cadre. The matter had been
forwarded to Senior DFM/Prayagraj vide note dated 14.09.2017 in the
light of RBE No. 90/2016 vide which Senior DFM/Prayagraj has given
concurrence for stepping up of pay at par with his junior Shri J.N.
Tiwari and pay have been fixed equal. Senior DRM (P), Allahabad
referred the matter to Audit Department who made endorsement that the
Railway Administration granted stepping of pay to 42 Chief Loco
Inspectors without obtaining clarifications regarding ambiguous
conditions of stepping up from higher authorities/the Railway Board.
Later on (in July 2019), the clarifications for the same were issued by
the Railway Board and it proved that stepping up of pay earlier granted
by the Railway Administration was not in order. Thus, non-obtaining of
clarifications earlier on stepping up, resulted in unavoidable payment of
₹9.13 crore. On the basis of audit report, Assistant Personnel Officer
wrote a letter to General Manager (P) requesting therein that in view of
the present audit report, it is to be ensured that those CLIs who have
been given the benefit of stepping up prior to the issue of RBE
133/2019 and are continuously charging their salary, should be stopped,
otherwise their salary should be withheld along with recovery of their
arrears. Guidelines in this regard were required from the Headquarters.
In reply to the aforesaid letter, Headquarter office has directed to take
necessary action as per provision of RBE No. 133/2019 vide its letter
dated 04.10.2023. Based on the aforesaid letter dated 04.10.2023,
Divisional Railway Manager (P), North Central Railway, Prayagraj
recommended to withdraw the benefits of stepping up and to make
recovery of excess payment. Thereafter several representations were
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received, which were again referred to the Headquarter. On the basis of
which, the Railway Board issued following clarification on the subject:-
"The matter referred vide SCR's letter under reference has been considered in
Board's office. It is stated that Board's letter dt. 27.01.2020 (RBE No.07/2020)
provides for stepping up of pay to senior Loco Inspectors appointed prior to
01.01.2006 at par with their juniors appointed after 01.01.2006 provided that they
are identically placed to the employees involved in the court cases cited in the said
letter. It may be noted that the senior Loco Inspectors involved in the cited court
cases had sought stepping up of pay at par with juniors who had been appointed
during the 6th CPC period. In view of this position, the cases of senior Loco
Inspector claiming stepping up of pay at par with junior appointed during 7th
CPC i.e. after implementation of RS(RP) Rules, 2016 which is effective from
01.01.2016 are not identically placed. Thus, the special dispensation of stepping
up of pay allowed vide Board's letter dt. 27.01.2020 is not applicable in such
cases. The issue of stepping up of pay in such cases has to be regulated in terms
of Board's letter dt. 16.08.2019 (RBE No.133/2019). Thus, the reply issued to
SCR earlier vide Board's letter of even number dt. 30.04.2021 hold good".
Railway Board has also given clarification vide letter dated
07.11.2022 that the stepping up of pay is not admissible when the
employees are not identically placed. Thus, in view of aforesaid
circulars, the case of applicant is not liable to be allowed.
4. In reply to the counter affidavit filed by respondents, applicant
has filed rejoinder affidavit in which the applicant has reiterated the
facts as stated in the OA and denied the contents of the counter
affidavit.
5. We have heard Shri K.K Mishra, learned counsel for the
applicant and Ms. Rachna Dubey, learned counsel for the respondents
and perused the records.
6. Submission of learned counsel for the applicant is that initially
applicant has been promoted on the post of Chief Loco Inspectors
(C.L.Is) prior to 01.01.2016. He is getting less salary than C.L.Is
promoted on or after 01.01.2016 who are junior to the applicant. It was
further argued that applicant has made representation to the authority
concerned and respondents have removed the anomaly vide letter dated
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21.09.2017. The salary of the applicant have been stepped up at par with
his junior and was fixed at Rs. 1,30,400/-. Arrear was also paid.
Subsequently vide impugned order, pay of the applicant has been
reduced and respondents have started recovery citing the provision of
RBE No. 133/2019 observing that applicant are not belonging to same
feeder cadre, therefore, he is not entitled to step up his salary at par with
his junior, who has been promoted on or after 01.01.2016. Learned
counsel for the applicant referred to the contents of RBE 133/2019 and
further argued that clarification made in the aforesaid RBE cannot be
applied in the case of the applicant as vide RBE 7/2020 dated
27.01.2020, it has been specifically mentioned that 'Board has further
decided that the future cases of stepping up of pay of CLIs may be
regulated keeping in view the aforesaid clarifications'. Referring to the
aforesaid fact, it is argued that if for the sake of argument plea taken by
the respondents is taken into consideration then as per aforesaid
clarification, benefit already allowed to the applicant stepping up of his
salary at par with his junior promoted on or after 01.01.2016 cannot be
withdrawn. Learned counsel for the applicant further argued that
impugned order has been passed without affording opportunity to the
applicant. There was no fault on part of the applicant. Salary was
stepped up by the respondents themselves. Mere filing representation
for stepping up of his salary by the applicant will not be sufficient to
presume that salary has been stepped up on the basis of
misrepresentation or fraud caused on part of the applicant. It was next
argued that in identical question of stepping up of salary relating to the
C.L.Is promoted prior to 1.1.2016 and on or after 1.1.2016 were
considered by different Benches of this Tribunal and finding the
anomaly genuine, prayer made by the C.L.Is were allowed. Order
passed by the different Benches of the Tribunal were also challenged
before the Hon'ble High Court and Hon'ble Supreme Court by the
respondents but the same were dismissed. C.L.Is promoted prior to
01.01.2016 also raised their grievance to step up their salary at par with
C.L.Is promoted on or after 01.01.2016 before the Patna Bench of this
Tribunal through OA No. 935 of 2019 and it was allowed on dated
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06.07.2023 considering the impact of RBE No. 133/2019 as well as
decision referred herein above and also the letter dated 27.1.2020 and
direction was issued to step up the salary of the C.L.Is promoted prior to
01.01.2016 at par with his junior promoted on or after 01.01.2016. It
was next argued that judgment and order passed in the aforesaid OA
was challenged before the Hon'ble High Court of Judicature at Patna
through civil writ jurisdiction case No. 9674 of 2024 by the Union of
India and others (respondents) but same was dismissed on 18.12.2024
affirming the order passed by the Tribunal. It was next argued that
similar issue also came up for consideration before the Lucknow Bench
of this Tribunal in OA No. 86 of 2023 and the Tribunal relying upon the
Bangalore Bench's decision of this Tribunal as well as judgment and
order passed by the Patna Bench of this Tribunal in OA NO. 935 of
2019 allowed the OA quashing the order passed by the respondents
whereby benefit already allowed for stepping up of salary had been
withdrawn. It is further argued that judgment and order passed by the
Coordinate Bench of this Tribunals (Patna Bench and Lucknow Bench)
are binding to this Bench also, thus, argued to allow the OA and to set
aside the impugned order dated 20.02.2024 and also to direct the
respondents to restore the applicant's salary as has been allowed vide
letter dated 21.09.2017 directing the respondents to refund the
recovered amount within specified period. Learned counsel for the
applicant has placed reliance on the following case laws:-
(i) V. Murugesan and another Vs. Union of India and others
decided on 07.08.2012 in OA No. 455 of 2011 by Madras
Bench of this Tribunal;
(ii) Union of India and others Vs. The Registrar, CAT, Madras
Bench, Chennai decided on 19.2.2013 in Writ Petition
No. 3528 and 3529 of 2013 by Hon'ble High Court of
Judicature at Madras;
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(iii) Union of India and others Vs. V. Murugessan and etc.
