Central Administrative Tribunal - Delhi
R.G. Yadav vs Union Of India: Through on 8 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2708/2009 MA No.1846/2010 MA No. 1862/2009 New Delhi, this the 8th day of March, 2011 CORAM: Honble Mr. Justice S.D. Anand, Member (J) Honble Dr. Veena Chhotray, Member (A) S/Shri 1. R.G. Yadav, Supervisor (P-Way) Under Executive Engineer, Butt Welding Plant, Meerut 2. Ashok Kumar Sharma, Supervisor (P-Way) Under Executive Engineer, Butt Welding Plant, Meerut 3. Amir Ahmed, Supervisor (P-Way) Under SSE P.Way Plg. Moradabad 4. Mohd. Ayas, Supervisor (P-Way) Under Executive Engineer, Butt Welding Plant, Meerut 5. Sat Pal, Supervisor (P-Way) Under Executive Engineer, Butt Welding Plant, Meerut 6. S.U.Khan, Supervisor (P-Way) Under SSE P.Way, Hardoi 7. Mohd. Aslam, Supervisor (P-Way) Under SSE P.Way Hardoi 8. U.S. Gupta, Supervisor (P-Way) Under SSE P.Way Hardoi 9. Ajit Kumar Yadav, Supervisor (P-Way) Under SSE P.Way MB 10. Praveen Kumar Sharma, Supervisor (P-Way) Under SSE P.Way Plg HQ, N.Rly. Baroda House NDLS 11. Pradeep Kumar Sharma, Supervisor (P-Way) Under SSE P.Way Plg HQ, N.Rly. Baroda House NDLS 12. Iliyas Ahmed, Supervisor (P-Way) Under SSE P.Way Engll. Congtrol HQ, N.C. Rly. ALD 13. Ashish Gupta, Supervisor (P-Way) Under SSE P.Way Shikhohabad 14. Surender Singh, Supervisor (P-Way) Under SSE P.Way CHC/Engg. NC Rly TDL 15. Mahabir Singh, Supervisor (P-Way) Under SSE P.Way CHC/Engg. NC Rly TDL 16. P.V. Vishwan, Supervisor (P-Way) Under SSE P.Way HQ NC Rly TDL 17. Ashok Kumar Yadav, Supervisor (P-Way) Under SSE P.Way HQ NC Rly TDL 18. Veerpal Singh, Supervisor (P-Way) Under SSE P.Way HQ NC Rly TDL 19. Sarfaraz Ahmed, Supervisor (P-Way) Under SSE P.Way HQ NC Rly TDL 20. Sandeep Kumar Jaiswal, Supervisor (P-Way) Under SSE P.Way HQ CHC Engg.NC Rly ALD 21. Vinod Kumar Jaiswal, Supervisor (P-Way) Under SSE P.Way Track Depot, ALD. 22. Mohd. Akhtar, Supervisor (P-Way) Under SSE P.Way HQ CHC Engg.NC Rly ALD 23. Dharam Pal, Supervisor (P-Way) Under SSE P.Way TKD 24. Ravi Tandon, Supervisor (P-Way) Under SSE P.Way NDLS 25. Shashi Bhushan Kumar, Supervisor (P-Way) Under SSE P.Way DLI 26. Ram Lal Meena, Supervisor (P-Way) Under SSE P.Way FBD 27. Chhattar Singh, Supervisor (P-Way) Under SSE P.Way FBD 28. Virender Singh, Supervisor (P-Way) Under SSE P.Way FBD 29. Jagdish Narain, Supervisor (P-Way) Under SSE P.Way FBD 30. Hari Chand, Supervisor (P-Way) Under SSE P.Way FBD 31. Sher Singh, Supervisor (P-Way) Under SSE P.Way HNZM 32. Dhanveer Singh, Supervisor (P-Way) Under SSE P.Way HNZM 33. Radhey Shyam, Supervisor (P-Way) Under SSE P.Way SSB 34. Amrit Nath, Supervisor (P-Way) Under SSE P.Way SSB 35. Shanti Saroop, Supervisor (P-Way) Under SSE P.Way SSB 36. Paramjit Singh, Supervisor (P-Way) Under SSE P.Way Sirhind 37. Kishan Lal, Supervisor (P-Way) Under SSE P.Way Patiala 38. Raj Kumar, Supervisor (P-Way) Under SSE P.Way UMB 39. Lekh Raj Singh, Supervisor (P-Way) Under SSE P.Way UMB 40. K.N. Rai, Supervisor (P-Way) Under SSE P.Way UMB 41. Shiv Prasad, Supervisor (P-Way) Under SSE P.Way UMB 42. R.K. Gupta, Supervisor (P-Way) Under SSE P.Way DOA 43. Vijay Kumar Sant, Supervisor (P-Way) Under SSE P.Way DOA 44. Ajay Singh Yadav, Supervisor (P-Way) Under SSE P.Way Mathura -Applicants. (By Advocate: Shri B.S. Mainee with Ms Meenu Mainee) VERSUS Union of India: Through 1. Secretary, Railway Board, Ministry of Railways, Rail Bhawan, New Delhi 2. General Manager, Northern Railway, Baroda House, New Delhi 3. General Manager, North Central Railway, Allahabad -Respondents (By Advocate: Shri Satpal Singh) O R D E R By Dr. Veena Chhotray, Member (A):
