Central Administrative Tribunal - Allahabad
Shubhasis Halder Son Of Late Shri ... vs Union Of India Through The General ... on 4 February, 2011
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
Dated: This the 04th day of February, 2011
Original Application No. 130 of 2007
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. D.C. Lakha, Member (A)
Shubhasis Halder son of Late Shri Narendra Nath Halder. Resident of 187, Roshanbagh, Khuldabad, District Allahabad. Presently posted as Enquiry Reservation Clerk, Allahabad Station, under the Divisional Commercial Manager, Allahabad Division, North Central Railway Allahabad, District Allahabad.
.. Applicant
Present for the Applicant: In person
V E R S U S
1. Union of India through the General Manager, North Central Railway, Allahabad.
2. Chairman, Railway Board, Ministry of Railways, Rail Bhawan New Delhi.
3. Divisional Railway Manager, Allahabad Division, Nawab Yusuf Road, Allahabad.
4. Senior Divisional Personnel Officer, Divisional Railway Manager Office, Nawab Yusuf Road, Allahabad.
5. Divisional Personnel Officer, D.R.M. Office Nawab Yusuf Road, Allahabad.
.... Respondents
Present for the Respondents : Shri Anil Dwivedi, Advocate
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-Judicial) The applicant, earlier functioning as Assistant Electric Driver (pay scale 3050 4590)since 1992 was, when he was drawing the basic of Rs 4,030/- shifted to the post of Enquiry cum reservation clerk (pay scale Rs 4500 7000) on 30-09-2000 on his qualifying in the selection held through the Railway Recruitment Board. He made a representation that his pay should be fixed in the pay scale of Rs 4,500 7000 taking into account 30% running allowance which was available to him when he was functioning as a running staff. This request was acceded to and the pay of the applicant was raised from Rs 4,625/- to Rs 5,250/- w.e.f. 01-9-2001. Till then there was no quarrel. However, the authorities had on 26-02-2004 informed the applicant as under:-
You are selected against the post of Enquiry Reservation Clerk through the CDCE quota. The Advertisement and Selection procedure was made by the Railway recruitment Board, Ajmer.
In this post from the date of posting i.e. 30.9.2000 your pay was fixed including 30% running allowance which is not as per Rule.
So, the advantage of above mentioned 30% running allowance is withdrawn with the reference of Indian Railway Establishment Manual 1989 Para 1315 FR 22 B. So your pay fixed from the date of posting are as under:
Pay From Dated Rs.4500/- 30.9.2000 Rs.4625/- 1.9.2001 Rs.4750/- 1.9.2002 Rs.4875/- 1.9.2003
2. The applicant gave due representation, but the same was rejected. Thus, the pay of the applicant was re-fixed at Rs 4,875 vide order dated 26-02-2004. Monthly recovery of Rs 1357/- was also started from his pay. Hence this application claiming the following relief:
(i) Issue an order or direction commanding the Respondents to produce the entire papers, record pertaining to the appointmentof Respondent No.5 on the post of E.D.D.A. at Branch PostOffice Jamalpur District Azamgarh thereafter the appointment of the Respondent No.5 on the post of G.D.S. at Branch Post Office concerned as well as impugned order dated 02.01.2009 passed by the Respondent No.3 annexure as (Annexure A-6) to this application may be quashed.
(ii) Issue an order or direction commanding the Respondents to provide appointment on the post of Gramin Dak Sewak i.e. G.D.S. to the Applicant at branch post office Jamalpur District Azamgarh.
(iii) Issue any other suitable application, order or direction, as this Honble Tribunal may deem fit and proper to meet the ends of justice.
(iv) Award cost to this application in favour of the Applicant.
3. Respondents have contested the O.A. According to them, the fixation was rightly made in terms of para 1315 (22-B) of the IREM and in support of their case, they also relied upon a subsequent letter of the Railway Board No. E/P & A/II/2004/RS-28 dated 15-09-2006.
4. By way of amendment to the OA the applicant has also challenged the above said order of the Railway Board.
5. There were rejoinder, supplementary rejoinder and sir rejoinders exchanged. All were reiterating only the respective contentions.
6. Written arguments were also permitted to be made by the parties and the same too have been filed. In his written arguments, the applicant has annexed a copy of order dated 10th March, 2005 in OA 408 of 2004 (Rajeev Mishra vs Union of India and others) wherein the Tribunal has held that 30% running allowance shall be included while fixing the pay in the post of ECRC. The order reads as under:-
Heard the learned counsel for the parties and perused the pleadings.
