Central Administrative Tribunal - Cuttack
Kedarnath Jena vs M/O Railways on 4 October, 2023
wey RBCS CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA 260 /00759 of 2O19 $ ; rg wy n aeee ek open PR AG OAV -- wad dha? Se Res§ Reserved on: 22.09.2023 Pronounced an: QU PPO) ef es CORAM:
HON BLE MR. PRAMOD KUMAR DAS, MEMBER {A} HON BLE MR. RATNISH KUMAR RAL MEMBER () Kedarnath Jena, aged about 58 years, Son of Late Basudev 8 lena, at present working as Santor Technician, Offics oF WPO/ CRW East Coast Rallvay/ Mane theswar, GroupeC, residence of on fers S. Mancheswar, Bhubaneswar-7S101%, Dist-
ani picant VERSUS {. Union of india, represented through the General Manager, Exst Coast Railway, EtoeR Sadan, Chandrasexharpur, Bhubaneawar, Dist Khurda-7Siary,
2. Chief Workshop Manager, Carriage Repair Workshop, East Caast Kaibvay, Mancheswar, Bhi 'banesw ar, tNst Khurda-
PSAOLY, _ Workshop Personnel Officer, Carriage Repair Warkshop, C01 Rly, Mancheswar, Bhubaneswar, Dist. Khurda-?SiOy?, ese Respondents For the applicant - Mr. N.R.Routray, Counsel For the respondents: Mr. B.N. Nayak, Counsel OA BEQONI TSS oF IY eal OR DUE R PRAMOD KUMAR DAS, MEM BER CA) The case of the applicant is that he was a appointed as 8 Trainee Artisan with stipendiary pay of Rs. 950/- plus allowances In pay scale of Rs. 850-1500/- on 06.04.1988 and was regularized against the working post wich 20.08.1994 In compliance of the order of this Tribunal dated 24.06.1904 in MA 538/1992 arising out of OA 427 /1989. He submitted representation praying for grant of financial upgradation under AUP Scheme 1999 by taking inte consideration the period of service starting ig 3 iN from 06.04.1988. The said representation was considered and rejected wide order dated 22.41.2019 (Annexure-A/11) on the ground that the applicant was pointed as Trainee Artisan with stpendiary pay on 06.04.1988 and due to non-availability of regular vacancy he was regularized only wel) 20.09.1994 and, thus, the applicant was not entitled to 18 financial upgradation under ACP wel OS. O4.2000 as claimed by him since he did not complete regular service of 12 years from the date of his regular appaintment from 20.09.1994. Being aggrieved, the applicant has filed this OA seeking for a direction to the tbe AA NETL A ETERS ote QA SAU LSONIT RS af GOTS respondents to grant him 1s financial upgradation weet 05.04.2000 and pay the differential arrear salary by extending benefit of order passed in QA No. 192/2010 and others by quashing the order dated 22.11.2019 { Annexure-A/11)} rejecting his representation.
« [tis the specific case of the applicant both in pleadings sa alsa in course of hearing tat the sole issue invelved in this OA relating to counting the period of service of the applicant fram the date of his initial a ppointment/joinin g asa Trainee Artisan for the purpose of grant of 1 Hnanclal upgradation under ACP Scheme is set at rest/no more res integra In wiew of the autharitative pronouncement of the decision by this Tribunal In OA No. 1922/2010 (Chittaranjan Mohanty Vs UOL & Grs, disposed of an 22.03.2012) which was upheld by the Hon'ble High Court of Orissa vide arder dated 06.02.2013 in W.P(C) No. 12425/2012 and by the Hon'ble Apex Court vide order dated 02.08.2013 in SLP No. 11040/2013. Further, in similar case, the arder of this Tribunal in OA No. 24/2013 (Parsuram Nayak Vs UO! & Ors. disposed of on 07.04.2016) has been upheld by the Nen'ble Hieh Court of Orissa vide order dated O8.03.2017 in WPCC) No. 19250/2016 and by the Han'ble Apex Court vide order dated 15.09.2017 in SLP/INary No. 23168/2017. Hence, Gs DHUPOOUTRD af BLS bes, Bn according to the applicant. the rejection of the representation without taking note of the aforesaid decision is bad in law. According to the Lah Counsel for the applicant, the point of delay and latches taken by the ae respondents in their counter has no application since grant of financial henefit is a recurring cause of action, However, It has been submitted that this Tribunal in MA No.922 PEOL9 (OA SS6/ Po s-Chittaranian Hots Vs UG) & Ors} dismissed the application filed for grant of benefit of ACP on the ground of Hinsitation vide order dated 17.03.2021. The Hon'ble High Court quashed the order of dismissal on the gr ound of limitation and allowed the case of the applicant for grant of ACP vide order dated 06.12.2022. The said order was implemented by the railway ranting the henefits to the applicant therein. Therefore, the ground of delay and latches taken by the respondents has no app Heation to the present case. Hence, the Ld. Counsel for the applicant has reiterated grant of relief in this GA, 3 Respondents filed thelr caunter contesting the case of the applicant and by placing reliance on the counter, Ld. Counsel for the respondents submits rhat since the applicant was appointed as Temporary Tratnee Skilled Artisan in Welder trade on stipendiary pay 3 OA S60 /O00759 uf C019 on 06.04.1988, his appointment from that date cannot be said to be on regular hasis. His appointment was subject to the successful completion of the period of training. Since there was no sanctioned past available, applicant, along with other trainees, were