Central Administrative Tribunal - Kolkata
Madhusudan Mukhopadhyay vs Eastern Railway on 14 September, 2022
"o . 1 | OA 588/2022 CENTRAL ADMINISTRATIVE TRIBUNAL | O KOLKATA BENCH, KOLKATA we an we, _ i
0.A./350/00588/2022 Date of Order: 14.09.2022 Coram: Hon'ble (Ms.) Bidisha Banerjee, Judicial Member In the matter of :
Madhusudan Mukhopadhyay, | Ex-Console Operator cum Instructor under General Manager, Eastern Railway, 17, Fairlie Place, Kolkata-700001 and residing at Burir Bagan, Post Office and Police Station-
Burdwan, Dist. Purba Bardhaman, Pin-
713101, West Bengal.
jesse Applicant VS.
1. Union of India, service through the Secretary, Ministry of Railways having its office. at Railway Board, Rail Bhawan, New Delhi-110001.
2. The Railway Board, service through the Chairman Railway Board, having its office at Railway Board, Rail Bhawan, New Delhi-110001.
3. The Chairman Railway Board & Chief Executive Officer (CEO), having its office at Railway Board, Rail Bhawan, New Delhi-
110001. | - 2 OA 588/2022
4. The Member (Finance), having its office at Railway Board, Rail Bhawan, New Delhi-110001.
5. The Eastern Railway, service through the General Manager, Eastern Railway, having its office at 17, Fairlie Place, Kolkata-
700001.
6. The General Manager, Eastern Railway, having its office at 17, Fairlie Place, -
Kolkata-700001.
7. The Additional General Manager, Eastern Railway having his office at 17, Fairlie Place, Kolkata-700001.
8. The Principal Chief Personnel Officer, Eastern Railway having his office at 17, Fairlie Place, Kolkata-700001.
9. The Chairperson, Railway Recruitment Cell, Eastern Railway, having its office at 56 C.R. Avenue, 1* Floor, Rites Building, Kolkata-700012.
10. The Principal Financial Advisor (PFA) Eastern Railway having his office at 17, Fairlie Place, Kolkata-700001.
11. The Principal Chief Operations Manager (PCOM), Eastern Railway having his office at 17, Fairlie Place, Kolkata-700001.
12. The Financial Advisor & Chief | Accounts Officer (G), Eastern Railway having his office at 17, Fairlie Place, Kolkata-
700001.
13. The Financial Advisor. & Chief Accounts Officer (F&B), Eastern Railway having his office at 17, Fairlie Place; Kolkata-
700001.
'For The Applicant(s): In person 3 ; OA 588/2022
14. The Financial Advisor & Chief Accounts Officer (SW), Eastern Railway having his office at 17, Fairlie Place, Kolkata-
700001.
15. Chief Account Officer (Administration)/Eastern Railway having his office at 17, Fairlie Place, Kolkata-700001.
16. Deputy Chief Account Officer (G), Eastern Railway having his office at 17, Fairlie Place, Kolkata-700001. --
17. The Deputy Chief Account Officer (Fin & IT), Eastern Railway, having office at 17, Fairlie Place, Kolkata-700001.
18. Senior Personnel Officer/S&T Eastern Railway, having office at 17, Fairlie Place, Kolkata-700001. .
19. The Senior Assistant Financial Advisor/Administration, Eastern Railway having office at 17, Fairlie Place, Kolkata-
700001.
20. The Assistant _ Financial Advisor/Administration, Eastern Railway having office at 17, Fairlie Place, Kolkata-
700001.
21. =' The Principal, Mutti Disciplinary zonal | Railway Training Institute, Eastern Railway, Bhuli, Post Office Bhuli, Police station Bhuli, District- Dhanbad, Jharkhand, Pin-828104.
sucsneaee Respondents For The Respondent(s): Mr. R. Halder, Counsel 4 OA 588/2022 ORDER(ORAL Per: Hon'ble (Ms.) Bidisha Banerjee, Judicial Member
1. Heard the applicant in person and Learned Counsel for the respondents.
2. This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985 and as no complicated question of law is involved, this matter is taken up for disposal with the consent of both the parties.
3. The present applicant had preferred 2 OAs bearing nos. 350/01234/2020 and the present OA, i.e., OA 350/00588/2022. In OA No. 350/01234/2020, the applicant had prayed for the following relief :
"8.1 To set aside and quash the letter dated 27.07.2020, the vigilance report dated 09.07.2014 and letter dated 02.08.2014 which were issued in a arbitrary, capricious and malafide manner in violation of the provision of IREC RBE 26/2000 and RBE 26/2003 and ignoring the findings of the | respondent no.5;
8.2 To direct the respondent 2 and 6 to refund the.
entire training allowance to the tune of Rs. 4, 24, 314/- so recovered from the salary of your applicant in an arbitrary and illegal manner in complete of the provision of RBE 26/2000 and RBE 21/2003;
8.3 To direct the respondent authority to make payment of Training Allowance from 01.07.2014 to January, 2017 for taking classes in the Training Institute through payment of his Training Allowance was stopped from 01.07.2014. . oe 8.4 Show cause in terms of prayer 8.1, 8.2 and 8.3 and after hearing the cause make the rule absolute.
8.5 Adirection as to costs of the proceedings to the applicants;
8.6 Any further order or orders, direction or directions as the Hon'ble tribunal may deem fit and proper for the ends of justice. " :
In the present OA, the applicant has prayed for the following relief :5 . OA.588/2022
"(a) An order directing the respondent, their main agents and subordinates to grant him promotion for the post of Console Operator to Senior Console Operator at Electronic | Data Processing Centre with effect from the date i.e. the date of the joining of the Applicant 18.02.1992 with all consequential benefit and for a further order.
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(b) An order directing the respondents to grant two MACP in his favour with actual benefit and grant any other or further relief or reliefs which he is entitled.
(c) An order directing the respondents, their main agents and subordinates to promote the applicant from the feeder post. of Console Operator to the next promotional post of Senior Console Operator and to the next higher promotional post with all consequential actual benefit by set aside or by quashing impugned communication dated 21.11.2017, 28.11.2019 and 11.02.2020 issued by Chief Accounts Officer/Administration and also set aside or by quashing impugned order dated 08.03.2022 issued by Chairperson/RRC/Eastern Railway being annexure- "A23", "A26" & "A33" collectively.
(d) An order directing the respondents, their main agents and subordinates to give promotion from Console Operator to Sr. Console Operator to Programmer by upgrading the post of Console Operator to Programmer i.e. Group "C" to Group "B" (Level 8, GP 4800/-) being Annexure- "A11" & "A30".
(e) An order directing the respondents, their main agents and subordinates to change the designation Console Operator cum Instructor instead of Console Operator in HRMS Portal being Annexure-"A31".
(f) Cost and incidental thereto."
4. The other OA bearing no. 350/01234/2020 has been disposed of on 30.09.2022 with the following orders :-
"Heard Ld. Counsels.
