Central Administrative Tribunal - Delhi
Shri R.K.Bhatnagar (Retd. Os/Ii) vs Union Of India Through on 26 February, 2015
Central Administrative Tribunal Principal Bench New Delhi OA No.472/2014 with OA No.474/2014 Order Reserved on: 30.01.2015 Order pronounced on 26.02.2015 Honble Shri G. George Paracken, Member (J) OA No.472/2014: Shri R.K.Bhatnagar (Retd. OS/II) Aged about 63+ years S/o Shri Sunder Lal C/o Shri K.C.Saxena H.No.10G, Vikrant Apartments Sector-13 ROHINI DELHI 110 085. Applicant (By Advocate: Shri K.K.Patel) Versus 1. Union of India through The General Manager Northern Railway Head Quarter Office Baroda House New Delhi. 2. Sr. Engineer (Construction) Northern Railway Moradabad. Respondents (By Advocate: Shri R.N.Singh) OA No.474/2014: Govind Singh (Retd. OS-II) Aged about 65+ years S/o Prem Singh C/o Shri Himmat Singh H.No.338, A Block, Gali No.10 Kamal Vihar Kamalpur Buradi Delhi. Applicant (By Advocate: Shri K.K.Patel) Versus 1. Union of India through The General Manager Northern Railway Head Quarter Office Baroda House New Delhi. 2. Sr. Engineer (Construction) Northern Railway Moradabad. Respondents (By Advocate: Shri Shailender Tiwari) O R D E R (Common)
In both these OAs, the grievance of the applicants is that their retiral benefits have not been determined on the basis of their average pay of `last ten months pay drawn by them before their respective dates of superannuation, in terms of the Railway Services (Pension) Rules, 1993, as amended from time to time. In both of them, they have challenged the orders of the Respondents dated 28.05.2008 and 08.05.2008 respectively refixing of their pay retrospectively. According to those orders, the refixations have been made in terms of Railway Boards letter No.E(P&A)II-96/PP-2 dated 17.08.1998.
O.A.No.472/2014:
2. According to the applicant in this case, he was initially appointed as Clerk in the Railways w.e.f. 12.07.1972 in the pay scale of Rs.110-180 (revised to Rs.260-400 w.e.f. 01.01.1973) under DRM, Moradabad. He was promoted as Senior Clerk (ad hoc) in the scale of Rs.330-560 w.e.f 02.11.1981 in the Construction Organization of Northern Railway and then as Senior Clerk on regular basis w.e.f 24.04.1984. Thereafter, he was promoted as Head Clerk (Ad hoc) w.e.f. 25.04.1988 in the scale of Rs.1400-2300. He was regularized in that post w.e.f. 28.08.1991. Thereafter he was promoted as Office Superintendent-II (Ad hoc) in the scale of Rs.1600-2660/Rs.5500-9000 w.e.f. 22.03.1995. He retired in that capacity on superannuation on 31.03.2009. Meanwhile, the Respondents issued the Annexure A1 order dated 28.05.2008 refixing his pay. The last two promotions were given in the Construction Organization under the Northern Railways.
3. While he was working in the said Organization, the Railway Board re-issued their instructions regarding fixation of pay on appointment from one ex-cadre post to another ex-cadre post vide letter No.E(P&A)II-96/PP-2, dated 17.08.1998. According to the said letter, the Railway Board reiterated the extent rules/orders on the subject which say that in cases of appointment from one ex-cadre post to another ex-cadre post where a Railway employee opts to draw pay in the scale of pay of the ex-cadre posts, the pay in the second or subsequent cadre posts should be fixed under the normal rules with reference to the pay in the cadre posts only. However, in respect of appointments to an ex-cadre post on time scale of pay identical to the time scale of pay an ex-cadre post held on an earlier occasion(s), the pay fixed in the subsequent ex-cadre post shall not be less than the pay, other than special pay, personal pay or any other emoluments which may be classified as pay by the President Under Rule 1303 (iii)-R.II/1987 edition (FR-9(21)(a)(iii) which he drew on the last occasion, and he shall count the period during which he drew the pay on such post and any previous occasions for increment in the stage of the time scale equivalent to that pay. In the said it has also been reiterated that the orders contained in Boards letter No.E(P&A) II-85/PP-24 dated 31.12.1985 which provide that on appointment to a second or subsequent ex-cadre post in higher scale than that of the previous ex-cadre post in higher pay scale than that of the previous e-cadre post the pay may be fixed with reference to the pay drawn in the cadre post and if the pay so fixed happens to be less than the pay drawn in the previous ex-cadre post, the difference may be allowed as personal pay to be absorbed in future increases in pay subject to the condition that on both the occasions the employees should have opted to draw pay in the scales of pay attached to the ex-cadre posts.
4. According to the Respondents, the Applicant was initially appointed as Junior Clerk in Western Railway w.e.f. 12.07.1972 and promoted as Senior Clerk (ad hoc) w.e.f. 01.08.1973. Later, he sought reversion as Junior Clerk w.e.f. 02.03.1976 and reported for duty to Chief Engineer (Construction), Northern Railway, Delhi on his request on bottom seniority w.e.f. 04.03.1976. Thus, he got transferred from Western Railway to Northern Railway w.e.f. the said date with his lien in operating branch of Headquarters Office, Baroda House, New Delhi. There he was promoted as Senior Clerk (ad hoc) w.e.f. 02.11.1981 and then as Head Clerk and transferred and posted under Senior Civil Engineer(Construction)/EVIB w.e.f. 02.07.1988. Then he was promoted as Head Clerk (ad hoc) under Chief Engineer(Construction) w.e.f. 20.04.1998. His lien was fixed in Moradabad Division on mutual transfer with one Shri Romi Mago Head Clerk in grade of Rs.5000-8000 working under CAO/C, Kashmere Gate, Delhi who was holding lien in Moradabad Division. He was promoted as OS-II in the pay scale of Rs.1600-2660/Rs.5500-9000 w.e.f. 22.03.1995 in the Construction Organization and his basic pay w.e.f. 01.04.2007 was Rs.7775/-.
