Central Administrative Tribunal - Allahabad
Unknown vs Union Of India Through General Manager on 20 March, 2013
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 20th DAY of March, 2013) Honble Mr. Shashi Prakash, Member (A) Honble Ms. Jasmine Admed, Member (J) Original Application No. 157 of 2009 (U/S 19, Administrative Tribunal Act, 1985) Mohd. Tanwir Equabal, A/a 42 years, S/o Late Mohd. Rahman, Presently residing at L-2-B, Plant Depot Colony Behind Hostel, Mughalsarai, District Chandauli. Applicant Present for Applicant : Shri Rakesh Verma. Versus 1. Union of India through General Manager, East Central Railway, Ram Ashish Chowk, P.O. Diggi District-Hazipur (Bihar). 2. T he Divisional Railway Manager, East Central Railway, Mughalsarai District Chandauli. 3. The Chief Personnel Officer, East Central Railway, Ram Ashish Chowk, P.O. Diggi District-Hazipur (Bihar). 4. The Senior Divisional Personnel Officer, Office of the Divisional Railway Manager, East Central Railway, Mughalsarai District-Chandauli. 5. The Principal, East Central Railway Inter College, Mughal Sarai District Chandauli. Respondents Present for Respondents : Shri Anil Dwivedi. O R D E R
(Delivered by Hon. Mr. Shashi Prakash, Member-A) The present O.A. has been instituted for quashing the impugned order dated 4/31.12.2008 whereby respondent No. 4 has reduced pay scale of the applicant to Rs. 4500 to 7000/- with retrospective effect (21.11.2001) from the pay scale of Rs. 5000-8000 which was fixed in his favour at the time of medical decategorisation of applicant. It has been prayed that the pay scale of Rs. 5000 to 8000/- should be restored and his placement and fixation of the revised pay scale may be made as per the recommendation of the VI Central Pay Commission w.e.f. 01.01.2006.
2. As per the facts contained in the OA, the applicant while working on the post of Sr. Engine Turner in the pay scale of Rs. 5000 to 8000/- and drawing a basic pay Rs. 5150/- per month, was medically decategorised on account of the fact that he was placed in C-I medical category. Thereafter, the applicant was assigned duty from 17.01.2001 as T.L.C. As the medical standard prescribed for T.L.C. was B-I category, the applicant was removed from the post of T.L.C. and accommodated against a supernumerary post in commercial department pending his final absorption. Thereafter, by an order dated 11.06.2001 respondent No. 4, with the approval of the competent authority absorbed the applicant in the pay scale of Rs. 5000 to 8000/- in the category of teacher and his basic pay was fixed Rs. 6,650+45 as personal pay (Annexure A-4) and the applicant joined this post on 21.06.2001. It is the contention of the applicant that the absorption of the applicant in the pay scale of Rs. 5000 to 8000/- was in violation of the provision contained in para 1307 and 1308 of the advance correction slip No. 77 substituting and amending chapter XXIII and para 1301 to 1315 of IREM Volume I. At the same time malice has also been alleged on the part of the respondents on the ground that similarly situated person namely Sri K. P. Srivastava, Sr. Goods Guard who was also a running staff in the pay scale of Rs. 5000 to 8000/- after being medically decategorised was given the pay scale of Rs. 6,500 to 10,500/- by application of the provisions contained in para 1307 and 1308 of IREM (Annexure A-5). Similar benefit was granted to Shri Udai Sharma (Annexure A-6) and Sri Subodh Kumar, (Annexure A-7), Sri Shyam Bihari and Sri Lakhan Prasad (Annexure A-8). It is averred in the OA that there is no pay scale of Rs. 5000 to 8000/- presently in the category of teachers. By the application of formula of para 1307 and 1308 the pay scale of the applicant requires to be fixed in Rs. 6,500 to 10,500/- but in any case in a scale not lower than that of Rs. 5500 to 9000/-.
3. For reasons stated in the O.A. Sri Rakesh Verma, Counsel for the applicant argued that the absorption of the applicant in the pay scale of Rs. 5,000 to 8,000/- was absolutely illegal. He mentioned that against the aforesaid fixation of the pay scale the applicant filed OA No. 679/2004 which is pending adjudication. His contention is that being annoyed by the Act of the applicant in filing the O.A., the respondent No. 4 with the approval of the respondent No. 3 passed the impugned order after a lapse of 7 years and giving it retrospective effect. He stated that the action of respondent No. 4. in reducing the pay scale of applicant to Rs. 4,500 to 7,000/- is a blatant act of arbitrariness and smacks of malice as it has been done without explicable reason. Hence, the impugned order dated 04/31.12.2008 is illegal and liable to be set aside.