MA 1862/2009 filed by the applicants for joining together in a single application is allowed. MA 1846/2010 filed by the respondents for deletion of the Secretary, Railway Board from the array of parties is rejected.
All the 44 applicants in this OA have been working as Permanent Way Supervisors. They are aggrieved at grant of the upgraded pay scale of Rs.5000-8000 to them from a much later date i.e. w.e.f. 22.3.2007; whereas their counterpart Supervisors in other Branches of Railways have been given the benefit of the same w.e.f. 1.11.2003. Besides, the posts of P.Way Supervisor have also not been upgraded and merged en bloc with the posts of JE-II in the manner and from the point of time effected in case of other Supervisors. The grievances of the applicants have arisen in the context of the 2003 restructuring undertaken in the Railways and the decisions as a sequel to it.
By way of relief, the OA seeks quashing the impugned order dated 9.10.2003 regarding the restructuring (Annex.A/1); order dated 23.9.2008 passed as a speaking order by respondent no.1 in pursuance of Tribunals order in the OA 1932/2007 and not finding the claims of the applicants as acceptable (Annex.A/2); and the order dated 16.4.2009, the communication of the aforesaid speaking order (Annex. A/3). Besides the following reliefs have also been sought:-
direction for removing the discrimination as pointed out in para 4.5 of the OA giving effect to the upgradation of the applicants in the scale of rs.5000-8000 w.e.f. 1.11.2003, the date from which all other Supervisors have been placed in this scale.
Further direction to place the applicants in the cadre of Junior Engineer-II w.e.f. 1.11.2003 as has been done in the case of other Mistries like other Supervisors (Works), Supervisors (Bridges) as also Supervisors in the Electrical, Mechanical Departments designated them as JE Grade-II.
A direction for giving all consequential benefits of fixation of pay as also arrears w.e.f. 1.11.2003.
Additionally, award of costs of proceedings in favour of applicants and against the respondents; besides granting any other or further relief deemed fit under the circumstances have been sought.
2. The learned counsels Shri B.S. Mainee and Shri Satpal Singh would argue the case before us respectively for the applicants and the respondents. We have heard both the learned counsels at length and also carefully considered the material on record.
3. The brief factual background as revealed is summed up below:
3.1 The applicants are Permanent Way Mistries subsequently re-designated as Permanent Way Supervisors. They are entrusted with the upkeep and safety of running of trains upto 8 kms long track.
