Central Administrative Tribunal - Cuttack
P C Ojha vs M/O Railways on 19 October, 2023
3 OA BSG SOGOSRS af COL CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA 260 /00202 of 2019 CORAM:
HON'BLE MB. PRAMOD KUMAR DAS, MEMBER (A) HON'BLE MR. RAJNISH KUMAR RAL MEMBER {()) Padma Charan Qjha, aged about S56 years, Son of Late Adikanda Ojha at present working as a Welder Grade | Office of CWM/CRW/East Coast Railway, Mancheswar, Bhuhaneswat, Dist Khurda, permanent resident of Flat No. B 304, Viswanath Enclave, Shree Vihar, PO Patia, PS Chandrasekharpur, City Bhubaneswar, Dist Kharda - 751031
-- Applicant VERSUS
4. Union of India, represented through the General Manager, Bast Coast Railway, Eco.R Sadan, Chandrasekharpur, Bhubaneswar, Dist. Khurda-751017.
2 Chief Workshop Manager, Carriage Repair Workshop, East Coast: Railway, Mancheswar, Bhubaneswar, Dist Khurda- FST, 3, Workshop Personnel Officer, Carriage Re pair Workshop, E.Co. Rly, Mancheswar, Bhubaneswar, Dist. Khurda-7S1017.
Reserved om 17.10.2023 Pronounced on: (SF 30 :
oeResporndents For the applicant » Mr. N.R.Routray, Counsel For the respondents - Mr. RS Sahoo, Counsel ted sah ARE AP RB TE QA BAU FOUORGS OF LOTS QR DER PRAMOD KUMAR DAS. I iE _ The case af the applicant is that he was appointed as a Welder Grade HL with stipendiary pay of Bs. asd/- plus allowances In pay seale of Rs, 950-1800/- on 29.03.1988 and was regularized against the working past wef 04.06.1997. Ne submitted representation praying for grant of financial upgradation under ACP Scheme 1999 by taking ints consideration the period of service starting from 29.03.1988. The said representation was considered and rejected vide arder dated S4/25.012019 (Annexure-A/10} an the ground that the apmicant was posted as Trainee Siilied Artisan with stipendiary pay on 29.03. 1988 and due te non-availability of regular vacancy he was regularized only wef 04.06.1997 and, thus, the applicant was not entitled to 1° financial upgradation under ACP wef 28.03.2000 as claimed by him since he did not complete regular service of 12 years from the date of his regular appointment from 04.06.1997. Being aggrieved, the applicant has Aled this OA seeking for a direction to the respondents to grant him 18 Anancial upgradation wet. 38.03.2000 and pay the differential arrear red OA POR /HOOTL af SAAS salary by extending benefit of order passed in OA No. 192/2010 ar others by quashing the order dated 24/25.0 1.2019{Annexure-A/10} rejecting his re presentation.
*% > Tt is the specific case of the applicant bath in pleadings se also in course of hearing that the sole issue involved in this QA relating to counting the periad of service of the applicant from the date of his Initial appointment/joining as a Trainee Artisan for the purpose of grant of 1 financial wpgradation under ACP Scheme is set at rest/mo mare Mes integra in view of the authoritative pronouncement of the decision by this Tribunal in GA No. 192/2010 {Chittaranjan Mohanty Vs UOT &Ors, disposed of on22.03.2012) which was upheld by the Hon'ble High Court of Orissa vide order dated 06.02.2013in W,.P(C) No. 12425/201 Zand by the Hon'ble Apex Court vide order datedO2.06.2013in SLP No. 11040/2013, Further, in similar case, the order of this Tribunal in OA No. 924/2013 (Parsuram Nayak Vs UO! &Ors, disposed of on 07.04.2016) has been upheld by the Hon'ble High Court of Orissa vide order dated O8.O3.2017 in W.PC) No. 19250/2016 and by the Hon'ble Apex Court wide order dated 15.09.2017 in SLP/Diary No. 238168/2017. Hence, according to the applicant, the rejection of the representation without CA DEO SONGS of A Be taking note of the aforesaid decision is had in law. According to the Ld. Counsel for the applicant, the point of delay and latches taken by the respondents in their counter has no application since grant of financial benefit is a recurring cause of action. However, it has been submitted Chittaranjan Hota Vs. UO! &Ors) dismissed the application filed for grant of benefit of ACP an the ground of limitation wide order dated {7.GZ2021. The Hon'ble High Court quashed the order of dismissal on the ground of imitation and allowed the case of the applicant for grant of ACP vide order dated 06.12.2022. The said order was gmplemented by the railway granting the benefits te the applicant therein. Therefore, the eround of delay and latches taken by the respondents has no application to the present case. Hence, the Ld. Counsel for the applicant has reiterated grant of relief in this OA.
