Central Administrative Tribunal - Mumbai
Rajiv Kundlik Manjardekar vs Central Railway on 15 December, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBA! BENCH, MUMBAI
ORIGINAL APPLICATION NO.807/2022 |
Date of Decision: 18" Oecamber, 2023
GORA: HON'BLE JUSTICE M.G.SEWLIKAR, MENGER (J)
HON'BLE Mr. Rajinder Kashyap, MEMBER (A)
Rajiv Kundlik Manjardekar, Age: 60 Yrs S'o Kundlik Man-
jardekar,, Rid. Database Superintendent, under Chief Commer-
cial Manager (P.M), CSMT, Mumbai-400 007, And Rat 303,
Saurabh C.4.S., Hanuman Mandir Road, Datar colony,
Bhandup (E}, Mumbai, Maharashtra -- 400042 Mobile No.
OS86938 89065
.. Applicant
{By Advocate Mr. Joe D' Souza)
VERSUS
7, Union of india (Through) The General Manager, Central
Railway, Mumbai CSMT, Mumbai- 400 007.
3
2. Chief Commercial Manager (P.M), Central Railway, Mum-
i, Cher Commercial Railay Managers © Office, COME, Murn-
400 O07," ae 7 ce
3 Principal Chief Personnel Officer, Central Railway, Mum-
bai, General Manager Office, CSMT, Mumbai- 400 007. .. Ree
spondents (By Advocate Mr. N K Rajpurohit)
ORDER (Oral)
Per: Justice M.G. SEWLIKAR, MEMBER (J)
. fore us is whether the applicant's pension shall be cal- culated on the basis of the pay he was drawing in cadre post on the substantive pay in his parent depart-
ment
1. Facts in brief are that the applicant was working as Commercial | Clerk with the respondents. Passen- gers Reservation System (PRS) was introduced in Railways for computerization of the reservations of 'the passengers. Those who were possessing the 2 dom:
puter knowledge were taken on deputation in PRS, Accordingly, petitioner was also taken on PRS in the month of February, 1999. He superannuated on 31* October, 2021. At the time of his retirement, his pay was Rs. 72,100/- while in his parent cadre, his pay was Rs. 66,000/-. The respondents, instead of fixing his pension on Rs. 72,100/-, fixed it on Rs. 66,0004.
According to the applicant, his pay ought to have been
2. Respondents have filed their reply contending that the applicant was on deputation and pension can be fixed only on the basis of substantive pay in his parent cadre. it cannot be fixed on the pay he was _ drawing when he was in ex-cadre post.
3. We have heard Mr. Joe D' Souza, learned coun- sel for the applicant and Mr. N K Rajourohit, learned __,.tounsel for the respondents. .
4, Learned counse! for the applicant submits that the applicant was posted in ex-cadre i.e. PRS in the year 1999. Since then he has been working in that de- partment. He got promotion there and his seniority was also maintained. He submits that technically, it may be an ex-cadre post but practically if was not an ex-cadre post. Had it been ex-cadre post, his seniority would have not been maintained and he would not have been granted promotion either. Ne submits Hat, therefore, pay ought to have been fixed on RS. #2,100/- and not on Rs. 66,000/-, For this purpose, he has placed reliance on Railway Services (Pension) Rules, 1993 and Para 1303 of Indian Railways Estab- lishment Code (IRE Code) in which definition of pay has been given. He contends that in view of this defini- | tion, it is clear that pension has fo be fixed on the ba-. Sis of the last drawn pay even if he is on ex-cadre post | which is officiating post. In terms of Railway Service Pension Rule 1993. the basic pay, which is considered | for the purpose of calculating various retirement and death benefits, is defined in the clause (1) of Rule 1303 of IREC Voll. He placed reliance on the case of Shri Darshan Kumari Sahni Vs Union of india in WP. © No. 2057 of 1999 decided on 14° December, 2007 (oy Delhi High Court), Learned counsel further submits that earlier respondents had fixed the pension of the employees on deputation in PRS on the last drawn pay and not on substantive pay. Denying the applican- fs pension on the basis of last pay drawn is ciscrimi- natory and therefore, violative of Article 14 of the Con- --
stitution.
s. Mr. N K Rajpurohit, learned counsel for the re- spondents submits that pension has to be fixed on the basis of substantive pay. The substantive pay of the applicant under paient cadre was Rs. 66, ae and therefore, the pension | "was | rightly fixed on n Rs. 66,000/-, He submits that earlier some employees were granted pension on the pay of their officiating post. The applicant cannot claim discrimination as the Order on the basis of which they are claiming discrimi-
6 OA No. 807/2022nation is not a correct order. For this purpose, he placed reliance on the case of Chandigarh Adminis-
tration and Another versus Jagjit Singh and An-
6. We have thoughtfully considered the submis- sions advanced by the eathed counsels of the respec-
tive parties.
