Central Administrative Tribunal - Allahabad
L K Das vs Union Of India on 15 November, 2017
(Reserved on 03.11.17)
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH
ALLAHABAD
ALLAHABAD this the 15th day of November, 2017.
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A).
Original Application Number. 330/01033/2009
Lal Keshwar Das, aged about 67 years, son of Late Bhddhan Das,
R/o 8/10, Mahatma Gandhi Marg (Old), 109/23, Chak Meera Patti,
Dhoomanganj (New Address).
...............Applicant.
VE R S U S
1. Union of India through the General Manager, office at
Subedarganj, North Central Railway, Allahabad.
2. Divisional Railway Manager, office at Nawab Yusuf Road,
North Central Railway, Allahabad.
3. Senior Divisional Personnel Officer, Nawab Yusuf Road,
Allahabad.
4. Senior Divisional Electrical Engineer, North Central Railway,
Nawab Yusuf Road, Allahabad.
5. Senior Section Engineer (PSI), North Central Railway, Nawab
Yusuf Road, Allahabad.
.................Respondents
Advocate for the applicant : Shri D.K. Prasad
Advocate for the Respondents: Shri Avnish Tripathi
ORDER
The OA has been filed with prayer for the following reliefs:- 2 O.A No. 1033/2009
"i). .....direct the respondents to treat the applicant as Superannuated employee of Technician Grade-I on the pay scale of Rs. 4500-7000.
ii). .....direct the department to pay the salary of the applicant from the date of 23.10.2002 to 31.10.02 for the post of Technician Grade-I.
iii). ......to direct the department to fix the pension and other emoluments on the rate of Technician Grade-I which was Rs. 4500-7000.
iv). .....to direct the department to pay the differences
of the salary and pensions occurred by the
arbitrary act of the department with interest."
2. The facts of this OA in brief are that the applicant, a railway servant, was promoted as Technician Grade-II (in short TG-II) in the year 1995. While working as TG-II, he was found fit for promotion to the next higher post of Technician Grade- I (in short TG-I) in the screening committee. The details and documents of the successful candidates found fit by the Committee for promotion including the applicant were called for vide the letter dated 19.09.2002 (Annexure A-2 to the OA). Finally, after verification of documents, the applicant was promoted and he joined in the post of TG-I on 23.10.2002 in the pay scale of 4500-7000 and retired from service on 31.10.2002. The respondents fixed his pension treating his last pay not as TG-I but as TG-II. Thereafter, the applicant submitted several representations to the respondents to fix his pension with his last pay as TG-I as he worked till 31.10.2002 3 O.A No. 1033/2009 as TG-I before retiring. In this OA, the applicant has challenged the order dated 01.11.2002 of the respondents for fixation of his pension as TG-II (Annexure A-1 to the OA).
3. The respondents have filed their counter reply (in short CR) and the facts are not disputed. It is stated that the applicant has filed the O.A with delay of seven years after his retirement hence it is barred by limitation. The applicant worked for 9 days as TG-I and has not completed 21 days as TG-I after which he would have been eligible for fixation of pay as TG-I as per the rules. In support of this contention, a copy of the amendment dated 19.11.1999 to the Indian Railway Establishment Code, Volume-II, 1987 adding the Rule 1427 is enclosed as Annexure CR-1 to the CR.
4. In the Rejoinder, the applicant did not admit that he worked only for 9 days as his promotion was approved on 19.09.2002 and the respondents delayed issue of formal order of promotion till 23.10.2002 just before 9 days of retirement. For delay in completing procedural formalities, the applicant should not lose the benefit of promotion, hence he reiterated his claim for fixing his pension treating his last pay as TG-I.
5. Learned counsel for the applicant was heard in the matter. He submitted that the applicant was selected on 19.09.2002 through the screening committee for the post of TG-I, but issue of 4 O.A No. 1033/2009 promotion order got delayed by the respondents till 23.10.2002. The applicant is entitled to get the pay scale of TG-I as he had joined in the post on 23.10.2002 before retiring on 31.10.2002. It is further submitted that fixation of the applicant's pension on the basis of the pay scale of TG-II is incorrect and needs to be revised by the respondents.
6. Learned counsel for the respondents pointed out to the para 13 of the CR in which it is stated that as per the amended rule 1427 of Indian Railways Establishment Code, Volume-II (in short IREC), a railway servant has to complete 21 days in the promotional post for him to get the benefit of the promotional post and consequential pension benefits. The applicant had joined the post of TG-I on 23.10.2002 and retired on 31.10.2002, hence he did not complete 21 days as TG. Therefore, his pension has been correctly fixed based on the pay scale of TG-II and the OA has no merit.
