Central Administrative Tribunal - Allahabad
Akhilesh Kumar Goel vs North Central Railway on 27 February, 2025
Reserved on 18.2.2025
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
ALLAHABAD this the 27th day of February 2025.
Present:
HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER (A)
ORIGINAL APPLICATION NO. 330/297/2024
1. Akhilesh Kumar Goel, S/o Late Shri Ram Goel, Aged about 60 years
retired on the post of Chief Loco Inspector Kanpur, Indian Railway Kanpur,
R/o ME-391 Hemant Vihar Near Ram Janki Mandir (Navchetna Paryavaran
Park) Bara-2, Kanpur 208027
2. Babu Ram S/o Late Shri Darshand, Aged about 57 years retired on
the post of Chief Loco Inspector Kanpur, Indian Railway Kanpur, R/o LIG-
5 Vaishanavi Vihar Jarauli Phase-II, Bara Kanpur-208027
3. Pritam Singh S/o Late Shri Ratan Singh, Aged about 62 years retired
on the post of Chief Loco Inspector Tundla, Indian Railway Tundla, R/o
Uday Nagar Colony, Mauja Mohmmadabad, Tundla, District Firozabad.
4. Subhash Chandra S/o Late Shri Bansi Lal, Aged about 60 years
retired on the post of Chief Loco Inspector Prayagraj, Indian Railway
Prayagraj, R/o 138-A/1 A Sulem Sarai, Prayagraj U.P./211011
5. Ashok Kumar Tripathi (Deceased) post of Chief Loco Inspector
Prayagraj, Indian Railway Prayagraj, through his wife Sunita Tripathi W/o
Late Shri Ashok Kumar Tripathi Aged about 52 years, R/o Harshwardhan
Nagar, Meerapur, Prayagraj
6. Mahesh Kumar Mishra S/o Late Shri Sunder Lal Mishra, Aged about
62 years retired on the post of Chief Loco Inspector Tundla, Indian Railway
Tundla, R/o Gali No. 2 Om Nagar Near Pavitra Marriage Home Tundla
Firozabad
7. Anil Kumar Srivastav S/o Late Bajrang Kumar Srivastav, Aged about 60
years retired on the post of Chief Loco Inspector Prayagraj, Indian Railway
Prayagraj, R/o 523, Deo Prayagam Phase_II, Prayagraj-211012
8. Deepak Sharma S/o Late Shri Arvind Kumar Sharma, Aged about 57
years retired on the post of Chief Loco Inspector Tundla, Indian
RailwayTundla, R/o Gali No. 3 Shiv Puri Colony Etah Road, Tundla,
District Firozabad-283204.
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...........Applicants.
Versus
1.Union of India through the General Manager North Central Railway,
Prayagraj.
2. Chief Personal Officer, North Central Railway Prayagraj.
3. Division Railway Manager, North Central Railway, Prayagraj.
4. Senior Divisional Personal Officer, Prayagraj.
..............Respondents
Present for the Applicant: Shri Anil Kumar Singh/
Shri Rohit Singh
Present for the Respondents: Shri Manoj Kumar Sharma
ORDER
BY HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
By means of present Original Application, the applicants have sought
the following reliefs:-
"(i) To quash the impugned order dated 07.02.2024 passed by the
respondent NO. 3 and the rejection orders dated 28.02.2024, 27.02.2024,
01.03.2024, 26.02.2024, 26.02.2024, 01.03.2024, 20.02.2024 and 28.02.2024
passed by the concerning respondents and RBE No. 133/2019 dated
16.08.2019 of Railway Board and further be pleased to command the
concerning respondents not to interfere in the peaceful working of the
applicants and not to reduce the basic pay and not to recover excess amount
from the applicants.
(ii) Any other reliefs as this Hon'ble Tribunal may deem fit and proper in
the facts and circumstances of the case to meet the ends of justice.
(iii) Award the cost of the OA to the applicants".
2. The facts in brief in this case are that all the applicants have been
initially appointed as per the recruitment Rules of the Railway Recruitment
Board on the post of Assistant Loco Pilots in between the year 1986 to
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1990. The eligibility criteria for the aforesaid post was High School.
Presently they are retired from service as Chief Loco Inspectors in the
respondents' department and applicant No. 5 died and in his place his heir
has been represented. The selection process for the post of Chief Loco
Inspectors is done from Loco Pilot (Goods), Loco Pilot (Passengers) and
Loco Pilot (Mail) category subject to fulfillment of requisite conditions as
laid down by the Railway Board which are as the Loco Pilot must have
completed 75000 km foot plate experience and must have the good work
and conduct. The cadre of Loco Pilot Goods (LPG), Loco Pilot Passenger
(LPP) & Loco Pilot Mail (LPM) are one and the same because as per 6th
Pay Commission, the Grade Pay became same i.e. 9300-34800 (GP-4200)
and in 7th pay commission, it is also the same. Applicant Nos. 1 to 8 were
promoted on the post of Chief Loco Inspectors in the year 2009 and
applicant No. 7 was promoted as Chief Loco Inspector in the year 2011
from the post of LPG and LPP. They were paid due arrears also. Shri J.N.
Tiwari, Shri G.C. Pal and Shri Dinesh Kumar have been promoted on the
post of Chief Loco Inspectors on 08.02.2016. Similarly Shri Jagat Narayan
Tiwari and Shri Dinesh Kumar son of Shri Jagdish Prasad were promoted
on 01.01.2016 and were paid more salary than the applicants. Similarly
situated employees including the applicants made representations before the
competent authority requesting therein to enhance the pay of the applicants
at par with their juniors who are drawing more basic pay than applicants.
Thereafter vide letter dated 21.09.2017, the salary of the applicants were
stepped up at par with their juniors and was fixed at Rs.102800/- directing
therein to pay the arrears to the applicants as per the amended pay fixation
since 01.07.2006. The Railway Board vide its RBE No. 133/2019 dated
16.08.2019 issued a clarification regarding the anomaly in fixation of pay
of Chief Loco Inspectors appointed prior to 01.01.2016 with reference to
their juniors appointed on or after 01.01.2016 and drawing more pay than
the seniors. After promulgation of aforesaid RBE, Railway Board issued
another instructions on the aforesaid issue vide RBE No. 1962/2019 dated
14.11.2019. Railway Board issued another guidelines on the aforesaid
subject vide RBE No. 7/2020 dated 27.01.2020 wherein it has been
clarified that the future cases of stepping up of pay of CLIs may be
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regulated keeping in view of fresh guidelines. Thus, in view of above, RBE
No. 133/2019 have been made ineffective and inoperative in the past cases.
Prayagraj Division had given the benefit of stepping up against Shri R.R.
Putrana to all senior CLIs in the year 2009 when Shri R.R. Putrana was
promoted to CLI from LPM category. This stepping up was granted on the
basis of RBE 236/2009. The pay of all the applicants have been stepped up
against Shri J.N. Tiwari, who is junior to them. Some of the CLIs who have
not been given the benefit of notification dated 24.07.2009 approached
before the Central Administrative Tribunal and Hon'ble High Court and on
the basis of decisions of aforesaid Hon'ble Court, the benefit of stepping up
of pay was granted. Surprisingly respondents issued list of employees vide
impugned order dated 07.2.2024 stating therein that after approval of
General Manager/Personnel, Senior Divisional Finance Manager and DRM,
the Chief Loco Inspector employees who have been given the benefit of
stepping up after 01.01.2016 but same was not payable to them as per RBE-
133/2019 because they were belonging to different cadre/grade, was
withdrawn. Aggrieved against the aforesaid orders, applicants have filed
present OA.
