Central Administrative Tribunal - Madras
S Krishnamurthi vs M/O Railways on 2 December, 2024
1 OA 310/00639/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00639/2016
Dated Monday, the 2nd day of December, Two Thousand and Twenty Four
CORAM :
HON'BLE MR. M. SWAMINATHAN, Member (J)
&
HON'BLE MR. SANGAM NARAIN SRIVASTAVA, Member (A)
1 Krishnamurthi, S/o P.K.Subramanian
2. J.Janardhanam, S/o C.A.Purushothaman
3. V.Radhakrishnan, S/o K.S.Venkataraman
4. G. Meenakshisudaram, S/o Govindasamy
5. N.Chadrasekaran, S/o Natarajan
6. S. Basil Antony, S/o D.Sundara Raj
7. G.Ramanathan, S/o V.Ganapathy
8. R.Muthamil Selvan, S/o V.Ramalingam
9. S. Balasubramanian, S/o P.Sangily
10. N.Ganesan, S/o A.Nagasamy
11. A.Kanagavalli, D/o K.Palaniyandi
12. W. Bastin Rajasekaran, S/o M.William
13. N.Senthilnathan, S/o K.Neelamegam Pillai
14. V.Kumar, S/o S.Venkatraman
15. T.Sukumar, S/o P.Thirumali
16. A.Balasubramania, S/o S.Annamalai
17. R.Sankararaman (Retired), S/o P.A.Ramamoorthy
18. N.Dhayananthan (Retired), S/o R.Narayanaswamy
19. M.Rajarathinam (Retired), S/o K.Manickam
20. A. Rajagopal (Retired), S/o C.Appu
21. S.Ambigadoss (Retired), S/o S.Santhnam
22. John Donal (Retired)
23. K.Manivannan (Retired), S/o Kashuri Rengan ... Applicants
By Advocate M/s. S. Kala
Vs
2 OA 310/00639/2016
1. The Union of India Rep. by The Chairman, Railway Board, Rail Bhavan,
New Delhi - 110 001.
2. The General Manager, Southern Railway, Park Town, Chennai - 600 003.
3. The Financial Adviser and Chief Accounts Officer, Southern Railway Head
Quarters, Park Town, Chennai - 600 003. .... Respondents
By Advocate Mr. K. Rajendran, SCGSC
3 OA 310/00639/2016
ORAL ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Member(J)) In the instant OA, the applicant seeks the following relief:
"a. Issue a Writ of Declaration, declaring that Paragraph 9 of the Modified Assured Career Progression Scheme and Clause 20 of the Annexure 1 of RBE:No.101/2009, dated 10.06.2009 are ultra vires Article 14, 16 and 39(d) of the Constitution of India and Fundamental Rule 22;
b. Quash the orders of the third respondent in No.P.443/C/Admn/VOL.VII dated 15.02.2016 Annexure A8 Series as arbitrary and violative of Article 14,16 and 39(d) of the Constitution of India besides Fundamental Rules; and c. direct the respondents to grant Rs.5400/4600 Grade Pay in PB-2, on par with their juniors as mentioned in the representation of the applicants, either by stepping up of the grade pay or by any other method (or) in the alternative d. to grant two financial upgradations based on their length of service in the post of Accounts Assistant;
e. consequently revise and re-fix the pay of the applicants, with all consequential benefits such as arrears etc., with interest at the rate of 12% p.a from the date when the juniors were granted and f. Issue such further and other appropriate orders or directions as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case by molding the relief and award costs and thus render justice."
2. Brief facts of the case as submitted by the applicant:
The 6th Central Pay Commission set up by the Government of India submitted its report relating to structure of emoluments, allowances, conditions 4 OA 310/00639/2016 of service and retirement benefits, which was accepted by the Government of India with certain modifications giving effect to the same from January 1, 2006.
The Railway Services (Revised Pay) Rules, 2008 was introduced fixing the pay band and grade pay of the applicants at Rs.4,200/-in PB2. The MACP Scheme recommended by the 6th Central Pay Commission was accepted by the Government of India with further modifications effective from September 1, 2008. The regular promotions earned and acquired by the applicants by passing departmental examinations and required period of service were counted so as to deny them the financial upgradation. The applicants along with many others are deprived of the benefits of the newly introduced MACP Scheme of the 6th CPC, which denies financial progression to qualified seniors, whereas juniors and unqualified are being extended the benefit of the scheme. The applicants have represented before the third respondent explaining their grievance, which is rejected by the impugned orders. The only ground to deny the equal treatment on par with the juniors is Paragraph 9 and clause 20 of the Scheme. Hence they are challenged. The said clause was considered by the Hon'ble High Court, Madras and held cannot deny equality. The similar issue in the same Railways are decided in favour of the applicants by several High Courts. The respondents have not considered the claim of the applicants and granted the benefits. Hence, this original application is preferred before this Tribunal seeking the above relief.