OA No.474/2014:
5. The applicant was initially appointed as daily rated Casual Khalasi w.e.f. 19.04.1971, his services were regularized on 19.10.1971, he was promoted as Typist in the scale of Rs.260-400 (Ad hoc basis) w.e.f. 19.10.1974, promoted as Senior Typist in the scale of Rs.330-560 w.e.f. 03.06.1978, regularized on that post w.e.f. 29.03.1984, promoted as Head Typist in the scale of Rs.1400-2300 w.e.f. 11.06.1986. Thereafter, he was transferred to Construction Organization vide Order dated 21.09.1987 and there he was regularized in that post w.e.f. 08.06.1995, further promoted as Chief Typist (Ad hoc basis) in the scale of Rs.1600-2660 w.e.f. 18.02.1997, regularised as Chief Typist/Office Superintendent-II in the scale of Rs.5500-9000 w.e.f. 01.11.2003. While he was working in the said position, the respondents issued letter dated 05.06.2007 to all the Deputy Chief Engineers (Construction), Deputy Chief Electrical Engineers (Construction) and Deputy CSTE(Construction) stating that the competent authority has decided that the correct pay must be charged w.e.f. 01.06.2007, if already not charged in the case of Fixation of Pay from Ex-cadre to Cadre. Thereafter, vide show cause notice dated 06.07.2007 he was informed that while he was working as Chief Typist given promotion (Ad hoc basis) in an Ex-cadre post in the Construction Organization and his pay was erroneously fixed in the lower grade, whereas it should have been fixed with reference to his ex-cadre pay at Rs.6900 and accordingly his pay has been re-fixed. The applicant has finally retired from service on 30.06.2008.
6. The applicants have challenged the aforesaid refixation of their pay, as arbitrary and illegal. In this regard, the learned counsel for the applicants has relied upon the Judgement of the Honble High Court of Delhi in WP(C) No.2057/1999, decided on 14.12.2007 in Shri Darshan Kumar Sahni v. Union of India. The petitioner therein served as Enquiry and Reservation Clerk (E&RC/Delhi(R)) in the pay scale of Rs.425-640. He was transferred in the same capacity and grade to the office of Chief Projects Manager (CPM)/OIS in connection with computerization of seat/berths reservation vide notice dated 10.10.1985. There the Chief Project Manager, OIS, Northern Railway vide Order dated 28.11.1985, promoted him to officiate as Senior Console Operator in the grade of Rs.455-700/Rs.550-750. Again, vide notice dated 12.12.1985, the Chief Project Manager, OIS, Northern Railway fixed his pay as Senior Console Operator at Rs.550 w.e.f. 28.11.1985 in the grade of Rs.550-750. He was again promoted to the Senior Console Operator grade of Rs.650-960 w.e.f. 01.09.1986. On 16.02.1989, while retaining his lien on the aforesaid substantive post, he came over to Railways Information System (in short, CRIS) on deputation and got absorbed there w.e.f. 17.04.1995 after taking voluntary retirement from his parent cadre. Thereafter, he requested the respondents to settle his pensionary and other dues on the basis of his last drawn at Rs.2450/- in the scale of Rs.2000-3200 while on deputation. The respondents, took the view that his pensionary and other dues were liable to be calculated on the basis of the last pay he would have drawn, i.e., Rs.1950/- in the pay scale of Rs.1600-2660, had he continued to service in his parent Cadre in Northern Railways in the scale of Rs.1600-2660 at the time of his seeking voluntary retirement, i.e., on 30.11.1993 and on that basis his pensionary benefits were settled. Aggrieved by the aforesaid decision of the respondents, he approached this Tribunal by filing OA No.2109/1997 but it was dismissed on 24.12.1998. He challenged the aforesaid order before the Honble High Court of Delhi vide WP(C) No.2057/1999 (supra) and the High Court, vide its Judgement dated 14.12.2007, allowed the same and its operative part reads as under:
15.In our view, therefore, the service rendered by the petitioner with CRIS on deputation cannot be considered to be foreign service for the purpose of the pension rules.
16.We are also not impressed by the argument that merely because the petitioner continued to hold a lien in his parent cadre, it disentitled him from seeking the computation of his pensionary and other settlement dues on the basis of the last pay actually drawn by him while on deputation with CRIS, immediately prior to his voluntary retirement from the Railways and absorption with CRIS. As aforesaid, there is no basis to support this submission in the Code or the Pension Rules, which, in fact emphasis the relevance of the last drawn pay, irrespective of it being on a substantive post or on an ad hoc post.
17.We also find force in the submission of the petitioner that the stand of the respondents in this case is contrary to the decision taken by the respondent itself in the case of Sh. R. L. Arora. It appears that Sh. R.L.Arora, officiated in the construction wing of the MTP where he was drawing a higher pay than the pay to which he was entitled in his substantive post. The Railway Board vide communication dated 1.8.1986 and 18.9.1986 consistently took the view that there is no indication available in the Rules to debar the reckoning of the pay drawn by the employee against a work charged post before retirement for pensionary benefits. The Board also took the view that the pay drawn in an officiating capacity, even on ad hoc basis has to be taken into account for counting retirement benefits. The Board, in its letter dated 18.9.1986, reiterated its decision regarding counting of the last pay drawn by Shri Arora in the construction wing of the MTP, as conveyed in its letter dated 1.8.1986. Similar is the case of the petitioner. He cannot be treated discriminately.
18.The distinction sought to be drawn by the Tribunal between the petitioners case and that of Ajmer Singh, decided by the Tribunal in OA No.1868/95 on 14.11.1996 also appears to be misplaced. In Ajmer Singh(supra), the Tribunal observed as follows:-
The respondents have not been able to show any provision which lays down that the pension will be determined with the reference to pay in substantive post and not the actual pay drawn by the retiring official. The pension is determined on the basis of emoluments which means basic pay which a government servant was receiving immediately before his retirement or on the date of his death. Admittedly, the applicant was receiving the pay of Rs.2525/- as Superintendent at the time of his retirement. Rule 2000(21) R-II also defines the pay as the amount which the employee draws monthly in substantive or officiating capacity. It is an admitted fact that the applicant was working as a Superintendent and his pay was therefore fixed at Rs.2525/-. Therefore, it was this pay which had to be taken into account for fixing his pension and other terminal benefits.