2. While working as Electrical Assistant Driver in the Grade of Rs.4000-6000/- (RPS), Allahabad, the Applicant was selected as Enquiry-cum-Reservation Clerk in the grade of Rs.4500-7000/- (RPRS) against 25% General Departmental Competitive Examination Scheme and was posted in Allahabad Division with direction to undergo training in CT-3 course commencing at Z.T.C./CH from 8.5.2001 to 20.6.2001. The Applicants pay in the new post of Enquiry-cum-Reservation Clerk in the grade of Rs.4500-7000 (RPRS) was fixed vide order dated 15.4.2002, which reads as under:-
Shri Rajeev Mishra, was working as Elect. Asstt. Driver Grade Rs.4000-6000 (RPS)/Ald selected as E&RG Grade Rs.4500-7000 (RPRS) against 25% GDCE Scheme. After passing the requisite training he was posted as E&RC in Grade Rs.4500-7000 (RSRP) under SSMZP w.e.f.27.2.2002.
As he was electric Asstt. Driver prior to this selection of E&RG, 30% of pay is to added for fixation of his pay in higher grade accordingly pay fixed as under:-
Pay + 30% = Total 4400/- + 1320/- = 5720/-
Pay fixed Rs.5625/- + 95/- P.P. w.e.f. 27.2.2002 Pay raised Rs.5750/- w.e.f. 1.2.2003.
Pleased charge his pay accordingly.
Sd/-
For Divl. Personnel Officer Allahabad
3. However, by the impugned order dated 26.2.2004, it has been held that the Applicants pay was wrongly fixed by adding 30% running allowance. The earlier order of pay fixation has accordingly been modified vide impugned order dated 26.02.2004 with direction to recover the excess payment on the basis of earlier fixation of pay by adding 30% running allowance.
4. The learned counsel for the applicant has submitted that the order impugned, herein, suffers form the vice of arbitrariness in that it contains no reason why the Applicant was not entitled to running allowance, which was given to him vide earlier order of pay fixation dated 15.04.2002. It has further been submitted by the learned counsel that in view of para 924 (i) (d) of IREM Vol. I Revised edition 1989, the applicant was entitled to reckon the running allowance as pay for the purposes of fixation of his pay in the Stationary Post of Enquiry-cum-reservation Clerk. 30% running allowance of the Basic Pay, according to the learned counsel, is treated to be in the nature of pay element in the running allowance falling under clause (iii) of Rule 1303 (FR-9)(21)(a) i.e. the emoluments which are classified as pay by the president. It is submitted by the learned counsel that this provision has not been taken into consideration while passing the impugned order and provision namely para 1315 (FR 22 B) which has been relied upon by the Respondents in the impugned order, is not applicable in view of what is contained in para 1312 (FR 21) of IREM.
4. Sri S.K.Rai, learned counsel for the Respondents, on the other hand, submits that para 1315 (FR 22 B) relied upon by the respondents is squarely applicable and the order impugned herein, warrants no interference by the Tribunal. The learned counsel for the Respondents has also placed reliance on the Railway Boards circular dated 7.4.2000 referred to in para 14 of the Counter.
5. Having heard the counsel for the parties, we are of the view that the order impugned, herein, cannot be sustained in law for the simple reason that it suffers from the vice of arbitrariness in that it lacks reasons in support of the view that the Applicant was not entitled 30% running allowance while fixing his pay admissible to stationary post of Enquiry-cum-reservation Clerk. The impugned order, in our view, is no order in the eyes of law. Mere observation that the applicant was not entitled to add 30% running allowance while fixing his pay w.e.f. the date of his appointment on the post of Enquiry-cum-Reservation Clerk would not meet the requirement of passing any valid or reasoned order. The validity of the order is to be tested on the reasons given in the order itself and not what is stated in the Counter affidavit (Mohinder Singh Gill Vs. Union of India & Ors reported in AIR 1978 SC 851). The circular referred to in the Counter affidavit has not been adverted to while passing the impugned order, nor has the competent authority adverted the para 924 of the Manual and other related provisions as referred to hereinabove. We are therefore, of the considered view that the matter requires to be re-examined at the level of D.R.M. (P), North Central Railway, Allahabad.
6. Accordingly, the O.A. succeeds and is allowed in part. The impugned order dated 26.2.2004 is quashed and set aside. The matter is remitted back to the D.R.M. (P) North Central Railway, Allahabad for decision afresh after proper self directions to the relevant statutory provisions as referred to hereinabove
7. Written arguments and the pleadings were scanned.
8. In their written arguments, the respondents have stressed upon limitation aspect (repeated representations will not extend the period of limitation); the applicant had applied to the post of Reservation cum enquiry clerk as a fresh candidate and that 30% allowance is not admissible in terms of Railway Establishment Manual 315/FR 22 B.