2. This applicant has sought for the following reliefs:
"8.1 To set aside and quash the letter dated 27.07.2020, the vigilance report dated 09.07.2014 and letter dated 02.08.2014 which were issued in a arbitrary, capricious and malafide manner in violation of the provision of IREC RBE 26/2000 and RBE 26/2008 a and ignoring the findings of the respondent no.5;
8.2 To direct the respondent 2 and 6 to refund the entire training allowance to the tune of Rs. 4, 24, 314/- so recovered from the salary of your applicant in an arbitrary and illegal manner in complete of the provision of RBE 26/2000 and RBE 21/2003;6 OA 588/2022
8.3 To direct the respondent authority to make payment of Training Allowance from 01.07.2014 to January, 2017 for taking classes in the Training Institute through payment of his Training Allowance was stopped from 01.07.2014.
8.4 Show cause in terms of prayer 8.1, 8.2 and 8.3 and after hearing the cause make the rule absolute.
8.5 A direction as to costs of the proceedings to the applicants;
8.6 Any further order or orders, direction or directions as the Hon'ble tribunal may deem fit and proper for the ends of justice. "
3. This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section.5 of the Administrative Tribunals Act, 1985, and, as no complicated question of law is involved, this matter is taken up for disposal with the consent of both the parties. .
4. The facts narrated by the applicant, appearing in person are the following:
The Applicant joined the Railway Service as Wireless Maintainer Gr.Ill, through RRB on 15.03.1983.
"He joined as Console Operator on 18.02.1992 through a Selection, in Multi Disciplinary Zonal Railway Training Institute.
The Principal, ZT! proposed Training Allowance for him on 06.01.1993.
The Chief Personnel Officer issued letter for Training Allowance by changing his designation.
Later the Principal issued Office Order, and the applicart was allowed to get Training Allowance from 15.02.1993.
The Chief Personnel Officer even issued letter fixing his Lien as a Console Operator, - vide letter dated 17.10.03.
Suddenly, as a bolt from the blue the Eastern Railway Vigi'ance issued a letter of . Recovery on 09.07.2014.
When Applicant approached, the Principal wrote a letter to Senior Deputy General Manager that the applicant was working in Ex. Cadre Post as Instructor (Computer) and the Post of Console Operator is a Permanent Post.
Further the Principal also wrote a letter to Chief Personnel Officer, Eastern Railway on 16.03.15, and sought for clarification along with the judgement of Hon'ble Supreme Court dated 18.12.2014. (State of Punjab Vs Rafiq Masih) but CPO/E. Rly did not give any answer regarding inapplicability of the said judgement of Hon'ble Supreme Court.
Principal then wrote a letter to General Manager (VIGILANCE) for deduction of Training Allowance. The Training Allowance is stopped from 01.07.2014 and recovery started from August 2014 @ Rs. 10103/ from salary without any show cause, notice or charge sheet.
The Principal wrote two letters to CPO/E. Rly for posting of new Computer Instructor replacing the Applicant but the applicant has been forced to take the classes up to 05.01.17 as would be evident from the Class Routine of January 2015 and December 2016 (page 70 and 71).
The Applicant was transferred at Kolkata Head Office on 10.01.2017. .7 OA 588/2022
The Railway Board Vigilance issued a stricture to Chief Personnel Officer/Eastern Railway/Kolkata by its four pages letter (page no 42 to 45) and sought for a clarification why deduction have been done in spite of Hon 'ble Apex Court Judgement.
Railway Board Vigilance even sought for clarification from the General Manager Vigilance by its four pages letter, as to the reason such deduction has on the following:
"2.1. As per selection notification No. 2890/2/31/TRG (Bhuli, Pt. IV 01.03.1990 of CPO/ER followed by his office order no S&T/145/92 dated 14.02 1992, Shri Madhusudan Mukhopadhyay, then WM-Il in scale Rs. 1200-1800/- under CSTE (Pig)/ER/Kolkata was selected for the post of Console Operator in Scale Rs. 1600-2660 in Single Cadre Post. He joined ZTC/Bhuli on 18.02.1992 ;
2.2. Shri Madhusudan Mukhopadhyay, after joining ZT C/Bhuli, in addition to his work as Console Operator, started imparting computer training. To bring him at par with the other instructors of ZTC/Bhuli, Principal/ZRTI/Bhuli. sent a_ proposal vide letter No.ZTC/B/RS/Trg. Allowance/ Instructor dated 06.01.1993 to CPO/ER to re-designate the post of Console Operator as 'Computer Instructor' so that Shri Mukhopadhyay may also be entitled to Training Allowance at par with other instructors. He wrote the letter after the issue was discussed in the governing council meeting held at ZTRI/Bhuli on 28.07.1992 and it was decided to re-designate the post of Console Operator as 'Computer Instructor'.
2.2.1. Records reveal that on receipt of the said request the proposal was examined by Personnel Office of Eastern Railway vide their note dated 19.01.1993 and SPO/ RP has recorded therein as under:
"This is a case for granting Training Allowance to Shri M.S. Mukhovadhyay who has been posted as Console Operator at ZTRI/Bhuli. Though Shri Mukhopadhyay is entrusted to | impart computer training, but he is not getting Training Allowance as he is designated as Console Operator.
din view of the above, CPO may kindly accord his approval to re-designate Shri Mukhopadhyay as Instructor (Computer) for has entitlement for training allowance."
2.2.2. CPO (Admn)/ER approved the above proposal on 20.01.1993 to re-designate the post and marked the fie to Chief Safety Superintendent (CSS). CCS raised a query on whether the grade of Console Operator is comparable to the Instructor's grade.
2.2.3. SPO/RP clarified that both Console Operator and instructor Grade-II are in the pay scale Bs 1600 - 2660 RP. Thereafter, CSS agreed for re-designation of post vide his approval dated 29.01.1993. Thereafter, CPO's office issued a letter No. £890/2/31/Trg/Console Operator dated 02.02.1993 according approval of re-designation of post of Console Operate as Computer Instructor.
2.2.4. On receipt of the letter the Principal ZTC/ Bhuli issued an Office Order dated 15.02.1993 conveying the approval of the competent authority for re-designation and mentioned the following, inter alia. .
"Shri M.S. Mukhopadhyay present incumbent to the post of Console Operator in grade Rs. 1600 - 2660 is accordingly re-designated as Computer Instructor ir grade Rs. 1600 -- 2660 RP w.e.f, 18.02.1992, i.e., from the date he joined at ZTC, Bhuli and is entitled to Training Allowance."
2.2.5. Thus, Shri Mukhopadhyay was allowed to avail Training Avowance from February 1993.
ii) 8 OA 588/2022 2.3. From the above, it is clear that the presumption was that 'Training Allowance' entitlement come along with the designation of 'instructor'. Even the CPO's office of Eastern Railway appears to be under the same imppression as is evident from the notings -- of SPO/RP. As seen from the notings in CPO's officer, the competent authority deliberated on the aspect of equivalence of grade of both the posts of Console Operator and instructor; but never questioned the entitlement of Training Allowance. Since the Principal, ZTC, Bhuli had proposed re-designation so that 'Training 'Allowance' is allowed to Shri Mukhopadhyay and there was nothing contrary to that proposal mentioned in the letter from CPO's office permitting re-designation, in the office order that followed from the Principal, he clearly mentioned that Shri Mukhopadhyay is entitled to the Training Allowance.