allowed to continue as Trainee Skilled Artisan which was extended subsequently for want of regular posts, In the meantime, applicant and others fled QA 427/1989, which was disposed of by this Tribunal vide order dated 15.10.1990 directing respondents to get them absorbed in regular cadre of Skilled Artisan Gr. Hi within a period of 3 months by doing the needful. However, only 11 could be absorbe im dd against the avaflable vacancies. Unabsorbed candidates, alleging non-compliance of the order of this Tribunal, filed cP 10/91, which was dropped on 09.11.1992 granting Hberty to the petitioners to file representation in respect of bonus and other service benefits and competent authority was asked to explore possibility of absorption of the rest of the candidates within 30 days and if the applicants refuse to accept the offer, then it will be at their own risk and ro further offer would be given. Subsequently, all the applicants in OA 427 /1989, including the present applicant, were absorbed against the regular vacancies. Since there was no regular vacancy in Mancheswar Oe ets Workshop, the applicant could not be regularized on conrpletion of six months training and, accordingly, the train ng period of extended. Applicant was regularized as Skilled Artisan Gr-) (Welder) at CRW /Mancheswar vide Office Order dated 20.001994. He was promoted * to the post of Techdrd (Welder), Tech. Gr-l fWelder) and Sr. Feoh, (Welder) wet. 01.03.2005, 01.11.2013 and 0 1.03. 2018 respectively. As 3 matter of policy, the Govt. of India, on acceptance of the recommendation of the S® CPC introduced Scheme for granting two financial upgradations ander ACP at the interval of 12 and 24 years of cantinuance regular service without any promotion, which was duly accepted and implemented by the Railways vide RBE No. £33 3/1999, Since, the initial engagement of the applicant was as a Trance Skilled Artisan on stipendiary basis with payment of Rs. S50f-, he (8 not entitled te count the 12 years of regular service wef the date he was engaged on consolidated amount of Rs. 950/+ plus ather allowances, Le. from 06.04.1988 to 19.09.1994. Hence, there was ho wrong in the decision taken by the respondents rejecting his claim.
&. We have considered the submission ¢ pated above and per eused the records.
DA CMU OROT SS of S19 7 & The only question that arises for consideration in this OA is as to whether the period from the date of applicant's initial engagement as Trainee Artisan till regularization shall be counted towards qualifying serving for the purpose of counting 12 years regular service for grant of frst financial uperadation under ACP. In Giis connection, itis profitable to Wace reliance on the decision af this Tribunal in OA Ne. 192/2010 (Chittaranjan Mohanty Vs UOT & Ors. disposed of on 22.03.2012) upheld by the Hon'ble High Court of Orissa vide arder dated 06.02.2013 in WPCC) No. 12425 /2012 and by the Har'ble Apex Court vide arder dated 02.08.2013 in SLP No. 11040/2073. Subsequently, in OA No, 924/2013 (Parsuram Nayak Vs UOT & Qrs. disposed of on 07.04.2016) has also been upheld by the Hon'ble High Court of Orissa vide order dated O8.OS.2017 In WPCC) No. 19250 /2016 and by the Hon'ble Apex Court vide arder dated 15.09.2017 In SLP /INary No. 23168 /2017. The relevant ?
portion of the order of this Tribunal in OA 192 /2010 is as under:
ar This was objected to by Learned Counsel far the Applicant an the ground that the applicant was appointed as Trainee Artisan in a particular scale af pay (Rs.950-1500/ fe}, Ne has been granted annual increment since 29.03.1998 and, as such the period of service fram 1988 onwards should be reckoned for the purpose of counting reckonable service for grant af ACP Although the applicant was appointed as Tramee Artisan on a stl pened of Rs.G50/-, subsequentiy vide order under Annexure-A/1 dated O3-09- 1991 he was allowed the scale of pay of Rs SS0-1500/- fram the date of the arden, Curing the course of hearing, Learned Standing Counsel for the Respondents produced before us the service sheet of ame applicant. On perusal of this document & reveals that Increment has been granted to the applicant on Annual basis wal 29.08.1986 in terms of Establishment Srl. No 09/92 and his pay was accardingly reflved. We have perused the Estt. Sri No. 108/92 whereunder the Railway have decided that the period of training will be ereated 2 as duty for the purpose af grant of Increments to those railway servants who have undergone such training on ar after G1-01-1986. It has further been provided therein (Estt. Sri. No (09/92) that the benefit of counting the perind for pay will be admissible on-notianal basis from 11.1986 and on actual basis fram Q1-10-1990. In view of the above the contention of the Respondents that the peried spent by the applicant a Trainee Artisan and hence is pot reckonable for the purpose of ACP cannat be accepted. Since the period fram 1988 onwards has been treated as duty and pay has been refined allowing annual increments though on notional basis, there cannot be any ambiguity on the issue that the sald period of service cannot be taken into account for the nurpose of reckonable service for grant of Ace.