19.The reasoning adopted by the Tribunal squarely applies in the facts of the present case, as disclosed hereinabove. Merely because the petitioner sought voluntary retirement from the Railways and immediately got absorbed with CRIS where he was earlier serving on deputation, does not create any meaningful distinction between the case of the petitioner and that decided by the Tribunal in Ajmer Singh(supra).
20.For the reasons aforesaid, we are of the view that the decision of the Tribunal is laconic and liable to be set aside and the petitioner is entitled to the relief as prayed for by him in the Original Application. Accordingly, we set aside and quash the decision of the Tribunal in OA No.2109/97 dated 24.12.1998 and direct the respondent to recalculate the retirement and other settlement dues of the petitioner on the basis of his basic salary of Rs.2,450/- in the scale of Rs.2000-3200 on the date of his voluntary retirement i.e.30.11.1993. The computation of the arrears of pension and other settlement dues to which the petitioner is entitled be made within three months and the arrears be paid to him within one month thereafter. In case, the arrears are not calculated and paid as aforesaid the petitioner shall be entitled to interest at the rate of 6% per annum from the date of filing of the Original Application before the Tribunal till realization. The respondents are further directed to start paying the petitioner his pension dues in future on the basis of his last drawn basic pay of Rs.2,450/- and to pay to him his pension and other dues calculated on that basis henceforth. The petitioner shall be entitled to costs quantified at Rs.10,000/-.
7. The learned counsel for the applicant has also relied upon the order of the Division Bench of this Tribunal in OA No.2786/2003 (Shri Girwar Singh v. Union of India & Others), decided on 26.07.2005. In the said case also, his pay was ordered to be refixed and recovery of excess amount made. This Tribunal allowed the said OA and its operative part is reproduced below:
14. We have carefully considered the rival contentions of the parties and perused the material on record.
15. In the light of decision of the Supreme Court in the case of Sahib Ram (supra) and Shyam Babu Verms (supra), when a fixation is done without any mistake or attribution of the concerned employee a recovery post retirement and withholding of retiral benefits is not only against equity but also contrary to good conscience.
16. However, as regards pay fixation, the circular cited by the respondents, which was issued in 1998 with respect to Construction organization for regularization of casual labour, the Construction Organization and project are reckoned as extension of the cadre of the post in the railway/division, then for the purpose of fixation of pay, a different yardstick without any reasonable nexus with the object sought to be achieved is not valid and the aforesaid action smacks of discrimination and is violative of Article 14 of the Constitution.
17. Moreover, in the Division Benchs decision in OA No.325/1998, the following observations have been made:-
7. So far as the import of Rule 1316 (R.R. 22 C) is concerned, in our view the Presidents decision dated 16.5.1973 is not applicable to the facts of the present case. The Presidents decision relates to a case where the Railway servant was appointed in his parent cadre to a post higher than the ex-cadre post immediately held before reversion. In the present case, the applicant was holding a higher post in the ex-cadre Construction Division prior to his repatriation to the parent cadre. Therefore, the clarification under Rule 1316 would certainly not be applicable to the present case. In the matter of M. Prabhakaran and Others (supra) the applicants on repatriation back to open line cadre were posted to their original grade in the lower scale. In the present case it did not happen so as the applicant was holding a higher position while in Construction Wing and on repatriation has also been accorded the same scale of pay. The benefit of promotion in the ex-cadre, therefore, cannot be denied.
8. We are in agreement with Shri Sawhney that the provision of Rule 1320 are applicable to the facts of the present case as under sub-rule (b)(I) service in another post other than a post carrying less pay whether in a substantive or officiating capacity, service on deputation out of India and leave except extraordinary leave taken otherwise than on medical certificate shall count for increments in the time-scale applicable to the post or posts on which the Railway servant holds a lien as well as in the time scale applicable to the post or posts if any on which he would hold a lien and his lien not been suspended. It has also been clarified under proviso to sub-rule (b) that service rendered in an ex-cadre post shall not be reckoned for fixation of pay in another ex-cadre post which is not the position in the present case. Therefore, the service rendered by him in the higher post and pay scale shall have to be reckoned for fixation of his pay on repatriation. The Audit Instruction below Rule 1320 (FR-26(2)(c) also explains the intention of this rule which is to allow the concession irrespective of whether the higher post is within or outside the Department to which the Government servant belongs. In the present case, the applicant has been holding an ex-cadre post within the same Department.
18. If one has regard to the above, the proposition laid down supports the contention of the applicant.
19. Moreover, in Badri Prasad (supra) while dealing with regularization persons working on higher post in Group C" in Construction division, the following observations have been made :-
12. Reliance is placed on the decision on this Court in the case of Inder Pal Yadav vs. Union of India in Writ Petition No. 548 of 2000 decided on 13.1.2003. In that case, similarly placed railway employees, who were substantively holding Group D" post were made to work for long period on a higher group C" were granted partial relief by making the following directions :
However, while the petitioners cannot be granted the reliefs as prayed for in the writ petition, namely, that they should not be reverted to a lower post or that they should be treated as having been promoted by reason of their promotion in the projects, nevertheless, we wish to protect the petitioners against some of the anomalies which may arise, if the petitioners are directed to join their parent cadre or other project, in future. It cannot be lost sight of that the petitioners have passed trade tests to achieve the promotional level in a particular project. Therefore, if the petitioners are posted back to the same project they shall be entitled to the same pay as their contemporaries unless the posts held by such contemporary employees at the time of such re-posting of the petitioners is based on selection. Additionally, while it is open to the Railway Administration to utilize the services of the petitioners in the open line, they must, for the purpose of determining efficiency and fitment take into account the trade test which may have been passed by the petitioners as well as length of service rendered by the petitioners in the several projects subsequent to their regular appointment.
13. The practice adopted by the railways of taking work from employees in group D" post on a higher Group C" post for unduly long period legitimately raises hopes and claims for higher posts by those working in such higher posts. As the railway is utilizing for long periods the services of employees in group D" post for higher post in Group C" carrying higher responsibilities benefit of pay protection, age relaxation and counting of their service on the higher post towards requisite minimum prescribed period of service, if any, for promotion to the higher post must be granted to them as their legitimate claim.