9. As to the limitation, the question of limitation does not arise when the matter pertains to fixation of pay. In this regard, the decision of the Apex Court in the case of M.R. Gupta v. Union of India, (1995) 5 SCC 628, wherein the Apex Court has held as under:-
The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a government servant to be paid the correct salary throughout his tenure according to computation made in accordance with the rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind.
10. Thus, the technical objection of the respondents as to limitation is rejected.
11. The contention of the respondents is that the appointment of the applicant to the post of Reservation cum enquiry clerk is a direct recruitment and in a different line and hence, the applicant is not entitled to the inclusion of running allowance.
12. The General Departmental competitive Examination, as is seen from Annexure A-2 order dated 21-08-2001 had come into existence sometimes in1993 to give some opportunity to the serving railway employees to compete with others from the open market. For this purpose some percentage of the direct recruit posts had been diverted towards such GDCE. The examination would be conducted by the RRB but a separate merit list would be maintained in respect of GDCE. Age relaxation has been made available to such candidates.
13. Coming to the legal point whether the rules provide for inclusion of 30% running allowance to the applicant, the same has to be read in terms of the relevant rules. The rules relating to the same are as under:-
(a) Para 903 of I.R.E.M: Pay element in running allowance - 30% of the basic pay of the running staff will be treated to be in the nature of pay representing the pay element in the Running Allowance. This pay element would fall under clause (iii) of Rule 1303 - FR-9 21 (a) i.e. "emoluments, which are specially classed as pay by the President".
924. Reckoning of Running Allowance as pay :
i. 30% of basic pay of running staff shall be reckoned as pay for following purposes:
a. xxxxx b. xxxxx c. xxxxx.
d. Fixation of pay in stationary posts.
e. xxxxx f. xxxxx g. xxxxx.
h. xxxxx.
i. xxxxx j. xxxxx k. xxxxx That a part of running allowance is available to a railway employee to be treated as a part of his pay on his transfer or promotion to a stationary post is a settled position, vide the direction of the Apex Court in the case of G.C. Ghosh v. Union of India, 1991 Supp (2) SCC 497 which reads as under:-
It is therefore directed that the petitioners should be accorded the same treatment as their counterparts are being accorded in the Northern Railway in regard to treating the running allowance granted to the running staff as part of the pay when they are transferred or promoted to a stationary post during the period they hold the officiating in the stationary post to the same extent and in the same manner as enjoined by the Allahabad High Court pursuant to the aforesaid judgment. (Emphasis supplied) Pay Fixation in respect of such of the railway employees who qualify in some competitive examination for appointment to any other category is governed by Rule 1315 r/w rule 1313 of the Indian Railway Establishment Code. The said rules are as under:
1313. (FR-22) (I) The initial pay of a railway servant who is appointed to a post on a time scale of pay is regulated as follows:--
(a) (1) Where a railway servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees twenty five only, whichever is more.
Save in cases of appointment on deputation to an ex-cadre post, or to a post on ad-hoc basis, the railway servant shall have the option , to be exercised within one month from the date of promotion or appointment as the case may be, to have the pay fixed under this rule from the date or such promotion or appointment or to have the pay fixed initially at the stage of the time scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be re-fixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the pay of the lower grade or post. In cases where an ad-hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment:
Provided that where a railway servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time scale of the lower post, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time scale of the lower post or rupees twenty five, whichever is more;
(2) When the appointment to the new post does not involve such assumption of duties and responsibilities or greater importance, he shall draw as initial pay, the stage of the time scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis; Provided that where the minimum pay of the time scale of the new post is higher than his pay in respect of the post held by him regularly, he shall draw the minimum as the initial pay;
Provided further that in a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an increment in the time scale of the old post; in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time scale of the new post.
On appointment on regular basis to such a new post, other than to an ex-cadre post on deputation, the Railway servant shall have the option, to be exercised within one month from the date of such appointment, for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.
(3) When appointment to the new post is made on his own request under (Rule 227 (a) (2)-RI (FR-15A) (2)) and the maximum pay in the time scale of that post is lower than his pay in respect of the old post held regularly, he shall draw that maximum as his initial pay.
(b) If the conditions prescribed in clause (a) are not fulfilled, he shall draw as initial pay on the minimum of the time scale.