3. Per contra, learned counsel for the respondents filed counter affidavit
wherein it has been stated that all the applicants were appointed as
Assistant Loco Pilots and were promoted as Loco Pilot Goods then Loco
Pilot Passenger and subsequently promoted as Chief Loco Inspectors.
Juniors of applicants namely Shri J.N Tiwari has been promoted as Chief
Loco Inspectors from the post of Loco Pilot Mail on 08.02.2016, thus, their
pay became fixed more than his above seniors who were promoted earlier
from different categories of Loco Running Cadre. The matter had been
forwarded to Senior DFM/Prayagraj vide note dated 14.09.2017 in the light
of RBE No. 90/2016 vide which Senior DFM/Prayagraj have given
concurrence from stepping up of pay with their juniors of Shri J.N. Tiwari,
Shri Dinesh Kumar and pay have been fixed equal. Senior DRM (P),
Allahabad referred the matter to Audit Department who made endorsement
that the Railway Administration granted stepping of pay to 42 Chief Loco
Inspectors without obtaining clarifications regarding ambiguous conditions
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of stepping up from higher authorities/the Railway Board. Later on (in July
2019), the clarifications for the same were issued by the Railway Board and
it proved that stepping up of pay earlier granted by the Railway
Administration was not in order. Thus, non-obtaining of clarifications
earlier on stepping up, resulted in unavoidable payment of ₹9.13 crore. On
the basis of audit report, Assistant Personnel Officer wrote a letter to
General Manager (P) requesting therein that in view of the present audit
report, it is to be ensured that those CLIs who have been given the benefit
of stepping up prior to the issue of RBE 133/2019 and are continuously
charging their salary, should be stopped, otherwise their salary should be
withheld along with recovery of their arrears. Guidelines in this regard was
required from the Headquarters. In reply to the aforesaid letter, Headquarter
office has directed to take necessary action as per provision of RBE No.
133/2019 vide its letter dated 04.10.2023. Based on the aforesaid letter
dated 04.10.2023, Divisional Railway Manager (P), North Central Railway,
Prayagraj recommended to withdraw the benefits of stepping up and to
make recovery of excess payment. Thereafter several representations were
received, which were again referred to the Headquarter. On the basis of
which, the Railway Board issued following clarification on the subject:-
"The matter referred vide SCR's letter under reference has been considered in
Board's office. It is stated that Board's letter dt. 27.01.2020 (RBE No.07/2020)
provides for stepping up of pay to senior Loco Inspectors appointed prior to
01.01.2006 at par with their juniors appointed after 01.01.2006 provided that they are
identically placed to the employees involved in the court cases citied in the said letter.
It may be noted that the senior Loco Inspectors involved in the cited court cases had
sought stepping up of pay at par with juniors who had been appointed during the 6th
CPC period. In view of this position, the cases of senior Loco Inspector claiming
stepping up of pay at par with junior appointed during 7th CPC i.e. after
implementation of RS(RP) Rules, 2016 which is effective from 01.01.2016 are not
identically placed. Thus, the special dispensation of stepping up of pay allowed vide
Board's letter dt. 27.01.2020 is not applicable in such cases. The issue of stepping up
of pay in such cases has to be regulated in terms of Board's letter dt. 16.08.2019 (RBE
No.133/2019). Thus, the reply issued to SCR earlier vide Board's letter of even
number dt. 30.04.2021 hold good".
Railway Board has also given clarification vide letter dated
07.11.2022 that the stepping up of pay is not admissible when the
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employees are not identically placed. Thus, in view of aforesaid circulars,
the case of applicants is not liable to be allowed.
5. In reply to the counter affidavit filed by respondents, applicants have
filed rejoinder affidavit in which the applicants have reiterated the facts as
stated in the OA and denied the contents of the counter affidavits.
6. We have heard Shri Anil Kumar Singh and Shri Rohit Singh, learned
counsel for the applicants and Shri Manoj Kumar Sharma, learned counsel
for the respondents and perused the records.
7. Submission of learned counsel for the applicants is that initially
applicants have been promoted on the post of Chief Loco Inspectors
(C.L.Is) prior to 01.01.2016. They are getting less salary than C.L.Is
promoted on or after 01.01.2016 who are junior to the applicants. It was
further argued that applicants have made representations to the authority
concerned and respondents have removed the anomaly vide letter dated
21.09.2017. The salary of the applicants have been stepped up at par with
their juniors and was fixed at Rs. 1,02,800/-. Arrear was also paid.
Subsequently vide impugned order, respondents have withdrawn the order
dated 21.09.2017 and started recovery citing the provision of RBE No.
133/2019 observing that applicants are not belonging to same feeder cadre,
therefore, they are not entitled to step up their salaries at par with their
juniors, who have been promoted on or after 01.01.2016. Learned counsel
for the applicants referred to the contents of RBE 133/2019 and further
argued that clarification made in the aforesaid RBE cannot be applied in the
case of the applicants as vide RBE 7/2020 dated 27.01.2020, it has been
specifically mentioned that 'Board has further decided that the future
cases of stepping up of pay of CLIs may be regulated keeping in view the
aforesaid clarifications'. Referring to the aforesaid fact, it is argued that if
for the sake of argument plea taken by the respondents is taken into
consideration then as per aforesaid clarification benefit already allowed to
the applicants stepping up of their salary at par with their juniors promoted
on or after 01.01.2016 cannot be withdrawn. Learned counsel for the
applicants further argued that impugned order has been passed without
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affording opportunity to the applicants. There was no fault on part of the
applicants. Salary was stepped up by the respondents themselves. Mere
filing representation for stepping up of their salary by the applicants will
not be sufficient to presume that salary has been stepped up on the basis of
misrepresentation or fraud caused on part of the applicants. It was next
argued that in identical question of stepping up of salary relating to the
C.L.Is promoted prior to 1.1.2016 and on or after 1.1.2016 were considered
by different Benches of this Tribunal and finding the anomaly genuine,
prayer made by the C.L.Is were allowed. Order passed by the different
Benches of the Tribunal were also challenged before the Hon'ble High
Court and Hon'ble Supreme Court by the respondents but the same were
dismissed. C.L.Is promoted prior to 01.01.2016 also raised their grievance
to step up their salary at par with C.L.Is promoted on or after 01.01.2016
before the Patna Bench of this Tribunal through OA No. 935 of 2019 and it
was allowed on dated 06.07.2023 considering the impact of RBE No.
133/2019 as well as decision referred herein above and also the letter dated
27.1.2020 and direction was issued to step up the salary of the C.L.Is
promoted prior to 01.01.2016 at par with their juniors promoted on or after
01.01.2016. It was next argued that judgment and order passed in the
aforesaid OA was challenged before the Hon'ble High Court of Judicature
at Patna through Civil Writ jurisdiction case No. 9674 of 2024 by the Union
of India and others (respondents) but same was dismissed on 18.12.2024
affirming the order passed by the Tribunal. It was next argued that similar
issue also came up for consideration before the Lucknow Bench in OA No.