14. As held by the High Court the appellants cannot be granted relief of regularizing their services on the post of Store man/Clerk merely on the basis of their ad hoc promotion from open line to higher post in the Project of construction side. The appellants are, however, entitled to claim age relaxation and advantage of experience for the long period spent by them on a higher group C" post.
15. Without disturbing, therefore, orders of the Tribunal and the High Court the appellants are held entitled to the following additional reliefs. The pay last drawn by them in group C" post shall be protected even after their repatriation to group D" post in their parent department. They shall be considered in their turn for promotion to group C" post shall be given due weightage and counted towards length of requisite, if any, prescribed for higher post in group C". If there is any bar of age that shall be relaxed in the case of the appellants.
20. If one has regard to the above, it is no more re integra that for a person, who holds lien in parent department on ad hoc promotion to a higher grade, then on repatriation to parent department ones pay has to be protected and his ad hoc officiation has to be reckoned for pay protection and other benefits.
21. Here is a case where applicant though regularized as Mason in his parent department and juniors had been promoted to Higher skilled mason Grade, yet application has not been promoted before his continuance in Construction Organization. Had he been repatriated or considered for promotion in division, he would have been in this pay scale on which he retired on superannuation from the Construction Organization. Once, the ratio that an ad hoc employee in Construction when repatriated to the Group `D is entitled for protection of pay then fixation of pay of applicant cannot be found fault with.
22. Moreover, the condition precedent for application of Railway Boards Circular dated 17.7.1998 that while fixation of pay, railway employee should be extended an option to drawn pay in the scale of pay in the ex-cadre post. As such an option has not been sought from applicant, the aforesaid letter would not in any manner be applicable to his case.
23. In the result, for the foregoing reasons, Original Application is allowed. Impugned orders are set aside. Respondents are directed not to make recovery from applicant and his withheld retiral benefits be released to him within two months from the date of receipt of a copy of this order along with simple interest of 9% per annum from the date it became due till actual disbursement. No costs.
8. The Writ Petition (C) No.1256-58 of 2006 filed against the said order of the Tribunal was also dismissed by the High Court of Delhi vide its order dated 11.07.2008. Its relevant part is as under:
2. The minimal facts which require to be stated are thus: The respondent belongs to the Reserved Category and joined the services as a regular Gangman on 27.3.1970. He was promoted, on ad hoc basis, as Manson in the grade of Rs.260-400 on 12.8.1970. While working in the Construction Organization and retaining his lien in open line, the respondent was also promoted on ad hoc basis as a High Skilled Manson in the grade of Rs.1200-1800 on 14.6.1988. However, in his parent cadre at New Delhi division the respondent was regularized as Manson in the grade of Rs.950-1500 on 27.6.1990. When he was given regular promotion as Manson in his parent division, he made a representation to include his name in the seniority list of artisan staff of Delhi division. Instead of doing so, show-cause notice dated 30.1.2002 was issued to him to fix his pay as per Railway Board"s instructions dated 17.8.1998 alleging therein that while being promoted on ad hoc basis in ex-cadre of Construction Organization, his pay was erroneously fixed in the ex-cadre lower grade whereas the same should have been fixed as per PS 9824. The respondent replied to the said show-cause notice and also made a representation to the petitioner herein submitting that as his junior in the parent cadre had been promoted in the grade of Rs.1200-1800, his pay should not be reduced. No action was taken immediately and the respondent retired on superannuation from the Construction Organization as ad hoc Manson on 31.8.2003 in the revised scale of Rs.4000-6000 (pre-revised Rs.1200-1800). After his retirement, however, order dated 12.11.2003 was issued fixing his pay in the pay scale of Rs.950-1500 with a direction that excess payment made during all these years be recovered from him.
Aggrieved by this order of refixation of pay and recovery from his retiral benefits retrospectively and also not giving him the benefit of the higher grade, which was given to his juniors in the construction division, the respondent filed an application under Section 19 of the Administrative Tribunal Act, 1985 before the Tribunal. This application has been allowed by the Tribunal vide judgment dated 26.7.2005 against which the present petition is preferred, as mentioned above.
3. It is clear from the facts narrated above that though the parent cadre of the petitioner was New Delhi division, he was made to work in the Construction Organization for most of his service period. In the Construction Organization, he was also given an ad hoc promotion as highly skilled Manson in the grade of Rs.1200-1800 way back in 14.6.1988. This pay scale was revised with effect from 1.1.1996 whereby his pay was fixed in the replacing pay scale of Rs.4000-6000. Thus, the respondent continued to enjoy the pay in the said pay scale right from the date of his promotion in the year 1988 till his retirement on 31.8.2003. No doubt, sometime before his retirement he was issued a show-cause notice, but no orders were passed thereupon till his retirement. In any case, even the said show-cause notice was issued more than 14 years after fixation of his pay.
We also do not find it to be a mistaken case. Since the respondent was working in the Construction Organization throughout, he was given promotion there in the higher pay scale and his promotion was also not withdrawn at any point of time. Even presuming it to be a case of mistake, it cannot be said that such a mistake is attributable to the respondent. Therefore, in the light of the decision of the Apex Court in Shyam Babu Verma v. Union of India, 1994 (27) ATC (SC) 121 and Sahib Ram v. State of Haryana, 1995 SCC (L&S) 248, the Tribunal rightly concluded that the petitioner could not make any recovery in respect of the alleged excess salary paid to him, that too after his retirement and from his retiral benefits.