Provided that, both in cases covered by clause (a) and in cases, other than the cases of re-employment after resignation or removal or dismissal from the public service, covered by clause (b), if he;
(1) has previously held substantively or officiated in
(i) the same post, or
(ii) a permanent or temporary post on the same time scale; or
(iii) a permanent post or a temporary post (including a post in a body, incorporated or not, which is wholly or substantially owned or controlled by the Government) on an identical time scale; or (2) is appointed subject to the fulfillment of eligibility conditions as prescribed in the relevant recruitment rules to a tenure post on a time scale identical with that of another tenure post which he has previously held on regular basis; then the initial pay shall not, except in cases of reversion to parent cadre, governed by proviso (1) (iii) be less than the pay, other than special pay, personal pay or any other emoluments which may be classed as pay by the President under Rule 1303 (iii)- RII (FR-9 (21) (a) (iii)) which he drew on the last occasion, and he shall count the period during which he drew that pay on a regular basis on such last and any previous occasions for increment in the stage of the time scale equivalent to that pay. If, however, the pay last drawn by the Railway servant in a temporary post had been inflated by the grant of premature increments, the pay which he would have drawn but for the grant of these increments shall, unless otherwise ordered by the authority competent to create the new post, be taken for the purposes of this proviso to be the pay which he last drew in the temporary post which he had held on a regular basis. The service rendered in a post referred to in proviso (1) (iii) shall, on reversion to the parent cadre, count towards initial fixation of pay, to the extent and subject to the conditions indicated below: -
(a) The Railway servant should have been approved for appointment to the particular grade or post in which the previous service is to be counted;
(b) All his seniors, except those regarded as unfit for such appointment, were serving in posts carrying the scale of pay in which benefit is to be allowed or in the higher posts, whether in the Department itself or elsewhere and at least one junior was holding a post in that Department carrying the scale of pay in which the benefit is to be allowed; and
(c) The service will count from the date his junior is promoted on a regular basis and the benefit will be limited to the period the railway servant would have held the post in his parent cadre had he not been appointed to the ex-cadre post.
Railway Boards Orders (1) These rules will not apply to ad-hoc promotions from Group B to Group A and ad-hoc promotions within Group A for which separate orders issued by Railway Board will good.
(2) Duties and responsibilities of greater importance for the purpose of Rule 1313(FR-22):
(i) For the purpose of fixation of substantive pay (including presumptive pay) a junior scale post shall be deemed to carry duties and responsibilities of greater importance than those attached to Class II post (including the post of an Assistant Accounts Officer).
(This takes effect from 2nd July, 1959)
(ii) Appointments of the following classes shall be deemed to involve the assumption of duties and responsibilities of greater importance-
(a) appointment to the Assistant Officers grade or Lower Gazetted Service from a non- gazetted post;
(b) appointment to the District Grade from an Assistant Officers or lower grade post;
(c ) appointment to junior administrative post from the District or Lower grade;
(d) appointment to a senior or inter-administrative post from a junior administrative post or from a lower grade;
(e) appointment to a senior administrative post from an intermediate administrative post;
(f) appointment to a senior administrative post in the erstwhile scale of Rs.1800- 2250 from a senior administrative post in the scale of Rs. 1800-2200 (RS). (3) A temporary post on a certain rate of pay (fixed or time-scale) which is converted into a permanent post on a different rate of pay is not the same post as the permanent post even though the duties remain the same.
II. The President may specify posts outside the ordinary line of service the holder of which may, notwithstanding the provisions of this rule and subject to such conditions as the President may prescribe, be given officiating promotion in the cadre of the service which the authority competent to order promotion may decide, and may thereupon be granted the same pay whether with or without any special pay attached to such posts as they would have received if still in the ordinary line.
III. For the purpose of this rule, the appointment shall not be deemed to involve the assumption of duties and responsibilities or greater importance if the post to which it is made is on the same scale of pay as the post, other than a tenure post, which the railway servant holds on a regular basis at the time of his promotion or appointment or on a scale of pay identical therewith.
IV. Notwithstanding anything contained in this rule, where a railway servant holding an ex-cadre post is promoted or appointed regularly to a post in his cadre, his pay in the cadre post will be fixed only with reference to his presumptive pay in the cadre post which he would have held but for his holding any ex-cadre post outside the ordinary line of service by virtue of which he becomes eligible for such promotion or appointment.
