Central Administrative Tribunal - Cuttack
Pabitra Kumar Sethy vs East Coast Railway on 8 May, 2025
1 OA 260/00721 of 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA 260/00721 of 2023
Reserved on: 07.05.2025 Pronounced on : 08.05.2025
CORAM:
HON'BLE MR. SUDHI RANJAN MISHRA, MEMBER (JUDL.)
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (ADMN.)
1. Pabitra Kumar Sethy, aged about 42 years, Son of
Sudarsan Sethy, working as Section Controller,
Khurda Road Division, East Coast Railway, Jatni,
resident of At./P.O.- Neulpur, Via- Haridaspur,
Dist.- Jajpur-755024.
2. Niharika Biswal, aged about 47 years, Wife of
Ananta Kumar Swain, working as Section
Controller, Khurda Road Division, East Coast
Railway, Jatni, resident of At/P.O.-Jatni, Dist.-
Khurda-752050.
......Applicants
VERSUS
1. Union of India, represented through the General
Manager, East Coast Railway, Rail Sadan,
Chandrasekharpur, Bhubaneswar-751017, Dist.-
Khurda
2. Principal Chief Personnel Officer, East Cost
Railway, Rail Sadan, Chandrasekharpur,
Bhubaneswar-751017, Dist.-Khurda.
3. Divisional Railway Manager, East Cost Railway,
Khurda Road Division, At/Post-Jatni, Dist-
Khurda-752050.
2 OA 260/00721 of 2023
4. Senior Divisional Personnel Officer, East Coat
Railway, Khurda Road Division, At/Post-Jatni,
Dist-Khurda-752050.
5. Senior Divisional Financial Manager, East Coast
Railway, Khurda Road Division, At/P.O.- Jatni,
Dist. Khurda-752050.
......Respondents
For the applicant : Mr. N.R.Routray, Counsel
For the respondents : Mr. J.K.Nayak, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The applicants, who are working as Section Controller, Khurda Road Division of E.Co.Rly., Jatni have filed this OA jointly challenging the order dated 01.08.2023 rejecting their request for grant of 30% pay element in their promotional post of Section Controller by application of the provision in RBE No. 34/2023. It is the case of the applicant that in terms of 934 of IREM Vol-I, their pay ought to have been fixed upon their promotion to Section Controller by adding 30% running allowance, which was denied to them. The applicants were promoted to the post of Section Controller on 13.02.2023 and joined the post of 15.02.2023. Therefore, the provision of RBE 34/2023 having no retrospective effect has no application to the case of the applicants. According to Ld. Counsel 3 OA 260/00721 of 2023 for the applicants, similar matter came up before this Tribunal in OA No. 229/2011 (Rajendra Kumar Jena Vs UOI & Ors) and this Bench of the Tribunal taking into consideration the rule position and law laid down by the Hon'ble High Court of Orissa and the Hon'ble Apex Court decreed the matter in favour of the applicant therein and, the said order having reached its finality, the applicants in this OA are entitled to the relief claimed in this OA, viz. to quash the rejection order dated 01.08.2023 and fix their pay w.e.f. 15.02.2023 in the post of Section Controller by granting 30% pay elements and to pay differential arrear salary with 12% interest.
2. Fixation of pay on promotion by allowing 30% pay element in terms of 924 of IREM Vol.I is not in dispute. The respondents denied the said benefit to the applicants in the order impugned in this case dated 01.08.2023 by application of the clarification made by the Railway Board vide RBE No. 34/2023.
3. The order dated 01.08.2023 impugned in this OA reads as under:
"Sub: Fixation of pay of running staffs promoted to non- running posts.
Ref: 1-Your's application dtd-29/06/2023.
4 OA 260/00721 of 2023 2-This office Lr. No-P/OPTG/Bills/Clarification/2023 dtd- 25/05/223 Your representation for fixation of pay with 30% pay element for promotion from Sr. TMR, L-6 to SCR, L-6 has been examined and it is observed that adding of 30% of pay element has not been allowed by finance branch in terms of RBE No-34/2023.However a reference in this regard has been sent to PCPO/BBS and the reply is still awaited. Your representation dtd-29/06/2023 has been disposed accordingly."
4. The instruction/clarification issued vide RBE No. 34/2023 on 20.02.2023 reads as under:
"References from Zonal Railways and NFIR have been received in Board's office seeking clarifications regarding reckoning of 30% pay element for fixation of pay of such Running Staff who have been selected to the Stationary Post i.e non-running post upon promotion through General Selection.
2. The matter has been examined in consultation with Establishment and Finance Directorate(s) of Railway Board. It is advised that in absence of specific orders from the Board to this effect, the benefit of reckoning of 30% pay element for the purpose of fixation of pay of running staff on their promotion/appointment to the posts filled through General Section is not admissible. Further, the General Selection is voluntary in nature and the concerned staff are aware of the mode of fixation of pay on promotion/appointment to a post under General Selection. Hence in such cases, pay fixation has to be effected without taking into account the 'pay element'.