4. The petitioners have themselves issued a circular in the year 1998 as per which the Construction Organization and project are reckoned as extension of the cadre of the post in the Railway/Division. If that is the position clarified by the petitioners themselves, how could a different yardstick be applied for the purpose of fixation of pay is the moot question. The answer for this has to be against the petitioner. We may also note that the Tribunal relied upon the judgment of the Supreme Corut in Badri Prashad v. Union of India, 2005 (4) Scale 725, wherein the Supreme Court held that in case of ad hoc promotion in Construction Organization, pay of the concerned employee has to be protected in Group C" with all benefits of pay protection, counting of service towards higher post, etc. Following discussion contained in the said judgment is worth a quote :-
19. Moreover, in Badri Prasad (supra) while dealing with regularization persons working on higher post in Group C" in Construction division, the following observations have been made :-
12. Reliance is placed on the decision on this Court in the case of Inder Pal Yadav vs. Union of India in Writ Petition No. 548 of 2000 decided on 13.1.2003. In that case, similarly placed railway employees, who were substantively holding Group D" post were made to work for long period on a higher group C" were granted partial relief by making the following directions:
However, while the petitioners cannot be granted the reliefs as prayed for in the writ petition, namely, that they should not be reverted to a lower post or that they should be treated as having been promoted by reason of their promotion in the projects, nevertheless, we wish to protect the petitioners against some of the anomalies which may arise, if the petitioners are directed to join their parent cadre or other project, in future. It cannot be lost sight of that the petitioners have passed trade tests to achieve the promotional level in a particular project. Therefore, if the petitioners are posted back to the same project they shall be entitled to the same pay as their contemporaries unless the posts held by such contemporary employees at the time of such re-posting of the petitioners is based on selection. Additionally, while it is open to the Railway Administration to utilize the services of the petitioners in the open line, they must, for the purpose of determining efficiency and fitment take into account the trade test which may have been passed by the petitioners as well as length of service rendered by the petitioners in the several projects subsequent to their regular appointment.
13. The practice adopted by the railways of taking work from employees in group D" post on a higher Group C" post for unduly long period legitimately raises hopes and claims for higher posts by those working in such higher posts. As the railway is utilizing for long periods the services of employees in group D" post for higher post in Group C" carrying higher responsibilities benefit of pay protection, age relaxation and counting of their service on the higher post towards requisite minimum prescribed period of service, if any, for promotion to the higher post must be granted to them as their legitimate claim.
14. As held by the High Court the appellants cannot be granted relief of regularizing their services on the post of Store man/Clerk merely on the basis of their ad hoc promotion from open line to higher post in the Project of construction side. The appellants are, however, entitled to claim age relaxation and advantage of experience for the long period spent by them on a higher group C" post.
15. Without disturbing, therefore, orders of the Tribunal and the High Court the appellants are held entitled to the following additional reliefs. The pay last drawn by them in group C" post shall be protected even after their repatriation to group D" post in their parent department. They shall be considered in their turn for promotion to group C" post shall be given due weightage and counted towards length of requisite, if any, prescribed for higher post in group C". If there is any bar of age that shall be relaxed in the case of the appellants.
5. We, therefore, are of the opinion that the Tribunal rightly set aside the impugned order of the petitioner for recovery of pay and withholding of his retiral benefits. We do not find any infirmity therein and dismiss this writ petition as devoid of any merits.
No costs.
9. The learned counsel for the Applicant has also relied upon the order of the Division Bench of this order in OA No.2698/2008 (Jagdish Singh v. Union of India & Others through Chairman, Railway Board), decided on 02.12.2010. The relevant parts of the Judgement read as under:
8. We have heard both the counsel and perused the pleadings as well.
9. From narration of above facts, it is clear that applicant was promoted in the Construction Organisation initially as Senior Clerk in the grade of Rs.330-560 which was later regularised on 24.2.1993. Thereafter, applicant was given ad hoc promotion as Head Clerk in the grade of Rs.1400-2300 on 1.6.1993. Admittedly, applicant had been drawing the same pay as Head Clerk in Construction Organisation till he retired on attaining the age of superannuation. In the counter affidavit, respondents have themselves stated that his pay was wrongly fixed at Rs.1480/- whereas it should have been fixed at Rs.1400/- on 1.6.1993. The question, therefore, is if respondents had wrongly fixed the pay of the applicant, can any recovery be effected from his DCRG in the year 2008 when he retired from service on attaining the age of normal superannuation. This issue need not detain us for long deliberations as it has already been decided by the Honble Supreme Court in the case of Shyam Babu Verma Vs. Union of India reported in 1994 (27) ATC (SC) 121 and Sahib Ram Vs. State of Haryana reported in 1995 SCC (L&S) 248 wherein it was specially held that if pay fixation is wrongly done by the respondents, it is not open to the department to make any recovery in respect of the alleged excess salary paid to him, that too after his retirement from the retiral benefits. Apart from it, the same facts existed in the case of Girwar Singh. In that case also on the verge of retirement, show cause notice was given to him on the ground that pay scale of Rs.1200-1800 given to him on his promotion as a High Skilled Manson was erroneously given, whereas it ought to have been given with regard to the pay scale of cadre post in the feeder cadre and not the ex-cadre post. His pay was also refixed after revision in the lower pay scale and recovery was sought to be made after passing the orders after the retirement of the respondent therein. He had challenged the action of the respondents. Tribunal vide its judgment dated 26.7.2005 set aside the impugned order of downgrading and recovery both. Aggrieved by the said judgment, Railways had filed Writ Petition No.1256-1258 of 2006 before the Honble High Court of Delhi. It was observed by the Honble High Court as follows:-
It is clear from the facts narrated above that though the parent cadre of the petitioner was New Delhi division, he was made to work in the Construction Organization for most of his service period. In the Construction Organization, he was also given an ad hoc promotion as highly skilled Manson in the grade of Rs.1200-1800 way back in 14.6.1988. This pay scale was revised with effect from 1.1.1996 whereby his pay was fixed in the replacing pay scale of Rs.4000-6000. Thus, the respondent continued to enjoy the pay in the said pay scale right from the date of his promotion in the year 1988 till his retirement on 31.8.2003. No doubt, sometime before his retirement he was issued a show-cause notice, but no orders were passed thereupon till his retirement. In any case, even the said show-cause notice was issued more than 14 years after fixation of his pay.
We also do not find it to be a mistaken case. Since the respondent was working in the Construction Organization throughout, he was given promotion there in the higher pay scale and his promotion was also not withdrawn at any point of time. Even presuming it to be a case of mistake, it cannot be said that such a mistake is attributable to the respondent. Therefore, in the light of the decision of the Apex Court in Shyam Babu Verma v. Union of India,1994 (27) ATC (SC) 121 and Sahib Ram v. State of Haryana, 1995 SCC (L&S) 248, the Tribunal rightly concluded that the petitioner could not make any recovery in respect of the alleged excess salary paid to him, that too after his retirement and from his retiral benefits.