3. Learned counsel for the applicant submits that according to Rule 306 of 5 OA 310/00639/2016 the Indian Railway Establishment Manual, the seniority of the Accounts Assistants are to be determined on the basis of the passing Appendix II-A examination and not on actual promotion to the post. In this case the applicants have passed the examination, in 1982 to 1995 batch, but were promoted on various years due to want of sufficient vacancies. As far as MACPS is concerned, the rule of reservation nor the rule of roster applies. On account of the implementation of the scheme several juniors to the applicants in the same cadre who passed the Appendix examination in the later years are granted 5400 grade pay. Therefore, the applicants are entitled for parity in pay and stepped up grade pay on par with their own juniors in the same cadre on the basis their batch seniority of passing Appendix II A. The applicants respectfully submit that in the year 1986/87, on account of re-structuring, promotions were made enblock. At that time several persons who had passed Appendix IIA on various batch were given promotion. In that seniority list several juniors to the applicants on the basis of batch seniority, were granted 5400 grade pay.
Therefore, the applicants who are seniors to them are entitled for 5400 grade pay. Therefore the applicants who are seniors to them are entitled for 5400 grade pay.
4. The learned counsel for the applicant relied upon the decision of this Tribunal in OA 1471/2014 dated 22.02.2024 and submitted that the issue is no more res integra.
6 OA 310/00639/2016
5. Per contra, the respondents have filed their reply statement and vehemently opposed the OA and relied upon the averments in the counter affidavit. It is submitted that the minimum educational qualification for recruitment for a direct recruit (JAA) is degree whereas it is not so in the case of the applicants who were appointed a Group 'D' employee. For a directly recruited Junior Accounts Assistant APP II A is a confirmation examination (i.e.) If a direct recruit junior accounts assistant does not qualify in APP IIA IREM examination in two attempts (three attempts for SC/ST) as per his/her terms of appointment, his/her job would be terminated whereas this is not the case with that of the Applicants for whom it is only a qualifying exam. Further, even if he/she fails to qualify in APP II A, he would still be promoted against the unqualified quota whereas a Direct Recruit who do not qualify would forfeit his/her appointment. The financial upgradation under MACPS is counted from the direct entry grade on completion of stipulated years of service. Hence, it is to be counted from erstwhile Group 'D' for the Applicants whereas it is from Junior Accounts Assistant for those who are appointed under graduate quota. Hence, the contention of the applicants is totally incorrect. Further, the applicants made general averments that their Juniors are getting Rs.5400/4600 without being specific. Further they themselves are not confident in their OA whether to ask for Grade Pay Rs4600/- or Rs.5400/-. Hence the respondents pray for the dismissal of the OA.
7 OA 310/00639/2016
6. We have heard both the parties at length and perused the materials placed before us.
7. We find that the issue which is raised before us is squarely covered by the decision of this Tribunal in OA 1471/2014 and the relevant portion of the same is extracted below:
"13. It is seen from the records that the Hon'ble Madras High Court, vide its order, dated 03.04.2014, in WP.Nos.1078, 10046 to 10049 and 18262 of 2012, held as follows:
'The official respondents in O.A.Nos.1075, 993, 1009, 1008, 1007 and 1063 of 2010 respectively, had filed these writ petitions challenging the final orders passed by the Central Administrative Tribunal, Madras Bench, in the above said Original Applications.
2.O.A.Nos.1063 and 1075 of 2010 were filed by the respective private respondents in W.P.Nos.1078 and 18262/2012 seeking to declare Clause 10 and para 20 of Annexure I of Office Memorandum No.35034/3/2008 Estt (D) dated 19.5.2009, as ultra vires and to quash the order dated 17.6.2010, passed by the Railway Board Service, New Delhi, with a consequential prayer for re-fixation of the pay by granting financial upgradation on the basis of length of service in the post of SO/Sr.SSO/Sr.ISA with consequential benefits. O.A.Nos.993, 1007, 1008 and 1009 of 2010 were filed by the respective private respondents in W.P.Nos.10046 to 10049/2012 seeking to quash the Office Memorandum dated 5.11.2009, issued by the third respondent/third petitioner herein viz. The Financial Adviser and Chief Administrative Officer, Southern Railway, Chennai, and to direct the respondents therein to extend the Grade Pay of Rs.5400/-
with effect from the date, on which, their juniors were upgraded or with effect from 1.1.2006, with reference to their date of entry in the post of Senior Section Officers on the principle placing the Section Officers in the next higher grade carrying Grade Pay of Rs.4800/- in pay band PB-2 of Rs.9300-34800 that corresponds to the pre-revised pay scale of Rs.7450-11500, which places the posts of Section Officer and Assistant Accounts/Audit Officer in an identical pay scale, thus necessitating the upgradation of the latter category which were merged in the pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.5400/-, whichever is earlier.
