Telangana High Court
Union Of India, vs Vallamsetla Shankar Rao, on 15 June, 2022
Author: P Naveen Rao
Bench: P. Naveen Rao
HON'BLE SRI JUSTICE P. NAVEEN RAO
HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
W.P. No. 25126 of 2022
Date : 15.06.2022
Between:
Union of India
Represented by the General Manager Rail Nilayam
Secunderabad 500071 & others
Petitioners
And
Vallamsetla Shankar Rao
S/o Sreeramulu V
Aged about 40 years
Occ Loco Pilot Goods
Sanathnagar Railway Station
South Central Railway Secunderabad Division
Secunderabad
Respondents
The Court made the following:
HON'BLE SRI JUSTICE P. NAVEEN RAO
HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
W.P. No. 25126 of 2022
ORDER:(Per Hon'ble Sri Justice P Naveen Rao) Heard learned Assistant Solicitor General for writ petitioners and Sri K.Siva Reddy learned counsel for respondent.
2. This writ petition is filed challenging the orders passed by the Central Administrative Tribunal, Hyderabad Bench in O A No. 823 of 2015 dated 3.11.2021 as illegal.
3. Respondent joined service in Indian Railways as Assistant Loco Pilot (for short ALP); he was promoted as Senior ALP in the year 2010 with Grade Pay of Rs.2400/-; further promoted on adhoc basis as Loco Pilot/Goods on 10.4.2014 with Grade Pay of Rs.4200/-. While he was working as Loco Pilot/Goods, it appears, he met with an accident resulting in disability. After subjecting him to medical examination, he was found unfit to continue as Loco Pilot/Goods and found fit for Bee-Two and below with glasses for NV in duties not involving safety and track or labour. Accordingly, he was appointed as Traveling Ticket Examiner with Grade Pay as Rs.2400/-. As a consequence to posting the respondent as TTE, initially he was continued in the same pay as was drawn as Loco Pilot/Goods but subsequently, having realized that as he was promoted as Loco Pilot/Goods on adhoc basis, he is not entitled to scale of pay attached to the post of Loco Pilot/Goods and that he is entitled to scale of pay of Senior ALP, petitioners-Railways revised the scale payable to respondent and ordered for recovery of the amounts. At this stage, respondent invoked the jurisdiction of Tribunal by filing O A No. 021/00823/2015. The Tribunal by judgment dated 3.11.2021 allowed the O.A. setting aside order dated 11.6.2015 to the extent of placing the respondent in the lower grade and issued directions to provide alternative appointment in the same grade/pay scale and service benefits of Loco Pilot from the date of acquiring disability. The Tribunal also directed to extend consequential benefits thereon as per Rules and directed to refund recoveries if any made pursuant to show cause notice dated 21.9.2018. Aggrieved thereby Indian Railways are before this Court.
4. Short question for consideration is whether respondent is entitled to claim the benefits of pay attached to the post of Loco Pilot/Goods on his re-employment in a different post consequent to disability acquired by him while working as Loco Pilot/Goods.
5. Petitioners are under the impression that promotion granted to the respondent as Loco Pilot/Goods was on adhoc basis and that since it is not a regular promotion, respondent is not entitled to pay protection as extended to the Loco Pilot/Goods and therefore, he is entitled to pay protection of substantive post of Senior ALP. In support of their claim, petitioners placed reliance on the notes appended to the proceedings granting adhoc promotion on 10.4.2014. The relevant paragraph reads as under:
"The employees do not have any prescriptive right to seek for counting of the adhoc service for the purpose of seniority or for pay fixation on their regular promotion when ordered."
6. Learned counsel for petitioners, emphasized that above clause clearly shows that no right accrues on account of adhoc promotion granted and therefore pay protection is not available as payable to Loco Pilot/Goods.
7. To rebut this contention, learned counsel for respondent submits that while granting protection on account of disability earned in service, the employee is entitled to same pay as drawn by him before acquiring the disability. Further, even if promotion is treated as adhoc, the scale attached to the adhoc promotion shall be computed for the purpose of granting further benefits as held by this Court in W.P. Nos. 38974 of 2012 and 32747 of 2013. He further submits that other persons promoted on adhoc basis vide proceedings dated 10.4.2014 are now working on regular basis and but for the disability earned by the respondent, he would have been regularly promoted and that adhoc promotions were made on account of litigation pending before the Tribunal and that it is not because of any other reasons.
8. From the reading of proceedings by which respondent was granted promotion, it is apparent that though there are regular vacancies available, the petitioners were unable to take up regular promotions due to litigation pending before the Tribunal and directions issued thereon. Since there is an urgent requirement of filling up of posts of Loco Pilots, decision was taken to effect promotions on adhoc basis. Reading of the order would show that promotions were granted to the candidates found eligible, suitable and based on seniority in the feeder cadre. Thus, except for technical reason of pendency of litigation before the Tribunal, promotion granted to the respondent was regular for all practical purposes.
9. Be that as it may, it appears that later all the persons who were promoted along with respondent on adhoc basis vide proceedings dated 10.4.2014 earned promotions on regular basis. As rightly contended by learned counsel for respondent, but for the disability earned by respondent while working as Loco Pilot/Goods, even respondent would have earned regular promotion.
10. In W.P. No. 32747 of 2013 relied upon by learned counsel for respondent, the issue for consideration was with regard to applying the scale of pay of adhoc promotion for the purpose of determination of service benefits to a retired employee. A Division bench of this Court by judgment dated 8.7.2014 by placing reliance on Rule 1303 of I.R.E.C (F.R.9) (21) (a) held that as per the provision not only the substantive pay has to be taken into consideration for the purpose of fixing the pay but also pay in the officiating capacity or pay earned by reason of his position in the cadre, has to be taken into consideration for the purpose of fixing the pension. In W.P. No. 38974 of 2012 dated 29.4.2013 earlier another Division Bench of this Court has taken similar view.
11. We are in agreement with the said view taken by two Division Benches of this Court. From the facts of this case as noted above, the promotion of the respondent cannot be said as a temporary or a stop-gap arrangement but it was a regular promotion for all practical purposes.
12. Having regard to the discrimination meted out by persons with disabilities, "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995' was enacted and Section 471 of the said Act prohibits discrimination in Government employment. The procedure adopted by the petitioners-Indian Railways amounts to discrimination as their actions violate Section 47 of the Act, 1995. Petitioners cannot give a narrow view to the promotion granted to the respondent on 10.4.2014 depriving the claim of the respondent to receive appropriate pay in alternative employment provided to him on account of disability earned by him while in service. Therefore, we do not see any error in the decision of the Tribunal warranting interference by this Court. Accordingly, the writ petition is dismissed. No costs. Miscellaneous applications, if any pending stand closed.
__________________ P NAVEEN RAO,J _________________________ SAMBASIVARAO NAIDU,J DATE: 15.06.2022 TVK 1
47. Non-discrimination in Government employment.--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall he denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
HON'BLE SRI JUSTICE P. NAVEEN RAO HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU W.P. No. 25126 of 2022 Date : 15.06.2022