2.3.1. Since it was taken for granted that the entitlement for 'Training Allowance' flows from the designation of Training Instructor, there was nothing unusual in the letter of the Principal, ZTC dated 15.02..1993.
2.4, Coupled with the above assumption/ presumption, there was ambiguity also"
. related to the nature of the post of 'Console Operator'- whether it is a 'cadre' post or an 'ex-cadre' post. In this regard, the following are relevant:
(i) Applications were called for 'selection' to this 'single' post of Console Operator in the scale of Rs. 1600-2660 (RP) and form a panel vide CPO's letter No. E-890/2//31/Trg (Bhuli)/Pt.IV dated 01.03.1990 and the eligibility condition were clearly mentioned. Shri Mukhopadhyay, then working as WM-Ii under CSTE/PlIg./CCC, in the Rs. 1200-1800 (RP) was selected for the post being from one of the three feeder grades for the post.
(ii) 'Principal, ZTC, Bhuli, vide his letter No.. ZTC/E/2/RS/Instructor/02 dated 12.09.2002 addressed to CPO, Eastern Railway, in the context of clarity regarding the status of Shri Mukhopadhyay, has mentioned inter-alia that 'ZT C/Bhuli has no cadre of its own and lien of all the staff posted here, is maintained in their respective open lines'. He has further mentioned that 'despite the fact that more than 8 years have elapsed neither his lien has been fixed nor he had been promoted to the next higher grade'. In response, CPO office, vide their letter No. E.839/2/SG/L/ WM dated 05.11.2002 replied as under:-
"After review of the procedure for selection of console Operator at STC/ Bhuli, the competent authority has decided that Shri Mukhopadhyay will continue to be worked as console operator which has not decided as Ex-cadre, in scale Rs. 5500-9000/- (RSRP) at STC/ Bhuli till further advice.
The question of fixing his lien de-novo is under examination and the same will be informed in due course as and when a decision is arrived at." , 2.4.1, The above noting, though in grammatically wrong Engilish, indicates that till that time there was no clarity on the following issues:-
Whether the post of Console Operator (Instructor/Computer) was ex-cadre or not, it was only in 2002 November it was decided that the post was not ex-cadre; Whether his lien continued in Eastern Railway or was fixed at ZTC/ Bhuli {since as per the admission of the Principal, ZTC did not have a cadre of its own).
2.5. Shortly afterwards, CPO office wrote to Shri Mukhopadhyay vide their letter No. EX9/2/SG/L/WM dated 24.09.2003 asking for his option as regards his lien. Shri Mukhopadhyay vide his letter dated 29.09.2009 opted for continuing as Console Operator in the scale 5500-9000/- (RSRP) and not in the category WM-II in scale of 1200-1800/-
_ (RSRP). -
2.6. Pursuant to this, CPO office vide its letter dated 17.10.2003 advised the Principal, ZTC, Bhuli that "Competent Authority has observed that Shri Mukhopadhyay will continue in 9 . OA 588/2022 the single cadre post of Console Operator at ZTC, Bhuli. The par-icular post now to be considered as an open post and Sri APO etc. if he is eligible otherwise. "
2.7. Thus, it was only in 2004 that the issue got clarity and Principal, ZRTI Bhuli, vide his Office order dated 19.02.2004 clarified inter alia that "The post of Console Operator at ZTC/Bhuli/Eastern Railway has been declared as Single Cadre Post and the post is now to be considered as Open Post and as such lien of M.S. Muknopadhyay Instructor (Computer)/ZRTI/Bhuli has been fixed as Console Operator at ZRTI/Bhuli, E Railway in terms of CPO/KKK's letter No. E.890/2/SG/L/VM dated 17.10.2003 w.e.f. 18.02.1992 i.e, from the date he joined at ZRTI/Bhuli/Dhanbad, Eastern Railway'.
2.8 In reply to Vigilance Officer (Account)'s query dated 01.10.2013 addressed to Dy.
CPO(HQ)'s office in Eastern Railway if Shri Mukhopadhyay is elighis for training allowance, -- CPO office vide its letter dated 17.01.2014 has clarified that "only faculty members who are drawn on deputation basis from the field and whose duty is to import training/ education to the trainee may be granted 'Training Allowances' at the. rate of 15%. Accordingly, faculty members who are working as regular measure in training institutes are not eligible for training allowance under extant rules. The admissibility of the allowance will be examined by Committee at the appropriate level to be constituted as per RBE No. 127/2001."
2.9 On the basis of a few complaints received by Eastern Railway Vigilance which inter-alia contained an allegation that Shri Mukhopadhyay is claiming training allowance for the past 15 years though he has not taken a single class and not being an instructor he is not entitled for training allowance, the same was investigated by Eastern Railway Vigilance, ER Vigilance, vide their letter dated 09.07.2014, communicated to Principal, ZRTI, Bhuli, inter alia, as under:- . ° " It is clear that Shir Madhusudan Mukhopadhyay originally selected for the higher post of Console Operator/ZRTI/Bhuli's office order, although imparting training on computer and establishment matters, is working against a cadre post. He is neither in ex-cadre post _ nor in deputation at Training institute and as such he was not/ is not entitled to training allowance at any stage since induction in ZRTI/Bhuli w.e.f. 18.02.1992. It is therefore advised to take necessary step to stop training allowance in favour of Sri Mukhopadhyay immediately and also to take step for recoveries of training ailowance drawn by Sri Mukhopadhyay since 18.02.1992 till date duly calculated and vetted by Sr. DFM/ER/ASN. Recovery may however be effected in suitable instalments."
2.10. IN response to the above letter, Principal, ZRTI, Bhuli vide his 'etter dated 11.07.2014 while confirming that Teaching Allowance has been stopped with effect from July 2014, has written to SDGM/ER drawing reference to two of his letters, dated 06.01.1993 and 15.02.1993, that he had first proposed Teaching Allowance and subsequently had passed orders on-getting confirmation from CPO/KKK. Moreover, Console Operator's post at ZRT! is a permanent post but Instructor (Computer) is of Ex-Cadre and Shri Mukhopadhyay is enjoying Teaching Allowance through Ex-Cadre post",
5. Keeping in view the above facts, the following may be clarified:-
(1) When there was no clarity on the issue till at least the year 2002, was it justified on the part of Eastern Railway Vigilance to advise recovery of training allowance since 1992?
(2) How was Sri Mukhopadhyay responsible in getting the training allowance which he was supposedly not entitled to?
(3) Records indicate this training allowance was allowed to him with effect from the month of February 1993. However, Eastern Railway Vigilance advised deduction from his _ pay w.e.f, the month of February, 1992. Why so? Reasons for the same may be advanced.
4). As regards the other allegation of irregularities regarding non-regularisation of extended period of outstation duty, it is observed that Vigilance fas commended specific O 10. ; OA 588/2022 penalty to be imposed as Shri Mukhopadhyay. This apparently is not in order. Vigilance should have recommended a penalty, i.e, major or minor, commensurate to the irregularities proved to the. Disciplinary Authority. However, it is seen that Vigilance recommended to the DA a penalty and insisted on its imposition.