86 of 2023 and the Tribunal relying upon the Bangalore Bench's decision
of this Tribunal as well as judgment and order passed by the Patna Bench of
this Tribunal in OA NO. 935 of 2019 allowed the OA quashing the order
passed by the respondents whereby benefit already allowed for stepping up
of salary had been withdrawn. It is further argued that judgment and order
passed by the Coordinate Bench of this Tribunals (Patna Bench and
Lucknow Bench) are binding to this Bench also, thus, argued to allow the
OA and to set aside the impugned orders and also to direct the respondents
to restore the applicants' salary as has been allowed vide letter dated
21.09.2017 directing the respondents to refund the recovered amount within
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specified period. Learned counsel for the applicants has placed reliance on
the following case laws:-
(i) V. Murugesan and another Vs. Union of India and others
decided on 07.08.2012 in OA No. 455 of 2011 by Madras
Bench of this Tribunal;
(ii) Union of India and others Vs. The Registrar, CAT, Madras
Bench, Chennai decided on 19.2.2013 in Writ Petition No.
3528 and 3529 of 2013 by Hon'ble High Court of Judicature at
Madras;
(iii) Union of India and others Vs. V. Murugessan and etc. decided
on 23.2.2016 in Special Leave to Appeal (C) Nos. 4568 - 4569
of 2014 by Hon'ble Supreme Court;
(iv) Chedimala Venkata Sridhar and another Vs. The General
Manager, South Central Railway, Rail Nilayam, Secunderabad
and others decided on 1.5.2019 in Writ Petition No. 38421 of
2018 by Hon'ble High Court of Andhra Pradesh;
(v) The General Manager, South Central Railway and others Vs.
Chedimala Venkata Sridhar decided on 30.09.2019 in Special
Leave Petition (Civil) Diary No. 28417 of 2019 by Hon'ble
Supreme Court;
(vi) Dinesh Kumar and others Vs. Union of India and others in OA
No. 050/00935/2019 decided on 06.07.2023 by Patna Bench
of this Tribunal.
(vii) Union of India and others Vs. Dinesh Kumar and others
decided on 18.12.2024 in Civil Writ Jurisdiction Case No.
9674 of 2024 by Hon'ble High Court of Judicature at Patna;
(viii) Deepak Kumar Rajvanshi Vs. Union of India and others
decided on 12.08.2024 in Original Application No. 332/00086
of 2023 by Lucknow Bench of this Tribunal.
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8. Submission of learned counsel for the respondents is that although
applicants were promoted prior to 01.01.2016 on the post of C.L.Is cadre
and they were getting less salary than the C.L.Is promoted on or after
1.1.2016 but they can get at par salary with their juniors who have been
promoted on or after 01.01.2016 if they are belonging to same feeder cadre.
Since they are not belonging to same feeder cadre, the provision contained
in RBE 133/2019 is applicable. Respondents have rightly withdrawn the
benefit of stepping up extended to the applicants vide letter dated
21.09.2017. It is next argued that some order passed by the Hon'ble Courts
were implemented extending one time relaxation, therefore, applicants
cannot take benefit with the law laid down in the case laws relied upon by
them. Learned counsel for the respondents referred to the facts disclosed in
the counter affidavit and further argued that there is no illegality or
perversity in the impugned order, thus, prayer made in the OA is not liable
to be allowed.
9. We have considered the rival submissions of learned counsel
appearing for both the parties and have gone through the entire documents
on records.
10. Before discussing the issue raised on behalf of the parties, it will be
useful to quote the ratio laid down in the cases relied upon by the learned
counsel for the applicants.
11. Identical issue was came up for consideration before the Central
Administrative Tribunal, Madras Bench in OA No. 455 of 2011 decided on
07.08.2012 wherein OA was allowed directing the authorities concerned to
step up the salary of the applicants of that OA at par with other junior Loco
Inspectors, who have been promoted after the promotion of the applicants
and were junior to them. Order passed in the OA was challenged before the
Hon'ble High Court of Judicature at Madras in Writ Petition Nos. 3528 and
3529 of 2013 by Union of India and others, which were dismissed on dated
19.02.2019. The respondents approached before the Hon'ble Supreme
Court through Special Leave to Appeal (C) No (s) 4568 - 4569 of 2014.
Hon'ble Supreme Court also dismissed the appeal.
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12. Similarly situated C.L.Is promoted prior to 1.1.2016 had also
approached before the Patna Bench of this Tribunal through OA No. 935 of
2019 for stepping up of their salary at par with those C.L.Is who were
promoted on or after 1.1.2016 and were junior to the applicants and were
also getting more salary than the applicant and Patna Bench of this Tribunal
passed the following order:-
"CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH,
PATNA
OA/050/00935/2019
Reserved on: 01.06.2023
Pronounced on: 06.07.2023
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
1. Dinesh Kumar, Son of Late Sakal Deo Rai, Chief Loco Inspector, East
Central Railway, Sonpur, District- Saran (Bihar).
2. Chandra Bhushan Mishra, Son of Sri Jai Mangal Sharma, Chief Loco
Inspector, East Central Railway, Muzaffarpur (Bihar).
3. Manoj Kumar Singh, Son of Sri Devendra Prasad Singh, Chief Loco
Inspector, East Central Railway, Barauni, District Begusarai (Bihar)
4. Janardan Chaudhary, Son of Late Sabjit Chaudhary, Chief Loco
Inspector, East Central Railway, Barauni, District Begusarai (Bihar).
5. Subodh Poddar Son of Late Ram Narayan Poddar, Chief East Central
Railway, Barauni, District Begusarai (Bihar)
6. Sudhir Kumar, Son of Sri Sada Nand Prasad, Chief Loco Inspector, East
Central Railway, Muzaffapur (Bihar).
7. Ajay Kumar Srivastva, Son of Sri Bhupendra Prasad Srivastva, Chief
Loco Inspector, East Central Railway, Sonpur, District Saran.
8. Dharamraj, Son of Late Ram Janam Ram, Chief Loco Inspector, East
Central Railway, Barauni District- Begusarai (Bihar).
9. Anil Kumar Safi, Son of Sri Ravi Safi, Chief Loco Inspector, East Central
Railway, Barauni, District- Begusarai (Bihar).
10. Raj Kumar Ram, Son of Late Ganesh Ram, Chief Loco Inspector, East
Central Railway, Barauni, District- Begusarai (Bihar).
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11. Shailesh Kumar Singh, Son of Late Shankar Prasad Singh, Chief Loco
Inspector, East Central Railway, Sonpur, District Saran (Bihar).
12. Krishna Kumar Jha, Son of Sri Prakash Jha, Chief Loco Inspector, East
Central Railway (HQ) at Hajipur (Bihar).
13. Arvind Kumar, Son of Late Tribhban Prasad Srivastava, Chief Loco
Inspector, East Central Railway (HQ) at Hajipur (Bihar).
14. Ranjeet, Son of Late Ram Das Singh, Chief Loco Inspector, East Railway,
Barauni, District- Begusarai (Bihar).
15. Bipin Kumar Singh, son of Sri Yogendra Prasad Singh, Chief Loco
Inspector, East Central Railway, Muzaffarpur (Bihar).
16. Kumar Basant Madhukar, Son of Late Hari Nath Prasad, Inspector, East
Central Railway, Muzaffarpur (Bihar).
17. Manoj Madhushree, Son of Shatrughan Prasad Srivastava, Chief Loco
Inspector, East Central Railway, Muzaffarpur (Bihar).
18. Nawal Kishor Singh, Son of S.N. Singh, Chief Loco Inspector, East Cent
Railway, Sonpur, District- Saran (Bihar).
By Advocate: - Mr. M.P. Dixit
Versus
1. The Union of India through the Secretar Railway, Rail Bhawan, New
Delhi-110001.
2. The General Manager, East Central Railway, Hajipur, PO Diddhi Kalan,
PS Hajipur (Sadar), District- Vaishali, Pin Code 844101 (Bihar).