(Authority No. F (E)II/89/FR-1/1 dated 12-12-1991) 1315. (F.R.22B) (1).-Notwithstanding anything contained in theses rules, the following provisions shall govern the pay of a railway servant who is appointed as probationer in another service or cadre and subsequently confirmed in that service or cadre,
(a) during the period of probation he shall draw pay at the minimum of the time scale or at the probationary stages or the time scale of the service or the post, as the case may be:
Provided that if the presumptive pay of the permanent post, other than a tenure post, on which he holds a lien or would hold a lien had his lien been not suspended; should at any time be greater than the pay fixed under this clause, he shall draw the presumptive pay of the permanent post;
(b) On confirmation in the service or post after the expiry of the period of probation, the pay of the railway servant shall be fixed in the time scale of the service or post in accordance with the provisions of the Rule 1313 (FR 22) or Rule 1316 (F.R.22 C) as the case may be:
Provided that the pay shall not be so fixed under Rule 1313 (F.R. 22) or Rule 1316 (F.R.22C) with reference to the pay that the railway servant would have drawn in the previous post held by him in temporary capacity and he shall continue to draw pay in the time scale of service or post as admissible under the normal rules.
(Rly. Boards letter No. F(E)II/79/FR-1/3 dated 12-3-1980.) (2) The provisions contained in sub-rule (1) shall apply mutatis-mutandis to cases of railway servants appointed on probation with definite conditions against temporary post in another service or cadre whether recruitment to permanent post as such service or cadre is made as probationers, except that in such cases the fixation of pay in the manner indicated in clause B of sub-rule (1) shall be done under Rule 1326 (F.R.31) immediately on the expiry of the period of probation and on regular officiating appointment to a post either permanent or temporary in the service or cadre.
(3) Notwithstanding anything contained in these rules, a railway servant appointed as an Apprentice in another service or cadre shall draw-
(a) during the period of Apprenticeship, the stipend or pay prescribed for such period provided that if the presumptive pay of the permanent post other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than stipend or pay fixed under this clause, he shall draw the presumptive pay of the permanent post;
(b) on satisfactory completion of the Apprenticeship and regular appointment to a post in the service or cadre, the pay as fixed in the time scale of the service or post under Rule 1313 (F.R.22) or 1316 (F.R22C) or Rule (F.R.31) as the case may be:
Provided that the pay shall not be so fixed with reference to the pay that the railway servant would have drawn in the previous post held by him in temporary capacity and he shall continue to draw pay in the time scale of service or post admissible under the normal rules.
(Rly. Board s letter No. F(E)II/79/FR-1 dated 12-3-80.)
14. Though the respondents have referred to Rule 1315 (22B) of the IREC in the impugned order, they have not indicated the specific part of the rule which is applicable in the case of the applicant. Nowhere in Rule 1315 of the Code has it been held that the pay drawn in the earlier post shall be totally ignored and the minimum in the pay scale alone would be payable. According to us the following provisions of the said Rule 1315 would govern the pay fixation in this case:
(b) On confirmation in the service or post after the expiry of the period of probation, the pay of the railway servant shall be fixed in the time scale of the service or post in accordance with the provisions of the Rule 1313 (FR 22) or Rule 1316 (F.R.22 C) as the case may be:
15. Rule 1313 provides for taking into account the pay drawn and Rule 903 of IREM provides for 30% being taken into account as a part of pay. Decision in G.C. Ghosh (supra). also refers
16. Again, in the order dated 10th March, 2005 in OA 408 of 2004, (Rajeev Mishra vs Union of India) extracted above, in an identical situation this Tribunal has held that the applicant therein is entitled to the reckoning of 30% of running allowance for the purpose of fixation of pay in the post of ECRC.
17. It is settled law that precedent should be duly followed by coordinate bench. In this regard, the decision of the Apex Court in the case of Sub-Inspector Rooplal v. Lt. Governor, (2000) 1 SCC 644 :
At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the Tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same Tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same Tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel2 while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus:
The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai case3 and of Macleod, C.J., in Haridas case4 did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by courts of coordinate authority or of superior authority. Gajendragadkar, C.J., observed in Bhagwan v. Ram Chand5:
It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that inquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.
18. We are in full agreement with the decision of this Tribunal in the case of Rajeev Mishra (supra). We have therefore, no hesitation to hold that the applicant is entitled to have his pay fixed taking into account the element of 30% running allowance. The order passed earlier on 02-04- 2002 by the Respondents (vide page 24 of the amended application) is the correct order, which is to be restored. Order impugned dated 26-04-2004 is hereby quashed and set aside.
19. In the result, the OA is allowed. Respondents are directed to restore the pay of the applicant as initially granted vide order dated 02-04-2002 and refund the money recovered in pursuance of the impugned order dated 26th April, 2004 from him with interest @ 9% per annum from the date recovery of the entire amount till the date of payment. This order shall be complied with, within a period of three months from the date of communication of this order.
20. Under the circumstances, there shall be no order as to costs.
(D.C. Lakha) (Dr. K.B.S. Rajan)
Member-A Member-J
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