4. The petitioners have themselves issued a circular in the year 1998 as per which the Construction Organisation and project are reckoned as extension of the cadre of the post of Railway Division. If that is the position clarified by the petitioners themselves, how could a different yardstick be applied for the purpose of fixation of pay is the moot question. The answer for this has to be against the petitioner. We may also note that the Tribunal relied upon the judgment of the Supreme Court in Badri Prashad v. Union of India, 2005 (4) Scale 725, wherein the Supreme Court held that in case of ad hoc promotion in Construction Organization, pay of the concerned employee has to be protected in Group `C with all benefits of pay protection, counting of service towards higher post, etc. Reference was made to observations made by Honble Supreme Court in the case of Badri Prasad and it was held that the Tribunal rightly set aside the impugned order of the petitioner for recovery of pay and withholding of his retiral benefits. The Writ Petition was accordingly dismissed. The present case is squarely covered by the above judgment because in the instant case also applicants pay was fixed by the respondents themselves while he was working in the Construction Organisation in promotional post even though it was on ad hoc basis, but nonetheless he continued to work on the said post till the date of his retirement. His promotion was never withdrawn or cancelled, therefore, there is no justification for the respondents to refix his pay or to recover the amount which was already paid to him
10. It is also relevant to note that number of persons had approached the Tribunal in these circumstances and in all those cases the OAs were decided in their favour, therefore, Railway Board had already issued letter dated 22.10.2009 for waiver of recovery of excess payments from the staff of the Construction Organisation on account of fixation of pay from one cadre to another cadre. In fact, it was in this letter the Dy.CPO (Construction) had sought approval of the Board for waiving of the recovery. He has thus sought proposal for waiver of overpayments in the interest of justice and equity and fair play that erroneous pay fixation may be treated as an administrative error. It is thus clear that even respondents have realized their mistake and are trying to correct the same. In view of above, the action of the respondents cannot be sustained in law.
11. Counsel for the respondents had placed reliance on the judgment of the Honble Supreme Court in the case of Inder Pal Yadav but that is not relevant here in view of the facts that applicant is not seeking regularisation in Group `C post which was the subject matter of Inder Pal Singh Yadvas case. On the contrary, this is a case where applicant had worked on the promotional post till he retired from service, therefore, his pay needs to be protected in this case in view of the judgment of Honble Supreme Court in Badri Prasads case.
12. In view of above discussion, the OA is allowed. Respondents are directed to refund the amount which has been recovered from the DCRG of the applicant, issue revised PPO on the basis of last pay drawn by the applicant. However, we are not inclined to grant any interest to the applicant in these circumstances.
13. OA stands disposed of with the above direction. No order as to costs.
10. Further, he has relied upon the order of the Coordinate Bench of this Tribunal in OA No.3813/2010 (Shri Kiran Lal v. Union of India & Others) decided on 13.07.2011. The relevant parts of the said order read as under:
5. The learned counsel for the Applicant, however, brought to my notice the judgement of the Honourable Delhi High Court in Writ Petition (Civil) number 2057/1999 in Shri Darshan Kumar Sahni Vs. Union of India, which was decided in appeal against the order of this Tribunal in OA number 2109/1997, quoted above. In this case the applicant therein was on deputation to an organisation under the Railways called Centre for Railways Information System (CRIS). The applicant moved to CRIS on deputation on 16th of February 1989, while retaining his lien on his substantive post. Eventually, he sought voluntary retirement from Northern Railway with effect from 30th November 1993 and sought permanent absorption with CRIS. His request was acceded to. The Railway Board extended the period of deputation of the applicant up to 30th November 1993. He was permanently absorbed in the above-mentioned organisation from 1st December 1993 in the grade of Rs. 2000-3500. He requested the respondent for settlement of his pension and other post-retirement dues on the basis of the last pay of Rs. 2450/- in the scale of Rs. 2000-3200. The Railways, however, took a view that he would have been liable to be paid pension and other post-retirement dues on the basis of the last pay that he would have been entitled to draw, had he continued to serve in his parent cadre in the Northern Railway in the scale of Rs. 1600-2660 at the time of his seeking voluntary retirement, that is, 30th November 1993. The Honourable Delhi High Court held that:
15. In our view, therefore, the service rendered by the petitioner with CRIS on deputation cannot be considered to be foreign service for the purpose of the pension rules.
16. We are also not impressed by the argument that merely because the petitioner continued to hold a lien in his parent cadre, it disentitled him from seeking the computation of his pensionary and other settlement dues on the basis of the last pay actually drawn by him while on deputation with CRIS, immediately prior to his voluntary retirement from the Railways and absorption with CRIS. As aforesaid, there is no basis to support this submission in the Code or the Pension Rules, which, in fact emphasis the relevance of the last drawn pay, irrespective of it being on a substantive post or on an ad hoc post.
6. The present OA is squarely covered by the above judgement of the Delhi High Court. The OA is, therefore, allowed and the Respondents are directed to re-fix the pension and other post-retirement dues of the Applicant on the basis of the last pay drawn in the post of Permanent Way Supervisor. The pension and other post-retirement dues would be re-fixed and the arrears paid to the Applicant within two months of receipt of certified copy of this order. No costs.
11. The learned counsel for the applicant has also produced a copy of the Judgement of the Honble Apex Court in WP (C) No.8786/2011 (Union of India & ors. v. Kiran Lal), decided on 10.07.2013, whereby the Tribunals decision in Kiran Lal (supra) was upheld. The Judgement of the Honble High Court is also reproduced as under:
1. Deciding WP(C) 2057/1999 Darshan Kumar Sahni vs.UOI on December 14, 2007 a Division Bench of this Court noted para 1303 of the Railway Establishment Code which defined Pay" as under:-
Pay- Pay means the amount drawn monthly by a Government servant as: -
(i) The pay other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre; and
(ii) Overseas pay, special pay and personal pay; and
(iii)Any other emoluments which he may be specifically as pay by the president.
