Central Administrative Tribunal - Jaipur
Girendra Kumar Dadich vs M/O Railways on 6 April, 2022
tt, ca soa. (0.A. No. 582/2013) (1) Central Administrative Tribunal Jaipur Bench, Jaipur Original Application No.582/2013 with Misc Application No. 785/2018 and 196 20271 Order reserved on 24.03.2022 Date of order 4.4,.2022. Hon'ble Mr. Dinesh Sharma, Member (A) Hon'ble Mrs. Hina P. Shah, Member (J) Girendra Kumar Dadich s/o Sh. Shyamlal i Dayama aged about 49 years permanent resident of House No. 114/11, Shivpuri (Bhrampuri), Ajmer presently posted as Mail Guard at Jaipur Junction (Division Jaipur) under North Western Railways, Jaipur. Jugal Kishore Joshi s/o Sh. Prem Raj Ji Joshi aged about 49 years, resident of Quarter No. P-6, Road No.4 Ganpati Nagar, Railway Colony, Jaipur presently posted as Mail Guard at Jaipur Junction (Division Jaipur) under North Western Railways, Jaipur. Lachman Meena s/o Jinsi Ram aged about 50 years permanent resident of Plot no. 88, Scheme No. 11-H, Bajri Mandi, Lava Pura, Meena Wala, Jaipur presently posted as Mail Guard at Jaipur Junction (Division Jaipur) under North Western Railways, Jaipur. Rajeev Gupta s/o Sh. Nawal Kishore Jj Gupta aged 52 years permanent resident of House No. 52, Bhartendu Nagar, Jaipur presently posted as mail Guard at Jaipur Junction (Division Jaipur) under North Western Railways, Jaipur. Shekhar Kumar Gaur s/o Shri Shree Bhagwan Gaur aged about 50 years permanent resident of House No.89, 'Satyam' Nandpuri Colony, HawaSadak, Jaipur presently posted as Mail Guard at Jaipur Junction (Division Jaipur) under North Western Railways, Jaipur. Manish Kumar Vashniya s/o Late Sanat kumar Ji Vashniya aged about 44 years permanent r/o House No.90, Gaytri Nagar-B, Maharani Farm, Jaipur Presently (0.A. No. 582/2013) (2) posted as Mail Guard at Jaipur Junction (Division Jaipur) under North Western Railways, Jaipur. 7. Rajesh Parashar s/0 Late Sh. Kamta Prasad Parashar, aged 47 years permanent resident of House No.241, Gaytri Nagar-B, Maharani Farm, Jaipur presently posted as Passenger Guard at Jaipur Junction (Division Jaipur) under North Western Railways, Jaipur. .. Applicants. (By Advocate: Shri Sunil Samadaria) Versus 4. Union of India through it's General Manager North Western Railway, Near Gold Souk, Malviya Nagar, Jaipur. 2. Divisional Railway Manager (DRM)- Establishment, D.R.M. Office, Railway Station Road, Jaipur. _.Respondents. (By Advocates: Shri Anupam Agarwal) ORDER
per: Dinesh Sharma, Member (A) In this Original Application the applicants have prayed for not disturbing the MACP already granted to them, which the respondents have proposed to withdraw by issuing a show cause notice to them as per letter dated 17.07.2013 gannexure-A/t (colly)}. The applicants have claimed that there is no difference in the functional requirements of goods guards and sr, Goods Guards. The applicants have stated that the grant of MACP benefits to them, in the grade pay of Rs 4600/- was correct and as per rules and, therefore, the action proposed in the show cause notice, to (0.A. No. 582/2013) (3) take this benefit back, should not be taken. The respondents have filed a reply stating that the MACP schemes were not intended to grant anyone more benefit than what they would have got by way of promotion in the normal channel. It is stated that the promotion from the post of Goods Guard to Sr. Goods Guard is a promotion even though the applicants remained in the same pay scale. The next promotion is to the post of passenger guard. The issuing of show cause notice, to give the applicants an opportunity to show cause against why this error should not be corrected, is the right course of action, intended to correct an error. The respondents have cited the decision of the Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others, 2012 ALL SCR 2467 to support their claim to correct a mistake which results in unintended benefits to an employee at the cost of the exchequer.
2. An interim relief was granted to the applicants by way of staying the action for recovery, by this Tribunal's order dated 08.08.2013. The respondents have filed a Misc. application (M.A. No. 785/2018 dated 11.12.2018) for vacating this interim order and allowing them to correct the error.
3. The matter was heard on 24.03.2022. Learned counsels for both the sides repeated the arguments mentioned in (0.A. No. 582/2013) (4) their respective Original Applications. Looking at the nature of the issue involved, a query was put by us to the counsels about whether this issue has been decided by any Bench of this Tribunal. The learned counsel for the applicant stated that there are a number of decisions of this Tribunal, directly applicable on the facts of this Original Application, which favour grant of prayers made by the applicants. The learned counsel for the respondents did not deny this. The learned counsel for the applicant has produced the following decisions, which, according to him, are directly applicable to the facts of this case:
All India Loco Running Staff Association and Ors Vs. Union of India & Ors., Manu/CA/0148/2012, decided by Ernakulam Bench of this Tribunal in O.A. No. 484/2011 and connected matters, b. Union of India through G.M., E.C.R, Vs Central Administrative Tribunal in Writ-A No, 18244 of 2013 dated 19.07.2013 decided by the Hon'ble High Court of Allahabad.
