Central Administrative Tribunal - Jabalpur
Devidatta Satapathy vs M/O Railways on 5 August, 2022
1 O.A.No. 203/00650/2020
Through Video Conferencing
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.203/00650/2020
Jabalpur, this Friday, the 05th day of August, 2022
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
Devidatta Satapathy Senior Divisional
Mechanical Engineer(D) Raipur,
Diesel Locomotive Shed,
WRS Colony Raipur 492001,
Age 40 yrs. DOB 27th July 1980,
Residence-233,Kharun
Rail Vihar, Fafadih Raipur 492009 -Applicant
(By Advocate - Applicant present in person)
Versus
1.Senior Divisional Personnel Officer,
Raipur Division South East Central Railway
(SECR), Divisional Railway Manager(DRM)Office
Raipur Pandri Raipur, Chhattisgarh 492001
2. Union of India through General Manager,
SECR GM SECR Office, Bilaspur,
South East Central Railway, (SECR) Zonal
HQ Bilaspur Chhattisgarh-495004 -Respondents
(By Advocate - Shri Sanjeev Pandey)
(Date of reserving the order:-19.07.2022)
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2 O.A.No. 203/00650/2020
ORDER
By Ramesh Singh Thakur, JM:-
The applicant is aggrieved with the action of the respondents for denial of pay protection for past service in PSU vide order dated 08.06.2020 (Annexure A-1).
2. The applicant has prayed for the following reliefs in this Original Application:-
"8.(8.1) That your Lordships may graciously be pleased to quash and set aside the impugned notification Estt. Srl No. 27/2001 (RBE 16/2001 dated 12.02.2001) and letter dated 8.6.2020 as contained in Annexure A-1 and direct the respondents to grant benefit of pay protection to applicant by relying on the service certificate and salary certificate issued from ONGC Ltd. (Annexure A-2 & A-3). Further please direct the respondents to provide all consequential benefits including increments, DA, arrears and interest @ 18% per annum from the date the payments became due till the date of actual payment.
(8.2) Any other relief or reliefs including the cost of the proceeding may be allowed in favor of the applicant."
3. The brief facts of the case are that the applicant joined services as an IRSME Probationer on 14.12.2009. Upon getting promotion to Junior Administrative Grade of IRSME, the applicant is presently serving as Senior Divisional Mechanical Engineer (Diesel) in Raipur Division of South East Central Railway. Prior to joining IRSME, the applicant Page 2 of 11 3 O.A.No. 203/00650/2020 has served as a regular employee of ONGC Ltd and was working on the post of Executive Engineer (Mech) in Godavari Bhavan, ONGC Base Complex Rajahmundry, Andhra Pradesh. After completion of training the applicant was confirmed to the post of Asst. Executive in the grade of Rs. 12000-17500 w.e.f. 23.03.2004. A certificate of which is annexed as Annexure A-2. After succeeding in the UPSC Engineering Service Examination 2008 the applicant was offered appointment as an IRSME Probationer and released from ONGC Ltd on 10.12.2009 and joined the services of IRSME Probationer on 14.12.2009. The applicant was drawing basic pay at ONGC of Rs. 35560/- with DA 8997/- (in the pay scale of Rs. 29100-54500/-) and joined the IRSME services at a starting basic pay Rs. 21000/- (15600- 39100) GP 5400/- in Pay Band-3. A copy of which is annexed as Annexure A-3. After completing his probation period of 36 months applicant requested the respondents for benefit of pay protection vide application dated 12.03.2013 followed with several reminders which are annexed as Annexure A-4. Vide letter dated 08.06.2020 (Annexure A-1) has arbitrarily decided applicant's representation and denied Page 3 of 11 4 O.A.No. 203/00650/2020 him the benefit of pay protection citing outdated provisions that have already been declared ultra-vires by the Court of Law. Respondent No. 1 in his speaking order has stated that purported to exclude the benefit of pay protection to candidates selected through an open competitive examination and restrict the benefit to candidates selected through interview only. The benefit of pay protection on appointment as direct recruits was earlier available to Govt. servants only but vide O.M. dated 07.08.1989, the president also extended the benefit of pay protection to the candidates working in Public Sector undertakings. A copy of which is annexed as Annexure A-5. It is submitted by the applicant that the applicant was a regular employee of a PSU (ONGC Ltd.) and was directly recruited by UPSC, into the IRSME and his selection procedure had interview as an important component and had completed his probation period also. The provisions contained in DOPT's O.M. dated 10.07.1998 was examined by the Hon'ble High Court of Delhi in WP(C) 5518/2004 titled Sanjog Kapoor vs. UOI & Ors. has declared that denial of pay protection benefit to candidates coming through open competitive exam is unjustified and Page 4 of 11 5 O.A.No. 203/00650/2020 illegal. A copy of which is annexed as Annexure A-7. The said judgment was challenged by the central govt. in SLP No. 4546/2008 and was dismissed. Therefore, the judgment of the Hon'ble High Court has attained finality and is binding upon respondents.