decided on 23.2.2016 in Special Leave to Appeal (C) Nos.
4568 - 4569 of 2014 by Hon'ble Supreme Court;
(iv) Chedimala Venkata Sridhar and another Vs. The General
Manager, South Central Railway, Rail Nilayam,
Secunderabad and others decided on 1.5.2019 in Writ
Petition No. 38421 of 2018 by Hon'ble High Court of
Andhra Pradesh;
(v) The General Manager, South Central Railway and others
Vs. Chedimala Venkata Sridhar decided on 30.09.2019 in
Special Leave Petition (Civil) Diary No. 28417 of 2019 by
Hon'ble Supreme Court;
(vi) Dinesh Kumar and others Vs. Union of India and others in
OA No. 050/00935/2019 decided on 06.07.2023 by Patna
Bench of this Tribunal.
(vii) Union of India and others Vs. Dinesh Kumar and others
decided on 18.12.2024 in Civil Writ Jurisdiction Case No.
9674 of 2024 by Hon'ble High Court of Judicature at
Patna;
(viii) Deepak Kumar Rajvanshi Vs. Union of India and others
decided on 12.08.2024 in Original Application No.
332/00086 of 2023 by Lucknow Bench of this Tribunal.
7. Submission of learned counsel for the respondents is that
although applicant was promoted prior to 01.01.2016 on the post of
C.L.Is cadre and he was getting less salary than the C.L.Is promoted on
or after 1.1.2016 but he can get at par salary with his juniors who have
been promoted on or after 01.01.2016 if he is belonging to same feeder
cadre. Since he is not belonging to same feeder cadre, the provision
contained in RBE 133/2019 is applicable. Respondents have rightly
withdrawn the benefit of stepping up extended to the applicant vide
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letter dated 21.09.2017. It is next argued that some order passed by the
Hon'ble Courts were implemented extending one time relaxation,
therefore, applicant cannot take benefit with the law laid down in the
case laws relied upon by him. Learned counsel for the respondents
referred to the facts disclosed in the counter affidavit and further argued
that there is no illegality or perversity in the impugned order, thus,
prayer made in the OA is not liable to be allowed.
8. We have considered the rival submissions of learned counsel
appearing for both the parties and have gone through the entire
documents on records.
9. Before discussing the issue raised on behalf of the parties, it will
be useful to quote the ratio laid down in the cases relied upon by the
learned counsel for the applicants.
10. Identical issue came up for consideration before the Central
Administrative Tribunal, Madras Bench in OA No. 455 of 2011 decided
on 07.08.2012 wherein OA was allowed directing the authorities
concerned to step up the salary of the applicants of that OA at par with
other junior Loco Inspectors, who have been promoted after the
promotion of the applicants and were junior to them. Order passed in
the OA was challenged before the Hon'ble High Court of Judicature at
Madras in Writ Petition Nos. 3528 and 3529 of 2013 by Union of India
and others, which were dismissed on dated 19.02.2019. The respondents
approached before the Hon'ble Supreme Court through Special Leave to
Appeal (C) No (s) 4568 - 4569 of 2014. Hon'ble Supreme Court also
dismissed the appeal.
11. Similarly situated C.L.Is promoted prior to 1.1.2016 had also
approached before the Patna Bench of this Tribunal through OA No.
935 of 2019 for stepping up of their salary at par with those C.L.Is who
were promoted on or after 1.1.2016 and were junior to the applicants
and were also getting more salary than the applicants and Patna Bench
of this Tribunal passed the following order:-
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"CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH,
PATNA
OA/050/00935/2019
Reserved on: 01.06.2023
Pronounced on: 06.07.2023
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE
MEMBER
1. Dinesh Kumar, Son of Late Sakal Deo Rai, Chief Loco Inspector,
East Central Railway, Sonpur, District- Saran (Bihar).
2. Chandra Bhushan Mishra, Son of Sri Jai Mangal Sharma, Chief
Loco Inspector, East Central Railway, Muzaffarpur (Bihar).
3. Manoj Kumar Singh, Son of Sri Devendra Prasad Singh, Chief Loco
Inspector, East Central Railway, Barauni, District Begusarai (Bihar)
4. Janardan Chaudhary, Son of Late Sabjit Chaudhary, Chief Loco
Inspector, East Central Railway, Barauni, District Begusarai (Bihar).
5. Subodh Poddar Son of Late Ram Narayan Poddar, Chief East
Central Railway, Barauni, District Begusarai (Bihar)
6. Sudhir Kumar, Son of Sri Sada Nand Prasad, Chief Loco Inspector,
East Central Railway, Muzaffapur (Bihar).
7. Ajay Kumar Srivastva, Son of Sri Bhupendra Prasad Srivastva, Chief
Loco Inspector, East Central Railway, Sonpur, District Saran.
8. Dharamraj, Son of Late Ram Janam Ram, Chief Loco Inspector,
East Central Railway, Barauni District- Begusarai (Bihar).
9. Anil Kumar Safi, Son of Sri Ravi Safi, Chief Loco Inspector, East
Central Railway, Barauni, District- Begusarai (Bihar).
10. Raj Kumar Ram, Son of Late Ganesh Ram, Chief Loco Inspector,
East Central Railway, Barauni, District- Begusarai (Bihar).
11. Shailesh Kumar Singh, Son of Late Shankar Prasad Singh, Chief
Loco Inspector, East Central Railway, Sonpur, District Saran
(Bihar).