4. Sri Anil Dwivedi, counsel for the respondents argued that at the time of absorption of the applicant there was a pay scale of Rs. 5,000 to 8,000/- (RSRP) in Sr. Grade of Primary Teachers. The applicant was absorbed against that post at his own request as per provision of para 1309 of IREM. He further argued that after the medical decategorisation of the applicant, the first alternative job offered to him was that of T.L.C. in the pay scale of Rs. 5,500-9,000/- which he refused to accept and requested for absorption in the teachers category. He was absorbed in the pay scale of Rs. 5,000 to 8,000/- in the teaching category at his own request and placed under the control of headquarters Eastern Railway at the relevant time. Thereafter, the CPO Eastern Railway Calcutta again examined the issue of fixation of the pay of the applicant and issued an order that on absorption of the applicant has to be fixed at Rs. 4,500-7,000/-. Accordingly, in pursuance of the order of the CPO, Eastern Railway the pay scale of the applicant was fixed as 4,500-7,000/- in place of Rs. 5,000 to 8,000/-. He also submitted this fixation has been done keeping in view the benefit to which medically categorized running staff was entitled by way of protecting his loss of pay. He argued that the actions taken by the applicant are in conformity of the relevant rules on the subject and do not call for any interference on the part of the Tribunal.
5. Heard counsel for both the parties and perused pleadings. We feel that the facts of the case have to be seen in the context of the rules provided by the Railway for fixation of the pay scale of employees who have been medically decategorised. It has been pointed out by the counsel for the applicant that applicable paras in the instant case and para 1301 to 1315 of the IREM, Vol. I. It is seen that the specific provisions applicable in the instant case are contained in para 1313, which is reproduced below :-
1313 Fixation of Pay
(a) On absorption in an alternative post, the pay of the railway servant decategorised on account of circumstances which did not arise out of and in the course of his employment will be fixed at a stage corresponding to the pay previously drawn in the post held by him before decategorisation. If there is no such stage in the post in which he is absorbed, he may be given the stage just below the pay previously drawn by him. For running staff, the fixation will be based on basic pay plus a percentage of such pay in lieu of running allowance as may be in force. ..
(b) In cases of decategorisation under circumstances arising out of an in the cause of employment the pay of a decategorised employee (in the case of running staff, pay plus the percentage of pay treated as emoluments in lieu of running allowance drawn before decategorisation should be protected in the absorbing grade and if it exceeds the maximum of the absorbing grade the difference may be allowed as personal pay to be absorbed in future increments/increases in pay. .
6. It is clear from the above Rule that in the event of the Railway servant being medically decategorised, his pay is required to be fixed at a stage corresponding to the pay previously drawn in the post held by the concerned employee before decategorisation and for the running staff the fixation will be based on basic pay + percentage of pay treated as emolument in lieu of running allowance drawn before decategorisation. The Rule is very clear that the pay of decategorised employee drawn before decategorisation should be protected with absorbing grade and provides a methodology for doing the same.
7. At the time of the medical decategorisation the applicant was in the pay scale of Rs. 5,000 to 8,000/-. Therefore, in terms of the provision of para 1313 the pay scale of the applicant should have been fixed in a pay scale which ought to have been calculated based upon the pay scale which he was drawing at the time of his absorption as teacher as well as fixation keeping in view 30 per cent of the running allowance for which he was entitled as a running staff, at that point of time.
8. It is seen that instead of applying the methodology as laid down in para 1313 IREM, the respondents have fixed the pay of the applicant in the lowest scale of the teacher which seems contrary to the applicable provisions in the matter. The action of the respondents in reducing the pay scale of applicant without mentioning the basis on which such an action has been taken, is totally arbitrary and runs counter to explicit provision prescribed by Railway Board for application in such cases (Para 1313 of IREM). Accordingly, the impugned order cannot be sustained and therefore, liable to be set aside.
9. Accordingly, the OA allowed and impugned order dated 4/31.12.2008 is quashed. The matter is remitted back to the respondent No. 4 to refix the pay scale of the applicant keeping in view the provisions of para 1313 of IREM which provides the detail method for determining with the pay scale of decategorised staff.
Member (J) Member (A)
Shashi
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