Central Administrative Tribunal - Cuttack
Rajendra Kumar Jena vs East Coast Railway on 16 November, 2023
1 OS Shs QU 29 af S03 f CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH 29 af 201.
Reserved an: 1S 0UL.2023 Pronounced on : 16.21.2028 CORAM:
HON'RLE MR, PRAMOD KUMAR DAS, MEMBER (A} HON'BLE MR. RAJNISH KUMAR RAL MEMBER Gg Rajendra Kumar Jena, Aged about 35 years, Son of Chitan Charan Jena, At present working as Section Controller, Central Control under Chief Operating Manager, East Coast Railway, Bhubaneswar, at present Plot No.CHP-46, Kanan Vihar, Phase-I, Patia, Bhubaneswar, oof plicant VERSUS i. Union of India represented through The General Manager, East Coast Railway, E.CO.R Sadan, Chandrasekharpur, Bhubaneswar, Dist. Khurda.
> Chief Personne! OfficerfEast Coast Rallway/ E.CO.RAadan/ Chdndrasekharpur/ Bhubaneswar.
woe RESPONTENTS For the applicant > Mr. N.R.Routray, Counsel For the respordents - Mr. S.B.Mohanty, Counsel hed NSS OSS SES eek QS ST OA COR HAN SS of ZO7) 0 RD ER This OA was heard and dismissed by Uyis Tribunal, alung with OA No, 230 (2011, vide common order dated 15.10.2014 and the said order was challenged by the applicant before the Hon'ble High Court of Grissa in WPCC) No. 21197 (2014 and the Hon'ble High Court of Orissa vide order dated 26.10.2022 quashed the order of this Tribunal and remitted the matter back to this Tribunal for fresh adjudication by giving oppurtunity of hearing to all the parties. Accordingly, this matter was restored to file and sted for hearing. Upon hearing Ld. Counsel for both sides, perused the records.
2 The applicant was initially appointed as Goods Guard under the respondent railways on 05.02.2002 in the pay scale of Rs. 4900-7000 /-
plus 30% pay element. While working as such, through a General Departmental Competitive Examination (GDCE), he was selected for the post of Traffic Apprentice in the year 2005 and on successful completion of the training he was pasted against the working post w.e.f 16.09.2007 vide order dated 07.09.2007 and his pay was fixed In the pay scale of Ns.
saQO-9000/- without granting him 30% pay element. He submitted 3 GA SOQ UO2 29 pF SOT representation dated 31.07.2009 for granting him 308 pay element, which was rejected and communicated to him vide letter dated 11.05.2010 stating therein that as per the RBE No. 132/2006 it was made clear that in absence of specific order from the Board, benefit of reckoning of pay element for the purpose of fixation of pay of running staff on their appointment to the post under the GDCE Scheme, is not admissible since GDCE Scheme is voluntary in nature and the concerned staff are aware of the mode of fixation of pay on their appointinent to a post under the GDCE Scheme and, thus, In such cases, pay fixation has to be effected without taking Into account the pay element. Thereafter, the applicant had submitted another exhaustive representation stating therein that even if running staff is promoted, at his own request, to a stationary past in a channel other than the one normally open to the running staff, the element of rumning allowance will be taken Into account for the purpose of fixation of pay in his new post, which was alse consider and rejected vide letter dated 04.01.2011 reiterating their stand taken in the earlier letter of rejection dated 11.05.2010. Applicant filed this OA stating inter alia that his promotion to the post of Traffic Apprentice is guided by the old rule (RBC af 58-59) and, therefore, RBE No, 132/2006 having prospective application, is not applicable to his 4 GA 280/002 29 nf LOTS case and, therefore, the order of rejection is Hable to be quashed and respondents should be directed to allow him 30% pay element.