12. Krishna Kumar Jha, Son of Sri Prakash Jha, Chief Loco Inspector,
East Central Railway (HQ) at Hajipur (Bihar).
13. Arvind Kumar, Son of Late Tribhban Prasad Srivastava, Chief Loco
Inspector, East Central Railway (HQ) at Hajipur (Bihar).
14. Ranjeet, Son of Late Ram Das Singh, Chief Loco Inspector, East
Railway, Barauni, District- Begusarai (Bihar).
15. Bipin Kumar Singh, son of Sri Yogendra Prasad Singh, Chief Loco
Inspector, East Central Railway, Muzaffarpur (Bihar).
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16. Kumar Basant Madhukar, Son of Late Hari Nath Prasad, Inspector,
East Central Railway, Muzaffarpur (Bihar).
17. Manoj Madhushree, Son of Shatrughan Prasad Srivastava, Chief
Loco Inspector, East Central Railway, Muzaffarpur (Bihar).
18. Nawal Kishor Singh, Son of S.N. Singh, Chief Loco Inspector, East
Cent Railway, Sonpur, District- Saran (Bihar).
By Advocate: - Mr. M.P. Dixit
Versus
1. The Union of India through the Secretar Railway, Rail Bhawan, New
Delhi-110001.
2. The General Manager, East Central Railway, Hajipur, PO Diddhi
Kalan, PS Hajipur (Sadar), District- Vaishali, Pin Code 844101
(Bihar).
3. The General Manager (Personnel), East Central Railway, Hajipur,
PO Digghi Kalan, PS- Hajipur (Sadar), District (Bihar).
4. The Principal Chief Electrical Engineer, East Central Railway,
Hajipur, PO Digghi Kalan, PS- Hajipur (Sadar), District (Bihar).
5. The Principal Chief Mechanical Engineer, East Centra PO-
DigghiKalan, PS- Hajipur (Sadar), District (Bihar).
6. The Divisional Railway Manager, East Central Railway, Sonpur,
District Saran, Pin Code-841101 (Bihar).
7. The Senior Divisional Personnel Officer, East Cen District- Saran,
Pin Code-841101 (Bihar).
8. The Senior Divisional Mechanical Engineer, East Central Railway,
Sonepur, District0 Saran, Pin Code- 841101 (Bihar).
9. The Senior Divisional Electrical Engineer, East Central Railway,
Sonpur , District- Saran, Pin Code- 841101 (Bihar).
10. The Senior Divisional Financial Manager, East Central Railway,
Sonepur, District- Saran, Pin Code-841101 (Bihar).
By Advocate: - Mr. Kumar Sachin
ORDER
S.K. Sinha, A.M:- Brief facts giving rise to this OA are that applicants
initially appointed as Assistant Loco Pilot (ALP) were promoted to the
post of Chief Loco Inspector (CLI) in scale of Rs 9300-34,800/-, GP Rs
4600/- prior to 01.01.2016, the date of implementation of 7th CPC.
However, their juniors who were appointed as ALP after them and
promoted to the post of CLI after implementation of the 7th CPC had
higher basic pay fixed than them. Applicants' basic pay on
implementation of 7th CPC was fixed was Rs 83600/86100 on 01.07.2018
whereas the basic pay of their juniors who were promoted to the post of
CLI on 03.01.2018 was fixed on that date as its 99800/-, fRaising the
issue of pay anomaly, applicants made representation before the
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concerned authorities for stepping up their pay at par with the juniors. In
response to the representation, GM (Personnel) office, ECR
communicated on 05.02.2019 the decision of competent authority that pay
of those CLIs who had been promoted before 01.01.2016 and were getting
less pay than their juniors who were promoted as CLI after the 2 ^ (th)
CPC may be stepped up at par with the juniors (Annexure A/2). In
accordance with this decision, pay of applicants was stepped up vide
office order no. 265 of 2019 (Annexure A / 3 ) . Subsequently GM
(Personnel) office, ECR Issued a clarification on 22.07.2019 (Annexure
A / 4 ) that stepping up of pay at par with Junior Railway servant was
permissible only if the senior and Junior, both belonged to same Railway
cadre and were promoted to same higher post of that cadre. Railway
Board also issued RBE No. 133/2019 on 16.08.2019 (Annexure A / 6 )
providing detailed clarification on conditions for stepping up of pay of
CLIs at par with juniors. Both, the order of GM (Personnel), ECR dated
22.07.2019 and RBE No. 133 of 2019 dated 16.08.2019 were based on
para 7(10) of the Railway Servants (Revised Pay) Rules, 2016 notified as
RBE No. 90/2016. Accordingly, the benefit of stepping up of pay at par
with the juniors granted earlier to the applicants was withdrawn vide
order dated 16.09.2019 (Annexure A / 7 ) on the ground that applicants
were not promoted as CLI from the same cadre as juniors. Also, the
excess payment made to them after the stepping up of pay was ordered to
be recovered. Aggrieved with the withdrawal of the stepped up pay and
order for recovery of excess payment in the wake of stepping up
applicants have preferred this OA praying for following reliefs:-
"8.1. That your Lordships may graciously be pleased to quash
and set aside the impugned Order dated 16.09.2019, 22.07.2019
issued by the Respondent No. 7 and 3 as contained in Annexure-
A/7 and A/4 respectively including any other adverse order in this
regard and also to declare the order so issued by the Railway
Board dated 28.07.2016 and 16.08.2019 as contained in
Annexure A/S and A/6 as ultra-vires and contrary to the
judgment of Hon'ble Supreme Court of India (Supra) in which it
has been held that a senior cannot be paid lesser pay than their
juniors.
8.2 That your Lordships may graciously be pleased to hold and
declare the order so issued on 05.02.2019 and Office order No.
265 of 2019 as contained in Annexure A/2 and A/3 are quite just,
proper and as per settled principle of law on stepping-up of pay
and requires no interference.
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8.3 That your Lordships may graciously be pleased to
direct/command the Respondents to refund amount if recovered
with interest.
8.4 Any other relief or reliefs including the cost of the proceeding
may be allowed in favour of the applicants".