3. This issues with the concurrence of the Finance Directorate of the Ministry of Railways."
5 OA 260/00721 of 2023
5. Respondents filed their counter contesting/objecting the case of the applicant on the grounds, as highlighted by Ld. Counsel for the respondents in course of hearing, are that applications sere invited for filling up of five vacancies of Section Controller in Level 6 against 75% departmental promotion quota (General Selection) in Operating Department of the Railway. The applicants offered their candidature to participate in the selection, accordingly, they appeared the written test held on 06.02.2022 and 13.02.2022 and both of them came out successful in the written test as per the result published on 08.03.2022. Thereafter, provisional panel for the post of Section Controller was published on 24.06.2022 wherein the names of the applicants were figured in the order of merit positions obtained by them in the selection. They were sent for training and, after successful completion of training, both of them were posted as Section Controller under CHC/KUR vide office order dated 13.02.2023. The competent authority decided to fix their pay in the promotional post without reckoning the 30% pay element since fixation of pay by adding 30% pay element is not admissible where the promotional post is filled through general selection in terms of RBE No. 34/2023 and, that, the General Selection is 6 OA 260/00721 of 2023 voluntary in nature and the concerned staff are aware on the mode of fixation of pay on promotion/appointment to a post under General Selection. Accordingly, their pay was fixed without adding the 30% pay element. Subsequently, clarification was issued by the Railway Board vide RBE No. 149/2023 stating therein that the provision of RBE 34/2023 is to be made applicable from the date of its issue, i.e. 20.02.2023 with rider that the past cases, decided otherwise, need not be reopened. On the strength of the RBE No. 149/2023, the matter was examined and decided in letter dated 26.02.2024 that the provision made in RBE 149/2023 that the past pay fixation cases decided/vetted otherwise need not be reopened does not imply that the cases, which were not decided/vetted earlier after issuance of RBE No. 34/2023 are to be vetted. Therefore, no injustice was caused to the applicant in the decision making process of the matter requiring any interference and, hence, this OA being devoid of any merit is liable to be dismissed.
6. After considering the arguments of the parties, perused the records. Admittedly, the applicants joined in the promotional post prior to 20.02.2023. According to the respondents, clarification issued by the Railway Board vide RBE No. 149/2023 stating therein that the provision 7 OA 260/00721 of 2023 of RBE 34/2023 is to be made applicable from the date of its issue, i.e. 20.02.2023 with rider that the past cases, decided otherwise, need not be reopened and, on the strength of the RBE No. 149/2023, the matter was examined and decided in letter dated 26.02.2024 that the provision made in RBE 149/2023 that the past pay fixation cases decided/vetted otherwise need not be reopened does not imply that the cases, which were not decided/vetted earlier after issuance of RBE No. 34/2023 are to be vetted. Now the question for adjudication is as to whether the case of the applicants are to be covered and governed by the provision for addition of 30% pay element on promotion was in vogue as on 15.02.2023 or 20.02.2023 and as to how far the respondents are justified in giving interpretation that old cases decided/vetted otherwise implies that the case which were not decided/vetted earlier should not be given the benefit of 30% of pay element.
7. Admittedly, the applicant was promoted/appointed to the post of Section Controller on 13.02.2023 and joined the post of 15.02.2023. The Railway Board abandoned the provision of fixation of pay by adding 30% pay element prospectively w.e.f. 20.02.2023. It is a fact that none has got any indefeasible right for appointment/promotion even he/she is 8 OA 260/00721 of 2023 selected but once he/she joined the post, he/she accrued an absolute right to the pay and other perquisites attached to the post from the date of joining. This is a well known principle, which cannot be brushed aside. Since, the applicant joined the post on 15.02.2023, he is entitled to pay and other perquisites as per the rules in vogue as on the date of his joining. Delay in fixing the pay in the guise of pendency of clarification sought relating to addition of 30% pay element cannot deprive him his right to get the pay fixed as per the rules in vogue merely because the delay caused by the department in fixing his pay.
8. We find that similar issue came up before this Bench in OA No. 229/2011 (Rajendra Kumar Jena Vs UOI & Ors) and the Division Bench vide order dated 16.11.2023 after taking into consideration the various provisions of rules and placing reliance on the decision of the Hon'ble Apex Court have ultimately held that the applicant therein is entitled to the benefit, as per the provision in vogue when he joined in the promotional post. It is not the case of the respondents that the aforesaid order has been reversed by any higher forum. The relevant portion of the order is quoted herein below:
9 OA 260/00721 of 2023 "4. Ld. Counsel for the applicant has submitted that RB's E(S)- I58RS/27 dated 23.09.1959, Sl. No. ER 3482, provides that even if a running staff is promoted at his own request to a stationary post in a channel other than the one normally open to the running staff, the element of running allowance will be taken into account for the purpose of fixation of pay in his new post. The above provision was abandoned with by the RBE No. 132/2006, which came into effect from 15.09.2006, with specific instruction that "past cases decided otherwise need not be reopened" and that the said RBE having no retrospective implication cannot be made applicable to the case of the applicant. It has further been submitted that when the pay of the applicant was fixed on proforma basis by treating the training period from 01.08.2005 as duty for purpose of drawing increment vide office order dated 25.08.2004, his case ought to have been considered by the provisions, which were in vogue before 15.09.2006 (RBE No. 132/2006 came into effect). In other words, according to the Ld. Counsel for the applicant treating the period w.e.f. 01.08.2005 for the purpose of drawing increment means he was entitled to increment on a particular pay scale and the said pay scale ought to have been fixed by taking into account 30% pay element. Thus, rejection of his claim of 30% pay element by invoking RBE No. 132/2006 is bad in law and to substantiate the said stand, Ld. Counsel for the applicant has relied on the decision of the Hon'ble Apex Court in the case of Y.V.Rangaiah & Ors. Vs. J.Sinivas Rao & Ors., (1983) 3 SCC 284, and P.Mahaendra & Ors. Vs. State of Karnataka & Ors., AIR 1990 SC 405. In support of his stand that he is entitled to the 30% pay element, he has also relied on the decision of the Hon'ble Allahabad High Court in the case of UOI Ors. Vs. Subhasis Haldar & Anr., Civil Misc. Writ Petition No. 33309 of 2011 disposed of on 01.02.2012. Accordingly, he has prayed for the relief claimed in the OA.