4. After going through the pleadings, hearing the arguments, and perusing the decisions produced by the learned counsel for the applicant, we find that the decision of the Hon'ble Allahabad High Court, dated 19/07/2013, in Union of India and Ors Vs C.A.T. and ors (Writ No, 18244 of 2013 makes the following abundantly clear: The line of Progression for guards in the railway service is: Goods Guard-> Senior Goods Guard-> Passenger Guard-> Senior Trea ~ pars (O.A. No. 582/2013) (5) Passenger Guard and finally Mail/Express Guard. However, the placing of Senior Goods Guard as Passenger Guard does not amount to promotion. We notice that the Annexure-R/1, annexed with the M.A. No. 196/2021 filed by the respondents shows Goods Guard, Sr. Goods Guard, Sr. Passenger Guard and finally Mail/Express Guard in the avenue of chart for promotion shown for the category of guards. The visible omission of Passenger Guard in this chart shows that the department has recognized the principle settled by the Hon''ble High Court of Allahabad in the case cited above.
5. Itis not clear from the pleadings before us whether the impugned show cause notice (given for changing the grade pay benefit of MACP granted since the year 2009) would remain valid after counting the benefits as per the principle now settled by the decision of the Hon'ble High Court of Allahabad. In the case before the Hon'ble High Court at Allahabad, the issue was Clearly about whether to count the promotion from sr. Goods Guard to Passenger Guard as promotion, while determining eligibility for MACP. It is not so clearly stated in the case before us. The show cause notice has been given seeking 0 withdraw the already given benefit only on ground that it would result in a benefit that the applicants would not have got even on promotion. The notice does not talk about which promotion it is referring to. 7?
(0.A. No. 582/2013) (6) The applicants are, apparently, at different stages in the promotion hierarchy of guards. While majority (applicant Nos. 1, 2, 3, 4 5 and 6) are mail guards, the applicant No. 7 is a passenger guard. We do not know whether, at the time of the (now allegedly) erroneous grant of higher MACP benefit -by annexure-A/ 12, A/13, A/14 & A/15- it was due to not counting their promotion from Sr. Goods Guard to ger Guard (which has now been termed correct by 'ble High Court) or for any other reason. Passen
-the order of the Hon
6. The undisputed fact is that the respondents have issued use notice to withdraw a benefit of grade pay of h they believe is more than what the a show ca Rs. 4600/- whic S would have g in the Allahabad case, too, the private applicant ot if they were actually promoted. We find that nts had been Rs. 4200/-, and it was sought to be reduced responde given a grade pay of Rs 4600/ 4800, raising it from to 4200/- on ground that one of the promotions, (from Sr. o passenger Guard) was, allegedly mistakenly Goods Guard t omotion. The Hon'ble High Court found not counted as 4 pr it. was not a mistake and the earlier in that case, that fixation of Pay" granting a grade pay of Rs. 4600/4800/- was t. The judgment of the Hon'ble Allahabad High actually correc Court also mentions ® number of judicial pronouncements pass ed bY Allahabad Bench of this Tribunal in 004 (mithilesh Kumar & Ors Vs. Union of A (Judgement O.A. No. 1268/2 , ' :
:
(0.A. No. 582/2013) (7) India & Ors) disposed of on 01.02.2006, which was Challenged by the Railways in Civil Misc. Writ Petition No. 51293 of 2006 which was dismissed by the Hon'ble Allahabad High Court. same was also challenged before the Hon'ble Supreme Court through Special Leave (Civil) No. 26787 of 2008 and that also got dismissed and attained finality in favor of the applicants) by which the "law has been settled to the effect that movement of a Senior Goods Guard to the post of passenger Guard is not a promotion and is a lateral induction". If the applicants, in the present case, have also been given the benefit of the grade pay of t Rs. 4600/- under the same circumstances, the benefit cannot be withdrawn under any other guise, as it appears to have been done in the present case, by issuing the av impugned show cause notice.
The learned counsel for the respondents could not tell
7.
se of the applicants was different from the of the private respondents in the case before the H n'ble Allahabad High Court. The show cause notice O ) issued by the applicants is vague as it t what can be roughly translated as: "in the payable" It does not talk specifically about any particylar gradation. The categorical denia; by v 'The resp m cause 4 (0.A. No. 582/2013) (8) the respondent in this notice, about the eligibility to get Rs. 4600/- or4800/- as grade pay, in any guard category, is clearly contrary to the decisions of the Allahabad High Court and other decisions of this Tribunal discussed in the previous paragraph. Therefore, we have no option but to agree with the request of the applicants to quash this show cause ~ notice.
g. For these reasons, we allow this Original Application. ondents shall, however, be free to correct any istake (not covered by the judgments of the Hon'ble allahabad High Court and the Tribunal discussed in the previous paragraphs), prospectively, clearly specifying the mistake the exact rules with respect to which any such mistake has happened, after adequate noticeto any ejudicially affected persons, giving opportunity to show gainst such correction.
9, M.A. No. 785/2018 and 196/2021 are, accordingly, disposed OF No costs.
(Dinesh Sharma) ax prstiah) Hin Member (A) y¥v~