Applicants have pleaded that impugned orders viz. the order of OM
(Personnel), EER dt 23.07.2018 (Annexure A/4), the Railway Service
(Revised Pay) Rules, 2018 notified on 28.07.2016 (Annexure A/B), the
Railway Board order dated 16.08.2010 issued as RRE NO. 133 of 2019
(Annexure A/6) and the order dated 16.09.2010 issued by the office of
BRM (Personnel) Office, EER were punitive, discriminatory and against
the Rules. The withdrawal of the benefit of stepping up of pay at par with
juniors was a violation of the Article 14, 16, 21 and 311(2) of the
Constitution and also against the judicial pronouncements of Hon'ble
Supreme Court, Hon'ble High Courts and different Benches of Central
Administrative Tribunal. Further the order of recovery of excess payment
was against the DoPT guidelines issued in the wake of Apex Court
judgment in Rafique Masih case.
3. Contesting the OA, respondents filed written statement
maintaining that difference in pay of the applicants and their juniors had
arisen because of the 7th Central Pay Commission recommendations.
The pay of such staff who were promoted as CLI prior to the 7th CPC
recommendations was fixed by giving benefit of 30% of their pay element
and on implementation of 7th CPC their pay was fixed according to the
fitment factor of 2.57 (as a non-running staff). On the other hand, pay of
those staff who were still not promoted as CLI, was first fixed on
implementation of 7th CPC by a fitment factor of 3.00011 (as a running
staff) and on promotion to the post of CLI their pay was fixed by giving
benefit of 30%. In response to the applicants' representation raising the
issue of pay anomaly, decision of competent authority was communicated
on 05.02.2019 to step up the pay of applicants at par with their juniors.
But on subsequent examination of the issue, a clarification was issued on
22.07.2019 that for stepping up the pay at par with juniors it was
necessary that junior and senior should belong to the same cadre.
Railway Board also issued RBE No. 133/2019 on 16.08.2019 reiterating
the conditions for stepping up of pay.
4. Respondents have pleaded in the WS that applicants were promoted to
the posts of CLI from the posts of Loco Pilot (Goods) and Loco Pilot
(Passenger) whereas their juniors were promoted to the post of CLI from
the posts of Loco Pilot (Passenger) and Loco Pilot (Mail) which had
different seniority units. Applicants and their juniors were thus not from
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same cadres before promotion to the post of CLI. Respondents have
stated that though the posts of Loco Pilot (Goods), Loco Pilot (Passenger)
and Loco Pilot (Mail) have same Grade Pay of Rs 4200/- seniority for
each was maintained separately. As applicants and juniors did not belong
to the same cadre before promotion to the post of CU, hence the stepping
up of applicants' pay at par with juniors was not permissible. The order
dated 05.02.2019 was issued by mistake which has been corrected by the
orders dated 22.07.2019 and 16.08.2019. Respondents have further
mentioned that a clarification regarding provision relating to RRs of
Loco Pilots, Shunters, Drivers (Mail & Express) and Loco Inspectors in
IREM Vol. I was issued on 14th November 2019 (Annexure R/4) that
Loco Pilot (Goods), Loco Pilot (Passenger), Senior Motormen, Loco Pilot
(Mail) etc. constitute separate and distinct cadres within the overall
classification of Loco running staff.
5. In rejoinder, applicants pleaded that Railway Board vide order dated
27.01.2020 (Annexure P/1) allowed the stepping up of pay of Loco
Inspectors who were promoted prior to 01.01.2016 at par with Loco
Inspectors promoted after 01.01.2016. North Western Railways also
issued orders on 06.01.2021, 22.04.2021, 28.04.2021 and 12.02.2021
allowing stepping up of pay of Chief Loco Inspectors who were promoted
before 01.01.2016 and were getting less pay than / Juniors who were
promoted after 01.01.2016. Hence, applicants cannot be denied the
benefit of stepping up of Pay at par with the juniors.
6. Heard the rival counsel after admission and considered their
submissions and material on record.
7. Mr. M. P. Dixit, Ld. counsel for applicants submitted that the instant
OA was squarely covered by the judgment of Hon'ble Delhi High Court
in WP(C) No. 2052 of 2012 (Union of India Vs Surinder Kr. Dhingra)
which was preferred challenging the order of CAT, Principal Bench in
OA No 3857/2010. Hon'ble High Court dismissed the writ petition on
05.09.2017, upholding the decision of Principle Bench. The order of PB,
CAT attained finality as SLP (Civil) Diary No. (s) 14746/2018 filed before
Hon'ble Apex Court was also dismissed. Ld. counsel also put reliance on
the judgment of Hon'ble Rajasthan High Court in Civil Writ Petition no.
4330/2019 (Union of India & Others Vs agdish Kr. Bulchandani &
Another) which also related to identical issue.
7.1 Mr. Dixit, drawing attention to Annexure P/1 further submitted that
Railway Board vide order dated 27.01.2020 allowed stepping up of pay to
senior Loco Inspectors at par with their juniors as a special dispensation.
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He also referred to documents at Annexures P/2 series and submitted that
North West Railway Hqr, Jaipur, relying upon the Railway Board order
dated 27.01.2020, allowed stepping up of pay of CLIs promoted prior to
01.01.2016 at par with their Juniors who were promoted to the post of
CLIs after 01.01.2016 and had higher basic pay. L/C submitted that as
Railway Board and North West Railway have allowed stepping up of pay
to senior CLIs at par with their juniors, the pay of applicants in this case
also needs to be stepped up at par with the juniors.
7.2 Mr. Dixit also submitted that before deciding to reduce the pay of
applicant respondents issued no show cause notice and hence, the order
was in violation of principle of natural justice.
8. Kumar Sachin, L/C for respondents put reliance on the Supreme Court
judgment on 22.02.2023 in the Civil Appeal No. 8329 of 2011 and
submitted that Hon'ble Apex Court held that pay fixation was a complex
matter and that the equation of posts and determination of pay scales was
the primary function of Executive and not of judiciary. Ld. Counsel also
submitted that though applicants and the Juniors in respect of whom
applicants are seeking pay parity were appointed as ALP in Railways but
they were promoted to the post of Chief Loco Inspectors from different
posts/cadre. One could be promoted to the post of CLI from four different
posts and though all these posts have Grade Pay 4200, there is
considerable difference in the pre-promotion training, experience and
eligibility for each of these posts and hence, each post is treated as a
separate cadre and separate seniority is maintained for each. A CLI
promoted from the post of Loco Pilot (Goods) cannot be compared with a
CLI promoted from the post of Loco Pilot (Mail) or Loco Pilot
(Passenger). A comparison can be made only if the senior and junior
belonged to the same cadre before promotion to the post of CLI. As
applicants were from different cadre than juniors the stepping up of pay
was not permissible in accordance with the rules. The impugned orders
were in accordance with the extant law/rules.
