Chattisgarh High Court
Sk Malwar And Others vs Union Of India And Others on 23 June, 2010
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
HIGH COURT OF CHATTISGARH AT BILASPUR
Writ Petition No 6273 of 2005
SK Malwar and others
...Petitioners
Versus
Union of India and others
...Respondents
! Shri HS Ahluwalia counsel for the petitioners
^ Smt Naushina Afrin Ali counsel for respondents No 1 3 4 5 and 6
CORAM : Honble Shri Justice IM Quddusi and Honble Shri Justice Prashant Kumar Mishra
Dated : 23/6/2010
: Judgement
Writ Petition under Article 226/227 of the Constitution
of India
ORDER
(Passed on 23-6-2010) Per Prashant Kumar Mishra, J.:
Challenge in this writ petition is to the order dated 27-10-2005 (Annexure P-1) passed by the Central Administrative Tribunal dismissing Original Application No.467/2005 preferred by the petitioners.
2. The petitioners had preferred Original Application No.467/2005 challenging reduction of their pay by several stages on their promotion as Guards in the identical grade and for seeking benefit of pay-fixation under R.R.-22(C) on their promotion as Guards Grade Rs.1200-2040 (RPS) from the date each of them were promoted in the year 1989. The petitioners also prayed for protection of their existing pay as Senior Train Numbering Clerk (henceforth `Sr.TNC') together with arrears of pay, increment and allowances that may become due and admissible on such re-fixation with interest at the market rate.
3. Briefly stated, the facts of the case are that the petitioners were promoted as Sr.TNC in the officiating capacity on ad hoc basis in the scale of Rs.330-560 corresponding scale being Rs.1200-2040 vide order dated 30-7-1986 (Annexure P-2). The petitioners subsequently cleared the suitability test for regular promotion to the post of Sr.TNC in the scale of Rs.1200-2040 on the basis of the suitability test held on 28-8-1988 and 11- 2-1989. The result of suitability test was declared on 19-6-1989 (Annexure P-3), however, before declaration of result of the suitability test for regular promotion on the post of Sr.TNC, the petitioners were promoted as Goods Guards in the scale of Rs.1200-2040 (RPS) vide order dated 7-4-1989 (Annexure P-4). The petitioners joined on the promoted post of Goods Guards in the month of April, 1989 on different dates.
4. According to the petitioners, after joining as Guards, their pay was reduced to the minimum pay of Goods Guards contrary to the rules and they were put to loss of three to five increments below and their separate representations against the wrong fixation of pay as well as a joint representation dated 24-2-1999 (Annexure A-7 with the original application) yielded no result. Relying on the Railway Board's letter dated 24- 5-1999 (Annexure P-5), the petitioners are claiming proper fixation of pay as per F.R.-22(C) presently Rule 1313(FR22)(1)(A)(I)R-II.
5. The petitioners thereafter preferred Original Application No.822/1999, which was disposed of on 20-4- 2004 by the Central Administrative Tribunal directing the petitioners to make detailed representation to be decided by the competent authority by a detailed and reasoned order. Their representations were later on rejected and thereafter they preferred Original Application No.467/2005 before the Central Administrative Tribunal, which has been dismissed by the impugned order.
6. The stand of the respondents/Railways is that since before the petitioners could be regularly promoted as Sr.TNC after declarationof their result of the suitability test, they having joined on the post of Goods Guards in the same scale on different dates in the month of April, 1989, they are not entitled to the protection of their pay which they were receiving as officiating Sr.TNC in view of the provision contained in F.R.-22(C), which was clarified by Advance Correction Slip No.14 of the Indian Railway Establishment Code (Annexure R-3), wherein it is mentioned that the regularly promoted staff are entitled for fixation of pay on promotion on similar grade but such protection is not available in the case where the promotions in the earlier similar grade was made on ad hoc basis. According to the respondents, since they were not regularly promoted as Sr.TNC at the time when they joined as Goods Guards, their pay has been fixed by taking the pay of their existing regular post, i.e., Train Numbering Clerk (TNC) in the scale of Rs.950-1500 and the same has been done as per the prevailing rule. It is further stated by the Railways that the Railway Board Circular dated 24-5-1999 (Annexure P-5) is applicable in a case where regular promotion is made but not for ad hoc promotion.
