Central Administrative Tribunal - Cuttack
Rabindra Kumar Mohapatra vs M/O Railways on 8 November, 2023
fh Reserved an: O6.1 1.2025 Pronounced on: O° CORAM:
CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA 260/00186 of 2020 HON'BLE MR. PRAMOD KUMAR DAS, MEMBER {A} HON'BLE MR. RATNISH KUMAR RAL MEMBER ) Rabindra Kumar Mohapatra, aged about 83 years, Son of Late Balaram Mohapatra, Retd. Sr, Technician (C&W), SBP, resident atfPO- EWS-1/31, BDA Colony, Chandrasekharpur, Shubaneswar- FSLO16, Dist- Khurda.
Applicant VERSUS
1. Union of India, represented through the General Manager, Kast Coast Railway, E.CakR Sadan, Chandrasekharpur, Bhubaneswar, Dist. Khurda-7S2017%.
2 Sr, Divisional Personnel Officer, East Coast Railway, Sambalpur Nivision, At Khetrajpur, PQ- Modipars, Town/Dist- Sambalpur-
FHSOVZ.
3. Workshop Personnel Officer, Carriage Repair Workshop, E.Co.Rly., Mancheswar, Bhubaneswar, Dist. Khurda-752021.
ww Respondents For the applicant © Mr NR .Routray, Counsel For the respondents : Mr, RS.Patnaik, Counsel Oo RD ER PRAMOD KUMAR DAS, MEMBER LA):
The grievance of the applicant is fr consideration of his case for grant of the fnancial upgradation under ACP by taking Into consideration the period of service from the date of his In service training, Le. from the date when afler being selected through a positive act of selection was sent for in service eraining for six months, Le, 28. 4.1988. [tis submitted that the applicant fled representation on 23,124 si¢ claiming the benefit by citing the settled iaw, the respondents did nat pay any heed to his grievance and, therefore, he has approached this Tribunal fer a declaratory relief by way af directing the respondents to grant him is Nnancial upgradation wef 28.03.2000 and pay the differential arrear salary by refining his pay in the seale af Rs. 4000- y 6poo/- by extending ber nefig of arder dtd. 23, 1.2019 passed in SLPCC) No. 388 96/2019 by the H Hon' bls Apes Court.
2, Respondents have filed their counter contesting the case of the applicant inter alla stating that the applicant had initially appointed as Trainee Artisan Grade Hl in pay scale af Rs, 950-1500 /- on 29.03.1988 | and was posted ag Technician Grade U1 in pay scales of Bs, O50-1500/- on 45, TE. 2000 /-. As per paragraph 3.2 of RBE No. 233/99, an employee is entitled to financial upgradation under ACP after completion of 12 years of regular service ina gerade, In the Instant case, the applicant was regularized wet 15.12.2000 and, thus, as per the above RBE, he was entitled to the first fmancial upgradation on completion of 12 years from the date of his regular service, Le. 15.12.2000, The applicant was promoted to the post of Technician Grade I in pay scale af Rs, 4000-6000/- wed 28.11.2003 vide order dated 13.11.2003. Hence, the respondents have submitted that there has been no error in counting the service of the applicant from the date of his regularization wef, 15.12.2000 stead of from the date when he joined the in service training wef ZENS L988.
3. The applicant has Aled rejoinder trying to justify the inaction of the respondents in not granting the financial upgradation under ACP by counting the entire period of service wef 28.03.1988 by taking the help af the decisions rendered in this regard.
44. By reiterating the stand taken in their respective pleadings, materials and citations relied on in course of hearing, Ld Counsel for the applicant has prayed for the relief sought in the GA and the Ld Counsel for the respondents has prayed for dismissal of the OA and, having heard them at length, perused the records.