9. Issue for adjudication in this case is whether applicants who were
promoted to the post of CLI prior to 01.01.2016 are entitled for stepping
up of pay at par with their juniors who were promoted as CLI after
01.01.2016 and whose basic pay on the promotion was fixed higher than
applicants. Before adverting to this issue, it deems appropriate to examine
the court judgments cited by rival counsel during hearing.
10. Hon'ble Delhi High Court in WP(C) No. 2052 of 2012 (supra)
dismissed the writ petition on 05.09.2017 challenging the order of
Principal Bench of CAT in OA No 3857/2010. The issue related to
MANISH KUMAR
SRIVASTAVA
15
stepping up of pay of senior Loco Inspector (LI) at par with the junior Ll
getting higher basic pay. Applicant in the OA (respondent in the writ
petition) had been promoted to the post of Ll before the implementation
of Sixth Pay Commission but his basic pay was less than his junior who
had been promoted to the post of LI after implementation of sixth pay
commission. Respondents in the OA (petitioner of the writ petition) had
maintained that applicant did not fulfil the conditions for stepping up as
per rule 7(10) of the Railway Servant (Revised Pay) Rules, 2008 which
read as under;
"(a) That both the junior and senior railway servants should
belong to the same cadre and the posts to which they had been
promoted should be identical in the cadre;
(b) The pre-revised scale of pay and the revised grade pay of the
lower and higher posts in which they are entitled to draw pay
should be identical."
The Principal Bench of Tribunal allowed the OA directing the
respondents to step up the pay of applicant in the OA at par with his
junior. After Hon'ble Delhi High Court dismissed the Writ petition,
Hon'ble Apex Court also dismissed the SLP (Civil) Diary No. (s)
14746/2018 directed against the High Court order. Hence the order of
Principal Bench of the Tribunal had attained finality.
11. Hon'ble Rajasthan High Court in Civil Writ Petition No. 4330/2019
(supra) also dealt with the same question of stepping up of pay of senior
CLI vis-a-vis his junior. Petitioners in the WP were respondents in an
Original Application filed before the Jaipur Bench of CAT which had
been allowed directing the respondents (petitioners in WP) to grant the
applicants the benefit of stepping up of pay to the applicant at par with
their junior with all consequential benefits including arrears of pay and
allowance. Hon'ble Rajasthan High Court in its order on 26.03.2019
dismissed the WP upholding the judgment of the Tribunal.
12. L/C for respondents, has put reliance upon the judgment of Hon'ble
Supreme Court in Civil Appeal No. 8329 of 2011 passed on 22.02.2023.
The question involved in that case was equivalence of posts and pay
scales of Junior Design Officers (JDO) and Civilian Technical Officers
(Design), both Group 'B' Gazetted posts in Indian Navy. The two posts
had separate Recruitment Rules, at least since 1996. Prior to the Fifth
Central Pay Commission the pay scales of both the posts were same but in
Fifth Pay Commission different pay scales were provided for the two
MANISH KUMAR
SRIVASTAVA
16
posts. The Civil Appeal before Hon'ble Apex Court was filed after the
High court dismissed the Writ Petition preferred by the appellants against
the order of the CAT which directed the appellant to grant the same scale
to both the posts. Evidently, the facts of this Civil Appeal are clearly
distinguishable from the instant OA.
13. Perusal of the orders of Hon'ble Delhi High Court and Hon'ble
Rajasthan High Court at para 10 and 11 above reveal that the issue of
pay anomaly for the post of CLI/LI erupted on account of the
implementation of the Sixth and Seventh Pay Commission
recommendations. Respondents consistently maintained in all these cases
that steeping up of pay was not permissible under the rules because the
promotion of the senior and juniors to the post of Chief Loco Inspector
(CLI) was made from different feeder cadres. Hon'ble Delhi High Court
and Hon'ble Rajasthan High Court considering these objections
dismissed the respective Wirt Petitions and upheld the order of the
Tribunal which attained finality.
14. It is also important to note that Railway Board vide their order dated
14th November 2019 amended the IREM by introducing a clarification
that "for the purpose of selection/promotion and pay fixation, it is made
clear that the functional categories of Loco Pilot (Goods), Loco Pilot
(Passenger), Senior Motorman, Loco Pilot (Mail) etc. constitute separate
and distinct cadres/seniority units within the overall classification of Loco
running staff." However, within three months of this order, the Railway
Board vide RBE No. 07/2020 dated 27.01.2020 allowed stepping up of pay
to senior Loco Inspectors appointed prior to 01.01.2006 at par with their
juniors appointed after 01.01.2006 as a special dispensation condoning
the same cadre requirement. The Board clarified that further cases of
stepping up of pay of CLIs may be regulated in accordance with the
Board's letter dated 14th November 2019,
15. Applicability of the clarifications issued by Railway Board on 14th
November 2019 in the instant case remains a moot point as the pay
anomaly in the instant case arose in 2018. Further, on 06.01.2021, North
West Railway, relying on the Railway Board communication dated
27.01.2020 (Annexure P/1), permitted various Divisions under its control
to step up the pay of Loco Inspectors promoted prior to 01.01.2016 at par
with the junior Loco Inspectors promoted after 01.01.2016 (Annexure P/2
series). Accordingly, Ajmer Division and Jodhpur Division under NWR
issued orders stepping up the pay of CLIs who were promoted to the post
prior to 01.01.2016 at par with the juniors promoted after 01.01.2016.
MANISH KUMAR
SRIVASTAVA
17
16. With the railway Board decision dated 27.01.2020 for stepping up of
pay and the decision of NWR to grant similar stepping up to CLIs, can
applicants in the instant case be denied the same benefit? Further, it is
also undisputed that respondents ordered to reduce the pay of applicants
by withdrawing the benefit of stepping up granted earlier without giving
them any opportunity to explain their case.
17. In the light of above discussions, I am inclined to hold that this case is
squarely covered by the judgment of Delhi High Court date 05.09.2017 in
WP(C) No. 2052 of 2012 and Rajasthan High Court dated 26.03.2019 in
Civil Writ Petition No. 4330/2019. These judgements have attained
finality and the ratio can be directly applied in the instant case. Also,
Railway Board itself, after issuing clarification on 14.11.2019 that the
posts of Loco Pilot (Goods), Loco Pilot (Passenger), Loco Pilot Mail
(Mail) etc. are from separate cadre for the purpose of promotions,
allowed stepping up of pay of seniors LIS promoted before 01.01.2016 at
par with junior LI promoted after 01.01.2016 as special dispensation
condoning the conditions of same cadre. Further, North West Railway,
taking cue from the Railway Board order dated 27.01.2020 allowed
stepping up of pay of CLI promoted before 01.01.2016 at par with their
juniors who were promoted after 01.01.2016 and were getting more basic
pay than the senior CLIs. Different Railway Zones cannot have different
norms for promotions/financial benefits to their employees as that would
be discriminatory and against the law.