3.2 In the year 2003, a restructuring of certain categories of C and D staff was undertaken with a view to streamline and rationalize the working of Railways. This was stated to have been done on the basis of functional, operational and administrative requirements and was subject to certain conditions (OM No.PC-III/2003/CRC/6 dated 9.10.2003 (Annex A/1).
3.3 The decision in respect of upgradation of the posts of Supervisors (erstwhile Mistries) was in para 13 as extracted below:
13. Upgradation of the posts of Supervisor (erstwhile Mistries):
(a) Subject to provisions of Para-13.2 below, all the posts of Supervisors (erstwhile Mistries) in grade Rs.4,500-7,000 + Rs.100 Special Allowance (excluding Supervisors (P. Way) should enbloc be upgraded to the posts of Junior Engineer Gr.II in the pay scale of Rs.5,000-8,000 and merged with the respective cadre of Technical Supervisors with its spread effect in higher grades Rs.5,500-9,000, 6,500-10,500 & 7.450-11,500 as per the revised percentage distribution of posts prescribed for Technical Supervisors in these orders.
In case of Supervisor (P.Way), the posts being held by the erstwhile PWMs supervising more than one gang upto a maximum of 17.26% of the sanctioned cadre of PWMs shall be upgraded and merged with the posts of Junior Engineer (P.Way) Gr.II in the pay scale of Rs.5,000-8,000 with its spread effect in higher grades of JE-I, SE & SSE in grades Rs.5,500-9,000, 6,500-10,500, & 7,450-11,500 respectively, as per the revised percentages prescribed for Technical Supervisors in these orders.
13.1 The financial implications involved in the upgradation covered by (a) & (b) above should be off set by surrender of posts of Supervisors of equivalent money value. As per this decision, while all the other Supervisors were granted the benefit of upgraded scale and en bloc merger with JE-II posts along with avenues of higher promotion, as per the revised percentage distribution of posts; in case of the P. Way Mistries this was limited to the prescribed extent.
3.4 The matter was agitated by the Staff Unions and Federations and subsequently considered by a Sub-Committee of the departmental Council. As per the claims in the OA, the Committee had made a favourable recommendation for merger. At one stage it was also proposed by the Federations that the upgradation of P.Way Supervisors as JE-II in the grade of Rs.5000-8000 could be made on proforma basis w.e.f. 1.11.2003 with actual payment from 1.5.2006. In support, extracts from the Journal Indian Rail Worker have been enclosed as Annex. A/4 and A/7.
3.5. Vide the order dated 22.3.2007, it was decided to give the benefits of the higher scale to the P. Way Mistries also, though not on identical terms as to the other Supervisors. Para-2 of this Order was to the following effect:-
After undertaking a comprehensive exercise involving detailed deliberations on the different aspects of the issue and after duly consulting the recognized federation, Ministry of Railways have decided with the approval of President to phase out the existing category of Track Supervisor (erstwhile P.W. Mistries / Supervisors Permanent Way) in scale Rs.4500-7000 (+Rs.100/- S.A. applicable to those appointed prior to 01.11.2003) and introduce the category of Sr. Permanent Way Supervisor in scale of Rs.5000-8000, subject to the following terms and conditions. This has occasioned the present OA.
4. It would also be apt to briefly recount the litigation background so far:
4.1 OA 955/2005 was disposed with directions to the respondents to decide the representation by the applicants and the legal notice by a speaking and a detailed order.
4.2 OA 2182/2005 - agitating the claims regarding removal of discrimination qua other Supervisors and inter alia, praying for placement of the applicants in the Grade Rs.5000-8000 from the date other Supervisors had been given with all consequential benefits; this OA was also closed vide the Tribunals order dated 12.7.2007 without going into merit (Annex.A/8). This was in view of the fact that the OA had not assailed the order passed by the respondents dated 22.3.2007. Liberty, however, was granted to the applicants for appropriately challenging the issues as may be raised as legally permissible.