Ss, On perusal of the record, it isseen that the issue raised in this OA is set at rest and is no more res integra. in this regard it is noted that this Tribunal vide order dated 22.05.2012 In QA No, 1982/2010 (Chittaranjan Mohanty Vs UOl &Ors.) held the decision in fvour of the applicant, which was challenged ny the respondents department before the Hon'ble High Court of Orissa in W.P(C) No. 12425/ 2n72 and their Lordships vide order dated 06.02.2013 upheld the arder of the Tribunal. Said order has also been upheld by the Hon'ble Apex Court vide order dated 02.08.2013 in SLP No. 1 1640/2013. Subsequently, similar matter came up before this e{bunal in DA No. 9824/2018 in the case af Parsuram Nayak Vs JOE &Ors. which was disposed of on O74. 2016 in favour of the gaid applicant and upheld by the Hon'ble High court of Orissa vide order dated O8.O3.2017 In W.P(C) No. Pos5o/20T6 and py the Hon'ble Apex Court vide order dated 15.09 2017 in SLP/Diary Ne. e271 6R/2017. The relevant portion of the order of {his Tribunal in CA 1792/2010 isas under:
"® 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 299.1988 and, as such the period af service from 1988 onwards should be reckoned for the purpose of counting reckonable service for grant of ACF Although the applicant was appointed as Traince Artisan on a stipend of Rs 950/-, subsequently vide arder under Annesure-A/ dated."
93-09-1691 he was allowed the scale of pay of Rs g5G-1500 /- from the date of the order, During the course of hearing, Learned Standing Counsel for the Respondents produced before us the service sheet of the applicant. On perusal of this document it reveals that incrernent has been granted to the applicant on Annual basis we 29.03.1988 in terms of Establishment 9rl. No.9 /92 and his pay was accordingly refixed. We have perused the Estt. Srl. Na. 109/92 whereunder the Railway have decided that the period of training will he treated as duty for the purpose of grant of increments to those raibway servants who have undergone such training on or after O1-01-1986. I¢ has further been provided therein (Est. Sy1, No.109/92} that the benefit of counting the period for pay will he admissible on-notional basis from 11.1986 and on actual basis from 1-10-1990. In view of the above the contention of the Respondents that the period spent by the applicant a Trainee Artisan and hence is not reckonable for the purpose of ACP cannot be accepted. Since the period from 1988 onwards has heen treated as duty and pay has been refixed allowing annual Increments though on notional basis, there cannot be any ambiguity on the issue that the said period of service cannot he taken into account for the purpose af reckonable service for grant of ACP.
* As far as the contention of the Respondents' counsel that this case being covered by the order of this Tribunal In OA Na. 190/10, can be disposed of by leaving the matter to the authorities to examine the case of the applicant, as directed in the aforesaid OA, we do not find justifiable reason to de sa because the earlier OA, we had no occasion to peruse the Estt. Sf No. 109/92 and the service sheet of the said applicant while passing order in OA No, 190/10.
& In view of the discussions made above, the arder of rejection af Annexure-A/? cannot be held to be ju stified and the same is accordingly quashed. The Respondents are hereby directed to count the period of service of the applicant from 29.3.1988 for the purpose of grant of ACP and allow the applicant Snancial benefits under ACP if he fulfills che other conditions required for grant af financial up-gradation under ACP. Respondents are farther directed te complete the entire exercise within a period of 90 days from the date of receipt of copy of tis order"
& The Hon'ble High Court of Orissa In WPCC) Na. yogso/201g (UQL& Ors. Vs. Parsuram Nayak) observed as under:
"iy this writ petition, the petitioners, ce. Bast Coast Railway and its functionaries have challenged the order dated 07.04.2010 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in OA. No. G24 af 2015, wherein the Tribunal had directed the present petitioners fo ealenlate the period undergone towards craining while granting qs financial up-
gradation.