18. Taking the entirety of facts and legal aspects discussed above into
consideration, it deems that interest of justice would be served if the
applicants who were promoted as CLI prior to 01.01.2016 get their pay at
par with their juniors who were promoted in 2018. Accordingly, the
Office order dated 16.09.2019 (Annexure A/7) is quashed and set aside
and the Office order No. 265 of 2019 (Annexure A/3) is restored to its
original status. Respondents are directed to fix the present salary of the
applicant accordingly and pay the arrears within four months of receipt
of copy of this order.
19. The OA stands allowed to the extent of above observations and
directions. No cost.
20. Before parting it is clarified that no view has been expressed on the
legal sustainability of the order dated 22.07.2019 (Annexure A/4), the
Railway Servants (Revised Pay) Rules, 2016 notified on 28.07.2016
(Annexure A/5) and the Railway Board order dated 16.08.2019
(Annexure A/6).
MANISH KUMAR
SRIVASTAVA
18
[Sunil Kumar Sinha]
Administrative Member".
12. Order passed in the aforesaid OA was challenged by the Union of
India and others before the Hon'ble High Court of Judicature at Patna in
Civil Writ Jurisdiction case No. 9674 of 2024 and the Hon'ble High
Court dismissed the writ petition on merit affirming the order passed by
the Tribunal.
13. Similar issue has also arisen before the Lucknow Bench of this
Tribunal in OA No. 86 of 2023 which was decided on 12.08.2024
allowing the claim of the applicant promoted prior to 01.01.2016 as
C.L.Is. The judgment and order passed in the aforesaid OA is as
follows:-
"CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00086/2023
Dated, this 12th day of August, 2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Deepak Kumar Rajvanshi aged about 56 years, S/o Shri Jawahar Lal
Rajvanshi, R/o 982, Kiran Enclave, Paikara Mau, Kursi Road, Near
Integral University, Lucknow.
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. Union of India, through the General Manager, North Central Railway,
Prayagraj.
2. The Divisional Railway Manager, North Central Railway, Jhansi.
3. The Senior Divisional Personnel Officer, North Central Railway,
Jhansi.
4. The Senior Divisional Finance Manager, North Central Railway,
Jhansi.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER (ORAL)
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case, the applicant seeks the following reliefs:
MANISH KUMAR SRIVASTAVA 19 "1. To quash the impugned orders dated 03.10.2022 and order dated 12.01.2023 (contained as Annexure No A-1 and A-1A to this OA), with all consequential benefits.
2. To restrain the respondents from reducing the pay, pension and other settlement benefits, during pendency of the present case.
3. To refund the amount recovered if any, from the pension of the applicant in pursuance of order dated 03.10.2022.
4. Any other relief, which this Hon'ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
5. Cost of the present case as the applicant has unnecessarily been dragged in litigation."
2. The facts of the case are that the applicant's pay, while working on the post of Chief Loco Inspector under the respondents, was stepped up in November, 2020. He retired voluntarily on 11.12.2020. Thereafter, vide order dated 03.10.2022, the respondents cancelled stepping up of pay. The applicant challenged the order dated 03.10.2022 in OA No. 531 of 2022 which was disposed of by this Tribunal on 13.12.2022 directing the respondents to decide the claim of the applicant in light of RBE No. 07 of 2020. The respondents rejected the applicant's claim vide order dated 12.02.2023. Aggrieved, the applicant has preferred this OA.
3. It is contended by the applicant that the cancellation of stepping up of his pay is not as per letter and spirit of RBE 07 of 2020 and has been done at the dictat of respondent no. 1 vide letter dated 11.08.2021. Any recovery, as a consequence of such cancellation, would be in violation of Hon'ble Supreme Court's judgment in State of Punjab vs Rafiq Masih (Whitewasher) (2015) 4 SCC 334 and the instruction issued by the Department of Personnel & Training (DoPT) vide office memorandum (OM) dated 02.03.2016.
4.1 Per contra, the respondents state that the Railway Board's RBE No. 133 of 2019 dated 16.08.2019 on the subject of anomaly in fixation of pay of Chief Loco Inspector appointed prior to 01.01.2016 with reference to juniors appointed after 01.01.2016 mentions in paragraph 3 (f) that in cases where the conditions are not met, steeping up of pay will not be admissible. For instance, a Chief Loco Inspector promoted from Loco Pilot (Goods) prior to 01.01.2016 and a Chief Loco Inspector promoted from Loco Pilot (Passenger) or from Loco Pilot (Mail/Express), i.e., from a different post/cadre after 01.01.2016 are not identical and as such would not come under the purview of instructions relating to stepping up of pay. It has also been mentioned in paragraph 3 (g) thereof that Loco MANISH KUMAR SRIVASTAVA 20 Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) constitute three different cadres.
4.2 It is further contended that the RBE No. 07 of 2020 dated 27.01.2020 making special provision in regard to decision of Hon'ble Court would not be applicable in all similarly situated cases as clarified vide letter dated 18.02.2022. Such similar cases are required to be decided taking into account RBE No. 133 of 2019 and RBE No. 196 of 2019.
5. We have heard both the parties. Learned counsel for the applicant submitted that at heart of the dispute is the Railway Board's RBE No. 133 of 2019 dated 16.08.2019 and that the respondents have relied on paragraphs 3 (f), (g) and (h) of these instructions dated 16.08.2019 which have been struck down by this Tribunal's Bangalore Bench in OA No. 213 & 215 of 2022 vide order dated 19.03.2024. On the other hand, learned counsel for the respondents highlighted the submissions made in the OA.
6.1 For the sake of clarity, RBE 133 of 2019 dated 16.08.2019 is extracted below:
"Sub: Anomaly in fixation of pay of Chief Loco Inspectors appointed prior to 01.01.2016 with reference to their juniors appointed after 01.01.2016 and drawing more pay than the seniors.