7. I have considered the pleadings of both the parties and perused the documents on record. Regarding the question of limitation, it is seen that the applicant has filed a delay condonation application which has not been disposed of previously. In this case the relief claimed by the applicant in the O.A is for revision of pension on the basis of the pay scale of TG-I where as the applicant has been sanctioned pension on the basis of the pay scale of TG-II. Since the cause of action in this case is a recurring one, it is 5 O.A No. 1033/2009 considered within limitation and there is no delay in the light of the judgment of Hon'ble Supreme Court in the case of M.R. Gupta Vs. Union of India & Ors reported in 1995 SCC(5) 628. Hence, the O.A is not barred by limitation and objection in this regard is not acceptable.
8. Other important issue that is to be decided in this case is whether as per the Rule 1427 of the IREC (Annexure CR-I to the CR) the applicant is ineligible to get the benefit of the pay scale of the promotional post of TG-I since he did not complete 21 days in the post before retiring on 31.10.2002 as contended by the respondents. Admittedly, the applicant was regularly selected for promotion to the post of TG-I through the Selection Committee and was given the promotion order on 23.10.2002 after detailed verification of the details/documents for the applicant. Therefore, the applicant joined the post of TG-I on 23.10.2002 after regular selection and against an available post. It is not the case of the respondents that the applicant was given an officiating promotion.. To answer the question about applicability of Rule 1427 of the IREC to the applicant, it necessary to examine the said Rule 1427 (Annexure CR-1 of the Counter Reply), which states:
"1427 Daily Officiating Allowance.
When a non-gazetted Railway servant belonging to the categories, as indicated in the attached Appendix, or the categories, if any, included in the list from time to time is put to officiate 6 O.A No. 1033/2009
(a) in posts in continuous shift duties, (b) from a lower grade to a higher grade; and (c) in vacancies where a change of category is involved (but not for a change of grade only within the same category), he will be entitled to an allowance at daily rates revised from time to time termed as "Daily Officiating allowance".
2. Where a period initially 21 days or less extends subsequently to more than 21 days the officiating allowance at the daily rates drawn upto 21 days should be allowed to stand, but if the period exceeds 21 days payment should be in accordance with the rules applicable for normal fixation of pay.
3. The Daily Officiating allowance will not be taken into account for any purpose, other than for reckoning Overtime under the terms of Hours of Employment Regulations and the Factories Act and recovery towards Income Tax."
9. From a plain reading of the Rule 1427 it is clear that it is applicable for officiating promotion, i.e. where a railway servant is ordered to officiate against a promotional post in stead of regular promotion. The case of the applicant's promotion to the post of TG- I is a regular promotion, not an officiating promotion. It is also seen that the definition of "Officiating" as per Rule 103(33) of the Indian Railway Establishment Code, Volume-I states as under:
"(33) Officiating means the railway servant officiates in a post where he performs the duties of a post on which any other person holds a lien or when a competent authority appoints him to officiate in a 7 O.A No. 1033/2009 vacant post on which no other railway servant holds lien."
In terms of above definition, there is nothing on record to show that the applicant's promotion to TG-I was on officiating promotion and not a regular promotion. Therefore, it is clear that the Rule 1427 of IREC is not applicable to the case of the applicant's promotion to the post of TG-I. Therefore, he is entitled to fixation of pay in the pay scale for the post of TG-I i.e. the pay scale of Rs. 4500-7000 as applicable on 23.10.2002 i.e. the date of joining of the applicant as TG-I. It is seen that para 11(i) of the Master Circular 56 states the manner in which pay is to be fixed in case of promotion. The said para 11(i) states (as extracted from the portal irtsa.net/pdfdocs/Master_Circular_56.pdf):-
"11. Pay on promotion/ appointment i. Fixation of pay of a Govt. servant on promotion/ appointment from one post to a higher post. As per clause (a) (I) of FR 22, when a Govt. servant holding a post, other than a tenure post, in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, to another post carrying duties and responsibilities of greater importance then those attaching to the post held by him, his initial pay in the time scale of the higher post should be fixed at the stage above the notional pay arrived at by increasing his pay in respect of the lower post held by 8 O.A No. 1033/2009 him regularly by an increment at the stage, at which such pay has accrued or rupees twenty five whichever is more. In doing so, as applicable w.e.f. 1.1.1986, if there is an EB falling between the two stages, in the scale of pay of the lower post no orders for crossing EB are necessary for the purpose of fixing the pay in the higher post. This provision is applicable to all cases of promotions to higher posts without any monetary limit."
10. In view of above, the respondents are directed to fix the pay of the applicant notionally in the pay scale for the post of TG- I as applicable from 23.10.2002 till the date of retirement of the applicant i.e. 31.10.2002 as per the provisions of the rule/Master Circular No. 56 of the Railway Board and revise his pension and other consequential retiral benefits to the applicant as per the rules within three months of receipt of a certified copy of this order.
11. OA is allowed as above. No order with regard to cost.
(GOKUL CHANDRA PATI) MEMBER- A. Anand...