4.3 OA 1932/2007 In terms of the liberty granted in the OA 2182/2005, the applicants assailing the Respondents order dated 22.3.2007 had sought grant of benefit of upgradation in the pay scale of Rs.5000-8000 w.e.f. 1.11.2003 with all arrears as well as designation of Permanent Way Mistries as JE-II On considering the rival contentions, the OA was disposed with a direction to the respondents to re-consider the claim of the applicants by a speaking order and valid consideration, keeping in view the observations made in the body of the order.
4.4 The speaking order dated 23.9.2008 (Annex A/2) has been passed by the Secretary, Railway Board, (Respondent 1). After reconsideration, the claims have not been found feasible of acceptance.
5. As the first impugned order dated 9.10.2003 had not been pressed on behalf of the applicants and had been foregone in the earlier OA 2182/2005; further there also has not been any pressing on this aspect in the present OA : hence we are not considering the challenge to this Order at all. On the other hand, the impugned order dated 23.9.2008 and its communication constitute the main points of adjudication now.
6.1 The learned counsel for the applicants, Shri B.S. Mainee would be mainly emphasizing the alleged discriminatory treatment meted out to the applicants qua their counterparts in the other Branches. This would be averred to have been done despite their responsibilities being claimed to be most sensitive as it directly pertained to public safety. The argument of a historical parity in pay scales right from the first to the 5th CPC would also be adduced. As per the OA nothing had happened after the 5th Pay Commission Report, which could be construed as disturbing the equality of the PWI Mistries with other Supervisors. The learned counsel, Shri Mainee would submit that the applicants had clearly been discriminated against right at the time of restructuring scheme and the same had more or less continued. The learned counsel would also contend that the criteria of restricting the upgraded pay scale to supervision of the number of Gangs was not workable in actual practice.
6.2 The apparent arbitrariness of the decision now taken by the respondents would also be dwelt upon. Shri Mainee would argue that after the negotiations with the Unions and the Federations, there could be no justifications for the respondents to take a unilateral decision. It would be his endeavour to bring home that post-22.3.2007 order also several grievances had remained un-redressed. The applicants represented the left over categories in which the bulk of Permanent Way Mistries had been deprived of parity with their counterparts. Thus, creation of a class within a class not permissible in law would be contended. It would also be submitted that as a result of the impugned decision, the applicants had not only been made to suffer financially but a situation had been created in which their erstwhile juniors had been allowed to steal a march over them. The adverse repercussions on their further promotional prospects would also be adverted to by the learned counsel.
6.3 Objecting to the impugned order dated 22.3.2007, the learned counsel Shri Mainee would submit that the respondents were now adding the grounds, which would not be permissible as per law laid down by the Honble Supreme Court in case of Mohinder Singh Gill & Anr vs The Chief Election Commissioner, New Delhi & Ors. (AIR (1978 SC 851). Non-consideration of the observations of the Tribunal in the preceding OA 1932/2007 would also be alleged by the learned counsel. Besides, the OA displays an endeavour to contradict factually the grounds taken by the respondents in this order for not entertaining their claims. Para 4.35 avers regarding the other factors referred in this Order i.e. channel of progression, internal relativities, nature of duties and responsibilities, also weighing heavily in favour of the P. Way Supervisions only.
7.1 On behalf of the respondents, preliminary objections such as repeatedly raising the same issues through different OAs; the respondents complying all earlier directions of the Tribunal; and the present order dated 22.3.2007 being a speaking and a well reasoned one after due consideration have been mentioned. It is further averred that the impugned decision was in the nature of a policy decision and did not warrant judicial intervention. In support, the decisions of the Honble Apex Court in Narmada Bachao Andolan vs Union of India & Ors {SCC 2000 Vol. 10 page 664} and Sumanglam Nagrath vs UOI {SSC 1999 (L&S) 1318} have been referred. The averment of the same not being subject to challenge by virtue of its being binding under Section 18(3) of the Industrial Disputes Act has also been made.