3, Respondents fled their counter stating therein that the applicant being empanelled by RRB/BBS through a GDSE and on completion of the prescribed training was posted against working post as a Traffic Apprentice in the scale of pay Rs. 5500-9000 vide office order dated 07.09.2007. Subsequently, he was posted as Section Controller in the Time Scale wef 17.09.2007 as per office order dated 10.10.2007 and joined as such in the E.Co.Rly. Headquarters. Accordingly, his pay was fixed in the pay scale of Rs, 5500-9000/- (pre-revised) wel 01.08.2005 on proforma basis with actual monetary benefits wef 17.09.2007 Le. the date of joining as Section Controller in terms of SELRIy. Estt. 31 No. 45/91 and 216/91 by treating the period from 01.08.2005 to L708. 2007 as duty for the purpose of drawing Increments. It has been averred that since the applicant was elected for the post of Traffic Apprentice through GDC E against DR quota by Railway Recruitment Board and on completion of training he joined the post vide office order dated 07.09.2007 his pay In the post of Traffic Apprentice was fixed in terms of RBE No. 132/2006 and, thus, since the appointment of the applicant te ast SA SOURS oF SOLS the post of Traffic Apprentice is neither a promotion from the post of Goods Guard nor appaintinent to Stationary past on own request ar on administrative Interest, he was not entitled fo 30% pay element as claimed by him. Accordingly, by placing rellance on the decision of the Hon'ble Apex Court in the case of UOT & Ors. Vs. B.Banerjee in 5.L.P.(C No. 3446/2012 (Civil Appeal No. 7298/2013) dated 06.09.2013, the respondents have prayed fur dismissal of this OA, 4, Ld Counsel for the applicant has submitted that RB's &{S)- ISBRS/27 dated 23.09.1859, Sl. No. ER 3482, provides that even Ha running staff is promoted at his own request to a stationary post in a channel other than the one normally open te 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 Ne. 132/2006, which came inte 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. [t has further been submitted that when the pay of the applicant was fixed on proforma basis by treating the training period from 01.06.2005 as duty 8 OA 26000229 oF AU 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. 1392/2006 came Into effect}. In other words, according to the Ld. Counsel for the applicant treating the period wef 01.06.2005 for the purpose of drawing increment means he was entitled te increment on a particular pay scale and the said pay scale ought to have been fixed by taking inte account 30% pay element. Thus, rejection of his claim of 30% pay element by] nvoking RBE No. 1352/2006 is had 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 ¥.V.Rangaiah & Ors. Vs. |.Sinivas Rao & Ors., (1983) 3 SCC 284, and P.Mahaendra & Ors. Vs. State of Karnataka & Ors. AIR 1990 SU 409, 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 UOL 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.
= S. Per contra, Ld. Counsel for the respondents reiterated the stand taken in the counter as noted above and has stated that the submission 7 OA SHOOR 28 of ZOU).
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 arder dated 25,04.2008, it was specifically stated that he having been empanelled as Traffic Apprentice in pursuance of GDCE scheme, was sent for training and on completion of training he was posted as Trafflc Apprentice or Section Controller as the case may be in the scale of Rs. 5500-9000/- wef 17.09.2007 having his pay in the same scale fixed on proforma basis by treating the training period fram O1.0B.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:
"S, 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 isn OA SOO f0H299 of B0TL the order impuened, which does pot walrant any interference of this Court at this Stage. ff is) further contended that the scale of pay of the petitioner has been fixed on his appointment to working post Dy. 5.8. considering notional pay at Rs o500/- wel O1.08.2005 under RS (RP) Rules, 1997, getting pay fixation notionally wed O1.01.2006 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 REE No.d32/2006 issued by the East Coast Rallway Establishment has ne application te the present case and, therefore, the contention raised by learned counsel for the opposite parties cannot sustain in the eye of law..." {emphasis supplied) 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 promotonal post wef 01082005 for the purpose of Increments, which van only be worked out after fixing the pay. The RBE No. 1323/2006 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 04.01.2014 are hereby quashed.
The respondents are directed to Ax the pay of the applicant in the pay 8 Sh BGO AOS S3 a ROTA seale of Rs, 5500-G000/- in terms of the RBE in vogue prior fo RBE 132/2006 and pay the applicant the differential amount after refixation of his pay by adding 31 pay element. The entire exercise shall be completed within a period of 180 days from the date of recelpt of a copy ofthis order.
ing "ethaad in the result, the OA stands allowed leaving the parties te bear their awn Costs.
{Rainish'Kumar Rai) as Member (Judi) Member (Admin. } RE SPS