Union Of India vs C.Radhakrishnan on 29 March, 2011

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Kerala High Court

Union Of India vs C.Radhakrishnan on 29 March, 2011

The respondent is the applicant in O.A.No.180 of 2010 on the file of the Central Administrative Tribunal, Ernakulam Bench. The said O.A. was filed seeking for a declaration that non-feasance on the part of the petitioners herein to act upon the applicant's options for fixation of pay submitted in terms of Annexure A3 is arbitrary and illegal. The applicant has also sought for an order directing the petitioners herein to act upon the options exercised by him in terms of Annexure A3 and to grant him the consequential benefit of re-fixation of pay as opted for, with arrears of pay and allowances emanating therefrom.

2. Before the Tribunal, the reliefs sought for in the O.A. were opposed by the petitioners herein by filing Ext.P7 reply statement. After considering the rival contentions, the Tribunal allowed O.A.No.180 of 2010 thereby permitting the applicant to submit option in the prescribed format and the petitioners herein O.P.(CAT)No.2019 of 2011 2 were directed to accept it and act upon it and re-fix the pay of the applicant following the direction of the Tribunal in Annexure A1 order in O.A.No.63 of 2007.

3. Feeling aggrieved by Ext.P10 order passed by the Tribunal, the petitioners/respondents are before this Court in this Original Petition.

4. We heard the arguments of the learned Standing Counsel for Southern Railway representing the petitioners/ respondents herein and also the learned counsel for the respondent/applicant.

5. The pleadings and materials on record would show that the applicant who was working as Chief Travelling Ticket Inspector in Palakkad Division of Southern Railway had earlier approached the Tribunal in O.A.No.63 of 2007 seeking for a declaration that he is entitled to have the pay of Rs.350/- in the scale of Rs.350-560 with effect from 16.12.1984 on par with his junior Sri.K.R.Hariharan and to fix his pay at Rs.350/- in the scale of Rs.350-560 with all consequential benefits.

6. The Tribunal by Annexure A1 order dated 19.11.2008 O.P.(CAT)No.2019 of 2011 3 allowed O.A.No.63 of 2007, setting aside the impugned order dated 07.07.2006 in so far as it relates to rejection of the applicant's request for re-fixation of pay. The petitioners herein were directed to re-fix the pay of the applicant in the pay scale of Rs.260-400 as on 14/16.12.1984 with reference to his presumptive substantive pay in the previous scale and extend him the consequential benefits notionally without arrears of pay, within a period of thee months from the date of receipt of a copy of the order. The reasoning of the Tribunal as stated in paragraphs 4 and 5 of Annexure A1 order read thus;

"4. The issue for consideration is whether the applicant is entitled to get his pay re-fixed as on 14/16.12.1984 when he was substantively appointed as Ticket Collector. The respondents have stated that the applicants pay was fixed as on 1.5.1984 where as the pay of Mr.Hariharan was fixed as on 16.12.1984 and therefore Mr.Hariharan got a higher pay on refixation. It is seen from records that both the applicant and Mr.Hariharan were appointed as Ticket Collectors by order dated 14.12.1984 after successful completion of training. Both underwent training between 2.7.1984 and 1.8.1984. However the applicant was utilised as a Ticket Collector on ad hoc basis for a short period prior to the order dated 14.12.1984. It is not disputed that O.P.(CAT)No.2019 of 2011 4 the applicant is senior to Mr.Hariharan in the cadre of Switchman and that he was drawing higher pay than Mr.Hariharan in that cadre. The respondents have contended in the reply that pay anomaly cannot be rectified if the junior was drawing higher pay in the previous scale for any reason. We are unable to accept this contention because this is not a case wherein the junior was drawing higher pay while the senior was also continuing in the same cadre. By the time the junior got higher pay the senior had already been taken out of the cadre though on ad hoc basis. The applicant's counsel has produced a judgment of this Tribunal in OA 48/95 was wherein the issue of pay fixation at the time of substantive appointment, even though the pay was already fixed at the time of ad hoc posting to the same post, was considered. The following extract from the judgment of the Tribunal in that case is relevant for this case:

"6. The short question is whether an employee who gets an ad hoc promotion and a pay fixation under FR 22C at the time of ad hoc promotion can get his pay refixed under FR 22C when he is regularly promoted after continuous officiating in an ad hoc capacity without any break. FR 22C does not place any restriction on the number of times it is to be applied. Every time there is a promotion or an appointment of a person holding a post in a substantive, temporary or officiating capacity O.P.(CAT)No.2019 of 2011 5 to a post carrying duties and responsibilities of greater importance in a substantive, temporary or officiating capacity, his pay will be fixed under FR 22C. The contention of respondents that because the applicants pay was fixed under FR 22C at the time of ad hoc promotion, his pay cannot be re-fixed again at the time of regular promotion just because he has been continuing after his ad hoc promotion without break in the higher post till his regularisation, is not supported by any rule. ....."