7.2 The main tenor of the respondents arguments is to vindicate the rationale behind the decision coupled with the factum of involving the recognized Staff Unions & Federations in the whole process. The Counter Affidavit submits about cadre restructuring being an important mechanism for rationalization of cadres and man-power management. This exercise is stated to have been carried out after a detailed review, involving the representatives of the staff side through their recognized Labour Federations, with the ultimate objective to achieve efficiency in the administration besides betterment of promotional prospects of its staff. In the segment Preliminary Submissions, Para-C (viii) makes the following submissions:-
The exercise is done on the basis of several consideration e.g. nature of duties and responsibilities, promotional opportunities, number of grades available in the cadre, internal relativities, educational qualifications etc. alongwith functional, operation and administrative requirements. Thus, any comparison between different cadres by any category of staff is superficial and unjustified. 7.3 It is the case of the respondents that the initial decision of the Board, which had been taken after a detailed consideration by the cadre restructuring committee, based on factual position as well as keeping in view the functional, operational and administrative justifications and feasibility, was based on a definite rationale. Further, on demand of NFIR and AIRF to upgrade all the Permanent Way Mistries, the Railway Board had constituted a Committee, which had recommended about no change being warranted in the decision. However, keeping in view the persistent demand of the Federation of Unions, the matter was considered by the Permanent Negotiating Machinery. The present decision of phasing out the existing category of Track Supervisor in the scale of Rs.4500-7000 and introducing a category of Senior Permanent Way Supervisor in the scale of Rs.5000-8000, has already been done by the respondents and it was not possible to go any further.
7.4 To completely reflect the stand of the respondents, we would also briefly like to mention the contents of the order dated 23.9.2008. As per this order, the claims of the applicants with regard to upgradation of all the posts of Supervisor/P.Way as JE Gr-II have been reconsidered in compliance of the directions of the Honble CAT in the OA 1932/2007. However, the posts are not found comparable considering a number of factors : (a) the array of supporting Group C staff being of different rungs of hierarchy, different scales and the number of tiers being different; (b) the claimed upgradation and merger as JE resulting in direct progression of lower level staff to the posts of JE without gaining sufficient experience commensurate with the level of responsibilities attached with the promotional posts; (c) upgradation of all P. Way Mistries as JE having a spread effect to higher grades and causing adverse effect in supervisional functions.
As per this order, the category of P. Way Mistries (P. Way Supervisors) are not identically situated and hence it is not a case of creation of a class within a class.
7.5 The respondents have also disputed the contention made on behalf of the applicants about a pay parity as per the 5th Pay Commission. In response to the reply to paras 4.5 4.6, it is averred that the 5th Pay Commission had differentiated this category from other Supervisors. Besides, the claims of the nature of duties being identical have also been rebutted. Para 4.4 of the CA states regarding the job of the P.Way Supervisors not including Planning and Engineering functions, which are in the job contents of Junior Engineer; hence their classification as Supervisor is asserted to be rational.
8.1 To deal with the preliminary issues first, with regard to the applicability of Section 18 (3) of the Industrial Disputes Act, a view had already been taken by the Ld. Co-ordinate Bench about the provisions of the same not being attracted in the facts of the present case. We would like to reiterate the same view.
8.2 As regards the linkage with the Tribunals decision in the OA 1932/2007, the matter had been considered as per the material then made available before it - looking into the professed similarity and functions, the claims of being identically situated vis-`-vis the Supervisors in other departments; claims of discrimination citing historical parity as per the different Pay Commissions. The final directions issued by the Tribunal were not mandatory in nature, but were by way of reconsideration of the claims of the applicants by a speaking order. As was held by the Honble Apex Court in Bhiku Bhai Patel vs State of Maharashtra [2008 (4) SCALE 278]:
A consideration worth in law is defined as connoting rethinking or thinking over on active application of mind all relevant aspects of the matter.