Average Pay Average pay means the average monthly pay earned during the 12 complete months immediately proceeding the month in which the event occurs which necessitates the calculation of average pay:
Provided that in respect of any period spent on foreign service out of India the pay which the railway servant would have drawn if on duty in India but for foreign service out of India shall be substituted for the pay actually drawn:
Provided further that in the case of railway servant entitled to running allowance, average pay for the purpose of leave salary shall include a fixed component representing pay element in the running allowances as notified by government through administrative instructions from time to time. (emphasis added).
2. The Division Bench also noted Rule 49 of the Railway Services (Pension) Rules, 1963 which reads as under:-
49.Emoluments:-The expression-(a)emoluments, for the purpose of calculating various retirement and death benefits, means the basic pay as defined in clause (i) of rule 1303 of the Code which a railway servant was receiving immediately before his retirement or on the date of his death.
3. The Division Bench also noted Note 2, 6 and 8 under Rule 49 of the Pension Rules which read as under:-
Note 2: where a railway servant immediately before his retirement or death while in service had proceeded on leave for which leave salary is payable after having held a higher appointment, whether in an officiating or temporary capacity, the benefit of emoluments drawn in such higher appointment shall be given only if it is certified that the railway servant would continued to hold the higher appointment but for his proceedings on leave. Note 6: Pay drawn by a railway servant on foreign service shall not be treated as emoluments, but the pay which he would have drawn under the railways, had he not been on foreign service shall alone be treated as emoluments. Note 8: Where a railway servant has been transferred to an autonomous body consequent on the conversion of Department of railways into such a body and the railway servant so transferred opts to retain the pensionary benefits under the rules of the railways, the emoluments drawn under the autonomous body shall be treated as emoluments for the purpose of this rule.
4. The Division Bench held that a co-joint reading of para 1303 of Railway Establishment Code and Rule 49 of the Railway Services (Pension) Rules, 1993 made it clear that for purposes of pension it is the pay actually drawn by a Government Railway servant which is to be kept in mind. The Division Bench highlighted the opening sentence of para 1303 of the Railway Establishment Code which, while defining pay, laid emphasis on the amount drawn monthly by a Government servant. With reference to Note 6 appended to Rule 49 of Pension Rules the Division Bench opined that the only exception to the spirit behind the Rules, which was to fix pension with reference to the pay drawn by a Government Railway servant when he superannuated, would be if the Government Railway servant was in Foreign Service". The Division Bench noted that Note 6 did not envisage a case of transfer or deputation to an autonomous body which is formed by the conversion of a department of the Railways. Thus, Darshan Kumar Sahni, a Government Railway servant sent on transfer/deputation to Centre for Railway Information System (CRIS) an organization created from within the Railways was held entitled to pension being fixed with reference to last emoluments received by him when he superannuated which would necessarily include such amount which was paid to him while on deputation with CRIS.
5. The said view taken by the Division Bench would clearly apply to all cases where a Government Railway servant is deputed to work in an office/organization, be it autonomous or otherwise, created/formed by the Indian Railways.
6. The respondent, an employee of the Indian Railways, was sent on deputation in a construction organization (name not disclosed by either party) of the Indian Railways and was receiving a monthly allowance as a part of his emoluments when he superannuated and therefore we agree with the view taken by the Tribunal which follows the law declared by a Division Bench of this Court in Darshan Kumar Sahnis case that while fixing pension the total monthly emoluments being received by the respondent when he superannuated would be the basis whereon his pension would be determined.
7. The writ petition is accordingly dismissed in limine but without any order as to costs.
12. The learned counsel for the applicant has also relied upon the order of the Division Bench of this Tribunal in OA No.1240/2009 (Ram Phal Giri v. Union of India through The General Manager, NR and Others), decided on 18.01.2011. The relevant part of the said order reads as under:
10. We have heard both the counsel and perused the pleadings also. It is not disputed by the respondents that number of OAs on this issue have been allowed and the Dy.CPO/Construction has, in fact, written a letter to the General Manager on 22.10.2009 for waival of recovery which reads as under:-
Sub: Waival of recovery of excess payments from the Staff of Const. Organization on account of fixation of pay from one cadre post to another cadre post.
Ref: Your letter No.752E/190/Const. /EIIIA dated 12.9.2008. S.No.138.
In reference to your above cited letter, the verbatim comments of the finance in favour of recovery of 88 employees (verified copy enclosed) are as under:-
1. The over payments made to 88 employees on account of rectification of pay fixation erroneously made works out to Rs.33,65,358/- and the same has been verified by accounts.
2. It is noted that where a few employees approached CAT, challenging recovery of overpayments, such cases have been decided in favour of the employees. Further, in the case of Shri Madan Lal (retired section engineer) the High Court, CDG while upholding the Tribunals orders, observed as under:-
The Tribunal had relied on a number of judgments of the Apex Court, holding that where any excess payment is made to an employee on account of the revision of his pay without any fault being attributed to him then the excess payment cannot be recovered, though the revised pay may discontinue from the date when the error is detected. This is precisely what the Tribunal has ordered relying on those judgments. We, therefore, find no good ground to interfere with the impugned order.
Therefore, filing of SLP in the Supreme Court was not agreed to by the Railway Board and accordingly over payments recovered have been refunded.
3. It is not argued that having refunded such recoveries in respect of those employees who had obtained favourable judgments from the courts, it may be difficult to sustain recovery of overpayments in other cases. Hence, this proposal for waiver of overpayments, if agreed to in the interest of equity and fair play, would tantamount to treating the erroneous fixation of pay as `an administrative error. Board may like to consider accordingly.
This has the approval of FA&CAO/C. In view of the above, Board may be requested to waive of the recovery accordingly.
DA: As above.
Sd/-
Dy.CPO/Cont.
11. Apart from it perusal of judgment dated 11.7.2008 given by Honble High Court of Delhi in the case of U.O.I. & Others Vs. Girwar Singh (WP Nos. 1256-1258 of 2006) shows that the respondent therein was also promoted on ad hoc basis as skilled mason. Before that he was working as a mason which was an ex-cadre post. On the verge of his retirement, show cause notice was given that his pay was wrongly fixed in the pay scale of Rs.1200-1800. It should have been fixed with reference to the pay scale drawn by him in the cadre post. His pay was refixed and recovery ordered. Being aggrieved, the respondent had filed OA which was allowed. The Railways had challenged the order of Tribunal in the Honble High Court of Delhi.