7. The issue, which needs consideration and adjudication in this petition, is whether the petitioners are entitled to benefit of Rule 1313(FR22)(1)(A)(I)R-II [erstwhile F.R.-22(C)] together with the Railway Board's letter dated 24-5-1999 (Annexure P-5) or such entitlement is not available to the petitioners on the ground that they were not regularly promoted as Sr.TNC.
8. Annexure R-1 is the Railway Board's letter dated 12-12-1991 with Advance Correction Slips No.14 and 15 amending Rule 1313. Clauses (1) and (2) of the Advance Correction Slip No.14 is required to be perused, which is reproduced hereunder:
"ADVANCE CORRECTION SLIP NO.14 The existing Rule 1313(FR-22) of the Indian Rilway Establishment Code, Volume-II (Sixth Edition-1987) shall be substituted by the following:-
Rule 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 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 adhoc 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 of 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 refixed 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 this 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."
9. The above-quoted Advance Correction Slip No.14 issued on 12-12-1991 was examined and explained by the Railway Board vide Annexure P-5 dated 24-5-1999, which also needs perusal and is reproduced hereunder:
"GOVERNMENT OF INDIA, MINISTRY OF RAILWAY, RAILWAY BOARD Machine No.PC-IV/99/07/101/50 S.No.346 RBE 119/99, New Delhi Dt:24.5.99 General Manager - All Indian Railways & Production Units etc. Sub:-Fixation of Pay under Rule 1313(FR-
22)(1)(A)(I)R-II (erstwhile FR-22- (C) on appointment from One Post to another carrying identical Scales of Pay.
*** There are instances on the Indian Railways where in feeder Post and Promotional Post are placed in identical scales of Pay although the promotional posts have duties and responsibilities of greater importance than those of the feeder posts. Both Posts from the Part of the AVC of the employee for further promotion to higher grades and movement from feeder to Promotional posts involves an act of selection (written examination with or without viva-vocs & Trade Test or Aptitude Test etc.). There has been a long standing demand of staff Federations for fixation of Pay under Rule 1313(FR22)(1)(A)(I)R-II (erstwhile FR 22C) in the case of above nature.
The matter has been examined in detail by the Ministry of Railway in consultation with Ministry of Personnel Public grievances & Pensioner (DOP&T) President is pleased to decide that Benefit of Pay fixation under Rule 1313(FR23)(1)(a)(I)R-II [erstwhile Rule 1316 (FR22C) may be allowed in the under mentioned Cases of Promotion made between 1.1.86 to 31.12.95.
Feeder Category Category to which Promoted
1. Br.Mistry Rs.1400- Br.Inspector 2200 Rs.1400-2300
2. Works Mistry Rs.1400- IOW Rs.1400-2300 2300
3. P.W.Mistry Rs.1400- PWI-Gr.III Rs.1400-
2300 2300
4. Mistry Rs.1400-2300 Chargeman-`B' Rs.1400-2300
5. Console Supdt. Asstt. Programmer Rs.2325-3500 Rs.2375-3500
6. Hammerman Rs.950- Blacksmith Rs.950-
1500 1500
7. ASM/SM Rs.1400-2300 AYM - Rs.1400-2300
8. Mistry Rs.1400-2300 TXR - Rs.1400-2300
9. SM/Sr.Trn.Clerk/SWM Goods Guard Rs.1200-
Rs.1200-2040 2040
10 SWM - Rs.1200-2040 ASM - Rs.1200-2040
.