(5) Keeping in view the above, it_may be clarified as why the act of Vigilance department in this case should not be treated as 'excess and why action against the Vigilance officials involved should not be initiated.
4. Clarifications may be furnished latest by 31.07.2017."
The applicant submitted his representation against recovery of Training Allowance to CPO/E. Railway and also represented to the Cabinet Secretariat OPG (Director of Public Grievance) online, on 30.10.2019 for not getting any response from. Railways till retirement. The DPG for Railways acknowledged, by its letter addressed to the applicant dated 31.10.2019, and the applicant also represented via on line Grievance portal, and the answer is under process.
That the Principal has given his reply dated 27.07.20 & 14.10.20 to the Cabinet Secretariat DPG for Railways (Director of Public Grievance) in continuation of applicant's letter 30.10.19 and Cabinet Secretariat DPG for Railways's reply to the applicant has been received on 30.07.2020 & 19.10.2020. Hence the Applicant who retired on 30.11.2019, has filed the matter on 02.12.20.
In his Reply dated 22.02.2019, to the application of under RTI Act 2005 the Chief Personnel Officer served the copy of Director Vigilance (Intelligence)/Railway Board New Delhi and AGM's letter and other letters to the applicant. .
That the Railway Board's Circular, RBE No 26/2000, RBE 21/03, calls for Training Allowance, RBB 72 /2016 clearly says that before recovery approva! of the Secretary in the Railway Ministry and consultation with Finance Directorate should be taken and employee should be informed, but Administration did nothing.
Applicant would refer to the decision of Hon'ble Supreme Court's Judgement, (Latest Judgement and other judgements), in. Civil Appeal No 11527 of 2014 State of Punjab and others Vs Rafiq Masih (White Washer) against recovery of excess amount. from serving/ retired employees which has element of fraud or misrepresentation is alleged.
5. Per contra, the respondents have attempted to justify recovery, having said as under:
"8. Admissibility of Training Allowance has been clearly communicated by Railway Board from time to time which clearly stipulates - Training Allowance is only extendable to the Instructors imparting training in Training Institutes who are drafted or posted on deputation under Training Institutes in terms of CPO's circulars issued from time to time vide No. 44/91, 116/95, 18102)/2003 (RBE No. 21/2003) and 122(091/2005 (RBE: No. 139/2005). As he was neither drafted on deputation or posted against an ex-cadre post (rather posted against a regular single cadre post with elevated pay scale), so admissibility of such training allowance was rightly denied and recovered. In this regard, an application - made by the present applicant for stoppage of such recovery, duly forwarded by the Principal/ZRT|/Dhanbad/Bhuli (Copy Enclosed as WN/11 was specifically rejected vide this office letter dated 21/01/2016 (Copy enclosed as WN/20).
9. However, from the official records it is seen that his recovery was made from the month of August, 2014 onwards ie. well before the judgment of Rafiq Masih (2015) 4 SCC 334, which was delivered on 18/12/2014. As such that Judgement also cannot have retrospective effect to determine the present case. Moreover, this case is of like nature of Syed Abdul Quadir (2009) 3 SCC 475 and High Court of Punjab & Hariyana Vs Jagdev Singh, the recovery of wrongly paid Teaching Allowance was recovered from the salary of the present applicont Sri Madhusudhan Mukhopadhyas an equal monthly installments 11 OA 588/2022 ~ from August 2014 onwards whereas his retirement on superannuation is on the year 2019 (30/11/2019) i.e. 5 years 4 months of his service left at that time and as such Rafiq Masih (2015) 4 SCC 334 conclusion also not applicable. Moreover, the amount of every amount as per monthly installments is very minimum as compared 'to the gross salary of the -
petitioner, less than 10% of his monthly salary. Therefore the cause of hardship also not tenable. At the same time the petitioner come to court after his retirement ard specifically in the year 2020 whereas his recovery was made in the year 2014 specifically from August 2014 which is 6 years from 2020 as such his action is also barred by delay/limitation vide Supreme Court Judgement Rabindra Nath Bose & Ors Vs UO! & Ors | AIR 1970 Sc 470) which is also followed by CAT. Ernakumlam Bench in OA 325 of 2017 vide order dated 17/11/2017. The copy of which is annexed hereto us "WN/3" and aiso judgement of High
- Court of Punjab & Hariyana Va Jugdev Singh enclosed as "WN/4"."
6. Rival contentions are noted.
The applicant is aggrieved as he has suffered a recovery of Rs.10,000/- from his salary, from August 2014 onwards till his retirement in 2019. His repeated, incessant representations ventilating his grievance, failed to break the ice. Recovery per month if held erroneous, is a continuing wrong, that admittedly started in August, 2014 and was 'continuing till 30.11.19. All along he preferred representations till 2019-2020 and moved this application for refund of recovered amount in 2020. Therefore the application cannot be dismissed on the ground of limitation. Moreover, the applicant has claimed that the Chief Personnel Officer issued a letter fixing his lien as a Console Operator, on 17.10.03.
The Principal wrote a letter to senior Deputy General Manager that the applicant was working in Ex. Cadre Post as Instructor (Computer) and that-the Post of Console Operator is a Permanent Post .
The Principal also sought for clarification from Chief Personnel Officer, Eastern Railway on 16.03.15 in terms of the judgement of Hon'ble Supreme Court dated 18.12.2014. (State of Punjab Vs Rafiq Masih) but CPO/E.Rly did not give any answer.
The Principal wrote a letter to General Manager (VIGILANCE; about deduction of Training Allowance and Training Allowance was stopped from 01.07.2014. Recovery | started from August 2014 @ Rs. 10103/- from salary without notice and without issuing charge sheet.
Further, Principal wrote two letters to the CPO/E. Rly for deputing new Computer Instructor replacing the Applicant but and the applicant was forced to take the classes up to 05.01.17. The Class Routine of January 2015 and December 2016 names the applicant (E/MSM) and also note in Routine named NB/D. Meanwhile the applicant was transferred to Kolkata Head Office on 10.01.2017.
Railway Board Vigilance strongly wrote to the Chief Personnel Officer/Eastern Railway/Kolkata by its four pages letter seeking clarification why deduction have been done in spite of Hon'ble Apex Court Judgement.
Further, Railway Board Vigilance thoroughly wrote the General Manager Vigilance by its four pages letter seeking clarification why deduction have been done in spite of Apex Court Judgement.
The applicant submitted his representations against recovery of Training Allowance to CPO/E. Railway and also represented to the Cabinet Secretariat DPG for Railway (Director of Public Grievance) on line dated 30.10.2019, the DPG for Railways acknowledged by its letter addressed to the applicant dated 31.10.2019. The applicant also applied in other on line Grievance portal and the answer is said to be under process.
That the Principal has given reply dated 27.07.20 & 14.10.20 to the Cabinet Secretariat DPG for Railways (Director of Public Grievance) in continuation of applicant's letter. . 30.10.19 admitting that the "deduction have been made from 18.2.92"whereas allowance
-was paid from February, 1993.