4. The respondents have filed their reply to the Original Application. In the preliminary submissions of reply they have submitted that the applicant served the ONGC organization from 24.03.2003 to 10.12.2009 and submitted resignation on 08.12.2009 and after acceptance of resignation he was relieved from ONGC w.e.f. 11.12.2009. Thereafter, the applicant was appointed as direct recruit of Indian Railway Service of Mechanical Engineers (IRSME) through UPSC Engineering service exam 2008 and joined as probationer on 14.12.2009. The applicant after completing training now presently serving as Senior Divisional Mechanical Engineer (Diesel) in Raipur Division of SECR. The respondents further submits that citing the provisions of Estt. Rule No. 27/2001, the benefits were denied by Divisional Personnel Officer, SEC Railway, Raipur Division vide letter dated 08.06.2020, being Annexure A-1, holding that his appointment to the Page 5 of 11 6 O.A.No. 203/00650/2020 Railways was directly attributed to direct recruitment through open competitive exam and not as a result of recruitment by selection i.e. through interview only with a view to drawing talent. The railway board's letters are annexed as Annexure R/1. The respondents further submits that the applicant was appointed as direct recruit of Indian Railway Service of Mechanical Engineers (IRSME) through UPSC and joined as probationer on 14.12.2009. At the material point of time RBE No. 16/2001 circulated vide letter dated 12.02.2001 was in existence which provides that the benefit of pay protection is admissible only when the appointment is made through an interview. Since the case of the applicant is not covered by the provision of RBE No. 16/2001, the claim for pay protection had correctly been denied in terms of extant instructions.
5. The applicant has filed the rejoinder to the reply filed by the respondents, wherein the applicant has reiterated its earlier stand taken in the O.A. The applicant submits that RBE 16/2001 dated 12.02.2001 is simply a reiteration of DoPT O.M. dated 10.07.1998 for implementation in Indian Railways. This RBE 16/2001 has been issued in order to Page 6 of 11 7 O.A.No. 203/00650/2020 comply with the allocation of business rules only. By this RBE 16/2001, Ministry of Railways has taken a cautious decision to implement DoPT O.M. dated 10.07.1998. Now, once it has been decided by respondents to implement this rule, respondents cannot take plea at this stage that this DoPT rule is not applicable on railway staff. The illegality of this restriction stipulated in O.M. dated 10.07.1998 came up for examination in catena of judgments and all of these judgments have found such restrictions to be arbitrary and illegal.
6. We have heard the learned counsel for both the sides and have gone through the pleadings and the documents annexed therewith.
7. The main ground for challenging the action of the respondents is that several candidates have been given the benefit of pay protection based on O.M. dated 07.08.1989. Even after the restrictions imposed by O.M. of 10.07.1998, similarly placed direct recruits have been given the benefit of pay protection based on the decision in Sanjog Kapoor (Supra)'s case. Therefore, denial of pay protection benefit to Page 7 of 11 8 O.A.No. 203/00650/2020 the applicant is violative of Article 14 and 311 of the Constitution of India.