3. The General Manager (Personnel), East Central Railway, Hajipur, PO
Digghi Kalan, PS- Hajipur (Sadar), District (Bihar).
4. The Principal Chief Electrical Engineer, East Central Railway, Hajipur,
PO Digghi Kalan, PS- Hajipur (Sadar), District (Bihar).
5. The Principal Chief Mechanical Engineer, East Centra PO-
DigghiKalan, PS- Hajipur (Sadar), District (Bihar).
6. The Divisional Railway Manager, East Central Railway, Sonpur, District
Saran, Pin Code-841101 (Bihar).
7. The Senior Divisional Personnel Officer, East Cen District- Saran, Pin
Code-841101 (Bihar).
8. The Senior Divisional Mechanical Engineer, East Central Railway,
Sonepur, District0 Saran, Pin Code- 841101 (Bihar).
9. The Senior Divisional Electrical Engineer, East Central Railway, Sonpur
, District- Saran, Pin Code- 841101 (Bihar).
10. The Senior Divisional Financial Manager, East Central Railway,
Sonepur, District- Saran, Pin Code-841101 (Bihar).
By Advocate: - Mr. Kumar Sachin
ORDER
S.K. Sinha, A.M:- Brief facts giving rise to this OA are that applicants
initially appointed as Assistant Loco Pilot (ALP) were promoted to the post of
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Chief Loco Inspector (CLI) in scale of Rs 9300-34,800/-, GP Rs 4600/- prior
to 01.01.2016, the date of implementation of 7th CPC. However, their juniors
who were appointed as ALP after them and promoted to the post of CLI after
implementation of the 7th CPC had higher basic pay fixed than them.
Applicants' basic pay on implementation of 7th CPC was fixed was Rs
83600/86100 on 01.07.2018 whereas the basic pay of their juniors who were
promoted to the post of CLI on 03.01.2018 was fixed on that date as its
99800/-, fRaising the issue of pay anomaly, applicants made representation
before the concerned authorities for stepping up their pay at par with the
juniors. In response to the representation, GM (Personnel) office, ECR
communicated on 05.02.2019 the decision of competent authority that pay of
those CLIs who had been promoted before 01.01.2016 and were getting less
pay than their juniors who were promoted as CLI after the 2 ^ (th) CPC may
be stepped up at par with the juniors (Annexure A/2). In accordance with this
decision, pay of applicants was stepped up vide office order no. 265 of 2019
(Annexure A / 3 ) . Subsequently GM (Personnel) office, ECR Issued a
clarification on 22.07.2019 (Annexure A / 4 ) that stepping up of pay at par
with Junior Railway servant was permissible only if the senior and Junior,
both belonged to same Railway cadre and were promoted to same higher post
of that cadre. Railway Board also issued RBE No. 133/2019 on 16.08.2019
(Annexure A / 6 ) providing detailed clarification on conditions for stepping
up of pay of CLIs at par with juniors. Both, the order of GM (Personnel),
ECR dated 22.07.2019 and RBE No. 133 of 2019 dated 16.08.2019 were based
on para 7(10) of the Railway Servants (Revised Pay) Rules, 2016 notified as
RBE No. 90/2016. Accordingly, the benefit of stepping up of pay at par with
the juniors granted earlier to the applicants was withdrawn vide order dated
16.09.2019 (Annexure A / 7 ) on the ground that applicants were not
promoted as CLI from the same cadre as juniors. Also, the excess payment
made to them after the stepping up of pay was ordered to be recovered.
Aggrieved with the withdrawal of the stepped up pay and order for recovery of
excess payment in the wake of stepping up applicants have preferred this OA
praying for following reliefs:-
"8.1. That your Lordships may graciously be pleased to quash and set
aside the impugned Order dated 16.09.2019, 22.07.2019 issued by the
Respondent No. 7 and 3 as contained in Annexure- A/7 and A/4
respectively including any other adverse order in this regard and also
to declare the order so issued by the Railway Board dated 28.07.2016
and 16.08.2019 as contained in Annexure A/S and A/6 as ultra-vires
and contrary to the judgment of Hon'ble Supreme Court of India
(Supra) in which it has been held that a senior cannot be paid lesser
pay than their juniors.
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8.2 That your Lordships may graciously be pleased to hold and
declare the order so issued on 05.02.2019 and Office order No. 265 of
2019 as contained in Annexure A/2 and A/3 are quite just, proper and
as per settled principle of law on stepping-up of pay and requires no
interference.
8.3 That your Lordships may graciously be pleased to direct/command
the Respondents to refund amount if recovered with interest.
8.4 Any other relief or reliefs including the cost of the proceeding may
be allowed in favour of the applicants".
Applicants have pleaded that impugned orders viz. the order of OM
(Personnel), EER dt 23.07.2018 (Annexure A/4), the Railway Service (Revised
Pay) Rules, 2018 notified on 28.07.2016 (Annexure A/B), the Railway Board
order dated 16.08.2010 issued as RRE NO. 133 of 2019 (Annexure A/6) and
the order dated 16.09.2010 issued by the office of BRM (Personnel) Office,
EER were punitive, discriminatory and against the Rules. The withdrawal of
the benefit of stepping up of pay at par with juniors was a violation of the
Article 14, 16, 21 and 311(2) of the Constitution and also against the judicial
pronouncements of Hon'ble Supreme Court, Hon'ble High Courts and
different Benches of Central Administrative Tribunal. Further the order of
recovery of excess payment was against the DoPT guidelines issued in the
wake of Apex Court judgment in Rafique Masih case.
3. Contesting the OA, respondents filed written statement maintaining
that difference in pay of the applicants and their juniors had arisen because
of the 7th Central Pay Commission recommendations. The pay of such staff
who were promoted as CLI prior to the 7th CPC recommendations was fixed
by giving benefit of 30% of their pay element and on implementation of 7th
CPC their pay was fixed according to the fitment factor of 2.57 (as a non-
running staff). On the other hand, pay of those staff who were still not
promoted as CLI, was first fixed on implementation of 7th CPC by a fitment
factor of 3.00011 (as a running staff) and on promotion to the post of CLI
their pay was fixed by giving benefit of 30%. In response to the applicants'
representation raising the issue of pay anomaly, decision of competent
authority was communicated on 05.02.2019 to step up the pay of applicants at
par with their juniors. But on subsequent examination of the issue, a
clarification was issued on 22.07.2019 that for stepping up the pay at par with
juniors it was necessary that junior and senior should belong to the same
cadre. Railway Board also issued RBE No. 133/2019 on 16.08.2019
reiterating the conditions for stepping up of pay.
4. Respondents have pleaded in the WS that applicants were promoted to the
posts of CLI from the posts of Loco Pilot (Goods) and Loco Pilot (Passenger)
MANISH KUMAR
SRIVASTAVA
14
whereas their juniors were promoted to the post of CLI from the posts of Loco
Pilot (Passenger) and Loco Pilot (Mail) which had different seniority units.
Applicants and their juniors were thus not from same cadres before
promotion to the post of CLI. Respondents have stated that though the posts
of Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail) have
same Grade Pay of Rs 4200/- seniority for each was maintained separately. As
applicants and juniors did not belong to the same cadre before promotion to
the post of CU, hence the stepping up of applicants' pay at par with juniors
was not permissible. The order dated 05.02.2019 was issued by mistake which
has been corrected by the orders dated 22.07.2019 and 16.08.2019.