(i)
(ii) (iti)
(iv)
(v) 12 OA 588/2022 The Cabinet Secretariat DPG for Railway's replied on 30.07.2020 & 19.10. 2020. The Applicant meanwhile retired on 30.11.2019. a RBE 72/2016 clearly says that recovery shall be made with the approval of the Secretary in the Railway Ministry and in consultation with Finance Directorate with information to the applicant, but Administration did nothing.
Further, Hon'ble Supreme Court's Judgments, Hon'ble High Court's Judgements, this Central Administrative Tribunal's decisions, Kolkata & Ministry of Finance letter in the wake of Civil Appeal No. 11527 of 2014 State of Punjab and others Vs Rafiq Masih (White Washer) etc. filed by way of Memo regarding recovery of excess payment relied by the applicant, lead to the inevitable conclusion that recovery cannot be made from Group Cc' employees where no fraud or misrepresentation is alleged.
7. The decision in Rafiq Masih was rendered on 18 December 2014, when it became the law of the land. Judicial Pronouncements of Hon'ble Apex Court cannot be overturned by any administrative order. A law laid down by the Hon'ble Apex Court is declaratory for the nation. In a judicial system governed by precedents, judgments or propositions laid down by the Hon'ble Apex Court of the nation must be respected and applied with meticulous care and sincerity.
_In State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors. (2015) 2 SCC (L&S) 33 the Hon'ble Apex Court summarised the situations were recovery would be permissible, and held:
"18. 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 decision referred to hereinabove, we may, as a ready reference, summarise the faliowing few situations, wherein. recoveries by the employers, would be impermissible in law:
Recovery from the employees belonging to Class Ill and Class IV service (or Group C and Group D service).
Recovery from the retired employees, or the employees who are cue to retire within o one year, of the order of recovery.
Recovery from the employees, when the excess payment has been made for a period i in excess of five years, before the order of recovery is issued.
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.
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 for outweigh the equitable balance of the employer's right to recover."
In the instant case both (i) and (iii) (supra) apply.
8. The applicant appearing in person has also cited the DoPT OM dt. 2.3.2016 issued
- in the light of Rafiq Masih, which stipulates as under:
", The matter has, consequently, been examined in consultation with the Department of Expenditure. and the Department of Legal Affairs. The Ministries / Departments are advised to deal with the issue of wrongful / excess payments made to Government servants in accordance with above decision of the Hon'ble Supreme Court in CA No. 11527 of 2014 (arising out of SLP (C) No. 11684 of 2012) in State of Punjab and others etc vs Rafiq Masih (White Washer) etc. However, wherever the waiver of recovery in the above-mentioned situations is considered, the same may be allowed with the -- express approval of Department of Expenditure in terms of this Department's OM No. 18/26/2011-Estt (Pay-!) dated 6" February, 2014."
9, The Railway Board's letter dated 14.7.2017 seeking clarification from the GM (Vig.) is very clear on the following aspects:
13 . OA 588/2022(i) Way back in 1992, the Principal ZTC/ Dhuli had mentioned that the applicant --
"Shri M.S. Mukhopadhyay present incumbent to the post of Console Operator in grade Rs. 1600 - 2660 is accordingly re-designated as Computer Instructor in grade Rs. 1600 -- 2660 RP w.e.f. 18.02.1992, i.e., from the date he joined at ZTC, Bhuli and is entitled to Training Allowance."
And Railway Board observed that -
"Thus, Shri Mukhopadhyay was allowed to avail Training Allowance from February 1993.
2.3. From the above, it is clear that the presumption was that 'Training Allowance' entitlement come along with the designation of 'Instructor'."
(ii) Post of Console Operator at RTI is a permanent post but Instructor (Computer) is of ex- cadre and the applicant "is enjoying Teaching Allowance through Ex-cadre Post."
(iii) Teaching Allowance was paid from February, 1993 til, superannuation, but recovery was ordered since 1992.
(iv) Board has sought clarification why the act of Vigilance aepartment in this case should not be treated as 'excess and why action against the Vigilance officials involved should not be initiated.
10. The applicant has cited the following decisions to strengthen his argument that recovery was not proper. He would refer to the following:
"(1) Civil Appeal No. 3351-3354, 3355,3364 of 2003 Syed Abdul Qadir & Others Vs. State of Bihar & Others by Hon'ble Supreme Court rendered on 16.12.2008.
(2) Appeal (Civil) No. 4386 of 2006 Purshottam Lal Das and others Vs. State of Bihar and Others by Hon'ble Supreme Court rendered on 10.10.2006.
(3) Civil Appeal No. 1995 SCC Sup! (1) 18JT 1995(1) 24 Sahib Ram Vs. State of Haryana and Others rendered on 19.09.1994.
(4) 1994 SCR (1)700, 1994 SCC (2) 521 Shyam Babu Verma Vs Union of India of Hon'ble Supreme Court rendered on 08.02.1994.
(5) Civil appeal No. 7237 of 2008 State of Bihar & Others Vs. Pandey Jagadishwar Prasad, Judgement of Hon'ble Supreme Court rendered on 11.12.2008. "
(6) MP Medical Officers Association --Vs- State of Madhya Pradesh & Ors. Civil appeal No. 5527 of 2022 where Hon'ble Apex Court noted thet the members of the appellant association, who were serving as Specialists, Dental Specialists and officers in the specialist's cadre got same monetary benefits under a circular dated 23.05.2009. It was the Department/State, who issued the circular dated 23.05.2009 and paid the benefits under the circular dated 23.05.2009 to the members of the appe'lant association, which subsequently came to be withdrawn by the State in the year 2012. Therefore, as such, there was neither any misrepresentation on the part of the concerned employees members of the appellant association nor can the mistake be attributed to them. The mistake, if any, can be said to be that of the Department/State, who issued the circular dated 23.05.2009 under which the members of the association were given certain benefits till the same was withdrawn in the year 2012. Therefore, in the peculiar facts and circumstances of the case, the State was not justified in ordering recovery of the excess amount paid along with the interest. Hon'ble High Court ordered:
"The impugned judgment and order passed by the Division Bench of the High Court upholding the recovery of the excess amount paid alongwith interest is hereby quashed and set aside.
In result, there shall not be any recovery of the excess amount paid pursuant to the circular dated 23.05.2009 till the same was withdrawn on 30.05.2012. However, for all other --14 OA 588/2022
purposes including the pay fixation and pension etc., the same shall be now worked out as per the order dated 26.08.2008, as if, the circular dated 23.05.2009 was never issued. "
11. In Thomas Daniel -Vs- State of Kerala & Ors. rendered on 2.5.2022 the Hon'ble Apex Court referring to the above decisions, observed that --
"(9) This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity." ;
XXX XXX : XXX in Sahib Ram v. State of Haryana and Others 1995 Supp (1) SCC 18 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. , XXX XXX XXX in Col. B.J. Akkara (Retd.) v. Government of India and Others (2006) 11 SCC 709 this Court considered an identical question as under:
"27, The last.question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6- 1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] ):
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong 11 SCC 709 interpretation of rule/order, which is subsequently found to be erroneous.