Present opposite party io. entered to the Railway Service on 30.03.1988 as a Skilled Artisan /Welder nrade-Ii. Thereafter he was sent for insservice {ralming, While continuing as such, since .
he completed 1 the benefit af + years of qualifying service on 34,03,2000 and . nancial uperadation was net extended in his favour, he preferred O.A. No. ea0 of BOS. The said Original Application was disposed of directing the railways fo take 8 decision on the representation of the applicant. The same was rejected by the railways wide order dated 25.11.2013 on the ground that since the applicant was repularizedd a8 Tech. Greil x (Welder) with effect from 04.09.1997, therefore, 12 year is to be counted from 04.09.1997 ari period from 30.03.196e to 3.09. 1997 is to be counted towards training. The said order dated 25.11.2018 was challen eed by the applicant in CLA. No Ged be of 2018, The Tribunal while disposing U.A. No, 924 of 2013 taken Into consideration of the fact that such an issue has no longer res- integra In view of the decision in OA. Ne. 192 of 2010, which was confirmed by this Court in W PAC) No. 12425 of 01 2 and by the Apex Court in SLP No. 41040 of 2013. The Tribunal therefore quashed the order of rejection dated 25.1 1.20138 and directs respondents to grant [st fnancial upgradation with effect 29.93,2000 with the consequential financial benefits in favour of the applicant.
Since the issue has already been settled by the Apex Court and hasing on that, the impugned order was passed, we do not find any illegality or irregularity in the impugned order to be interfered with."
a Hon'ble High Court in another similar matters, Le. WP (C} No. 16565 af 2016 and other batch case (Union of India vrs Bhagaban Mishra) vide order dated 01.05.2017 while dismissing the writ petition had held:
"Cn the basis of the admitted position that the opposition parties applicants have heen appointed in) pursuance [0 the advertisement No. M8/476/MCS/RAS, as such there is no dispute shout the fact that they have been appointed after getting either Iti certificate or apprenticeship certificate under the Apprenticeship Act, 1961 aml got their engagement In pursuance ts the said advertisement as trainees 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.
ft is not res integra/ that in service training periad would not be counted for counting the length of service, learned Sr. Counsel for the East Coast Railway has submitted that it}s the pre service training as has been obtained by them under the Apprenticeship Act, 14961, this argument is not acceptahle to us in the view of the admitted position in the case that the applicants have been appointed in pursuance to the advertisement No. MB/476/MCS/RA&S which requires minimum qualification to have 'Tr or the certificate of apprenticeship, hence we are af the considered view that the training obtained by them is during service period and as such the saki period would not in any stretch of imagination not be counted for the purpose of counting :
the length of period of service" "
8. The SLE No. 29996 /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 And no ground {6 interfere with the impugned arder {s} passed by the High Court on the groun d that the petidioners were given the regular pay ecale and the incrernents were also given to them right from day one. Ryen during the training period, increments were given to them. We have considered the polly pertaining to ACP. On perusal of the same, We find no ground te deny the benefit of training period, which was alter appointment The Special leave petlons are, accordingly, dismissed"
g The decision of the Hon'ble High Court of Orissa MWALC) 2Fh yes2del dated 06.12.2022, so faras delay is concerned, reads as under:
This matter is taken up throw gh bybrid made.
> Heard Mr. N.R.Routray, earned conse! appearing for the petitioner and Mr. |. Nayak, central Government Counsel appearing for the Union of India-oppesite pa ries.
3. Phe petitioner has Aled this writ petition challenging the order dated 17.03.2021 under Annexure-2 serfes 18 M.A. Nosed of 2019 {arising out of 0.8, No.sS6 of 2018), by which the Central Administrative Tribunal, Cuttack Bench, Cuttack has rejected the claim of the petitioner for grant of heneft of ACP on the ground of delay and laches, and further seeks to issue direction to the opposite parties to grant Pst financial upgradation web, o3.04.26000 under ACE Scheme with afl consequential and fnancial benefits.