Respondents have further mentioned that a clarification regarding provision
relating to RRs of Loco Pilots, Shunters, Drivers (Mail & Express) and Loco
Inspectors in IREM Vol. I was issued on 14th November 2019 (Annexure
R/4) that Loco Pilot (Goods), Loco Pilot (Passenger), Senior Motormen, Loco
Pilot (Mail) etc. constitute separate and distinct cadres within the overall
classification of Loco running staff.
5. In rejoinder, applicants pleaded that Railway Board vide order dated
27.01.2020 (Annexure P/1) allowed the stepping up of pay of Loco Inspectors
who were promoted prior to 01.01.2016 at par with Loco Inspectors promoted
after 01.01.2016. North Western Railways also issued orders on 06.01.2021,
22.04.2021, 28.04.2021 and 12.02.2021 allowing stepping up of pay of Chief
Loco Inspectors who were promoted before 01.01.2016 and were getting less
pay than / Juniors who were promoted after 01.01.2016. Hence, applicants
cannot be denied the benefit of stepping up of Pay at par with the juniors.
6. Heard the rival counsel after admission and considered their submissions
and material on record.
7. Mr. M. P. Dixit, Ld. counsel for applicants submitted that the instant OA
was squarely covered by the judgment of Hon'ble Delhi High Court in WP(C)
No. 2052 of 2012 (Union of India Vs Surinder Kr. Dhingra) which was
preferred challenging the order of CAT, Principal Bench in OA No
3857/2010. Hon'ble High Court dismissed the writ petition on 05.09.2017,
upholding the decision of Principle Bench. The order of PB, CAT attained
finality as SLP (Civil) Diary No. (s) 14746/2018 filed before Hon'ble Apex
Court was also dismissed. Ld. counsel also put reliance on the judgment of
Hon'ble Rajasthan High Court in Civil Writ Petition no. 4330/2019 (Union of
India & Others Vs agdish Kr. Bulchandani & Another) which also related to
identical issue.
7.1 Mr. Dixit, drawing attention to Annexure P/1 further submitted that
Railway Board vide order dated 27.01.2020 allowed stepping up of pay to
MANISH KUMAR
SRIVASTAVA
15
senior Loco Inspectors at par with their juniors as a special dispensation. He
also referred to documents at Annexures P/2 series and submitted that North
West Railway Hqr, Jaipur, relying upon the Railway Board order dated
27.01.2020, allowed stepping up of pay of CLIs promoted prior to 01.01.2016
at par with their Juniors who were promoted to the post of CLIs after
01.01.2016 and had higher basic pay. L/C submitted that as Railway Board
and North West Railway have allowed stepping up of pay to senior CLIs at
par with their juniors, the pay of applicants in this case also needs to be
stepped up at par with the juniors.
7.2 Mr. Dixit also submitted that before deciding to reduce the pay of
applicant respondents issued no show cause notice and hence, the order was
in violation of principle of natural justice.
8. Kumar Sachin, L/C for respondents put reliance on the Supreme Court
judgment on 22.02.2023 in the Civil Appeal No. 8329 of 2011 and submitted
that Hon'ble Apex Court held that pay fixation was a complex matter and that
the equation of posts and determination of pay scales was the primary
function of Executive and not of judiciary. Ld. Counsel also submitted that
though applicants and the Juniors in respect of whom applicants are seeking
pay parity were appointed as ALP in Railways but they were promoted to the
post of Chief Loco Inspectors from different posts/cadre. One could be
promoted to the post of CLI from four different posts and though all these
posts have Grade Pay 4200, there is considerable difference in the pre-
promotion training, experience and eligibility for each of these posts and
hence, each post is treated as a separate cadre and separate seniority is
maintained for each. A CLI promoted from the post of Loco Pilot (Goods)
cannot be compared with a CLI promoted from the post of Loco Pilot (Mail)
or Loco Pilot (Passenger). A comparison can be made only if the senior and
junior belonged to the same cadre before promotion to the post of CLI. As
applicants were from different cadre than juniors the stepping up of pay was
not permissible in accordance with the rules. The impugned orders were in
accordance with the extant law/rules.
9. Issue for adjudication in this case is whether applicants who were promoted
to the post of CLI prior to 01.01.2016 are entitled for stepping up of pay at par
with their juniors who were promoted as CLI after 01.01.2016 and whose
basic pay on the promotion was fixed higher than applicants. Before
adverting to this issue, it deems appropriate to examine the court judgments
cited by rival counsel during hearing.
10. Hon'ble Delhi High Court in WP(C) No. 2052 of 2012 (supra) dismissed
the writ petition on 05.09.2017 challenging the order of Principal Bench of
CAT in OA No 3857/2010. The issue related to stepping up of pay of senior
MANISH KUMAR
SRIVASTAVA
16
Loco Inspector (LI) at par with the junior Ll getting higher basic pay.
Applicant in the OA (respondent in the writ petition) had been promoted to
the post of Ll before the implementation of Sixth Pay Commission but his
basic pay was less than his junior who had been promoted to the post of LI
after implementation of sixth pay commission. Respondents in the OA
(petitioner of the writ petition) had maintained that applicant did not fulfil the
conditions for stepping up as per rule 7(10) of the Railway Servant (Revised
Pay) Rules, 2008 which read as under;
"(a) That both the junior and senior railway servants should belong
to the same cadre and the posts to which they had been promoted
should be identical in the cadre;
(b) The pre-revised scale of pay and the revised grade pay of the lower
and higher posts in which they are entitled to draw pay should be
identical."
The Principal Bench of Tribunal allowed the OA directing the respondents to
step up the pay of applicant in the OA at par with his junior. After Hon'ble
Delhi High Court dismissed the Writ petition, Hon'ble Apex Court also
dismissed the SLP (Civil) Diary No. (s) 14746/2018 directed against the High
Court order. Hence the order of Principal Bench of the Tribunal had attained
finality.
11. Hon'ble Rajasthan High Court in Civil Writ Petition No. 4330/2019
(supra) also dealt with the same question of stepping up of pay of senior CLI
vis-a-vis his junior. Petitioners in the WP were respondents in an Original
Application filed before the Jaipur Bench of CAT which had been allowed
directing the respondents (petitioners in WP) to grant the applicants the
benefit of stepping up of pay to the applicant at par with their junior with all
consequential benefits including arrears of pay and allowance. Hon'ble
Rajasthan High Court in its order on 26.03.2019 dismissed the WP upholding
the judgment of the Tribunal.
12. L/C for respondents, has put reliance upon the judgment of Hon'ble
Supreme Court in Civil Appeal No. 8329 of 2011 passed on 22.02.2023. The
question involved in that case was equivalence of posts and pay scales of
Junior Design Officers (JDO) and Civilian Technical Officers (Design), both
Group 'B' Gazetted posts in Indian Navy. The two posts had separate
Recruitment Rules, at least since 1996. Prior to the Fifth Central Pay
Commission the pay scales of both the posts were same but in Fifth Pay
Commission different pay scales were provided for the two posts. The Civil
Appeal before Hon'ble Apex Court was filed after the High court dismissed
MANISH KUMAR
SRIVASTAVA
17
the Writ Petition preferred by the appellants against the order of the CAT
which directed the appellant to grant the same scale to both the posts.
Evidently, the facts of this Civil Appeal are clearly distinguishable from the
instant OA.
13. Perusal of the orders of Hon'ble Delhi High Court and Hon'ble Rajasthan
High Court at para 10 and 11 above reveal that the issue of pay anomaly for
the post of CLI/LI erupted on account of the implementation of the Sixth and
Seventh Pay Commission recommendations. Respondents consistently
maintained in all these cases that steeping up of pay was not permissible
under the rules because the promotion of the senior and juniors to the post of
Chief Loco Inspector (CLI) was made from different feeder cadres. Hon'ble
Delhi High Court and Hon'ble Rajasthan High Court considering these
objections dismissed the respective Wirt Petitions and upheld the order of the
Tribunal which attained finality.