12. Honble High Court noted that the parent cadre of the petitioner was New Delhi division, he was made to work in the Construction Organization for most of his service period. In the Construction Organization, he was also given an ad hoc promotion as highly skilled Manson in the grade of Rs.1200-1800 way back in 14.6.1988. This pay scale was revised with effect from 1.1.1996 whereby his pay was fixed in the replacing pay scale of Rs.4000-6000. Thus, the respondent continued to enjoy the pay in the said pay scale right from the date of his promotion in the year 1988 till his retirement on 31.8.2003. No doubt, sometime before his retirement he was issued a show-cause notice, but no orders were passed thereupon till his retirement. In any case, even the said show-cause notice was issued more than 14 years after fixation of his pay. It was thus held it cannot be said to be a mistaken case. Since the respondent was working in the Construction Organization throughout, he was given promotion there in the higher pay scale and his promotion was also not withdrawn at any point of time. Even presuming it to be a case of mistake, it cannot be said that such a mistake is attributable to the respondent. Therefore, in the light of the decision of the Apex Court in Shyam Babu Verma v. Union of India, 1994 (27) ATC (SC) 121 and Sahib Ram v. State of Haryana, 1995 SCC (L&S) 248, the Tribunal rightly concluded that the petitioner could not make any recovery in respect of the alleged excess salary paid to him, that too after his retirement and from his retiral benefits.
The petitioners had themselves issued a circular in the year 1998 as per which the Construction Organization and project are reckoned as extension of the cadre of the post in the Railway/Division. If that is the position clarified by the petitioners themselves, how could a different yardstick be applied for the purpose of fixation of pay is the moot question. The answer for this has to be against the petitioner. We may also note that the Tribunal relied upon the judgment of the Supreme Court in Badri Prashad v. Union of India, 2005 (4) Scale 725, wherein the Supreme Court held that in case of ad hoc promotion in Construction Organization, pay of the concerned employee has to be protected in Group `C with all benefits of pay protection, counting of service towards higher post, etc..
13. Similarly OA No. 2698/2008 was also allowed relying on above judgment by giving following direction:-
In view of above discussion, the OA is allowed. Respondents are directed to refund the amount which has been recovered from the DCRG of the applicant, issue revised PPO on the basis of last pay drawn by the applicant. However, we are not inclined to grant any interest to the applicant in these circumstances.
14. The case in hand is fully covered by the above said judgments. Here also applicant was given ad hoc promotion in Construction. He continued to work as Confidential Assistant till his date of retirement. The promotion was never withdrawn, therefore, his pay has to be protected. Therefore, this OA is also allowed. Annexure A-I is quashed and set aside. Respondents are directed to refund the amount which has been recovered from the DCRG of the applicant and issue revised PPO on the basis of last pay drawn by the applicant.
15. We are not inclined to grant any interest in this case.
16. With above directions, OA stands allowed. No costs.
13. Again the learned counsel for the applicant has also relied upon the Judgement of the Honble High Court of Delhi in WP (C) No.5093/2011 (Union of India & Others v. Jagdish Singh), decided on 17.12.2012. The relevant parts of the said Judgement read as under:
We feel that this issue is no longer open to debate in view of the decision of this Court in WP(C) No.2057/1999 titled Darshan Kumar Sahni v. Union of India decided on 14.12.2007. In that decision this Court referred to Paragraph 1303 of the Railway Establishment Code where `Pay and `Average Pay have been defined and also referred to Rule 49 of the Railway Services (Pension) Rules, 1993 which defines `Emoluments as emoluments for the purpose of calculating various retirement and death benefits to mean the basic pay as defined in clause (i) of rule 1303 of the code which a railway servant was receiving immediately before his retirement or on the date of his death. Clause (i) of para 1303 of the Railway Establishment Code defines `pay to include the amount drawn monthly by a Government servant even in an officiating capacity.
Therefore, it is clear that the respondents retiral benefits ought to have been computed on the basis of pay which the respondents were receiving in their officiating capacities with the Construction Oraganization, from where they retired. The Tribunal has come to this conclusion and, therefore, we see no reason to interfere with the impugned orders inasmuch as they are in conformity with the ratio of the decision of this Court in Darshan Kumar (supra).
The Writ Petitions are dismissed. All pending applications are also disposed of. There shall be no order as to costs.
14. I have heard the respective learned counsel appearing on behalf of the applicants and also the respective learned counsel appearing on behalf of the respondents, in both the OAs, and have perused the pleadings on record, including the departmental record. According to the Railway Services (Pension) Rules, 1993 (as referred hereinbefore), the Pension has to be determined on the basis of the average pay drawn by the railway employee during the last 10 months preceding to the retirement of the employee. Similarly, as per the aforesaid Rules, the Gratuity has to be determined on the basis of the Last Pay Drawn by the employee. It is immaterial whether the employee was working on the date of his retirement in the Cadre post or in an Ex-cadre post. What is relevant is that the Last Pay Dawn by the applicant, preceding to his/her retirement, for determining of his/her Pension and Gratuity. Perusal of the Judgements relied upon by the applicants in both the OAs also would clearly show that the Pension has to be determined on the basis of the Last Pay Drawn by the employee irrespective of the fact that whether he was in the deputation post on the date of his retirement or in his cadre or ex-cadre post.
15. I, therefore, in the facts and circumstances of the case, allow both the OAs and set aside the orders of fixation of pay dated 28.05.2008 in OA No.472/2014 and the order of fixation of pay dated 08.05.2008 in OA No.474/2014. Consequently, I direct the respondents to calculate the pensionary benefits of the applicants on the basis of the average pay of the last 10 months drawn by them and grant them all arrears with interest at the rate of 9% per annum till the date of the actual payment. They shall also be furnished with the detailed calculation sheets in respect of each of the terminal benefits sanctioned and paid to them. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(G. George Paracken) Member (J) /nsnrgp/