XXX XXX XXX In Syed Abdul Qadir and Others v. State of Bihar and Others (2009) 3 SCC 475 excess payment was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even jf it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired.
XXX XXX XXX in State of Punjab and Others v. Rafiq Masih (White Washer) and Others wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and 4 15 OA 588/2022 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery.
XXX XXX XXX in fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General. , (15) Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified."
In the aforesaid backdrop it is noted that the recovery was not proper.
12. Coming to the Boards' circular on the subject Training Allowance, it is categorical that the allowance is admissible only to such employees who join the training establishments for a specified period and are then likely to go back. It is not admissible to those who are directly recruited by such training establishments for imparting training.
13. Further, Training Allowance is admissible to the faculty members without any ceiling of 5 years and standard cooling off period between tenures, apply.
(Authority:- Railway Board's letter No. E(MPP)2012/3/28 dated 06.10.2017: RBE No.145/2017) RBE 26 OF 2000 stipulates --
"Kindly refer to this Ministry's letter No.E(MPP)/94/13/4 dated 20.9.95 wherein sanction of the Ministry of Railways was communicated for grant of training allowance to the various training centers.
The Ministry of Railways had been considering the question of extending the Benefit of grant of training allowance to the faculty members of other training centers. It has now been decided that faculty members, both gazetted and nongazetted, drawn on deputation from the field for the purpose of imparting training.
XXX XXX XXX
5. The following guidelines should be observed for sanction of the training allowance.
(a) Faculty members, both gazetted and non gazetted, who are drawn on deputation from the filed and whose duty is to impart training/education to the trainees may be granted "Training Allowance" at the rate of 15% of the basic pay in the revised scaled of pay. xxx and (c) Faculty means "An employee" of the Government who joins a training institute meant for training government officials as a faculty member and whose work is to impart training/teaching. This will also include the principals of the training institutes. "
Admittedly and indubitably the applicant was a regular Console Operator who was drafted/ deployed to perform duties of an Instructor, which arrangement is as good as a deputation. He was not a regular Instructor but he served as one. As such he was considered eligible for training allowance.
RBE 21 of 2003 also enjoins that from 1.1.2003, the faculty members, both gazetted and non-gazetted, drawn on deputation from the field for the purpose of imparting training may be granted Training Allowance @ 15% in terms of extant orders. .
ideally this provision also allowed the applicant the right to training allowance. AS such recovery of the training allowance, that he was rightly granted, was unreasonable, arbitrary and bad.
14. In the aforesaid backdrop, having discerned that the applicant held the post of Console Operator a single cadre post, but was drafted to perform the Job of Training at ZRTI Bhuli as an Instructor not on regular basis, it is held that training allowance was rightly given to him from 1993 till his transfer and hence the Railways shall refund the QO 16 OA 588/2022 entire recovered amount not only because of the Board's provision but also due to the precedents enumerated above, within 2 months with interest @ 6% p.a. No costs."
5. Inthe present OA, the applicant has harped on the single issue that as a Console Operator who was utilized as an instructor, he ought to have been considered for promotion to the post of Sr. Console Operator and Programmer at | EDP,.Centre, Kolkata,-with effect from his date of joining, i.e., 18.02.1992 with all consequential benefits since all his juniors who were serving as Console Operator UE/SE IT) at the relevant time were included in the IT cadre and such mass inclusion was noticed in Asansol Division Workshop and Liluah Division Workshop.
He has alleged that the respondents have not taken into consideration his experience as Console Operator from 18.02.1992 to 30.11.2019 coupled with the recommendation of the Additional General Manager/ Eastern Railway and Dy. Chief. Accounts Officer/G. He has further alleged that the denial of promotion was on the alleged ground that he was never a staff of EDG, rather he was a staff of Signal & Telecom Communication (S&T cadre). The respondents have failed to use even a scrap of paper to show that he belonged to S & D Cadre ever. The applicant has asserted that he was a staff of the Multi Disciplinary Zonal Railway Training Institute (MDZRTI), Bhuli, Dhanbad, Eastern Railway.
6. The respondents have denied the claim of the applicant by filing a detailed reply. They claim that the applicant was appointed in the cadre of Wireless Maintainer Gr. Ill in the scale of Rs. 950-1500/- in the year 1983. He was ~ subsequently promoted to the post of Wireless Maintainer-I in scale of Rs. 1200- 1800/- with effect from 02.11.1990.
A-notification was issued vide CPO's letter dated 01.03.1990 to fill up one signal cadre post. of Console Operator in the scale of Rs. 1600-2660/- under 17 OA 588/2022 Principal/ZRTI/Bhuli outside the regular cadre of Wireless Maintainer to be filled up by floating options. On being selected, the applicant joined as Console Operator in the higher scale of Rs. 1600-2660/- under Principal/ZRTI/Bhuli w.e.f.
18.02.1992. The respondents have further claimed that his elevation to the post of Console Operatory in the scale of Rs. 1600-2660/- was to the apex scales meant for Gr. C employees which he achieved within a period. of 9 years. The hierarchy of pay scales in the S & T Technician cadre is Rs. 950-1500/-, Rs. 1200-1800/-, Rs.
1320-2040 and Rs. 1400-2300/-.
The applicant had also been extended six (06) advance increments upon acquiring higher qualification, i.e. Graduationship IETE Examination, in terms of CPO's sl. No. 110 of 1989. He reached the apex scale of Rs. 6500-10500/- in the 6"
CPC and Level-7 (7*" CPC) in 2008 with the extension of the benefit of MACP. They have referred to a chart depicting the positions and financial status of the applicant that he achieved at the relevant time :
Sl. Avenues provided to Name of Post Scale Year No. 1 Initial Appointment Wireless Maintainer -II] Rs. 950-1500/- 1984 [corresponding to GP Rs. 1900/- (6"
CPC)/L-2 (7 CPC)] 2 1* Promotion _Wireless Maintainer -Il Rs. 1200-1800/- 1990 [corresponding GP Rs. 2400/- (6"
CPC)/L-4 (7"" CPC)]
3 2" Promotion (Selected Console Operator Rs. 1600-2600/- 1992 in Supervisory Grade) Re-designated as [GP Rs. 4200/- (6" 1993 Instructor/Computer | CPC)/L-6 (7" CPC)] (Single Cadre Post) 4 MACP (Apex Supervisory | Console Operator-cum- Rs. 2375-3750/- 2008 Grade/3™ Financial Instructor/Computer [GP Rs. 4600/- (6 benefit) CPC)/L-7 (7" CPC)} The respondents have thus asserted that the applicant enjoyed a very accelerated career advancement i.e., after his induction to Technician-lll in the year 1984 etc. The respondents have further referred to the representations preferred by the applicant to contend that on his own volition he opted for the 18 . OA 588/2022 post of Console Operatory in scale of Rs. 1600-2600/- and, that he was left with two alternatives : (i) either to be restored to his parent cadre of Wireless Maintainer, or (ii) to continue in the post of Console Operator in the scale of Rs.
1600-2660/-.