5. We are in agreement with the finding of the Tribunal in the aforesaid OA. The applicant is entitled to get his pay re-fixed on his substantive appointment as Ticket Collector with effect from 14/16.12.1984. However he will not be entitled for arrears arising out of such re-fixation in view of the long period that has elapsed. The counsel for applicant also did not press for arrears and wanted only notional re- fixation."

7. Seeking review of Annexure A1 order to the extent the applicant was granted only notional re-fixation, R.A.No.50 of 2008 was filed before the Tribunal. After hearing both the sides, the Tribunal rejected R.A.No.50 of 2008 by order dated 23.12.2008. Feeling aggrieved by the said orders of the Tribunal, to the extent the applicant was granted only notional re-fixation, O.P.(CAT)No.2019 of 2011 6 he has approached this Court W.P.(C)No.11178 of 2009. Today, by a separate judgment we have dismissed the said Writ Petition declining interference.

8. Alleging non-compliance of Annexure A1 order in OA.No.63 of 2007, the applicant approached the Tribunal in C.P. (C)No.32 of 2009. During the pendency of that Contempt Petition, the petitioners herein have issued Annexure A2 memorandum dated 16.3.2009 re-fixing the pay of the applicant on par with his junior Sri.K.R.Hariharan on notional basis without arrears of pay. In the light of Annexure A2 memorandum the Tribunal closed the Contempt Petition. According to the applicant, in Annexure A2 the actual pay drawn by him stood reduced since he was denied option for fixation of pay on the promotion ordered to the scale of pay of Rs.1,200-2,040 (IV-CPC) with effect from 25.2.1987 and the scale of pay of Rs.5,000-8,000 (V- CPC) with effect from 1.11.2003. In such circumstances, the applicant has submitted Annexure A3 representation dated 21.3.2009 before the 2nd respondent, exercising his option for fixation of pay. However, there was inaction on the part of the O.P.(CAT)No.2019 of 2011 7 petitioners herein in considering the said request.

9. Before the Tribunal, the applicant contended that, with revision of pay with retrospective effect consequent to Annexure A1 order of the Tribunal, he is entitled to exercise option/re- option every time when the pay is fixed under Fundamental Rules 22(I)(a)(1). Per contra, the petitioners herein contended that the relief sought for in the O.A. is barred by limitation as the pay fixation sought to be revised relates to the year 1984. Revision of pay on par with the junior is not a promotion order and as such the applicant is not entitled to exercise option. Further, the applicant has not chosen to exercise option in the prescribed format.

10. In Ext.P10 order, the Tribunal noticed that, Annexure A1 order in O.A.No.63 of 2007 to the extent the petitioners herein were directed to re-fix the pay of the applicant in the pay scale of Rs.260-400 as on 14/16.12.1984 with reference to his presumptive substantive pay in the previous scale, with consequential benefits notionally without arrears of pay, has attained finality and is binding on the petitioners herein. While O.P.(CAT)No.2019 of 2011 8 implementing the said order, the petitioners herein are bound to give the applicant an opportunity to exercise the option available to him and ask him to submit it in the prescribed format.

11. As we have already noticed, pursuant to Annexure A1 order of the Tribunal, the respondents have issued Annexure A2 memorandum dated 16.3.2009 re-fixing the pay of the applicant on par with his junior Sri.K.R.Hariharan on notional basis without arrears of pay. Immediately on receipt of Annexure A2 memorandum, the applicant has submitted Annexure A3 representation dated 21.3.2009 before the 2nd respondent, exercising his option for fixation of pay. Having failed to give the applicant an opportunity to exercise the option available to him and asking him to submit the option in the prescribed format, the petitioners herein cannot now contend that the option exercised by the applicant is belated and it is not in the prescribed format.

12. In that view of the matter, the Tribunal cannot be found fault with in permitting the applicant to submit option in the prescribed format and further directing the petitioners herein to accept it and act upon it and re-fix his pay following the O.P.(CAT)No.2019 of 2011 9 direction of the Tribunal in Annexure A1 order in O.A.No.63 of 2007. We find no valid grounds to interfere with Ext.P10 order passed by the Tribunal.

13. In the result, the Writ Petition fails and the same is accordingly dismissed. No order as to costs.

The petitioners herein are granted two months time from the date of receipt of a certified copy of this judgment to comply with Ext.P10 order passed by the Tribunal.

Sd/-

P.R. RAMACHANDRA MENON, JUDGE Sd/-

ANIL K. NARENDRAN, JUDGE lk True copy P.S. to Judge

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