Central Administrative Tribunal - Jaipur
Birendra Singh vs M/O Railways on 27 September, 2022
(OA No.166-2013)
(1)
Central Administrative Tribunal
Jaipur Bench, Jaipur
O.A.No.166/2013
Reserved on:20.09.2022
Pronounced on:27.09.2022
Hon'ble Mr. Dinesh Sharma, Member (A)
Hon'ble Mrs. Hina P. Shah, Member (J)
1. Birendra Singh S/o Late Shri Hari Singh, a/a 51 years
R/o C/168 Singh Bhoomi Ramnagar, Khatipura, Jaipur.
Presently, posted as S.S.E., Drawing Section, in Jaipur
Division of NWR, at Jaipur.
2. Arvind Kumar Pareek S/o Shri Sitaram Pareek, a/a 49
years R/o 26, Prem Colony, Near Jain Temple, Jaipur.
Presently, posted as S.S.E., Drawing Section, in Jaipur
Division of NWR, at Jaipur.
...Applicants
(By Advocate: Shri P.P.Mathur)
Versus
1. Union of India through General Manager, North
Western Railway, H.Q. Office, Jagatpura, Jaipur.
2. Divisional Railway Manager (P) Jaipur Division of NWR,
Jaipur, D.R.M. Office, Jaipur.
...Respondents.
(By Advocates: Shri L.M.Bhardwaj)
ORDER
Per: Dinesh Sharma, Member (A):
In this OA, the applicants have prayed for the following reliefs:
"(A) That this Hon'ble Tribunal may graciously be pleased to quash and set aside the impugned order dated 30.01.13 (Ann. A/1) along with the order dated 08.08.12 (Ann.A/2) & order dated 04.09.12 (Ann.A/3) in respect of the (OA No.166-2013) (2) petitioners by which the benefit of 3rd MACPS has been withdrawn illegally and arbitrarily.
(B) That respondent further may be directed to continue the petitioners in the grade pay of Rs.4800/- as per the order dated 15.03.10 (Ann.A/6) based on the order clarification already been made by the Railway Board.
(C) Any other order which this Hon'ble Tribunal may deem fit and proper as per the facts and circumstances of the case in favour of the petitioners."
2. The reliefs are mainly based on the applicants' claim that the upgradation to the post of Jr. Draftsman by order dated 12.02.1986 (Annexure A/5), w.e.f. 25.09.1984 and 15.12.1984, which are the dates of joining on their original appointment as Tracer, should not be considered as a promotion, and therefore should not to be counted as one while determining eligibility for MACP. The applicants state that this "upgradation" was in fact a change in their appointment, which was revised to that of Jr. Draftsman, since the posts of Tracers were abolished and since the applicants fulfilled the qualifications prescribed for the posts of Jr. Draftsman as per Notification dated 25.06.1985 (Annexure A/7). The respondents had already granted the applicants the benefit of MACP without counting this upgradation as promotion (by order dated 15.03.2010) which they are now seeking to withdraw and recover the benefits, by issuing the order (Annexure A/2) challenged in this OA.
(OA No.166-2013) (3)
3. The respondents, in their reply, have countered the applicants' claim. It is stated that the upgradation, by order dated 12.02.1986, was a result of gradual abolition of posts of Tracers and adjusting the existing incumbents against posts of Jr. Draftsman, depending on their qualifications and experience. It was in fact a promotion and was stated to be so. The grant of MACP, by order dated 04.09.2012 was, in fact, a mistake which is sought to be corrected by the impugned orders. The respondents have also categorically denied that the upgradation order was an order revising the appointment of the applicants to the level of Jr. Draftsman. Though, it is accepted that the applicants were upgraded to the post of Jr. Draftsman, since they fulfilled the criteria of possessing the requisite qualification (of Diploma in Draftsmanship from the recognized Institutions), the applicants cannot be considered to be have been freshly appointed as a Jr. Draftsman under the Recruitment Rules which came into effect after their selection and appointment as Tracer. The applicants, in any case, did not fulfill the experience criteria as prescribed under these Rules.
4. An interim relief, staying recovery of amount following the impugned order, was granted by this Tribunal by its order dated 14.02.2013, which has been extended till now.
(OA No.166-2013) (4)
5. The applicants have filed rejoinder, very late (in the year 2022, though the reply was filed in 2013). He was allowed to file this late rejoinder, taking into account the special circumstances of this case and the submission by the advocate that it is to raise some legal issues. The rejoinder reiterates the facts and the arguments stated by the applicants in their OA. It cites from the judgments of the Hon'ble Supreme Court in Pushpa Rani & Others vs. Union of India & Others (2008) 09 SCC 242 and Rama Nand vs. Chief Secretary, Govt. of NCT of Delhi (Civil Appeal No.5829-5830 of 2012 decided on 06.08.2010) to support the applicants' contention that upgradation is different from promotion. It also cites the judgment of the Hon'ble Supreme Court in case of State of Punjab & Others vs. Rafiq Masih (White Washer) (2015) 4 SCC 334 and annexes a Circular (dated 22.06.2016) from the Railway Board to support his claim against any recovery from a Group-C employee of the Railways after more than 5 years, of any payments, even if claimed to have been made by mistake. The applicants claim that the respondents have already made recovery from Applicant No.1 (Annexure A/15), from his retirement benefits, though no recovery has been made from the Applicant No. 2.