7. {tis not in dispute that the applicant and other employees were taken on deputation in PRS. The ap- plicant rendered service in PRS since 1999 til the date of his superannuation i.e. 31% October, 2021. The | pension has been fixed not on the basis of his last pay | drawn in the officiating post but on the pay of subsian-
tive post in the parent cader.
8. To resolve this controversy, the definition of pay will have to be looked into. Rule 49 of the Railway Ser-
vices (Pension) Rules, 1993 defines Emoluments as
(a) emoluments:, of for the purpose of calculating vari-
ous retirement and death benefits, means the basic ity of reference:-
" Pay-pay means the amount drawn monthly bea Government servant as.-
ff} The pay other than special pay or pay grant- ed in view of Ais personal qualifications, which has been sanctioned for a post held by him substantive- ly or in an officiating capacity or to which he is enti- fled by reason of his pasition in a cadre; and aD Overseas pay. special pay and personal pay:
and (f}} Any other emoluments which may be specifi- cally classified as pay by the president.
Average Pay- Average pay means the average monthly pay earned during the 12 complete months immediately preceding the month in which the event --
occurs which necessitates the calculation of average pay:
Provided that in respect of any period spent on for- eign service out of India the pay which the railway servant would have drawn if on duty in india but for foreign service out of India shall be substituted for ihe pay actually drawn: Provided further that in the case of railway servant entitled to running allowance, average pay for the purpose of leave salary shail in- clude a fixed component representing pay elernent in the running allowances as notified by Gevernment through administrative instructians from time to time"
8. Thus, this rule makes it explicitly clear that pay in- cludes the pay drawn oy him substantively or in an of ficiating capacity or to which he is entitled by reason of his position in a cadre. Thus, the pay which the appli- cant was drawing while he was in his officiating capac- ity is also covered in the definition of the pay as de- fined in Para 1303 of IRE Code. Similar question had fallen for consideration before the Delhi High Court in the case of Shri Darshan Kumar Sahni (supra). In that case also, pension of petitioner was fixed on the basis of the pay he had drawn substantively in the --
parent cadre. Delhi High Court after considering Rule 49 and Para 1303 of IRE Code has recorded following observations:-
"17. On a co-joint reading of para 1303 of the Railway Establishment Codeffor short the Code) and Rule 49 of the Railway Services 9 OA No. 8o? a PS (Pension) Rules, 1993, (for short Pension Rules), it is clear that what is relevant is the amount of pay actually drawn by a Govern-
ment Railway servant. The opening words of Pension Rule 1303 clearly sates that pay means the amount drawn manthly by a Gev-
eriment servant That amount can, obviously, be only be one figure. Various alfernatives are provided for in the Pension Rules and the Code for the determination of the pay that Nas to be taken into account for arriving at the last drawn pay of a railway servant, which in furn is the basis for fixation of his pensionary and other terminal dues. These alternatives are provided to cover various situations that May arise, in which the employee may su- perannuate or seek voluntary retirement. Therefore, pay could mean, inter alia, () Pay which has been sanctioned for the post held by the railway servant substantively; (2) Pay which has been sanctioned for the post held by the railway servant in an officiating capaci- fy: (3) Pay to which the rallway servant is en- fiied by reason of his position in cadre. The pay that is fo be faken info consideration for fixation of the pensionary and other settle-_ ment dues means the basic pay as defined in clause (i) of Rule 7303 of the Code, which the railway servant was receiving immediately before his retirement or on the date of his deaih(see Rule 49 of the Pension Rules). ft is clear, inter alfa, from the definifion of Average Pay in the Code and nofes 2, 6 & 8 to Rule 493 of fhe Pension Rules, that merely because ihe pay which has been sanctioned for the post held by the railway servant substantively is jower than the pay which he has in fact been drawing while serving in an officiating . Foe OAP Sara 45 10 GA ANS . CU eat Ue capacity, for purposes of fixation of his pen- sionary and other dues, it is nof the lower of the two amounts which would be taken into account The spirit behind the aforesaid niles is clearly to fix the pensionary and other set- ement dues of the railway servant on the ba- Sis of the actual pay drawn by him. The only exception fo this general rule aopears to be where the railway servant is sent on foreign service. In that case, the emoluments drawn by him while on foreign Service, shall not be treated as emoluments for the purpose of fix- ation of his pensionary and other dues (See the ist Proviso to the Definition of Average Pay in the Code and Note 6 to Rule 49) of the Pension Rules. Therefore, the issue thai needs determination is whether the service rendered by the petitioner on deputation with CRIS could be said fo be foreign service for the purpose of the aforesaid Code and the Pension Rules. ff it amounts to 4 foreign ser- vice, the stand of the respondent would stand vindicated. However. in case the Service ren- dered on deputation with CRIS is not consid- ered to be a foreign service. the petitioner would be entitled to the calculation of his pen- | sionary and other settlement dues on the Da-
Sis of the last pay drawn whife serving with CRIS on deputation at Rs. 2450/. per month.
