Central Administrative Tribunal - Bangalore
Dr. H.S. Srinivas Prasad vs Union Of India (Uoi) And Anr. on 16 April, 2003
Equivalent citations: 2004(1)SLJ368(CAT)
ORDER V. Srikantan, Member (A)
1. In this application, the applicant is seeking to declare the third proviso to Rule 7(1)(a)(ii) of Railway Services (Revised Pay) Rules, 1997 as ultra vires of the Constitution and to strike down the same and consequently hold that the applicant is entitled to get his pay fixed at Rs. 22,400 per month with effect from 1.1.96 in the pay scale of Rs. 18400-22400 and to direct the respondents to refix the pay of the applicant with effect from 1.1.96 at Rs. 22400 per month and cause payment of arrears on account of such refixation and thereafter to cause refixation of the pay and pensionary benefits.
2. The brief facts are that the applicant who was a member of the Indian Railway Service of Engineers (IRSE), was promoted to the senior administrative grade (SAG) on 18,4.85 (Annexure A-4). Upon introduction of the pay scale of the Fourth Central Pay Commission (CPC) with effect from 1.1.86, the pay of the applicant was fixed at the minimum of the SAG of Rs. 5900-6700. On reaching the maximum of Rs. 6,700 in the scale the applicant was granted 3 biannual stagnation increments and accordingly with effect from 1.4.95, the applicant was drawing a pay of Rs. 7,300. On acceptance of the Fifth CPC's recommendations by the Government the pay of the applicant with effect from 1.1.96 was refixed at Rs. 18,900 with effect from 1.1.96 and Rs. 20,400 with effect from 1.1.97 in the scale of Rs. 18,400-22,400. The applicant retired from service on superannuation on 30.6.97. The pension of the applicant was fixed at Rs. 10,100 per month based on the last pay drawn of Rs. 20,400 per month (Annexure A-7). The grievance of the applicant is that the applicant was granted only 4 annual increments above the minimum of the scale although the applicant had put in more than 12 years of service in the SAG. According to the applicant, his pay should have been fixed with effect from 1.1.96 at Rs. 22,400 per month in the scale of Rs. 18400-22400. Accordingly, the applicant had submitted a representation dated 15.7.99 which was rejected by the respondents vide letter dated 3.2.2000. Hence this application.
3. The applicant contends that while fixing the pay of the applicant according to the new scale introduced based on the recommendations of the Fifth CPC, full weightage has not been given to the length of service rendered by the applicant in the SAG. The applicant was promoted to the SAG on 18.4.1985 and had thus completed 12 years of service in the grade at the time of retirement. Starting at Rs. 18400, the maximum of the new SAG of Rs. 18400-22400 is reached in 8 years' time and the applicant was thus entitled to a pay of Rs. 22400 per month on 1.1.96 which is the maximum of the scale. Accordingly, the applicant contends that limiting the number of annual increment to 4 is arbitrary and unjust as it equates the applicant to those who are far junior to him and having fewer years of service, thereby showing discrimination against the applicant vis-a-vis those juniors to him.
4. Third proviso to Rule 7(1)(a)(ii) of the Railway Service (Revised Pay) Rules states that "the fixation thus made shall ensure that every employee will get at least one increment in the revised scale of pay for every 3 increments (inclusive of stagnation increment, if any) in the existing scale of pay." The applicant contends that this rule is irrational and ultra vires of the Constitution and liable to be struck down. It is the further contention of the applicant that there is no provision under any service rules to take away the benefits of increments already earned by a Government servant and the present rule which restricts the grant of increment is in direct conflict with the benefit of annual increment derived by the Government servant under FR 24.
5. The respondents have filed their reply in which they have stated that the pay of the applicant was fixed correctly at Rs. 19900 with effect from 1.1.96 and Rs. 20400 with effect from 1.1.97 in the grade of Rs. 18400-22400 and this was in conformity with the Railway Board's letter dated 16.10.97 and there has been no violation of the statutory provision. It is also the contention of the respondents that there is no provision to fix the pay at Rs. 22400 giving 12 years weightage. Accordingly, the pension of the applicant has also been fixed correctly and as admissible under the rules. The respondents have also stated that the plea of the applicant that the third proviso to Rule 7(1)(a)(ii) of the Railway Service (Revised Pay) Rules, 1997 is irrational and unconstitutional is incorrect as the said proviso had been made on the basis of the recommendations of the Fifth CPC and the same is in accordance with law, and is just and reasonable and does not offend the constitutional/statutory provisions and does not suffer the vice of arbitrariness and is not discriminatory. It is their further contention that the pay of the applicant has not been reduced to his disadvantage by refixing his pay and the said rule is also not in conflict with the rules governing the grant of annual increments much less FR 24 and neither the said proviso high handed. Accordingly, the respondents contend that the applicant is not entitled for fixation of pay at Rs. 22400 per month with effect from 1.1.96 and for revision of his pension thereafter.