8.3 Even the objections raised by the learned counsel for the applicants regarding the grounds adduced in the impugned order dated 22.3.2007 is not found to be tenable. The facts of the present case are clearly distinguishable from those in Mohinder Singh Gill & Anr vs The Chief Election Commissioner, New Delhi & Ors. (supra). Gills case had arisen out of a challenge to the CECs order regarding cancellation of poll and reordering of poll in a particular constituency. The basic issue being considered was the jurisdictional limitations bearing upon elections the powers exercised by the Election Commission under relevant provisions of the Constitution, Peoples Representation Act and Rules there under. In this case, the Honble Apex Court had taken the view that the catch all jurisdictions under Article 226 cannot consider the correctness, legality or otherwise of the directions for cancellation integrated with re-poll. The writ application was, therefore, held as barred under Article 329(b) of the Constitution.
It was in this context that the observations of the Honble Court in Para-8 of this judgment, now being relied upon by the learned counsel, had been made. As per these observations, it had been stated that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
The present decision on the other hand i.e. the decision regarding restructuring is essentially administrative in nature as distinguished from exercise of certain statutory functions. We, therefore, do not find the application of Mohinder Singh Gills case in the present context as justified. In this context, we would also like to refer to the Honble Apex Court in Collector of Central Excise Calcutta vs Alnoori Tobacco Products & Anr {(2004) 6 SCALE 232}. While propounding the doctrine of circumstantial flexibility, the Honble Apex Court had frowned upon the tendency of placing blind reliance on a decision, since one additional or different fact may make a world of difference. It had been observed:
Observations of courts are neither to be read as Euclids theorems nor as provisions of the statute and that too taken out of their context. 8.4 It is settled in law that determining the service conditions of its employees is within the legitimate domain of the Executive {P.U. Joshi & Ors vs Accountant General, Ahmedabad & Ors {(2003) 2 SCC 632} / Union of India vs Pushpa Rani & Ors {(2008) 2 SCC (L&S) 857}. We may only quote from the observations of the Honble Apex Court in UOI vs Pushpa Rani & Ors (supra):
Matters relating to creation and abolition of posts, formation and structuring /restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of employees fall within the exclusive domain of the employer. What steps should be taken for improving the efficiency of the administration is also the preserve of the employer.
While delineating the scope of judicial review in such matters, the Honble Court had further laid down:
Power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or vitiated by malafide Hence, the basic question remains whether the present case is one of any patent arbitrariness, malafide or contrary to any constitutional or statutory provisions.
8.5 As we find after a holistic consideration of the entire matter, the present issue has been raised in the context of a special administrative measure taken by the respondents by way of restructuring certain categories of C and D posts. The basic objective of the exercise, so as to achieve operational, functional and administrative efficiency of the Organization, cannot be lost sight of. Nor can the multifarious administrative considerations mentioned by the respondents in their speaking order be brushed aside. Accepting the averments in the OA with regard to the factual contentions would amount to substituting our judgment for that of the competent administrative authorities, and would not be permissible within our limited jurisdiction. We do not find anything arbitrary in the action of the respondents.
It may also be added at this point that as regard claims of pay parity, the Honble Apex Court in a catena of judgments has been emphasizing the concept of total identity (State of Haryana & Ors vs. Charanjeet Singh & Ors, (2006) 9 SCC 321 / Union of India & Anr vs Mahajabeen Akhtar (2008) 1 SCC (L&S) 183) / State of Punjab & Anr vs Surjeet Singh & Anr, (2009) 2 SCC (L&S) 696). In any case the claimed parity even at the stage of the 5th Pay Commission has been rebutted by the respondents. Considering the averments on both the sides, the plea of discrimination among the identically situated is not found to be tenable either.
9. To conclude, having carefully considered the matter we find the OA as devoid of merit and hence it is dismissed hereby with no order as to costs.
(VEENA CHHOTRAY) MEMBER (A) (S.D. ANAND) MEMBER(J) /pkr/