11 Khalasi Helper - W/Mate - Rs.800-
. Rs.800-1150 1150 The persons concerned may be given an option to be exercised within the Three Months from the date of issue of these orders to have their Pay re-fixed under Rule 1313(FR22(1)(a)(1). Arrears may also be allowed wherever dues.
If any other categories fulfilling the Criteria mentioned in para 1 above come to the notice of individual Rly. Administration specific proposal containing the relevant details may be sent to Railway Board for further examinations.
The position after implementation of 5th P.C. recommendations is under examination and till further order, similar cases of Promotions made after 1.1.96 will continue to be governed by extant Rules regarding fixation of Pay or promotion.
This issues with concurrence of Finance Directorate of Ministry of Railways (Railway Board).
Hindi Version will follow.
Sd/-
(S.C.Manchanda) Executive Director Pay Commission Railway Board"
10. On a careful reading of the Rule 1313(FR22)(1)(A)(I)R-II [erstwhile F.R.-22(C)] as amended by Advance Correction Slip No.14 and further clarified by Annexure P-5 dated 24-5-1999 issued by the Railway Board, a railway servant for being entitled to pay protection of the post held by him on being promoted to another post, it is necessary that the promoted post should carry duties and responsibilities of greater importance than those attaching to the post held by him. In the present matter, the petitioners in paragraph 6.7 of the petition have averred that the post of Goods Guard to which they have been promoted is under the category of running staff, whereas the category of Sr.TNC/TNC (feeder post) comes in the category of stationary cadre, thus, their contention is that the post of Guard carries responsibilities of greater importance. This averment in paragraph 6.7 of the petition has not been traversed by the respondents in paragraph 17 of the return which is the reply of the paragraph 6.7 of the writ petition. The only contention of the respondents is that the petitioners are not entitled to the benefit of Rule 1313(FR22)(1)(A)(I)R-II [erstwhile F.R.-22(C)], Advance Correction Slip No.14 and its clarification by the Railway Board vide Annexure P-5 on the ground that since their promotion on the post of Sr.TNC was on ad hoc basis, they are not entitled to the benefit of the above mentioned rules issued by the Railway Board. However, on perusal of Annexure P-3, it would be seen that the petitioners have, in fact, passed the suitability test for promotion to the post of Sr.TNC thereby regularizing their ad hoc promotion made on the post of Sr.TNC vide Annexure P-2 dated 30-7-1986. As reflected in Annexure P-2, the suitability tests for regular promotion to the post of Sr.TNC were held on 28- 8-1988 and 11-2-1989. Though the results were declared on 19-6-1989 but the same would relate back to the date of examination. The learned Central Administrative Tribunal has also recorded in paragraph 5 of the impugned order that the petitioners were regularized as Sr.TNC on 19-6-1989. Thus, it is found that the petitioners were promoted as Goods Guard, which carry duties and responsibilities of greater importance and were in fact regularized as Sr.TNC on 19-6-1989 after their clearing the test held on 28-8-1988 and 11-2- 1989, i.e., prior to 7-4-1989 when they were promoted as Goods Guard.
11. On the basis of above, this Court is of the opinion that the petitioners are entitled to benefit of Rule 1313(FR22)(1)(A)(I)R-II [erstwhile F.R.-22(C)] as amended by Advance Correction Slip No.14 and clarified by the Railway Board vide Annexure P-5 dated 24-5-1999. The impugned order passed by the learned Central Administrative Tribunal, thus, deserves to be and is hereby set aside.
12. The Railway Board shall now fix the pay of the petitioners by giving benefit of Rule 1313(FR22)(1)(A)(I)R-II [erstwhile F.R.-22(C)] as amended by Advance Correction Slip No.14 and clarified by the Railway Board vide Annexure P-5 dated 24-5-1999. The petitioners are also entitled to the arrears of pay after re-fixation of their pay as held above. The writ petition is, thus, allowed. There shall be no order as to costs.
JUDGE JUDGE