14. It is also important to note that Railway Board vide their order dated 14th
November 2019 amended the IREM by introducing a clarification that "for
the purpose of selection/promotion and pay fixation, it is made clear that the
functional categories of Loco Pilot (Goods), Loco Pilot (Passenger), Senior
Motorman, Loco Pilot (Mail) etc. constitute separate and distinct
cadres/seniority units within the overall classification of Loco running staff."
However, within three months of this order, the Railway Board vide RBE No.
07/2020 dated 27.01.2020 allowed stepping up of pay to senior Loco
Inspectors appointed prior to 01.01.2006 at par with their juniors appointed
after 01.01.2006 as a special dispensation condoning the same cadre
requirement. The Board clarified that further cases of stepping up of pay of
CLIs may be regulated in accordance with the Board's letter dated 14th
November 2019,
15. Applicability of the clarifications issued by Railway Board on 14th
November 2019 in the instant case remains a moot point as the pay anomaly
in the instant case arose in 2018. Further, on 06.01.2021, North West
Railway, relying on the Railway Board communication dated 27.01.2020
(Annexure P/1), permitted various Divisions under its control to step up the
pay of Loco Inspectors promoted prior to 01.01.2016 at par with the junior
Loco Inspectors promoted after 01.01.2016 (Annexure P/2 series).
Accordingly, Ajmer Division and Jodhpur Division under NWR issued orders
stepping up the pay of CLIs who were promoted to the post prior to 01.01.2016
at par with the juniors promoted after 01.01.2016.
16. With the railway Board decision dated 27.01.2020 for stepping up of pay
and the decision of NWR to grant similar stepping up to CLIs, can applicants
MANISH KUMAR
SRIVASTAVA
18
in the instant case be denied the same benefit? Further, it is also undisputed
that respondents ordered to reduce the pay of applicants by withdrawing the
benefit of stepping up granted earlier without giving them any opportunity to
explain their case.
17. In the light of above discussions, I am inclined to hold that this case is
squarely covered by the judgment of Delhi High Court date 05.09.2017 in
WP(C) No. 2052 of 2012 and Rajasthan High Court dated 26.03.2019 in Civil
Writ Petition No. 4330/2019. These judgements have attained finality and the
ratio can be directly applied in the instant case. Also, Railway Board itself,
after issuing clarification on 14.11.2019 that the posts of Loco Pilot (Goods),
Loco Pilot (Passenger), Loco Pilot Mail (Mail) etc. are from separate cadre
for the purpose of promotions, allowed stepping up of pay of seniors LIS
promoted before 01.01.2016 at par with junior LI promoted after 01.01.2016
as special dispensation condoning the conditions of same cadre. Further,
North West Railway, taking cue from the Railway Board order dated
27.01.2020 allowed stepping up of pay of CLI promoted before 01.01.2016 at
par with their juniors who were promoted after 01.01.2016 and were getting
more basic pay than the senior CLIs. Different Railway Zones cannot have
different norms for promotions/financial benefits to their employees as that
would be discriminatory and against the law.
18. Taking the entirety of facts and legal aspects discussed above into
consideration, it deems that interest of justice would be served if the
applicants who were promoted as CLI prior to 01.01.2016 get their pay at par
with their juniors who were promoted in 2018. Accordingly, the Office order
dated 16.09.2019 (Annexure A/7) is quashed and set aside and the Office
order No. 265 of 2019 (Annexure A/3) is restored to its original status.
Respondents are directed to fix the present salary of the applicant accordingly
and pay the arrears within four months of receipt of copy of this order.
19. The OA stands allowed to the extent of above observations and directions.
No cost.
20. Before parting it is clarified that no view has been expressed on the legal
sustainability of the order dated 22.07.2019 (Annexure A/4), the Railway
Servants (Revised Pay) Rules, 2016 notified on 28.07.2016 (Annexure A/5)
and the Railway Board order dated 16.08.2019 (Annexure A/6).
[Sunil Kumar Sinha]
Administrative Member".
MANISH KUMAR
SRIVASTAVA
19
13. Order passed in the aforesaid OA was challenged by the Union of
India and others before the Hon'ble High Court of Judicature at Patna in
Civil Writ Jurisdiction case No. 9674 of 2024 and the Hon'ble High Court
dismissed the writ petition on merit affirming the order passed by the
Tribunal.
14. Similar issue has also arisen before the Lucknow Bench of this
Tribunal in OA No. 86 of 2023 which was decided on 12.08.2024 allowing
the claim of the applicant promoted prior to 01.01.2016 as C.L.Is. The
judgment and order passed in the aforesaid OA is as follows:-
"CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00086/2023
Dated, this 12th day of August, 2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Deepak Kumar Rajvanshi aged about 56 years, S/o Shri Jawahar Lal
Rajvanshi, R/o 982, Kiran Enclave, Paikara Mau, Kursi Road, Near Integral
University, Lucknow.
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. Union of India, through the General Manager, North Central Railway,
Prayagraj.
2. The Divisional Railway Manager, North Central Railway, Jhansi.
3. The Senior Divisional Personnel Officer, North Central Railway, Jhansi.
4. The Senior Divisional Finance Manager, North Central Railway, Jhansi.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER (ORAL)
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case, the applicant seeks the following reliefs:
"1. To quash the impugned orders dated 03.10.2022 and order dated 12.01.2023 (contained as Annexure No A-1 and A-1A to this OA), with all consequential benefits.
2. To restrain the respondents from reducing the pay, pension and other settlement benefits, during pendency of the present case.
3. To refund the amount recovered if any, from the pension of the applicant in pursuance of order dated 03.10.2022.
MANISH KUMAR SRIVASTAVA 20
4. Any other relief, which this Hon'ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
5. Cost of the present case as the applicant has unnecessarily been dragged in litigation."
2. The facts of the case are that the applicant's pay, while working on the post of Chief Loco Inspector under the respondents, was stepped up in November, 2020. He retired voluntarily on 11.12.2020. Thereafter, vide order dated 03.10.2022, the respondents cancelled stepping up of pay. The applicant challenged the order dated 03.10.2022 in OA No. 531 of 2022 which was disposed of by this Tribunal on 13.12.2022 directing the respondents to decide the claim of the applicant in light of RBE No. 07 of 2020. The respondents rejected the applicant's claim vide order dated 12.02.2023. Aggrieved, the applicant has preferred this OA.
3. It is contended by the applicant that the cancellation of stepping up of his pay is not as per letter and spirit of RBE 07 of 2020 and has been done at the dictat of respondent no. 1 vide letter dated 11.08.2021. Any recovery, as a consequence of such cancellation, would be in violation of Hon'ble Supreme Court's judgment in State of Punjab vs Rafiq Masih (Whitewasher) (2015) 4 SCC 334 and the instruction issued by the Department of Personnel & Training (DoPT) vide office memorandum (OM) dated 02.03.2016. 4.1 Per contra, the respondents state that the Railway Board's RBE No. 133 of 2019 dated 16.08.2019 on the subject of anomaly in fixation of pay of Chief Loco Inspector appointed prior to 01.01.2016 with reference to juniors appointed after 01.01.2016 mentions in paragraph 3 (f) that in cases where the conditions are not met, steeping up of pay will not be admissible. For instance, a Chief Loco Inspector promoted from Loco Pilot (Goods) prior to 01.01.2016 and a Chief Loco Inspector promoted from Loco Pilot (Passenger) or from Loco Pilot (Mail/Express), i.e., from a different post/cadre after 01.01.2016 are not identical and as such would not come under the purview of instructions relating to stepping up of pay. It has also been mentioned in paragraph 3 (g) thereof that Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) constitute three different cadres.