3. The facts necessary for the disposal of these writ petitions, are as follows:
8 OA 310/00639/2016 3(i) The original applicants in the above said Original Applications, who are arrayed as private respondents in these writ petitions respectively, had joined in the cadre of Accounts Clerks/Clerks Grade II and got three promotions to the cadre of Junior Accounts Assistants and Accounts Assistants and at the time of filing the Original Applications, were working as Senior Section Officers (Accounts)/Senior Inspector of Stores Accounts and were placed in the Pay Band II Rs.9300-34800/- with Grade Pay of Rs.4800/- as per V Central Pay Commission Recommendations. The private respondents had availed three promotions and therefore, they were not considered for financial upgradation under Modified Assured Carrier Progression (MACP) Scheme.
3(ii) The private respondents expressed views that persons, who were appointed as Junior Accounts Officer (Direct Recruits) and working as Senior Section Officer (Accounts), Senior Inspector of Stores Accounts and Senior Travelling Inspector of Accounts, and who were juniors to them, were considered for financial upgradation and they have been granted Grade Pay of Rs.5400/- and challenging the correctness of Clauses 10 and 11 and Paras 8 and 20 of Annexure I of MACP Scheme, O.A.No.519/2010 was filed before the Central Administrative Tribunal, Chennai Bench, and the Tribunal vide final order dated 26.4.2010, directed the respondents therein to consider and dispose of the representations and in compliance of the order, the Railway Board had considered the claim made by the private respondents/original applicants, and rejected the same and therefore, they filed the above said Original Applications.
3(iii) The official respondents in their reply statement, took a stand that MACP Scheme came to be formulated as a "safety net" to deal with the problem of genuine stagnation and hardship faced by employees due to lack of adequate promotion and was introduced based on the recommendations made by the VI Central Pay Commission, and was also accepted by the Government of India.
3(iv) MACP Scheme envisages financial upgradation counted with reference to the direct entry grade of employees on completion of 10, 20 and 30 years of service and the original applicants, who had joined the service in the cadre of Accounts Clerks/Clerk Grade II, had earned three promotions and were placed in the Pay Band II of Rs.9300- 34800/- with Grade Pay of Rs.4800/- as per VI Central Pay Commission Recommendations.
3(v) Insofar as the stand taken by the original applicants/ private respondents herein that their juniors were considered for third upgradation and granted Grade Pay of Rs.5400/- as against the Grade Pay of Rs.4800/- given to them, it is the stand of the official respondents that the MACP Scheme contemplates merely placement on personal basis in the immediate higher Grade Pay/grant of financial benefits only and shall not amount to actual/functional promotion to 9 OA 310/00639/2016 the employee concerned and it is purely personal to the concerned employee and shall have no relevance to the seniority position and therefore, it is not open to the original applicants to make a complaint in that regard.
3(vi) The sum and substance of the stand taken by the official respondents, is that the original applicants had earned three promotions, whereas the persons, who have been conferred with a Grade Pay of Rs.5400/-, got stagnated and the conferment of such benefits is purely personal to them and has no relevance to the seniority position and hence stepping up of pay in the Pay Band or Grade Pay would be inadmissible to them.
3(vii) The Central Administrative Tribunal has considered the said issue and by placing reliance upon its earlier orders dated 29.12.20010, made in O.A.Nos.966 and 967/2009 respectively, found that the applicants in the above said original applications/private respondents herein, are similarly placed like that of the applicants in O.A.Nos.966 and 967/2009. The Tribunal also found that one T.V.Krishnan, Assistant Accountant, has been granted Grade Pay of Rs.5400/- with effect from 2.2.2010, by virtue of MACP Scheme and he is in the feeder category of Assistant Accountant, whereas the original applicants are in the promotional category of Section Officer, Inspector of Stores Accounts and Senior Section Officers and therefore, they are entitled to financial upgradation by fixing Grade Pay of Rs.5400/-. The Tribunal citing the said reasons, had allowed the original applications directing the official respondents/petitioners herein to grant revised pay to the applicants by extending the benefit of MACP Scheme in their favour by fixing their Grade Pay of Rs.5400/- from the date, on which, the said benefit was extended to their juniors and to disburse the accrued arrears if any, to the applicants within a period of four weeks from the date of receipt of copy of the respective order and aggrieved by the same, the present writ petitions are filed.