8. As per Annexure MA/2 the respondents have submitted that as per clarification the benefit of pay protection will be available to direct recruits appointed in Central Govt. to those posts for which the relevant recruitment rules prescribed requirement of maximum number of years of experience in a specified area from the field sources (autonomous bodies, PSU etc.) for appointment under the method of direct recruitment.
9. This Tribunal has considered the matter and it is observed that this clarification has been issued with reference to the O.M. dated 21.10.2021 and also as per DoPT O.M. dated 10.07.1998.
10. Learned counsel for the applicant submits that this issue has already been dealt with by the Hon'ble High Court of Delhi in the matters of Sanjog Kapoor (Supra) and declared that tenure of pay protection benefit of the candidates coming through open competitive exam is un- justified and illegal.
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11. This Tribunal has considered the judgment passed by the Hon'ble High Court of Delhi wherein the similar issue has already been decided. The DoPT vide letter dated 13.8.2020 has also issued the office memorandum regarding pay protection (page 11) and the reference received from various Courts.
12. In the instant case, the applicant has joined the services as IRSME on probation on 14.12.2009 and was also working on the post of Executive Engineer (Mechanical) ONGC RajahMundry (AP). The applicant has joined at a basic pay of Rs. 35560/- and joined IRSME services at a starting basis of Rs. 21000/- . After completing the probation period of 36 months the applicant has requested the respondents for grant of benefit of pay protection but the respondents rejected the same.
13. In the matter of Sanjog Kapoor (Supra) similar issue has been decided by the Hon'ble High Court of Delhi and has held as under"
"15. In these circumstances, we hold that the distinction sought to be drawn between candidates selected from non-government bodies through interview and those selected through open competitive examination is sans rationale justification. Protecting the pay of one and not protecting the pay of the other Page 9 of 11 10 O.A.No. 203/00650/2020 set of candidates is completely arbitrary and illogical. The purpose behind grant of pay protection was to draw talent from organizations like PSUs. The best talent is drawn through the Civil Services Examination. Encouraging employees of PSUs to sit for such examination which is highly competitive is in line with the purpose behind the OM of 1989 of attracting the best talent. Even assuming that for the purposes of pay protection, the distinction between selection through interview and selection through open competitive examination does hold a rational nexus, the Civil Services Examination, through which the petitioner has been selected also comprises a comprehensive interview. Therefore denial of pay protection benefit to the petitioner is unjustified and illegal."
14. The Hon'ble High Court of Delhi in WP (C) 5518/2004 has further indicated that the Division Bench in the Court order dated 20.04.2007 titled as Sanjog Kapoor (Supra), have been followed by another Division Bench of the Court in the matters of Nagendra Jha vs. Union of India & Ors. in WP(C) No. 8660/2005.
15. The Railway Board has issued the clarification dated 08.07.2022 (Annexure MA/2) which was passed on 21.10.2021 and the case pertaining to the applicant is of the year 2009 when the applicant was released from ONGC on 10.12.2009 and have joined IRSME. In view of the fact the instructions issued by the DoPT and Railway Board Annexure MA/2 is irrelevant and the case of the applicant is Page 10 of 11 11 O.A.No. 203/00650/2020 fully covered by the judgment passed by the Hon'ble High Court of Delhi in the matters of Sanjog Kapoor (Supra) which has been further followed by the Hon'ble High Court of Delhi in Narendra Jha (Supra)'s case and the applicant is entitled to protection given in the case of Sanjog Kapoor (Supra)'s case.
16. In view of the above, this O.A. is allowed and the respondents are directed to grant the benefit of pay protection to the applicant by relying on the service certificate and salary certificate issued from ONGC (Annexure A-2 & A-3) with all consequential benefits.
17. This exercise shall be done within a period of three months after receiving the certified copy of order of this Tribunal. No order as to costs.
(Dinesh Sharma) (Ramesh Singh Thakur)
Administrative Member Judicial Member
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