The applicant preferred OA No. 1234/2020, seeking teaching allowance, and challenging recovery thereof, followed by OA No. 923/2021 filed along with MA No. 324/2021, wherein this Tribunal had issued the following directions :- .
" avseenenaes we give liberty to the applicant to prefer a comprehensive representation to the appropriate respondent authority within a period of 3 weeks from the date of receipt of a copy of this order. Upon receipt of the same, the addressee respondent authority, or, any other competent authority, shall dispose of the same in accordance with law and in accordance with the extant rules, within a period of 12 weeks from the date of receipt of such representation. In the event the applicant is able to establish his claim, consequent orders and benefits should issue within 10 weeks thereafter."
The respondents have clarified that in compliance of the said decisions, the applicant submitted his representation dated 22.12.2021 which has been disposed of by the competent authority, being the Chairperson/RRC/ER/Kolkata with an office letter dated 08.03.2022, which the applicant has assailed in the present OA. | The respondents have disclosed that, in regard to non-inclusion/non- consideration of his name in the unified IT cadre, contents of RBA No. 42/2004 and RBA No. 46/2008 should be referred to. In terms of RBA No. 48/2004, it was clarified that - "The existing staff in the EDP Centres who are encaderd would be suitably trained and adjusted in corresponding/equivalent grade in the new IT Cadre. The grade in which they are working shall be the basis for their absorption | in the corresponding/equivalent grade". On the other hand, RBA No. 46/2008 stipulates - "the staff working in EDP Centre as on 01.04.2005 having 5 years of --
service in EDP centre would be considered for absorption in new cadre w.e.f.
19 OA 588/2022'01,04.2005 itself" whereas, the petitioner never worked in the EDP Centre. lt may be appreciated that IT cadre, being controlled by the Accounts Deptt. of Railway, 'is solely guided by the relevant RBAs issued from time to time by the Railway Board. It may be appreciated that he was a staff of S&T Deptt. and not Accoutns Deptt. and at no point of time he had been encadred in the EDP Centre. Such staff who were in the roll of EDP centre with such designation of Console Operator had already been re-designated as JE/IT & SE/IT in accordance with the stipulations of RBA No. 42/2004 and RBA No. 46/2008. Hence, he was neither an en-cadre staff _ of EDP Centre nor an ex-cadre staff of EDP Centre. Actually he was never in the EDP Rolls of Accounts Deptt.
That, the issue was put up to the then CPO/A who had observed that as he already enjoyed accelerated promotion in comparison to his contemporaries in his parent cadre of Wireless Maintainer further advancement was not admitted. The respondents have also raised the issue of maintainability of the OA on the ground that, he has challenged the promotional benefits, after three years of his retirement, from the year 1992 and mere disposal of representation in the year 2020 cannot condone the delay of 30 years.
7. Learned Counsel were heard and records perused.
8. The respondents have disclosed by way of a memo letter dated 24.09.2003, issued by the CPO's office, Eastern Railway, stating as under :-
"6. The Competent Authority (CPO/A) after examining the issue has decided the following :
"Sri M.S. Mukhopadhyay cannot continue against a solitary post of Instructor (Computer) which essentially should be an ex-cadre post. His lien has to be restored in his parent cadre or he has to continue in the single post. Option is Sri Mukhopadhyay's. There is no question of upgrading the post of Computer Instructor, 20 OA 588/2022_ 'Sri Mukhopadhyay is already enjoying a higher grade than his contemporaries in WM Cadre. Sri Mukhopadhyay's option may be initiated."
7. In view of the above, Sri Mukhopadhyay may be apprised of the pasition as indicated in Para-6 above and his option may accordingly be sent to this office for taking further necessary section at this end for finalizing the subject issue." The applicant, in response, had clearly indicated in his letter dated 29.09.2003, as under :-
"Most respectfully | beg to state that on the basis of above mentioned letter that ! have joined as Console Operator at ZT C/Bhuli, Eastern Railway in scale of Rs. 5500-9000/-(RSRP). | want to work as Console Operator in scale of Rs. 5500-9000/-(RSRP) and ! am also stating that | want to continue as Console Operator in scale of Rs. 5500-9000/-(RSRP).
Ido not want that my lien to be fixed in the category of WM Il in scale of Rs. 1200-1800/- (RP)."
It is further evident from a letter dated 08.03.1988 that, for creation of one post of Asstt. Programmer it was decided by a Governing Council meeting of _ ZTS/Bhuli held on 21.04.1988 that the said post in the grade of Rs. 2375-3500/- (RP) may be created to man the Computer Cell by matching surrender. Since the Asstt. Programmer Grade is in higher scale and there is no equivalent post to surrender, it was proposed to create one post of Console Operator in the grade of Rs. 1600-2660/-(RP) by surrendering one post of Comml. Instructor in the grade of Rs. 1400-2600/- (RP) which was lying vacant and despite all efforts nobody could be brought from open line to man the said post. The financial implication of | creation of the post of Console Operator was depicted as under :-
'e) 21 -- 0A 588/2022 al Firnnancial Implication:
iI) Creatign of post:-
Console Operator in Grade Rs. 1600- 2660/-(RP) Average Pay Rs. (1600+2660)/2=2130.00 *.
=383.40 DA =_20,00 CA , =2533.40 Total Cost: involved for creation in Rs. 2533.40.per month or Rs. 30400/s per year.
2) Surrender of post:-
Commercial Instructor In Grade of Rs. 1400-2600/- (RP) Average pay= 1400+ 2600/2=2000, 00 =360.00 DA =20.00 CA | . =2380,00 ;
3) Total Cost towards the post surrendered Is Rs. 2380.00 per month or Rs, 28560/-
per year,
4) Tha.difference of cost Involved for-creation of new post and'surrender value: Is. marginably sniali and there is no other-post which can be offered Tor: surrendering in "this teaching faculty.
5) The. above Is alive-and permanent.
It is evident from Dy. CPO's note dated 16.09.2003 and a letter dated 17.10.2003 issued by one A. Sengupta for CPO, Eastern Railway addressed to the Principal, ZTC, Bhuli, that the applicant would be eligible to compete for any open selection like Law Assistant, APO, etc. if he is otherwise eligible. Even a note dated 05.03.2004 indicates that for promotion to the post of APO/AWO/Asstt. Secy through 30% quota (LDCE) for permanent Gr. 'C' staff belonging to all Personnel Department, General Administration, Civil Engineering, Mechanical Engineering, Singla & Telecom Engineering, Electrical, Medical, Security, PRO, and Welfare inspector all - Civil Engineering Department, who have put in 5 years of non- fortuitous service in the grade of Rs. 1400-2300/-(RP) have been adjudged eligible to apply. The applicant was also found eligible as he was serving as Computer Instructor. Further, his request was turned down by a letter dated 08.06.2004 without disclosing any reasons. Such deprivation was directed to be re-examined at the instance of the CPO/ER addressed to the General Manager, Eastern Railway .
but the applicant was never allowed to appear in the selection.