7 As far as the contention of the Respondents' counsel! that this case being covered by th e order of this Tribunal in OA ¥ No. 190/10, can be dispose dofb y leavin ge matter to the authorities fo examine the case of the applicant, as directed in the aforesaid OA, we da nat find vastifiable reason to do so because {n the earlier OA, we had no occasion to peruse the Estt. Sl. No. 100/92 and the service sheet of the sald applicant while passing 6 weer in DA Na. 190/10.
S In view of the discussions made above, the arder of yee rejection at Antosu ire-A/ ? cannot be held to be justified and ) DA LEO/UOOT SS oF 2G1L9 the same is accordingly quashed. The Respondents are hereby directed to count the periacd of service of the applicant from £29.3.1988 for the purpose of grant of ACP and allow the applicant financial benefits under ACP if he hulls the other conditions required for grant of financial up-gradation under ACP. Respondents are further directed to complete the entire exercise within a perind of 90 days from the date of receipt of copy of this order."
6 'The Hon'ble High Court of Orissa in W.P.(C) No. 19250/2016 [UOl & Ors. Vs. Parsuram Nayak) observed as under:
"In this writ petition, the petitioners, Le. East Coast Railway and Hts fimetionaries have challenged the order dated
07 04,2016 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A, Na. 924 of 2013, wherein the Tribunal had directed the present petitioners to calculate the period undergone towards training while granting 1 financial up-gracation, Present opposite party no. entered to the Railway Service on 30.03, 1958 as a Skilled Artisan/Welder Grade-Il. Thereafter he was sent for in-service training. While cauntinuing as such, since he completed 12 years of qualifying service on 29.03.2000 and the benefit of 1s financial upgradation was not extended In his favour, he preferred Q.A. No. 720 of 2013. The said Original Application was disposed of directing the railways to take a decision on the representation of the applicant. The same was rejected by the railways vide arder dated 25.11.2013 on the ground that since the applicant was regularized as Tech. Gr-Ill (Welder) with effect from 04.09.1997, therefore, 12 year is to be counted from 04.09.1997 and period from 30.03.1988 ta 05.09.1997 is ta be counted towards training. The sald order dated 25.11.2013 was challenged by the applicant in O.A. No. 921 af 2073, are UA BEG SONOTSS 3 The Tribunal while disnasing 0.4. No. 924 of 2013 taken into consideration of the fact that such an Issue has no longer res-mtegra In view of the decision In OA. No. 192 of 2010, which was confirmed by this Court In WoPLLC) No. 12425 of SU1S and by the Apex Court in SLP Nod 1040 af 2013. The Tabun: there fore quashed the order of rejection dated 25.11. an rected the respondents fo grant [st 3 et from 29.03 2000 with the financial ay muisequential benefits in favour arthe applicant.
ihe VISE TSS Since the Issue has already been settled by the Apex Court and basing on that, the impugned order was passed, we do not find any Megality or irregularity fn the impugned order to be interfered with."
mend Ld. Counsel for the apmlicant has alsa placed reliance on the similar orders passed by this Tribunal, which was upheld by the Hon'ble High Court of Orissa in ther cases. We have also gone through the same.
3. "The decision ef the Hon'ble Nish Court of Orissa in W.P{(C) fae af Uibye0el dated 06.12. 2022, so far as delay is concerned, reads as under "This matter is taken up through hybrid mode,
2. Heard Mr. N_R-Routray, learned counsel appearing for the petitioner and Mr}. Nayak, Central Gevernment Counsel appearing for the Union of Indla-onposite parties.
3. The petitioner has fled this writ petition challen ae ne the erder dated 1Y.03.2021 under Annexure-2 series In MLA. Nog22 of 2019 (arising aut of GA. No.d56 of 2018), by which the Central Administrative Tribunal, Cuttack Bench, Cuttack has refected the claim of the petitioner for grant of benalit of ACP an the ground of delay and inches, and further seeks to issue direction to the opposite parties to grant ist nancial upgradation wef, 65.04.2000 under ACP Scheme with all consequential and financial benefits.