3, Respondents Aled their counter contesting the case of the applicant and by placing relance on the counter, Ld. Counsel for the respondents submits that since the applicant was appointed as Temporary Trainee Skilled Artisan on stipendiary pay on 29.03.1988, his appointment from that date cannat be said to be on regular basis. His
4) CA TRUSSO af 21S appointment was subject to the successfl completion of the period of training. Since there was no sanctioned post available, applicant, along with other trainees, were allowed to continue as Trainee Skilled Artisan which was extended subsequently for want of regular posts. In the meantime, applicant and others Sled OA 427/15 89, which was disposed of by this Tribunal vide order dated 15.16.1990 directing respondents to get them absorbed in regular eadre of Skilled Artisan Gr. TH within a period of 3 months by doing the needful. However, only 11 could be absarbed against the available vacancies. Unabsorbed candidates, alleging non-compliance of the order of this Tribunal, fled CP 10/91, which was dropped on 09.11.1992 granting berty to the petitioners to file representation in respect of bonus and other service benefits and competent authority was asked to explore possibility af absorption of the rest of the candidates within 30 days and if the applicants refuse to accept the offer, then it will be at their own risk and no further offer would be given. Subsequently, all the applicants In OA 427/1989, including the present applicant, were absorbed against the regular vacancies. Since there was no regular vacancy in Mancheswar Workshop, the applicant could not be regularized on completion of six mamths & SSA BSH HOUSE of ZOLS training and, accordingly, the training period of extended, Applicant was regularized as Skilled Artisan Gr-ll (SMW) at CRW /Mancheswar vide Office Order dated 04.06.1997. He was pramoted to the post of Tech.Gr-
i) (Welder), Tech. Gr-1 (Welder) and 5r. Tech (Welder) wel 17.01.6201, 13.10.2015 and 28.09.2019 respectively, As a matter of policy, the Govt.
of India, of acceptance of the recommendation of the 56 CPC introduced Scheme for' granting two financial upgradations under ACP at the interval of 12 and 24 years of continuance regular service without any promotion, which was duly accepted and implemented by the Rallways vide RBE No. 233/1999. Since, the initial engagement of the applicant was asa Trainee Skilled Artisan on stipendiary basis with payment of Rs. a50/-, he is not entitled to count the 12 years of regular service wal the date he was engaged on consolidated amount of Rs. 950 /- plas other allowances, Le. from 29.08. 1988 to 04.06.1997, Hance, there was 86 wrong in the decision taken hy the respondents reflecting his claim. 4 We have considered the submissions noted above and perused the records.