4.2 It is further contended that the RBE No. 07 of 2020 dated 27.01.2020 making special provision in regard to decision of Hon'ble Court would not be applicable in all similarly situated cases as clarified vide letter dated 18.02.2022. Such similar cases are required to be decided taking into account RBE No. 133 of 2019 and RBE No. 196 of 2019.
5. We have heard both the parties. Learned counsel for the applicant submitted that at heart of the dispute is the Railway Board's RBE No. 133 of 2019 dated 16.08.2019 and that the respondents have relied on paragraphs 3 MANISH KUMAR SRIVASTAVA 21
(f), (g) and (h) of these instructions dated 16.08.2019 which have been struck down by this Tribunal's Bangalore Bench in OA No. 213 & 215 of 2022 vide order dated 19.03.2024. On the other hand, learned counsel for the respondents highlighted the submissions made in the OA.
6.1 For the sake of clarity, RBE 133 of 2019 dated 16.08.2019 is extracted below:
"Sub: Anomaly in fixation of pay of Chief Loco Inspectors appointed prior to 01.01.2016 with reference to their juniors appointed after 01.01.2016 and drawing more pay than the seniors. It has come to the notice of the Board that staff appointed prior to 01.01.2016 as Chief Loco Inspectors in the pre-revised pay structure, whose pay has been fixed in the 7th CPC pay structure for Chief Loco Inspectors under the RS (RP) Rules, 2016, are drawing less pay than their juniors appointed to the Supervisory post after 01.01.2016. The anomaly has arisen due to the fact that the benefit of pay element granted at the time of promotion of running staff to a stationary post has been granted to the junior in the revised pay structure, whereas, the same benefit granted to the senior is of lesser value as the same has been calculated on pre-revised pay structure.
2. Rule 7(10) of RS (RP) Rules, 2016 contains the provisions for stepping up of pay in case of anomaly in pay fixation between senior and junior employees, subject to certain conditions. The anomaly in the case of Chief Loco Inspectors has arisen due to the benefit of pay element reckoned for fixation of pay on promotion of running staff to a stationary post being granted in pre-revised pay structure or revised pay structure
3. Therefore, in accordance with Rule 7(10) of RS (RP) Rules, 2016, it has been decided that the anomaly be resolved by granting stepping up of pay to the seniors at par with the juniors subject to the following conditions:
(a) Both the junior and the senior Railway servants should belong to the same cadre from which they have been promoted to the higher post and the posts in which they have been promoted should be identical in the same cadre;
(b) The existing pay structure and the revised pay structure of the lower and higher posts in which they are entitled to draw are identical;
(c) The senior Railway servants at the time of promotion are drawing equal or more pay than the junior;
(d) The stepping up of pay will be allowed to running staff appointed as Chief Loco Inspectors only in whose cases extant quantum of pay MANISH KUMAR SRIVASTAVA 22 element (at present 30%) is reckoned for pay fixation. The stepping up of pay will not be admissible to the non-running staff appointed as Loco Running Supervisors as in their cases the question of pay element in the running allowance does not arise;
(e) If even in the lower post, revised or pre-revised, the junior was drawing more pay than the senior by virtue of advance increment granted to him or otherwise, stepping up will not be permissible;
(f) In cases where the conditions are not met, stepping up of pay would not be admissible. For instance, a Chief Loco Inspector promoted from Loco Pilot (Goods) prior to 01.01.2016 and the junior promoted to Chief Loco Inspector from Loco Pilot (Passenger) or from Loco Pilot (Mail/Express) [i.e. from a different post/cadre] after 01.01.2016 are not identical and such would not come under the purview of instructions relating to stepping up of pay.
(g) In this connection it is stated that LP (Goods), LP (Passenger) and LP (M/E) form three different and distinct seniority lists and would, therefore, constitute different cadres/posts in the context of clause (a) above as clearly brought out in (f) above.
(h) Stepping up will be allowed only once, the pay so fixed after stepping up will remain unchanged;
(i) The senior shall be entitled to the next increment on completion of his required qualifying service with effect from the date of re-fixation of pay."
(emphasis supplied) It is seen from RBE 133 of 2019 dated 16.08.2019 extracted above that while it allows stepping up of pay of Chief Loco Inspectors appointed prior to 01.01.2016 at par with their juniors appointed after 01.01.2016 and drawing more pay than the seniors, such stepping up is allowed only if the senior and the junior both belong to the same feeding cadre, i.e., Loco Pilot (Goods) or Loco Pilot (Passenger) or Loco Pilot (Mail/Express). 6.2 It is the treatment of LP (Goods), LP (Passenger) and LP (M/E) as different cadres for the purpose of stepping up of pay to remove anomaly between the senior and the junior on promotion in terms of paragraph 3 (f) and 3 (g), which has been addressed by the Bangalore Bench of this Tribunal in the following manner:
"28. It is significant to note that Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) all carry the same scale of pay/pay band and grade pay i.e. PB-2 with grade pay Rs. 4,200/- at the time of promotion of junior. As per RBE No. 95/2013 dated MANISH KUMAR SRIVASTAVA 23 12.09.2013, fixation of pay on promotion in revised pay structure on or after 01.01.2006 is governed by Rule 13 of the RS (RP) Rules, 2008. As a consequence of implementation of recommendations of Sixth Central Pay Commission, various pre-revised scales have been merged and got replaced by same revised pay structure (same Pay Band and same Grade Pay) leading to merger of corresponding posts. Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) constitute a common class as defined in IREM at Para
103. Hence, O. P. Saxena (supra) is distinguishable. The applicants who were more meritorious at the time of selection to the post of CLI cannot be deprived of the benefit of stepping up of pay at par with their juniors whom they were supervising all along, including working as Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) etc. However, the applicants fulfil all the conditions mentioned under Rule 7(10) (i) of RS (RP) Rules, 2016, namely, 1) the applicants and juniors belong to the feeder cadre of posts to CLI and in the same scale of pay i.e. in Level 6 of the pay matrix, 2) the existing pay structure and revised pay structure of the lower and higher post in which they are entitled to pay are identical, 3) the senior railway servants (applicants) were drawing at the time of their promotion and even at the time of promotion of their juniors more pay than the juniors and 4) the anomaly was as a result of application of Rule 1313 of the Indian Railway Establishment Code. Any artificial classification created by the respondents stating that Loco Pilot (Goods), Loco Pilot (Passenger) and Loco Pilot (Mail/Express) constitute different cadres cannot deny the legally entitled rights of the applicants. Thus, treating Loco Pilot (Goods)/ Loco Pilot (Passenger)/ Loco Pilot (Mail/Express) as three different and distinct seniority units constituting different cadres/posts in the context of clause (a) as provided in clause 3 (g) of RBE No. 133/2019 is arbitrary. Similarly, the condition of allowing stepping up once as enumerated in clause (h) is violative of Articles 14 and 16 of the Constitution. Identical anomaly arisen on revision of pay fixation made on the recommendation of earlier pay commissions having been resorted to, the identical issues requires to be MANISH KUMAR SRIVASTAVA 24 resorted to in similar manner. Rights of CLI cannot be curtailed in an arbitrary manner. Hence, Paras (f), (g) and (h) of clause 3 of RBE No. 133/2019 are declared arbitrary and discriminatory, hit by Articles 14 and 16 of the Constitution of India.