6. The matter was finally heard on 20.09.2022. The learned counsels of both the parties reiterated their (OA No.166-2013) (5) respective claims and arguments, stated in their pleadings. The learned counsel for the respondents produced a copy of the judgment of the Hyderabad Bench of this Tribunal in P.Seshaiah vs. Union of India & Others (OA No.020/01529/2013 decided on 10.12.2019) and argued that that decision, by the Hyderabad Bench of the Tribunal, squarely fits on the facts of this case. The learned counsel for the applicants countered this by stating that the facts of the case cited by the learned counsel for the respondents are different from the case made out in the present OA. There is nothing in the cited case to show that the employees, in the cited case, were promoted with effect from the date of their original selection. The cited case also does not deal with withdrawal and recovery of benefits already granted, as is the case in this present OA. The learned counsel for the respondents did not deny this distinction in facts but contended that the ratio of that case did apply since the promotions/upgradations were made under exactly similar circumstances. These were found to be countable while determining eligibility for grant of MACP.
7. After going through the pleadings and hearing the arguments, it is clear to us that the decision of this Tribunal, in the case of P.Seshaiah (supra) does apply to the facts of this case in so far as the eligibility for grant of 3rd MACP is to be considered. There is a clear finding, by a Co-ordinate (OA No.166-2013) (6) Bench of this Tribunal, that an upgradation to the post of Jr. Draftsman, on abolition of posts of Tracers (as has happened in the case before us) is to be treated as a promotion. We find that the grades to which various further promotions were made (from Junior Engineer to Section Engineer and Section Engineer to Senior Section Engineer) in that case are also exactly identical with the grades to which promotions are made in the case before us. Thus, the only major differences, as pointed out by the learned counsel for the applicants are, firstly, maybe the first promotion, in the cited case, was not from the date of original appointment. Secondly, the cited case does not appear to be a case of mistaken payment and later withdrawal as is the case before us. We do not think that the first difference (even if there was such a difference) should make the outcome of the case before us any different from the cited case. If the first upgradation, from Tracer to Jr. Draftsman is to counted as promotion, it would be a promotion, irrespective of whether it is from the date of the original appointment or otherwise. The learned counsel for the applicants did labour the point about promotion being a result of performance which should happen only after some time is spent on the job and evaluated as such. He also argued that there are issues like roasters from filling posts on promotion and there is no evidence that such roaster (OA No.166-2013) (7) based promotions were made. The learned counsel also argued that no fitment benefit was given to the applicants which is available on promotion. We do not think it is necessary for us to go into these in the context of determining eligibility for grant of MACP, which is a benefit given, by way of financial upgradation, only when a person does not get a certain number of such benefits within a prescribed time period. Since a Coordinate Bench of this Tribunal has clearly found a person, under exactly similar circumstances, to have been given these benefits, and considered it to be countable in the context of determining eligibility for MACP, it would be improper on our part to decide otherwise, by looking at issues e.g. whether it was based on performance, whether roaster for promotion was looked into or not/ and whether any fitment benefits were granted or not. There is no disputing the fact that the applicant did become Jr. Draftsman and got into the equivalent grade pay scale of a promotion post. The Hyderabad Bench of this Tribunal has found such promotion to be countable while considering MACP. We have no option but to follow that decision in this matter.
8. Having arrived at the conclusion mentioned in the above paragraph, the only issue that remains is the issue of recovery of the benefits already paid. It is not disputed that the present case is different from the cited case, since no (OA No.166-2013) (8) MACP was granted and sought to be recovered later, in that case. The applicants have cited the case of Rafiq Masih (supra) and a Circular by the Railways dated 22.06.2016 claiming relief from recovery. We do find some merit in this claim, though made only at the time filing rejoinder, and that too, very late, in the year 2022. It was argued by the learned counsel for the respondents that the case of Rafiq Masih (supra) does not apply, and a request to waive recovery made at the stage of final arguments, by filing such late rejoinder, should not be entertained. We, however, find that it would serve the interest of justice if we direct the respondents to consider the applicants' case for waiver of recovery as per their own Circular dated 22.06.2016, and pass an order, after considering the applicants' rejoinder as a request for such waiver.
9. The OA is disposed of accordingly. No costs.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) /kdr/