6. Heard both Counsel and perused documents on record.
7. It was vehemently argued by the Counsel for the applicant that the proviso to Rule 7(1)(a)(ii) which provides for one increment in the revised scale of pay for every 3 increments in the existing scale of pay was illogical and there was no rationale behind this proviso and accordingly the same is ultra vires of the constitution. According to the Counsel for the applicant, the fixation in the revised scale of Rs. 18400-22400 ought to have been done on the basis of point to point based on experience and the present method under the said proviso by not following this procedure has not taken into account the full service and experience rendered by the applicant in the junior administrative grade (JAG). In support, the Counsel for the applicant relied on the judgment of the Supreme Court in the case of State Bank of India v. Presiding Officer, Central Government Labour Court, Dhanbad and Anr., AIR 1972 SC 2189 and Punjab National Bank Limited v. K.L. Kharbanda, AIR 1963 SC 487. Accordingly, Counsel for the applicant argued that the applicant was entitled to have his pay fixed at Rs. 22400 with effect from 1.1.96.
8. The Counsel for the respondents on the other hand, pointed out that the applicant had approached the Chennai Bench of this Tribunal in O.A. 859/1996 seeking promotion to the grade of Rs. 7300-7600 with effect from 1.10.94. The revised scale for 7300-7600 is Rs. 22400-24500. However, this claim of the applicant was dismissed by the Chennai Bench vide its order dated 7.11.97. Thereafter, the applicant had filed writ petition No. 5677 1998 before the Karnataka High Court which had been rejected by the High Court. Accordingly, it is contended by the Counsel for the respondents that the applicant through this O.A. is trying to achieve indirectly what he could not achieve in the earlier O.A. filed before the Chennai Bench of this Tribunal. It is also further argued by the Counsel for the respondents that third proviso to Rule 7(1)(a)(ii) of Railway Service (Revised Pay) Rules, 1997 are neither irrational nor unconstitutional and neither-arbitrary nor discriminatory and that they have enacted on the basis of the recommendations of the Fifth CPC which have made these recommendations after taking into account all the relevant factors. In support, the respondents relied on the Supreme Court judgment in the case of Ashutosh Gupta v. State of Rajasthan and Ors., 2002(4) SCC 34=2002(2) SLJ 497 (SC). The Counsel for the respondents further contended that the 2 case laws of State Bank of India v. Presiding Officer, Central Government Labour Court and Punjab National Bank Ltd. v. K.L. Kharbanda (supra) are not at all relevant or applicable in the facts and circumstances of this application.
9. The basic contention of the applicant is that the third proviso to Rule 7(1)(a)(ii) of the Railway Service (Revised Pay) Rules, 1997 is lacking in rationality as it equates 3 increments in the old scale to one increment in the new scale and therefore it is ultra-vires of the constitution. In this view of the matter the applicant contends that the increments earned by the applicant in the SAG in which he had served 1.2 years are required to be taken into account and his pay fixed at Rs. 22400 per month in the scale of Rs. 18400-22000. In support, the applicant has referred to 2 Supreme Court judgments in the case of State Bank of India v. Presiding Officer, Central Government Labour Court and Punjab National Bank Ltd. v. K.L. Kharbanda (supra). We have gone through these two judgments referred to by the applicant and are in agreement with the stand of the respondents that these are not relevant nor applicable to the facts and circumstances in the present application. The respondents have referred to the judgment of the Supreme Court in the case of Ashutosh Gupta v. State of Rajasthan (supra). In this judgment, the Supreme Court has stated as under:
"Where the charge is made to statutory provision as discriminatory, allegations in writ petition must be specific, clear and unambiguous. There must be proper pleadings and averments in the substantive petition. There is always a presumption in favour of the constitutionality of enactment and this presumption stems from the wider power of classification which the legislator must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the legislator understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience."
In this case, it is seen that the third proviso under Rule 7(1)(a)(ii) which provides for one increment in the revised scale of pay for every 3 increments in the old scale is based on the recommendations of the Fifth Pay Commission which recommendation was made after having examined all materials and taking into account various relevant factors. The mere statement that this proviso is irrational and that it equates him with others who are far juniors is not sufficient to hold that the said proviso is ultra vires of the Constitution. As long as the said proviso is just and is based on reasonable classification and is not arbitrary and discriminatory it cannot be challenged as being ultra vires of the Constitution. In this view of the matter, the third proviso to Rule 7(1)(a)(ii) of the Railway Service (Revised Pay) Rules, 1997 which is based on the recommendations of the Fifth CPC has to be held as just and reasonable as it is neither arbitrary nor discriminatory and is equally applicable to all employees covered by the rules, the applicant has not been placed in a disadvantageous position vis-a-vis similarly placed employees. On the contrary, the said proviso to Rule 7(1) (a)(ii) of the Railway Services (Revised Pay) Rules, 1997 has taken into account the service rendered by an employee in the existing scale of pay. The weightage to be given to the service rendered in the old scale has been taken into account and provision for the same has been made in the third proviso to Rule 7(1)(a)(ii) of the Railway Services (Revised Pay) Rules, 1997 and this is equally applicable to all employees. We do not find any arbitrariness or discrimination in the said proviso or the said proviso as lacking in rationale. The contention of the applicant that his pay should be fixed at Rs. 22400 per month taking into account his 12 years service in the SAG is misplaced. In our view the applicant is not entitled to have his pay fixed at Rs. 22400 per month in the revised scale of Rs. 18400-22400.
10. For the above reasons, we do not find any merit in this application and accordingly the application is dismissed. No costs.