ww 5 The enly question that arises for consideration in this QA is as to whether the period from the date of applicant's initial engagement as 7 GA RHD/NHNIN? aT ANS Trainee Artisan till regularization shall be counted towards qualifying serving for the purpose of conimting Le years regular service for grant of rst Gnancial upgradation under ACP. In this connection, it is profitable to place reliance on the decision of this Tribunal in OA No, 192/200 ({Chittaranjan Mohanty Vs UOE &Ors, disposed of on 22.03.2012) upheld by the Hon'ble High Court of Orissa vide arder dated 06.02.2019 in W.P(C) No. 12425/2012 and by the Hon'ble Apex Court vide order dated 02.06.2013 in SLP No, 11040/2013. Subsequently, In OA No. Q24/2018 {Parsuram Nayak Vs UQI &Ors. disposed of an 07,04.2016) has also been upheld by the Hon'ble High Court of Orissa vide order dated 08.03.2017 in WP(C} No, 19250/2016 and by the Hon'ble Apex Court vide order dated 15.09.2017 in SLP/Dlary No. 23168/2017. The relevant portion of the order of this Tribunal in QA 192/2010 is as under:
FT
6. This was objected to by Learned Counsel for the Applicant on the ground that the applicant was appointed as 'Trainee Artisan in a particular scale of pay (Rs.950-1500/ -}, He has been granted annual Increment since 29.03.1988 and, as such the period of service from 1988 onwards should be reckoned for the purpose of counting reckonable service for grant of ACP Although the applicant was appointed as Trainee Artisan on a stipend of Rs.950/-, subsequently vide order under Amnexure-A/i dated 03-09-
4991 he was allowed the scale of pay of Rs 950-1500/- from the date of the order. During the course of hearing, Learned at 5 8 PHGGOIERS OF 2uh8 Standing Counsel for the Respondents produced before us the service sheet of the applicant. On perusal of this document it reveals that Increment has been granted to the applicant on Anmual basis wie. 29.03.1988 In terms aft Establishment Ori No. 109/92 and his pay was accordingly refived. We have perused the Estt. Sri No, 108/os whereunder the Railway have decided that the period of training will be treated as duty for the purpose of grant of increments to thase railway servants who have undergone such training on ar after 81-01-1986. It has further been provided therein (Estt. Sr. No.109/92) that the henefit of counting the period for pay will be admissible on-notional havis from 11,1986 and on actual basis from 01-10-1990. tn view of the above the contention of the Respondents that the period spent by the applicant a Traimee Artisan and hence is not reckonable for the purpose of ACP carnmot be accepted. Since the period from 7o88 onwards has been treated' as duty and pay has been refixed allowing annual mmecrements though on notional basis, there cannot be any ambiguity on the issue shat the said period of service cannot he taken into account for the purpose af reckonable service for grant aF ACP.
+ As far as the contention of the Respondents' counsel that this case being covered by the arder of this Tribunal In OA No, 190/10, can be disposed of by leaving the matter {© the authorities to examine the case af the applicant as directed an the aforesaid OA, we de not find justifiable reason de so because in the earlier OA, we had no occasion fo peruse she Estt. SL Na. 109/82 and the service sheet of the said applicant while passing 0 rider in GA No, 190/10.
8 In view of the discussions made above, the order of rejectinn at Annexure-A/? cannot be held to be justified and she same is accordingly quashed. The Respondents are hereby directed ta count the period of service of the applicant from 293.1988 for the purpose of grant of ACP and allow the applicant Bnancial benefits under ACP Whe
6. &Ors.
3 QA BAG HOOT? of LQTS SaiGils the other conditions required for grant of financial up-gradation under ACP. Respondents are further directed to complete the entire exercise within a period of 80 days from the date of receipt of copy of this order"
The Hon'ble High Court of Orissa in WLP(C) Ne. 19250/2018 Vs. Parsuram Nayak) observed as under:
"In this writ petition, the petitioners, ie. East Coast Railway and its Rinetionaties have challenged the arder dated N7.04.2016 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in 0A, No. 924 of 204 3, wherein the Tribunal had directed the present petitioners Ui calculate the period undergone towards training while granting 1° financial up-gradation.
Present opposite party no. enter sd to the Railway Service on 30.03.1988 as a Skilled Artisan/Welder Grade-Ill. Thereafter he was sent for in-service training. While continuing as such, since he completed 12 years of qualifying service on 24.93.2000 and the benefit of 1 financial upgradation was not extended in his favour, he preferred O.A. No. 736 of 2013. The said Original Application was disposed of directing the railways to take a decision on the representation of the applicant. The same was rejected by the railways vide order dated 25.11.2018 on the ground that since the applicant was regularized as Tech, Gr-lll (Welder) with effect from 04.09.1997, therefore, 12 year Is te he counted from 64.09.1997 and period from 30.03.1988 to 03.09.1997 is to be counted towards training. The said order dated 25.21.2013 was challenged by the applicant in O.A. No. 924 of 2013, he Tribunal while disposing O.A. No. g24 of 2015 taken onto consideration of the fact Urat such an issue has no longer res-integra in view of the decision in QA. No. 192 of (UO 4G QA BGR POH AN ah ZOTY 2010, which was confirmed by this Court In W.P.(C) Ne. 12425 of 2012 and by the Apex Court In SLP No. 11040 of 2013. The Tribunal therefore quashed the order of rejection dated 25.11.2013 and directed the respondents to grant Ist consequential financial benefits in favour of the applicant.