12. From Note 8 to Rule 49 of the Pension Rules, if appears that a railway servant when iransterred/deputed to a body which has been created as a consequence of the con- version of a department of railways, the emol- uments drawn by the railway servant under coe OA No, SO? /2082 ihe auionomous body are treated as emolu- ments for the purpose of Rule 49. This clearly Shows that the foreign service talked about in Note 6 of Rule 49 does not envisage the transfer or deputation to an aufonomous body which is formed by the conversion of a de- pariment of the railways. Foreign Service, appears would mean a service outside the railways or any of its extended arms. CRIS, undoubtealy is an organisation created from within the railways. In fact, the correspon- dence placed on record and referred to here- in-above shows that the mother organisation of CRIS is none other than the Ministry of Railways. The letter head used by CRIS also described if as an organisation of the Ministry of Railways, Government of India. Fram the first proviso to the definition of Average Pay also, t appears thaf foreign service is consid- ered to be the service rendered out of India. Looked af from either point of view, the ser- vice rendered by the petitioner with CRIS on deputation cannot be said to be foreign ser- vice.
10. Thus, the test to determine whether basis for fix- ation of pay is whether the ex cadre post is a foreign service. lf it is a foreign service, pension has to be fixed taking pay of substantive post as the base. Filis nota foreign service, pension will have to be fixed tak-
ing last drawn pay of ex cader post as the basis. In the oy "Y LP? Fe 4 12 CA No. Sor 2 aes case at hand, PRS is a part of Indian Railways. PRS is not outside the railways. It is the part and parcel of the Indian Railways. And therefore, is not a foreign pension will have to be fixed on the last drawn pay in ex cadre post. Delhi High Court in Shri Darshan Ku- mar Sahni (supra) has held that when a Railway ser-
vant is transferred or deputed to a body which has been created as a consequence of the conversion of Department of railways, the emoluments drawn by the government servant are treated as an emolument for the purpase of rule 49. In the case at hand also, PRS is not a department outside Railways, but is an inte-~ --
gral part of Railways.
11. Learned counsel Mr. Joe D' Souza also placed reliance on the case of Badri Prasad and Others Versus Union of India and Others in (2005) 11 Supreme Court Cases 304, In this Supreme Court 13 OS No, 8O7/ 2022 Decision, though similar question was not posed for consideration, the observations made by the Supreme x £9 ey ' o " R Sox § ek ae. BE Te sexks gone 2 Cour are relevant for deciding the issue involved § iN "13. The practice adopted by the Railways of tak- ing work from employees in Group 'D' post for un- duly fong period legitimately reises hopes and claims for higher posts by those working in such higher posts. As the Railways is utilising for long periods the services of employees in Group 'D' post for higher post in Group 'C' carrying higher responsibilities, benefit of pay protection, age re- laxation and counting of their service on the high- er post towards requisite minimum prescribed pe- fiad of service, if any, for promotion to the higher post must be granted to them as their legitimate clam. The pay fast drawn by them in Group 'C' post shall be protected even after their repatria- tion fo Group 'D' past in their parent department. They Shall be considered in their turn for promo- fan fo Group 'C' post. The period of service spent by them on ad hoc basis in Group 'C' post shall be given due weightage and counted towards length of requisite service, if any, prescribed for higher post in Group 'C' if there is any bar of age ihat shall be relaxed in the case of the appel- lanis."
5 AP LOA oS 14 OA No, @o ifeode
12. Inthe case at hand also. the applicant had been _ working in the PRS for almost 25 years. As per the de- cision of Supreme Court, on repatriation, his last pay drawn in the ex-cadre post has to be orofiected. The respondents have totally ignored these provisions and the decisions of the Supreme Court and Delhi High. Court and Cttia to an erroneous conclusion that the _ applicant's pension cannot be fixed on the last pay drawn by him while on ex-cadre post but has to be drawn on the basis of the substantive post held by him in the parent cadre,
13. We are therefore, convinced that impugned order cannot ai all be sustained and it has to be set'aside. Hence, OA is allowed. The Order dated 8° April, 2022 is set aside. The respondents are directed to fix the pension of the applicant on Rs. 72,100/- and release the pensionary benefits. This exercise shall be done within a period of three months from the date of re-
ao SOE 15 OA No, SOF £2082 ceipt of certified copy of this order. Normally, we don't impose cost. But this application is an exception. The applicant has been unnecessarily dragged fo the Court for no faulf on his part. Henc 6, We desm iia Ces) at propriate to impose cost of Rs. 5,000/- on the respon-
denis.
( Rajinder Kashyap) (Justice M.G.Sewlikar) Member(A) Member (J) rik,