It has come to the notice of the Board that staff appointed prior to 01.01.2016 as Chief Loco Inspectors in the pre-revised pay structure, whose pay has been fixed in the 7th CPC pay structure for Chief Loco Inspectors under the RS (RP) Rules, 2016, are drawing less pay than their juniors appointed to the Supervisory post after 01.01.2016. The anomaly has arisen due to the fact that the benefit of pay element granted at the time of promotion of running staff to a stationary post has been granted to the junior in the revised pay structure, whereas, the same benefit granted to the senior is of lesser value as the same has been calculated on pre-revised pay structure.
2. Rule 7(10) of RS (RP) Rules, 2016 contains the provisions for stepping up of pay in case of anomaly in pay fixation between senior and junior employees, subject to certain conditions. The anomaly in the case of Chief Loco Inspectors has arisen due to the benefit of pay element reckoned for fixation of pay on promotion of running staff to a stationary post being granted in pre-revised pay structure or revised pay structure MANISH KUMAR SRIVASTAVA 21
3. Therefore, in accordance with Rule 7(10) of RS (RP) Rules, 2016, it has been decided that the anomaly be resolved by granting stepping up of pay to the seniors at par with the juniors subject to the following conditions:
(a) Both the junior and the senior Railway servants should belong to the same cadre from which they have been promoted to the higher post and the posts in which they have been promoted should be identical in the same cadre;
(b) The existing pay structure and the revised pay structure of the lower and higher posts in which they are entitled to draw are identical;
(c) The senior Railway servants at the time of promotion are drawing equal or more pay than the junior;
(d) The stepping up of pay will be allowed to running staff appointed as Chief Loco Inspectors only in whose cases extant quantum of pay element (at present 30%) is reckoned for pay fixation. The stepping up of pay will not be admissible to the non-
running staff appointed as Loco Running Supervisors as in their cases the question of pay element in the running allowance does not arise;
(e) If even in the lower post, revised or pre-revised, the junior was drawing more pay than the senior by virtue of advance increment granted to him or otherwise, stepping up will not be permissible;
(f) In cases where the conditions are not met, stepping up of pay would not be admissible. For instance, a Chief Loco Inspector promoted from Loco Pilot (Goods) prior to 01.01.2016 and the junior promoted to Chief Loco Inspector from Loco Pilot (Passenger) or from Loco Pilot (Mail/Express) [i.e. from a different post/cadre] after 01.01.2016 are not identical and such would not come under the purview of instructions relating to stepping up of pay.
(g) In this connection it is stated that LP (Goods), LP (Passenger) and LP (M/E) form three different and distinct seniority lists and would, therefore, constitute different cadres/posts in the context of clause (a) above as clearly brought out in (f) above.
(h) Stepping up will be allowed only once, the pay so fixed after stepping up will remain unchanged;
MANISH KUMAR SRIVASTAVA 22
(i) The senior shall be entitled to the next increment on completion of his required qualifying service with effect from the date of re-fixation of pay."
(emphasis supplied) It is seen from RBE 133 of 2019 dated 16.08.2019 extracted above that while it allows stepping up of pay of Chief Loco Inspectors appointed prior to 01.01.2016 at par with their juniors appointed after 01.01.2016 and drawing more pay than the seniors, such stepping up is allowed only if the senior and the junior both belong to the same feeding cadre, i.e., Loco Pilot (Goods) or Loco Pilot (Passenger) or Loco Pilot (Mail/Express). 6.2 It is the treatment of LP (Goods), LP (Passenger) and LP (M/E) as different cadres for the purpose of stepping up of pay to remove anomaly between the senior and the junior on promotion in terms of paragraph 3 (f) and 3 (g), which has been addressed by the Bangalore Bench of this Tribunal in the following manner:
"28. It is significant to note that Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) all carry the same scale of pay/pay band and grade pay i.e. PB-2 with grade pay Rs. 4,200/- at the time of promotion of junior. As per RBE No. 95/2013 dated 12.09.2013, fixation of pay on promotion in revised pay structure on or after 01.01.2006 is governed by Rule 13 of the RS (RP) Rules, 2008. As a consequence of implementation of recommendations of Sixth Central Pay Commission, various pre- revised scales have been merged and got replaced by same revised pay structure (same Pay Band and same Grade Pay) leading to merger of corresponding posts. Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) constitute a common class as defined in IREM at Para 103. Hence, O. P. Saxena (supra) is distinguishable. The applicants who were more meritorious at the time of selection to the post of CLI cannot be deprived of the benefit of stepping up of pay at par with their juniors whom they were supervising all along, including working as Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) etc. However, the applicants fulfil all the conditions mentioned under Rule 7(10) (i) of RS (RP) Rules, 2016, namely, 1) the applicants and juniors belong to the feeder cadre of posts to CLI and in the same scale of pay i.e. in Level 6 of the pay matrix, 2) the existing pay structure and revised pay structure of the lower and higher post in which they are entitled to pay are identical, 3) the senior railway servants (applicants) MANISH KUMAR SRIVASTAVA 23 were drawing at the time of their promotion and even at the time of promotion of their juniors more pay than the juniors and 4) the anomaly was as a result of application of Rule 1313 of the Indian Railway Establishment Code. Any artificial classification created by the respondents stating that Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) constitute different cadres cannot deny the legally entitled rights of the applicants. Thus, treating Loco Pilot (Goods)/ Loco Pilot (Passenger)/ Loco Pilot (Mail/Express) as three different and distinct seniority units constituting different cadres/posts in the context of clause (a) as provided in clause 3 (g) of RBE No. 133/2019 is arbitrary. Similarly, the condition of allowing stepping up once as enumerated in clause
(h) is violative of Articles 14 and 16 of the Constitution. Identical anomaly arisen on revision of pay fixation made on the recommendation of earlier pay commissions having been resorted to, the identical issues requires to be resorted to in similar manner. Rights of CLI cannot be curtailed in an arbitrary manner. Hence, Paras (f), (g) and
(h) of clause 3 of RBE No. 133/2019 are declared arbitrary and discriminatory, hit by Articles 14 and 16 of the Constitution of India.
29. It would have been different if the claim of the applicant happens to be when he did not enjoy comparable pay scales and even before promotion the junior was getting higher pay than the seniors. It is in such a case only stepping up could be denied as held by this Tribunal, Ernakulum Bench in OA No. 134/2012 (DD: 25.09.2012) [K S Rajendra Kumar & another vs Union of India MANISH KUMAR SRIVASTAVA 24 &Ors.]. In light of the order passed by this Tribunal, Patna Bench, in OA No. 935/2019, supra, the applicants are entitled for stepping up of pay as claimed. We have no reasons to differ from the aforesaid findings of this Tribunal. The judgments of various High Courts conformity the stepping up of pay of seniors at par with juniors relating to earlier pay commission anomalies, having been approved by the Hon'ble Apex Court in dismissing the SLPs filed by the respondents, applicants are entitled to similar reliefs."