4.Mr.V.Radhakrishnan, learned Senior Counsel appearing for the petitioners/official respondents, has drawn the attention of this Court to the Office Note dated 11.11.2013, written by the Department of Personnel and Training, Establishment (D), Government of India, wherein, the anomaly faced by the incumbents of the Accounts Department of Ministry of Railways, consequent to implementation of the MACP Scheme, was considered and it was opined that the instant anomaly brought forward by the referring Department (Ministry of Railways) cannot be attributed to the ACP/MACP policy, but due to faulty cadre structure and therefore, the referring Department may be advised to restructure the Accounts cadre to rectify the anomaly, and would contend that appropriate steps will be taken in that regard.
5.The fact remains that consequent to the implementation of the MACP Scheme, senior employees, who got promotion, are deprived of third MACP, whereas their juniors are availing the benefit of the same by getting Grade Pay of Rs.5400/-, but their seniors are getting 10 OA 310/00639/2016 Grade Pay of Rs.4800/- only. The Tribunal in the impugned orders passed in the Original Applications, has referred to its earlier orders passed in O.A.Nos.966 and 967 of 2009, and following the same, has allowed the Original Applications.
6. The official respondents in the said Original Applications, aggrieved by the orders passed in O.A.Nos.966 and 967/2009, filed W.P.Nos.18611 and 18612 of 2011 and the Division Bench of this Court (N.P.V.,J. & M.S.N.,J.) has considered the issue in extenso and by placing reliance upon the judgment rendered by the Apex Court reported in (1989) 2 SCC 290 (STATE OF ANDHRA PRADESH V. G.SREENIVASA RAO), held as follows:
"11. The appellants herein, under the guise of MACP scheme dated 19.05.2009 coupled with the clarification dated 09.11.2009, seeks to deprive the benefit of FR-22(1)(a)(i) to the private respondents and in the considered opinion of the Court, it is unsustainable as it violates equality and it also offends Article 14 of the Constitution of India and the MACP scheme dated 19.05.2009 as well as the impugned order dated 03.08.2009 do not spell out any reason the applicability of FR22(1)(a)(i), has excluded for the persons like private respondents who are ultimately aggrieved/affected.
12. The Government of India passed series of orders issuing clarification in respect of FR-22(I)(a)(i) and as per Clarification No.23(d), the pay anomaly should be directly as a result of the application of the provisions of Fundamental Rule 22 or any other rule or order regulating pay fixation of such promotion in the revised scale. (emphasis supplied)
13. In the case on hand, the private respondents 4 to 26 in the original applications are admittedly juniors to the private respondents in these writ petitions and they did not qualify on time for getting their promotion and consequently got stagnated and on account of the same, they are not conferred with higher grade pay of Rs.5,400/-. The Tribunal has taken into consideration of the fact that admittedly the private respondents 4 to 26 did not pass the departmental tests on time and got stagnated at the level of Senior Accountants and since they have been conferred with higher grade pay of Rs.5,400/-, has rightly granted the said relief in their favour. It is to be pointed out at this juncture that the private respondents 4 to 26 in the original applications have not been put to any prejudice and what the Tribunal done was, merely stepped up the pay scale of the original applicants to that of the private respondents 4 to 26 and it is in tune with the principle of parity and equity enshrined in Article 14 of the Constitution of India."
7. The point involved in these writ petitions, is similar to one raised in W.P.Nos.18611 and 18612/2011 filed by the Union of India, Represented by Secretary to Government, Ministry of Personnel, 11 OA 310/00639/2016 Public Grievances & Pension, (Department of Personnel & Training), North Block, New Delhi, and two others, wherein, this Court has upheld the orders passed by the Tribunal in O.A.Nos.966 and 967/2009, and dismissed both the writ petitions filed by the official respondents therein. The Tribunal has also placed reliance upon its earlier orders passed in the above said Original Applications, and granted the relief.