Since the issue has already been settled by the Apex Court and basing on that, the impugned order was passed, we do not find any illegality or irregularity in the impugned order to be Interfered with"
7. Hen'ble High Court in another similar matter Le. W.P (C) No, 16565 of 2016 + batch case (Union of India vrs Bhagaban Mishra} vide order dated 01.05.2017 while dismissing the writ petition had held:
"On the basis of the admitted position that the opposition parties ~ applicants have been appainted in pursuance to the advertisement No. M8/476/MCS/R&S, as such there is no dispute about the fact that they have been appointed after getting either IT] certificate or apprenticeship certificate under the Apprenticeship Act, 1961 and got their engagement In pursuance to the sald advertisement as trainses and on successful training they have been taken under regular establishment on different dates, as such we are not in hesitation to hald on the basis of this factual aspect which has been placed before us that the said training period is in service training.
{ris not res integra/ that in service training period would not be counted for counting the length of service, learned Sr. Counsel for the East Coast Railway has submitted that ff is the pre service training as has been obtained by them under the Apprenticeship Act, 14961], this argument is not acceptable to us in the view of the admitted position in the case that the applicants have been appointed in 3 i GA SAG/UDORR af S49 pursuance to the advertisement No, M8 /476/MCS/R&S which requires minimum qualification to have ITI or the certificate of apprenticeship, hence we are of the considered view that the training obtained by them is during service period and as such the said period would not in any stretch of imagination not be counted for the purpose of counting the length of period of service."
Phe SLP No. 28896/2019 filed by the respondents challenging the above order of Hon'ble High Court was dismissed by Hon'ble Apex Court vide order dated 22.10.2019 with the following observations:
"We find no ground to interfere with the impugned order (s}) passed by the High Court on the ground that the petitioners were given the regular pay scale and the increments were also given to them right from day one. Even during the training period, increments were given to them. We have considered the policy pertaining to ACP. On perusal of the same, we find ne ground to deny the benefit of training period, which was after appointment, The Special leave petitions are, accordingly, dismissed.".
& The decision of the Hon'ble High Court of Orissa in W.P.(C) 271i8/2021 dated 06.12.2022, sa far as delay is concerned, reads as wider:
"This matter is taken up through hybrid mode. é. Heard Mr, N.R.Routray, learned counsel appearing for the petitioner and Mr. J. Nayak, Central Government Counsel appearing for the Union of India-opposite parties.
2 OA BSH /WOSG2 of LOIS
3. The petitioner has filed this writ petition challenging the order dated 17.03.2021 under Annexure-2 series In MLA. No.922 of 2019 [arising out of OA. No.556 of 2018), by which the Central Administrative Tribunal, Cuttack Bench, Cuttack has rejected the claim of the petitioner for grant of benefit of ACP on the ground of delay and laches, and farther seeks to issne direction to the opposite parties to grant Ist Hnancial upgradation wef, 03.04.2000 under ACF Scheme with all consequential and financial benefits.
4. Mr. N.RRoutray, learned counsel appearing for the petitioner contended that the Tribunal, vide order dated 20.03.2018 in OA No.260/00821 of 2014 (Girish Chandra Kabat vs. Union of India and others) allowed the benefit of ACE. Against the said order, the Union of India had 20 07.2022, dismissed the said writ petition, relying Upon the order passed by the Apex Court in SLPIC) nal 1O40 af claim the benefit af ACP.