4,
4. Mr, N.R.Routray, learned counsel appearing for the petitloner contended that the Tribunal, vide order dated 20.03.2018 in GA. No. 260/082) of 2014 (Girish Chandra Kabat vs. Union of fndia and others} allowed the benefit of ACP. Against the said order, the Union of india had approached this Court by fling W.PLC) no.L3677 of 2018 and this Court after due adjudication, vide order dated 20.07.2022, dismissed the said writ petition, relying upon the order passed by the Apex Court In SLPIC) no 11040 of 2013, Therefore, the rejection of the claim of the petitioner by the 'Tribunal on the ground of delay and laches cannot be sustained in the eye of law. ft is further contended that there is continully af cause of action for the petitioner te claim the benefit of ACP.
5. Mr. |. Nayak, learned Central Government Counsel appearing for the Union of India-opposite parties adrits the fact that this Court dismissed W.P{C) Noadgo7? of 2018 Aled by the Union of india relying upon the order passed by the Apex Court in SLE(Q Ne 11040 af 2013.
6. Having heard learned counsel for the parties and after going through the records, this Court gnds that since the claim of the petitioner for grant of ACP has been adjudicated on merits and rhe decision of this Court has been confirmed by the Apex Court in SLP(C) No 11040 of 2013, there ig no valid and justifiable reason on the part of the Central Administrative Tribunal, Cuttack Bench, Cuttack to reject the claim of the petitioner on the ground of delay and laches, + ty the above view of the matter this Court disposes of this writ petition on the basis of the observations made in Paragraph~? 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, if is seen that learned Tribunal has passed the impugned order relying upon the decision in GA. Note af 20790, which has been confirmed by this Court in W PIC) Nei2¢25 of 2012 and also by the apex Court in SLPEC) No 11040 of 2913, The operating portion of the impugned order Is extracted hereunder:
5, The aboave point has already been settled by the decision of this Tribunal dated 22.03.2012 in O.A. No.192 of 2010 as the same has been upheld by the Hon'ble High Court vide order dated 96.02.2013 in WP Nod 2425 of 2012 and thereafter, the matter on being appealed of in SLP(C) No.Li040 of 2073, the Hor'ble Supreme Court dismissed the same vide arder dated 02.08.2013. Following the above decision, rhis Tribunal, later on alse granted similar relief to the applicant in O.A. No4l of oD41, Therefore, in our considered views, the point in iesuie being set at rest, we have to hesitation to hald that the period spent under training ull the date of regularization of his service ix reckonable for the purpose of grant of ist financial upgradation under the ACP Scheme. Accordingly, we quash the impugned order dated 09.01.2014 (4/8) and direct the respondent: Railways to reconsider the claim of the applicant for grant of ist ACP on completion af 12 years service fram 08.04.1988, by conducting a review Scree ning Committee meeting and subject to fulfillment of ather conditions, he he so granted with consequential financial benefits."
8. Accordingly, the order dated 17.03.2021 passed by the Tribunal in M.A. No.922 af 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 an d admissible to him, within a period af four months from the date of receipt ot this order.
9, Issue urgent certified copies as per rules."
10. Inview of the settled law, quoted above, there cannot be second opinion that the applicant is not entitled to count the qualifying period of service from rhe date he joined for in service training, after being selected, for the purpose of @nancial upgradation under ACP we <f his date of joining in the training after being qualified through RRB and joining in the post on His succe essful completion of training. Accordingly, respondents are hereby directed to consider the case of the applicant for granting financial upgradation under ACP by taking mo consideration the total period of service counting from 28.03.1985, if he is otherwise eligible as per rules and law. In case the applica found to be otherwise entitled ta fsr the financial upgradation, he showid be paid all his nancial benefits upon grant of the financial upgradation. The consequential order to the above extent shall be issued cwithin a period of 120 days from the date of receipt ofa copy of this order.
10. tn the result, this OA stands allowed to the extent stated above. There shall be no order as ta musts.
3{Raj nish Kumar Ral} (Pramod Kumar | asi Member (udl.} Member (Admn.} RK/PS