(emphasis supplied) 6.3 In the arguments put forth by the respondents in this OA, there is no material to persuade us to differ from the reasoning and findings of Bangalore Bench of this Tribunal enumerated above.
6.4 The subject matter of recoveries has been addressed comprehensively by the Hon'ble Supreme Court in Rafiq Masih (supra). In this case, the Apex Court was considering those cases wherein the private respondents were beneficiaries of a mistake committed by the employer, and on account of the said unintentional mistake, employees were in receipt of monetary benefits, beyond their due. Another essential feature in those cases was that the employees were as innocent as their employers, in the wrongful determination of their inflated emoluments - that is - they had not furnished any incorrect information which led to the mistake of making the higher payment, they had not made any misrepresentation, nor they had committed any fraud. The issue for adjudication was whether all the private respondents (employees), against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer. The issue was settled by the Apex Court vide judgment dated 18.12.2014 in the following manner:
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions MANISH KUMAR SRIVASTAVA 25 referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
(emphasis supplied) The applicant being a retired Group C employee, no recovery can be made from him in terms of Rafiq Masih (supra).
7.1 In view of the foregoing, the order dated 03.10.2022 and order dated 12.01.2023 are quashed and set aside.
7.2 Any amount recovered from the applicant shall be refunded to him by the respondents within a period of two months from the date of receipt of certified copy of this order.
7.3 The respondents are directed to reconsider the applicant's case for stepping up of pay at par with juniors in light of this judgment and pass appropriate orders within a period of two months from the date of receipt of certified copy of this order.
7.4 This OA is disposed of in the above terms.
7.5 Pending MAs, if any, are also disposed of. 7.6 The Parties shall bear their own costs".
MANISH KUMAR SRIVASTAVA 26
14. Although judgment and order passed in the aforesaid OA by Lucknow Bench of this Tribunal has been challenged before the Hon'ble High Court through Writ 'A' No. 719 of 2025, no stay order has been passed in the matter.
15. In the instant case, applicant's claim is that he has been promoted as Chief Loco Inspectors prior to 1.1.2016. Chief Loco Inspector namely Shri J.N. Tiwari, who has been promoted after 1.1.2016 and is getting more salary than the applicant. It is also evident from the record that applicant's salary was stepped up at par with his junior and was fixed at Rs. 1,30,400/- vide order/letter dated 21.09.2017. Through impugned letter/order dated 20.02.2024, respondents have withdrawn the benefit of stepped up extended to the applicant vide letter dated 21.09.2017 and recovery of excess payment is also started on the basis of guidelines laid down in RBE 133/2019. There is no dispute between the parties that Chief Loco Inspectors promoted after 01.01.2016 are getting more salary than Chief Loco Inspector promoted prior to 01.01.2016. Applicant is senior than the Chief Loco Inspector promoted on or after 01.01.2016. Similar issue has been decided validating the stepping up of the CLIs promoted prior to 01.01.2016 in Dinesh Kumar (supra) case by the Patna Bench of this Tribunal in OA No. 935 of 2019. Order passed by the Patna Bench in the aforesaid OA has been affirmed by Hon'ble High Court in the writ petition No. 9674 of 2024. Similar view has also been taken by the Lucknow Bench of this Tribunal relying on the decision of Bangalore Bench as well as Patna Bench of this Tribunal. In the circumstances, we are of the view that applicant's case is also squarely covered with the law laid down in OA No. 935 of 2019 decided by Patna Bench of this Tribunal as well as OA No. 86 of 2023 decided by Lucknow Bench of this Tribunal. There is no reason to differ with the view taken by the Coordinate Benches of this Tribunal. Thus, we are of the view that prayer made to quash the impugned order dated 20.02.2024 in respect of the applicant is liable to be allowed in terms of judgment and order passed in OA No. 935 of 2019 (Patna Bench of this MANISH KUMAR SRIVASTAVA 27 Tribunal) as well as OA No. 86 of 2023 decided by Lucknow Bench of this Tribunal.
16. As far as recovery of excess payment said to have been made, it is settled law that firstly no recovery can be made unless any fraud or misrepresentation is alleged on the part of any person from whom the recovery is being sought to be made and secondly, if at all there is any justification for making any recovery, then also adhering to the Principle of Natural Justice, a show cause notice is a pre-condition for making any such recovery. Respondents have not filed any documents which shows that show cause notice was issued to the applicant before recovery. It is really very surprising that as to why without issuance of show cause notice, the recovery in question was made. From perusal of record, it is also evident that there was neither any misrepresentation on the part of the applicant nor mistake can be attributed to him. The mistake, if any, can be said to be that of the department. Therefore, the respondents were not justified to recover any amount from the applicants.
17. In the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33, Hon'ble Supreme Court has been pleased to observe as under:-
"It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
MANISH KUMAR SRIVASTAVA 28
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
18. Not only this, the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttrakhand and others reported in (2012) 8 Supreme Court Cases 417, has been pleased to observe as under:-
"8. We are of the considered view, after going through the "various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered."
19. In the case of Davinder Singh and others Vs. State of Punjab and others reported in (2010) 13 Supreme Court Cases, 88, the Hon'ble Apex Court has also been pleased to observe that "opportunity of hearing is to be given to the delinquent before passing an order."
20. Admittedly, in the instant case, applicant was Group 'C' employee and has not committed any fraud or misrepresentation in getting the excess payment. Thus, in view of the above no recovery can be made from the applicants.
MANISH KUMAR SRIVASTAVA 29
21. Thus, on the basis of aforesaid discussions, the OA is liable to be allowed. Accordingly, OA is allowed in terms of OA No. 935 of 2019 (supra) and OA NO. 86/2023 (supra) and impugned order dated 20.02.2024 in respect of the applicant is hereby quashed. Benefit of stepping up of pay extended in respect of applicant vide letter dated 21.09.2017 is restored. Amount, if any, recovered in lieu of letter dated 20.02.2024 is hereby directed to be refunded along with 6% per annum simple interest within a period of four months from the date of receipt of a certified copy of this order. It is made clear that no recovery is permissible in any situation in lieu of the excess payment against the applicant. No order as to costs. All associated MAs are disposed of.
(MOHAN PYARE) (JUSTICE OM PRAKASH -VII)
MEMBER (A) MEMBER (J)
Manish/-
MANISH KUMAR
SRIVASTAVA