4. Mr. N.S Routray, learned counsel appearing for the petitioner contended that the Tribunal, vide order dated 20.03.2018 in O.A, No.260/003821 of 2014 (Girish Chandra Kabat vs. Union of India and others s\ allowed the benefit of ACP. Against the said order, the Union of India had approached this Court by fling WOP.(C} mo.iservy of 2015 ane this Court after due adjudication, vide arder dated 20.07. 2022, dismissed the said writ petition, relying upon the order passed by the Apex Courtin SLP(C) nel 1040 of 2013, Therefore, the rejection of the claim of the petitioner by the Tribunal on the ground of delay and laches cannot be sustained in the eve of law. It is firther contended that there is corfinuity of cause of action for the petitioner to claim the benefit of ACP.
5. Mr. J. Nayak, learned Central Government Counsel appearing for the Union of in sla ppponte parties admits the fact that this Court dismissed W.P{C]) Noise7? of 2018 fled by the Union of India relying S UpON the order passed by the Apex Court in SLP(C) Na. 11040 ef 2013 6 Having heard lsarned counsel for the parties and alter going through the records, this Court finds that since the claim of the petitiuner for grant of ACP has been adjusiicated on merits and the decision of this Court has been confirmed by the Apex Court In SLP(C}) No 1040 of 2013, there is no valid and justifiable reason on the part of the Central Administrative Tribunal, Cuttack Bench, Cuttack to reject the claim of the petitioner on the ground of delay and laches.
Soa sais feos.
he #.In the above view of the matter this Court disposes of this writ petition On the basis of the observatians made in Paragraph-4 of the order dated 20.07.2022 passed WLE.(C) Node?) of S018, which are extracted below.
"4. On a perusal of the impugned order, it is seen that learned Tribunal has passed the im nugned arder relying upon the decision in O.A. No.192 of 40190, which has been confirmed by this Court in WORLD Na. 1eqes oF 2012 and also by the apex Court in SLE) No iosG of 8013. The Yperating portion of the impugned order is extr acted hereunder:
5. The above point has already been settled by the decision of this Tribunal dated 22.03.2012 in GA, No.i92 of 2010 as the same has been upheld by the Hon'ble High Court vide order dated 06.02.2013 in W.P.C) No.d2425 of 2012 and thereafter, the matter on being appealed of in SLP(C) No.11040 of 2013.
the Hon'ble Supreme Court dismissed the same vide are dex hee (02.08.2013. Following - ne above relief to 'the 'applicant in G. A. No. {i of S011. Therefore, in our considered views, the polnt in issue belng set at rest, we have te hesitation to hald that the period Spent under training (ill the date of regularization of his service is reckonable for the purpose of prant of Ist Anancial upgradation under the ACP Scheme. Accordingly, we quash the impugned order dated 09.01.2014 (A/S) and direct the respondent-Railways to recansider the claim of the applicant for grant of Ist ACP on campletion of ie years service from US.04. 1988, by conducting a review Screening Committes meeti ing and subject to fulfillment of other conditians, he be so granted with consequential financial benefits."
DA CHU UO0FSS of F019 a3 OA 260 /H007S9 of 2015 & Accordingly, the order dated 17.03.2021 passed by the Tribunal in M.A. No.922 of 2019 (arising out of O.A. No.556 of 2018) rejecting the claim of the petitioner is hereby quashed and the opposite parties are directed to grant ACP in favour ef the petitioner, as due and admissible to him, within a period of four months from the date of receipt of this order,
9. Issue urgent certified copies as per rules."
2 In view of the decision of the Non'ble High Court of Orissa in the case of Chitaranjan Hota (supra}, quoted above, this Tribunal is not impressed upon that this case is Hable to be dismissed for being suffered from delay and laches. Hence, the said plea is over ruled. In so far as merit of the matter, it is seen the issue for counting 12 years service is Hable to taken into consideration from the date of initial joming as Trainee Skilled Artisan and not from the date of regularization, we do not have any hesitation or any jota of doubt to hold that counting of 12 years period for granting financial upgradation under ACP w.eh the date of regularization is illegal. Accordingly, the order of rejection dated 22.11.2019 under Annexure-A/11 is quashed and the Respondents are directed to consider/re-consider the case of the applicant for granting him ACP by counting the period of service of the applicant from the date he was engaged as Trainee Skilled Artisan and all other financial benefits 4 GA 2S NGOT 59 of SATS under ACP, of course, alter fulfilling the other conditions required for grant of Nnancial upgradation under ACP. Respondents are further directed ta complete the entire exercise within a period of 90 (ninety) days from the date of receipt of a copy of this order.
10. In the result this OA stands allowed to the extent stated above.
There shall be no order as fa casts.
z {Pramod Kumar Ds (Rajnish Kumar Ral} Member (Admn.} Member (Jud) RK/PS