29. It would have been different if the claim of the applicant happens to be when he did not enjoy comparable pay scales and even before promotion the junior was getting higher pay than the seniors. It is in such a case only stepping up could be denied as held by this Tribunal, Ernakulum Bench in OA No. 134/2012 (DD: 25.09.2012) [K S Rajendra Kumar & another vs Union of India &Ors.]. In light of the order passed by this Tribunal, Patna Bench, in OA No. 935/2019, supra, the applicants are entitled for stepping up of pay as claimed. We have no reasons to differ from the aforesaid findings of this Tribunal. The judgments of various High Courts conformity the stepping up of pay of seniors at par with juniors relating to earlier pay commission anomalies, having been approved by the Hon'ble Apex Court in dismissing the SLPs filed by the respondents, applicants are entitled to similar reliefs."
(emphasis supplied) 6.3 In the arguments put forth by the respondents in this OA, there is no material to persuade us to differ from the reasoning and findings of Bangalore Bench of this Tribunal enumerated above.
6.4 The subject matter of recoveries has been addressed comprehensively by the Hon'ble Supreme Court in Rafiq Masih (supra). In this case, the Apex Court was considering those cases wherein the private respondents were beneficiaries of a mistake committed by the employer, and on account of the said unintentional mistake, employees were in receipt of monetary benefits, beyond their due. Another essential feature in those cases was that the employees MANISH KUMAR SRIVASTAVA 25 were as innocent as their employers, in the wrongful determination of their inflated emoluments - that is - they had not furnished any incorrect information which led to the mistake of making the higher payment, they had not made any misrepresentation, nor they had committed any fraud. The issue for adjudication was whether all the private respondents (employees), against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer. The issue was settled by the Apex Court vide judgment dated 18.12.2014 in the following manner:
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
(emphasis supplied) The applicant being a retired Group C employee, no recovery can be made from him in terms of Rafiq Masih (supra).
7.1 In view of the foregoing, the order dated 03.10.2022 and order dated 12.01.2023 are quashed and set aside.
MANISH KUMAR SRIVASTAVA 26 7.2 Any amount recovered from the applicant shall be refunded to him by the respondents within a period of two months from the date of receipt of certified copy of this order.
7.3 The respondents are directed to reconsider the applicant's case for stepping up of pay at par with juniors in light of this judgment and pass appropriate orders within a period of two months from the date of receipt of certified copy of this order.
7.4 This OA is disposed of in the above terms.
7.5 Pending MAs, if any, are also disposed of.
7.6 The Parties shall bear their own costs".
15. Although judgment and order passed in the aforesaid OA by Lucknow Bench of this Tribunal has been challenged before the Hon'ble High Court through Writ 'A' No. 719 of 2025, no stay order has been passed in the matter.
16. In the instant case, applicants' claim is that they have been promoted as Chief Loco Inspectors on different dates prior to 1.1.2016. Chief Loco Inspector namely Shri J.N. Tiwari, Shri G.C. Pal and Shri Dinesh Kumar, who have been promoted after 1.1.2016 are getting more salary than the applicants. It is also evident from the record that applicants' salary were stepped up at par with their juniors and was fixed at Rs. 1,02,800/- vide order/letter dated 21.09.2017. Through impugned letter/order dated 7.2.2024, respondents have withdrawn the benefit of stepped up extended to the applicants vide letter dated 21.09.2017 and recovery of excess payment is also started on the basis of guidelines laid down in RBE 133/2019. There is no dispute between the parties that Chief Loco Inspectors promoted after 01.01.2016 are getting more salary than Chief Loco Inspector promoted prior to 01.01.2016. Applicants are senior than the Chief Loco Inspector promoted on or after 01.01.2016. Similar issue has been decided validating the stepping up of the CLIs promoted prior to 01.01.2016 in Dinesh Kumar (supra) case by the Patna Bench of this Tribunal in OA No. 935 of 2019. Order passed by the Patna Bench in the aforesaid OA has been affirmed by MANISH KUMAR SRIVASTAVA 27 Hon'ble High Court in the writ petition No. 9674 of 2024. Similar view has also been taken by the Lucknow Bench of this Tribunal relying on the decision of Bangalore Bench as well as Patna Bench of this Tribunal. In the circumstances, we are of the view that applicants' case is also squarely covered with the law laid down in OA NO. 935 of 2019 decided by Patna Bench of this Tribunal as well as OA No. 86 of 2023 decided by Lucknow Bench of this Tribunal. There is no reason to differ with the view taken by the Coordinate Benches of this Tribunal. Thus, we are of the view that prayer made to quash the impugned orders in respect of the applicants are liable to be allowed in terms of judgment and order passed in OA No. 935 of 2019 (Patna Bench of this Tribunal) as well as OA No. 86 of 2023 decided by Lucknow Bench of this Tribunal.
17. As far as recovery of excess payment said to have been made, it is settled law that firstly no recovery can be made unless any fraud or misrepresentation is alleged on the part of any person from whom the recovery is being sought to be made and secondly, if at all there is any justification for making any recovery, then also adhering to the Principle of Natural Justice, a show cause notice is a pre-condition for making any such recovery. Respondents have not filed any documents which shows that show cause notice was issued to the applicants before recovery. It is really very surprising that as to why without issuance of show cause notice, the recovery in question was made. From perusal of record, it is also evident that there was neither any misrepresentation on the part of the applicants nor mistake can be attributed to him. The mistake, if any, can be said to be that of the department. Therefore, the respondents were not justified to recover any amount from the applicants.
18. In the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33, Hon'ble Supreme Court has been pleased to observe as under:-
"It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess MANISH KUMAR SRIVASTAVA 28 of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-
IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
19. Not only this, the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttrakhand and others reported in (2012) 8 Supreme Court Cases 417, has been pleased to observe as under:-
"8. We are of the considered view, after going through the "various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered."
MANISH KUMAR SRIVASTAVA 29
20. In the case of Davinder Singh and others Vs. State of Punjab and others reported in (2010) 13 Supreme Court Cases, 88, the Hon'ble Apex Court has also been pleased to observe that "opportunity of hearing is to be given to the delinquent before passing an order."
21. Admittedly, in the instant case, applicants were Group 'C' employee and have not committed any fraud or misrepresentation in getting the excess payment. Thus, in view of the above no recovery can be made from the applicants.
22. Thus, on the basis of aforesaid discussions, the OA is liable to be allowed. Accordingly, OA is allowed in terms of OA No. 935 of 2019 (supra) and OA NO. 86 of 2023 (supra) and impugned order dated 07.02.2024 in respect of the applicants as well as the rejection orders dated 28.02.2024, 27.02.2024, 01.03.2024, 26.02.2024, 26.02.2024, 01.03.2024, 20.02.2024 and 28.02.2024 are hereby quashed. Benefit of stepping up of pay extended in respect of applicants vide letter dated 21.09.2017 is restored. Amount, if any, recovered in lieu of letter dated 7.2.2024 or orders passed thereafter are hereby directed to be refunded along with 6% per annum simple interest within a period of four months from the date of receipt of a certified copy of this order. It is made clear that no recovery is permissible in any situation in lieu of the excess payment against the applicants. No order as to costs. All associated MAs are disposed of.
(MOHAN PYARE) (JUSTICE OM PRAKASH -VII)
MEMBER (A) MEMBER (J)
Manish/-
MANISH KUMAR
SRIVASTAVA