5. Mr. ]. Nayak, learned Central Government Counsel appearing for the Union of | ndia-opposite parties admits the fact that this Court dismissed W.P(C} No.13677 of 2018 filed by the Union of India relying upon the order passed by the Apex Court in SLP(C) No.11040 af 2ots.
6. Having heard learned counsel for the parties and after going through the records, this Court finds that since the claim of the petitioner for grant of ACP has been adjudicated on merits and the decision of this Court has been confirmed by the Apex Court in SLP(C) No.11040 of 2013, there is no valid and justifiable reason on the part of the Central Administrative Tribunal, Cuttack Bench, Cuttack to reject a3 BA RGOSO00202 of BLS the claim of the petitioner on the ground of delay and laches.
?. in the above view of the matter this Court disposes of this writ petition on the basis of the observations made in Paragraph-4 of the order dated 20.07.2022 passed in W.P.(C) No.13677 of 2018, which are extracted below, "4, On a perusal of the impugned order, it is seen that learned Tribunal has passed the impugned order relying upon the decision In O.A. No.192 of 40190, which has been confirmed by this Court in W.P{C) No.i2425 of 2012 and also by the apex Court In SLP(C) No.11040 of 2013. The operating portion of the impugned order is extracted hereunder:
5. The above point has already been settled by the decision of this Tribunal dated 22.03.2012 in O.A. No.d92 of 2010 as the same has been upheld by the Hon'ble High Court vide order dated 66.02.2013 in W.P.C. No.12425 of 2012 and thereafter, the matter on being appealed of in SLPIC) No.11040 of 2013, the Hon'ble Supreme Court dismissed the same vide order dated 02.08.2013. Following the above decision, this Tribunal, later on also granted similar relief to the applicant in O.A. No4d of 2011, Therefore, in our considered views, the point in issue being set at rest, we have to hesitation to hold that the period spent under training till the date of regularization of his service is reckonable for the purpose of grant of ist financial upgradation under the ACP Scheme. Accordingly, we quash the impugned order dated 09.01.2014 (A/8) and direct the respondent-Railways to reconsider the claim of the applicant for grant of Ist ACP on completion of iZ years service from 08.04.1988, by conducting a review Screening Committee meeting and subject to 4 DA 260 /OOe 20S pf 2008 fulfillment of ather conditions, he be so granted with consequential Nnancial benefits."
&. Accordingly, the order dated 17.03.2021 passed by the Tribunal in M.A. No.922 of 2019 (arising out of O.A. No.556 of 2018) rejecting the claim of the petitioner is hereby quashed and the opposite parties are directed to grant ACP in favour of the petitioner, as due and admissible to him, within a period of four months from the date of receipt of this order.
9, Issue urgent certified copies as per rules"
9. In view of the decision of the Hon'ble High Court of Orissa in the case of Chitaranjan Hota(supra}, quoted above, this Tribunal is not impressed upon that this case is Hable to be dismissed for being sulfersd from delay and laches. Hence, the said plea fs over ruled. In so far as merit of the matter, it is seen the issue for counting 12 years service Is lable te taken into consideration from the date of iniMal folning as Trainee Skilled Artisan and mot fram the date of regularization, we do not have any hesitation or any jota of doubt te hold that counting of 12 years period for granting Nnancial upgradation under ACP w.ef the date of regularization fs illegal) Accordingly, the order of rejection dated 24/25.01.2019 under Annexure-Ay 0 is quashed and the Respondents are directed to consider/re-consider the case of the applicant for etait BS OA SOOO R0E of AR granting him ACP by counting the period of service of the applicant from the date he was engaged as Trainee Skilled Artisan and all other Nnancial benefits under ACP, of course, after fulfilling the other conditions required for grant of financial upgradation under ACP. Respondents are further directed to complete the entire exercise within a period of 90 {ninety} days from the date of receipt of a copy of this order.
10. In the result this OA stands allowed to the extent stated above.
There shall be no order as to casts.
(Rajnish Kumar Rai) (Pramod Kumar Das) Member (fudl.} Member (Admn RE/PS