8. In the light of the reasons assigned above, this Court finds that there are no merits in these writ petitions.
9. In the result, these writ petitions are dismissed confirming the orders passed by the Central Administrative Tribunal, Madras Bench in O.A.No.1075, 993, 1009, 1008, 1007 and 1063 of 2010, dated 5.8.2011, 7.10.2011 and 21.11.2011. No costs. Consequently, connected MPs are also dismissed."
14. Now the issue to be decicded in this matter is whether we can resolve the apparent conflict between the Fundamental Rights which states that a junior cannot draw more pay than the senior without an equalisation being brought in by the learned counsel for the respondents, that in this case, there is one distinction that the juniors, even though admittedly juniors, came in as direct recruits at a higher level and, therefore, they were able to get the benefit of the MACP Scheme also, whereas the seniors came in at a lower level, and, since they got 3 promotions, they were not eligible to get MACP and that is why the difference in pay.
15. The Hon'ble High Court of Madras in paragraph 13 of its judgment in WP Nos. 18611 and 18612/2011 had explained it and held that even for such a situation, by virtue of the equivalence and equity, canvassed by Article 14 of Constitution of India, the elevation of pay scale of the senior to that of a junior who has superseded him has to be granted.
16. Thereafter, the matter was taken up before the Hon'ble Apex Court in SLP CC Nos.17241-17246/2014 which held, by its order, dated 07.11.2014, as follows:
'Heard learned Additional Solicitor General appearing on behalf of the petitioners. Delay condoned. No ground for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India. The special leave petitions are accordingly dismissed."
The matter was once again taken by the respondents in Review Petition Nos.1325-1330/2015 and the Court in its order, dated 11.08.2015, ruled as follows:
Delay of 4 days in filing the review petitions is condoned.
12 OA 310/00639/2016 The present petitions have been filed by the petitioners for review of order dated 7.11.2014 passed by this Court in SLP (C) Nos. 30919-30924 of 2014 (arising out of CC Nos. 17241-17246 of 2014), which were dismissed after hearing learned Additional Solicitor General, who appeared on behalf of the petitioners.
We have carefully perused the petitioners for review, the order impugned and the papers annexed therewith. We do not find any error apparent on the face of record of this Court warranting reconsideration of the order impugned in the instant petitions. The review petitions are, accordingly, dismissed."
17. In the recent decision, dated 06.04.2022, of the Hon'ble Apex Court in Union of India Vs CR Madhava Murthy in Civil Appeal No.2087 - 2088 of 2022, the Apex Court held as follows:
6.Therefore,it was a case where a junior was drawing more pay on account of upgradation under theACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High court has rightly directed the appellants herein to step the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this court is called for
7.In view of the above and for the reasons stated above, the present appeal deserved to be dismissed and the same are dismissed accordingly."
Apparently, thereafter, the order was implemented by the respondents. As the applicants herein are also similarly placed as the respondents in the above mentioned Civil Appeal, they are also entitled to the same benefits of equivalence with the juniors in the matter of grade pay.
18. At this stage, it is submitted that after the 7th Pay Commission's recommendations were implemented, similar issue had arisen in the Railway Board also and all these anomalies were corrected and implemented. Therefore, there does not seem to be any obstacle in the way of implementation. It is also seen from the records that the respondents have implemented the order in most of the cases cited supra.
19. In the result, we are of the view that the impugned order, dated 17.06.2014, is liable to be quashed and it is, accordingly, quashed and set aside. Resultantly, the applicants are entitled to the Grade Pay of Rs.5400/- in PB-2, on par with their juniors. Applicants 1,2 and 6 are entitled to get the Grade Pay of Rs.5400/- w.e.f. 31.12.2008, whereas applicants 3 to 5 w.e.f. 01.06.2008, with all consequential beneifts. The respondents are further directed to implement the order within a period of 3 months from the date of receipt of a copy of this order.
13 OA 310/00639/2016
20. The OA is allowed in the above terms. No order as to costs."
8. In the result, we are of the view that the impugned order dated 15.02.2016 is liable to be quashed and it is, accordingly, quashed and set aside. Resultantly, the applicants are entitled to the grade pay of Rs. 5400/-/4600 in PB-2 on par with the juniors as mentioned in the representations of the applicants with all consequential benefits (without interest). The respondents are directed to carry out the said exercise within a period of three months from the date of receipt of copy of this order.
9. With the above directions, the OA is disposed of on the above directions.
No order as to costs.
(Sangam Narain Srivastava) (M. Swaminathan)
Member (A) Member (J)
02.12.2024
AS