It is further evident from the EDP Cadre position of 01.04.2005 that in 2004, the applicant was denied permission to appear in the selection for the post of APO/AWO/AS against 70% and 30% quota. Although it was advised on 16.09.2003 ~ by way of Dy. CPO's note that he would be allowed to appear in the departmental O 22 | OA 588/2022 open examination of Law Assistant or APO, etc. Further, his application for appearing in LDC examination of S & T Department stood rejected in 2006 as according to the respondents his lien with S&T Department got snapped in the year 2004.
It is further evident that several persons are being indicated in IT cadre of Eastern Railway and Metro Railway and have been allowed to appear at the selection for the post of Programmer based on their parent cadre/EDP cadre position of 01.04.2005 whereas the applicant was denied the same.
Therefore, on one hand the applicant was never allowed to continue and enjoy his lien being fixed as Console Operator as he was utilized as an Instructor in his FTI. While on the other hand, he was deprived of appearing at relevant examination for advancement of his career prospects by way of promotion to the post in open line for Law Assistant or APO, etc. He was also denied the benefit of regularization of IT cadre on the ground that he was a Console Operator whereas it is evident that all-the Console Operators who held their posts as such were redesignated as JE (IT) and the senior Console Operators as SE (IT). The deprivation ought to the applicant are palpably unreasonable and arbitrary that he was allowed an advancement up to the apex scale of Gr. 'C' cannot be a ground to deprive him farther to the promotional benefits of Gr. 'B' posts. The respondents, as it appears, have also failed to show that the applicant belonged to S &T cadre to deny him entry into the IT cadre.
In 2009, there was a re-organisation of the staffing pattern of EDP Centres. The new organization set up was known as Information Technology Centres (IT Centres) which would encompass activities that were being undertaken by the 23 OA 588/2022 Zonal EDP Centres, Divisional, Workshop and Stores Deport Computer Centres but not the PRS and FOIS. It was to function under the administrative and professional . control of the FA & CAO of the Zonal Railways and centrally controlled by Zonal | Railway Headquarters. The redesignations would be :
1. Junior Engineer (IT) Grade-ll (Rs. 5000-8000) (Vth CPC)
2. Junior Engineer (IT) Grade-I (Rs. 5500-9000) (Vth CPC)
3. Senior Engineer (IT) Grade-Il (Rs. 6500-10500) (Vth CPC) It specifically clarified that apart from the existing staff in the EDP Centres, the staff working on ex-cadre basis in Computer Centres of Divisions, workshop and stores depot would be considered for deployment in the equivalent grade on their request in the new set up subject to fulfillment of the prescribed conditions.
The EDP Centre at Zonal headquarters would be known as Zonal IT Centre while the computer centre at Division/Workshop/Stores Depot will be known as Divisional/Workshops/Stores Depot IT Centre. The redesignation of the EDP -
Centres stood modified as under '~ SN Old Designation New Designation 1 Assistant Programmer : -_ Senior Engineer (IT)-| 2 Console Superintendent Senior Engineer (IT)-I 3 Data Processing Superintendent Senior Engineer (IT)-II 4 Senior Console Operator senior Engineer (IT)-ll 5 General Supervisor ; Junior Engineer (IT)-I
6. Console Operator Junior Engineer (IT)-I
7. Sr. Data Entry Operator Junior Engineer (IT)-II
8. Data Entry Operator Junior Engineer (IT)-II Further, in terms of RBE No. 46/2008, it was clarified that, new entry in the revised IT Cadre will be made in terms of the provisions in the Board's letter No. 24 OA 588/2022 2002/AC-Il (CC)/37/8 dated 17.11.04 to be read with letter dated 16.11.06 and L.No. 2007/AC-II (CC)/37/9 dated 12.06.2008.
On 62.07.2009, the Principal/ZRTI/Bhuli had initiated a proposal to include the single sanctioned post of Console Operator in scale of Rs. 1600-2660/- (now " Rs. 9300-34800/- in PB-2) into the new IT Centre in the centratized cadre to avoid any resentment of staff posted in future. Several staffs of EDP Centres, etc. were placed as/ JE (T) and SE(IT) according to their respective seniority, but the applicant was left out due to his noninclusion in the post of JE(IT) from his due date, as such he was also deprived of his promotion to the higher post.
9. The |respondents have miserably failed to show that the post of Console Operator was a single cadre post of S & T Department. There was apparently no reason to deprive the applicant of his due promotions as A>O etc. or in the IT cadre or even as Sr. Console Operator.
Whereas AGIW's note reads as under :-
"It is\clear that even in groups where there are already a channe! of promotion they are being given a second channel to increase the adequacy of promection prospects. Under such circumstances it is totally against any logic to quote rules to refuse the channel of promotion that is due to Shri Mukhopadhyay. Similarly, Railway Board's notification No.79/E (GR)1/31/6 issued on 19th December, 1981 where che same logic have reiterated indicating Group 'C' staff of transportation, traffic and commercial department, staff of computer center and statistical branch are eligible to appear in the selection for APO. Such broad coverage indicates that Shri Mukhopadhyay's claim that he should have the channel of promotion to APO has justification as he happens to be a staff in a computer center-may be it is single cadre post.
At this stage the options open are:-
(i) To revert Shri Mukhopadhyay back to Wireless Maintainer Group. This is an impossible task as all the lost opportunity suffered by Shri Mukhopadhyay will come in the way. His lien was severed unilaterally by personnel branch in 1994 without considering all these aspects, therefore, his case deserve a sympathetic consideration. It is also a fact that the wireless maintainer group had major technological changes and has become a shrinking of cadre now.
This would result in Shri Mukhopadhyay's entry, if attempted now, being seriously objected to by other staff and he would be seriously harmed.
Ss gee SSS 28 ----- GA 5838/2022
(ii) Adjusting him in the existing cadre of EDP Centre could be a way out. The EDP Centre has a-small cadre ond it may be worthwhile to examine this option. The cadre is controlled by FA & CAO, Therefore, this would require approval af FA&CAQ-and bath the unions as well as by Shri Mukhopadhyay. He could be given a paper seniority and cantinued in any 'of the ex- cadre posts of divisional EDP Centres. :
fifii To continue with the single cadre post of Console Operator at ¢ Bhuli after obtaining Gi4's approval: [it 'has been mentioned in the note by Dy. CPO/G that net obtaining. this approval hes been a. major procedural error). Thereafter, Shri Mukhopadhyay can be adjusted through promotion either in . EDP Centre oras in ex. cadre posts that may be available in. other EDP centers by adjustment, Being in the cadre of cansole operator he will have then a . legitimate claim of pramotian to the Group 'B' past af APO.
i shall prefer the 3rd option which is the simplest one and requires no disruption to any other group and should be acceptable to Shri Mukhopadhyay es he has been making appeal only for a channel of prometion to Group BS"
Ss E 1G, As such, the applicant should be deemed to have been adjusted in EDP Centre and promoted as JEUIT) or a higher post SE (IT) in the IT cadre w.et. the date persons junior to him were promoted as such, notionally with fixation of pension and arrears of pension from such due date, within & weeks.
41, .Assuch, the OA stands disposed of, No costs.
i ae (Bidisha Banerjee} Judicial Member -
sl