5. Per contra, Ld. Counsel for the respondents reiterated the stand taken in the counter as noted above and has stated that the submission of the Ld. Counsel for the applicant that the RBE No. 132/2006 having prospective effect cannot be made applicable to the case of the applicant as his pay was fixed much before the RBE came into effect is not correct because in the order dated 25.04.2008, it was specifically stated that he having been empanelled as Traffic Apprentice in pursuance of GDCE Scheme, 10 OA 260/00721 of 2023 was sent for training and on completion of training he was posted as Traffic Apprentice or Section Controller as the case may be in the scale of Rs. 5500-9000/- w.e.f. 17.09.2007 having his pay in the same scale fixed on proforma basis by treating the training period from 01.08.2005 to 17.09.2007 as duty for the purpose of drawing increments. Accordingly, he has prayed for dismissal of this OA.
6. As noted above, this matter was dismissed by this Tribunal vide order dated 15.10.2014, which order was challenged by the applicant before the Hon'ble High Court of Orissa in W.P(C) No. 21197/2014 and the Hon'ble High Court of Orissa while remitting the matter back to this Tribunal by quashing the order of this Tribunal dated 15.10.2014 was pleased to observe as under:
"5. Mr. D. Gochhayat, learned Central Government Counsel appearing for the opposite parties relying upon the counter affidavit stated that the tribunal is well justified in passing the order impugned, which does not warrant any interference of this Court at this stage. It is further contended that the scale of pay of the petitioner has been fixed on his appointment to working post Dy. S.S. considering notional pay at Rs.5500/- w.e.f. 01.08.2005 under RS (RP) Rules, 1997, getting pay fixation notionally w.e.f. 01.01.2006 as per RS (RP) Rules, 2008 and allowing onwards notional increments as per extant rules applicable for direct recruitees. Therefore, it is contended that this Court should not interfere with the order passed by the tribunal.
6. Having heard learned counsel for the parties and after going through the records, this Court finds that the petitioner claims for fixation of his scale of pay and, as such, it is contended that the reliance placed on RBE No.132/2006 issued by the East Coast Railway Establishment has no application to the present case and, therefore, the contention raised by learned counsel for the opposite parties cannot sustain in the eye of law......."
(emphasis supplied) 11 OA 260/00721 of 2023
7. In view of the aforesaid observation of the Hon'ble High Court of Orissa and the fact that the applicant was allowed the pay in the promotional post w.e.f. 01.08.2005 for the purpose of increments, which can only be worked out after fixing the pay. The RBE No. 132/2006 which has come much after 2005, having not retrospective implication, rather with emphasis that past cases should not be reopened, the impugned orders dated 11.05.2010 and 04.01.2011 are hereby quashed. The respondents are directed to fix the pay of the applicant in the pay scale of Rs. 5500-9000/- in terms of the RBE in vogue prior to RBE 132/2006 and pay the applicant the differential amount after refixation of his pay by adding 30% pay element. The entire exercise shall be completed within a period of 180 days from the date of receipt of a copy of this order."
9. No such material/authority has been placed by the Ld. Counsel for the respondents to defer from the view taken above, therefore, by taking into consideration the law laid down by the Hon'ble Apex Court in the cases of Y.V.Rangaiah (supra) and P.Mahaendra (supra) and the order of this Bench in the case of Rajendra Kumar Jena (supra), we hold that the interpretation given by the authority concerned that past cases need not be reopened implies that the employee, who have not been granted the benefits shall not be granted is illegal and arbitrary. Resultantly, the impugned order dated 01.08.2023 is hereby quashed and the respondents are directed to fix the pay of the applicants in terms of the provisions existing prior to 20.02.2023 and pay them the differential arrears within a period of 120 days from the date of receipt of a copy of 12 OA 260/00721 of 2023 this order. Since, the denial was by way of interpretation of the provision, we see no justification to grant the prayer of the applicant for interest on the arrear amount.
10. In the result, the OA stands allowed to the extent stated above by leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS