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[Cites 6, Cited by 0]

Central Administrative Tribunal - Jodhpur

Ashutosh Sharma vs M/O Railway on 7 August, 2019

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        CENTRAL ADMINISTRATIVE TRIBUNAL
                 JODHPUR BENCH
                       ...

           Original Application No. 23/1997

                   RESERVED ON         :24.07.2019
                   PRONOUNCED ON       : 07.08.2019

CORAM:

HON'BLE MRS. HINA P.SHAH, MEMBER (J)
HON'BLE MS. ARCHANA NIGAM, MEMBER (A)

1.   Ashutosh Sharma S/o Shri Ramnath Ji Sharma, by
     caste Brahmin, at present working as Station
     Superintendent, Railway Station, Western Railway,
     Abu Road, Residing at Railway Colony, Abu Road.

2.   Dharmendra Ojha S/o Shri R.C.Ojha by caste Brahmin,
     at present working as Station Superintendent, Railway
     Station, Western Railway, Bhilari Residing at Railway
     Colony, Bhilari.

3.   Surgyan Singh Meena s/o Shri Ranjeet Mal by caste
     Meena, at present working as Station Superintendent,
     Railway Station, Rana Pratap Nagar, Residing at
     Railway Colony, Rana Pratap Nagar.

4.   Tej Kumar Siddhu s/o Shri V.K.Siddhu, by caste
     Siddhu, at present working as Station Superintendent,
     Railway Station Candala Port, Residing at Railway
     Colony, Candala Port.

                                            ...Applicants

(By Advocate: Shri Arpit Bhoot)

                          Versus

1. The Union of India through General Manager (P) Western
   Railway, Headquarter Office, Churchgate, Mumbai.

2. The Divisional Railway Manager, Ajmer Division, Western
   Railway, Ajmer.
                               2




                                             ...Respondents

(By Advocate: Shri Salil Trivedi)

                           ORDER

Per Mrs. Hina P.Shah The applicants were selected as Traffic Apprentices against direct recruitment quota. They were sent for training and during the training period, their due salary was paid in the scale of Rs. 425-455. On completion of training, they were appointed as Assistant Station Masters. The Railway Board issued a circular dated 15.5.1987 framing new terms for recruitment of Traffic/Commercial Apprentices. In terms of this circular, apprentices appointed after this date were to be given the scale of Rs. 1600-2660.

Three of the present applicants had earlier approached this Tribunal to get the benefit of the pay scale prescribed by the Railway Board's circular 15.5.1987. Many other OAs were also filed in other Benches of the Tribunal for seeking benefit of the above circular of the Railway Board, which were allowed directing to give pay scale of Rs. 1600-2660 to the Traffic Apprentices from the date of their joining. The respondents approached the Hon'ble Apex Court through SLP and Hon'ble Apex Court vide judgment dated 6.5.1996, Union of India & Ors. vs. M.Bhaskar & Ors. has held that 3 the Traffic/Commercial Apprentices recruited prior to 15.5.1987 were not entitled to the scale of Rs. 1600-2660.

In compliance of the judgment of the Hon'ble Apex Court, the respondents have issued the order dated 2.12.1996 withdrawing the benefits of pay scale of Rs. 1600-2660 from the applicants. Feeling aggrieved, the applicants have approached this Tribunal praying as under:-

(A) That order dated 2.12.1996 (Annex.A/1) so far as it contains a direction for cancellation of promotion of the applicants is concerned may be quashed and the respondents may be restrained from reverting the applicants from the post of Station Superintendent Gr. 2375-3500.

A/1)That the order dated 28.1.1997 (Ann.R/2) so far it relates to applicants are concerned may be quashed.

(B) That any other order or direction which this Hon'ble Tribunal deem fit and proper may kindly be passed in favour of the applicants.

(C) The cost of the original application may kindly be awarded in favour of the applicants.

2. Earlier, this Tribunal heard the matter and vide order dated 29.10.1999 dismissed the OA being devoid of merit observing as under:-

"6. In the light of the above judgment, we do not find any strong reason to interfere in the implementation of order dated 2.12.1996 (Annexure A/1). In para 18 of the judgment cited supra, it has been ordered by Hon'ble the Supreme Court that recovery of the amount already paid because of the aforesaid 4 judgments of the Tribunals would cause hardship to the respondents/appellants concerned and, therefore, directed the Union of India and its officers not to recover the amount already paid. It implies that the scale of Rs. 1600-2660 had been erroneously given to the Traffic Apprentices appointed prior to 15.5.1987 and in terms of the present judgment that benefit is to be withdrawn from them and ultimately they will be reverted to their original scale of Rs. 1400-2300 and this will entail recovery of overpayment made to them for the intervening period. The contention of the applicants that Hon'ble the Supreme Court has not ordered reversion of applicants to the scale of Rs. 1400-2300 and as such, the respondents action for reverting them vide their letter dated 2.12.96 (Annexure A/1) is illegal, is not tenable in the light of above discussion."

3. Thereafter the respondents approached the Hon'ble Rajasthan High Court by filing D.B.Civil Writ Petition No.1293/2000 challenging the order passed by this Tribunal. The Hon'ble High Court vide order dated 22.3.2011 restored the matter to its file and send back to this Tribunal observing as under:-

"The Tribunal while dismissing the O.A. essentially placed reliance upon the earlier decision rendered in the case of these very applicants along with others like them which eventually travelled upto the Supreme Court of India in a case reported in (1996) 4 SCC 416 (Union of India & Ors. vs. M.Bhaskar & Ors.). In the opinion of the Tribunal, writ petitioners were held not entitled to claim any relief because the issue was decided by the Supreme Court in the case of M.Bhaskar (supra). The petitioners having suffered the dismissal of their applications unsuccessfully filed a review petition and now this writ petition against both the orders.
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During the pendency of this litigation, it is brought to our notice that law laid down by the Supreme Court in the case of M.Bhaskar (supra) was referred to Five Judges Bench in the case of E.S.P.Rajaram & Ors. vs. Union of India & Ors. in (2001) 2 Supreme Court Cases 186. It is in this case, (E.S.P.) Rajaram's case, the Supreme Court now restated the law laid down in M.Bhaskar's case.

Admittedly, the decision rendered in E.S.P. Rajaram's case supra by the Constitutional Bench was not available to the Tribunal when it decided the controversy. In other words, the Tribunal decided the issues simply by placing reliance upon a law then laid down in M.Bhaskar's case but could not decide the matter in the light of the law now restated by the Supreme Court in the case of E.S.P.Rajaram's case, which came to be rendered during pendency of this writ petition.

In our considered view it is due to this event, we consider it proper to remand the case to Tribunal for deciding it afresh in the light of the law restated by the Supreme Court in the case of E.S.P.Rajaram's case supra."

4. After remand from the Hon'ble High Court, this Tribunal again heard the matter and vide order dated 23rd September, 2011 dismissed the same with a cost of Rs.

One Lakh observing as under:-

"11. Therefore, we declare that there is no difference at all between M.Bhaskar Judgment and Rajaram Judgment, and both are complementary and supplementary to each other, and follow in the same stream essentially and fundamentally. We further declare that Annexure.A8 has nothing to do with the contentions in the matter and may have been brought in in the course of reasoning as a confusing element. We declare and hold that following the Apex Court Judgment which dissolved a conditional benefit, and which condition was known to all those who enjoyed such benefit, it can be withdrawn at any time and it is 6 to be rightly so, following the higher standard of compliance required of the Hon'ble Apex Court's orders and therefore, and even otherwise also, no notice is required to be given to the applicant in the circumstances of the case.
12. On these cumulative findings and declarations, the OA fails. We have found that the applicants have, by raising frivolous contentions, which had no probative value or focus or content, had played truant with the adjudicatory process of two institutions. Time spent by this Tribunal, and the Hon'ble High Court on these cases could have been profitably utilized to resolve the grievances of many other poor litigants. Therefore the OA is dismissed, with costs of Rs. 25,000/- per applicant, which will be around half a month's salary of theirs as on today. In the result, the OA is dismissed with total costs of Rs. One Lakh."

5. This order of this Tribunal was again challenged before the Hon'ble Rajasthan High Court in D.B.Civil Writ Petition No.4919/2012 and Hon'ble High Court vide order dated 13.4.2018 observed as under:-

"1. The verbose impugned order does not focus either on the issue which arose for consideration before the Tribunal nor does it capture the rival view points and the result is non focused discussion of the controversy.
2. The origin of the dispute pertains to the implementation of the recommendation of the IVth Pay Commission with effect from 01.01.1986. Posts in the pre-revised scale of Rs. 425-640 and Rs. 455-700 were placed in the revised scale of Rs. 1400-2300.
3. Traffic apprentices who were selected prior to the year 1986 in the scale of Rs. 455-700 raised an issue of seniority vis-a-vis those who were in the pay scale Rs. 425-640. The issue had to be decided by the Tribunal with respect of the principle of law followed by the department while fixing the inter-se seniority. The 7 impugned decision nowhere brings to fore that the Tribunal was seized of the said fact.
4. Lest parties are prejudiced by any observation made by us, learned counsel for the parties jointly state that the writ petition may be disposed of setting aside the impugned order dated 23.09.2011 and O.A. No.23/1997 filed by the writ petitioners be restored for adjudication afresh before the Jodhpur Bench of the Central Administrative Tribunal.
5. Ordered accordingly.
6. Order dated 23.09.2011 is set aside.
O.A.No.23/1997 filed by the writ petitioners is restored before the Jodhpur bench of the Central Administrative Tribunal for decision afresh on merits. The Tribunal would not pass an essay type order. The pleadings of the parties would be noted. The legal issue which arises for consideration shall be brought out and in the light of the pleadings and documents filed in support of the pleadings the decision would be pronounced. Needful shall be done within six weeks of the receipt of the present order passed by the Division Bench."

6. After restoration of this OA for fresh decision, it was was listed before this Tribunal on several dates, but since none was present on behalf of the applicants, therefore, it was dismissed in default for non-prosecution on the part of the applicants vide order 16.11.2018. On filing a Misc.

Application for restoration of OA, it was restored to its original status vide order dated 12.3.2019.

7. We have heard the matter afresh and perused the material available on record as well as the written submissions tendered by both the parties.

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8. The controversy in hand started after issuance of Railway Board Memorandum dated 15.5.1987. Different OAs were filed before different Benches of this Tribunal and the matter travelled upto to the level of the Hon'ble Apex Court. Hon'ble Apex Court after analysing the relevant provisions of Indian Railway Establishment Manual and Indian Railway Establishment Code has set the controversy at rest vide their judgment dated 6.5.1996 in the case of Union of India vs. M.Bhaskar and Ors. (1996) 4 SCC 416 wherein the Hon'ble Apex Court has observed as under:-

"1. This batch of appeals requires us to decide two questions both of whom are relatable to the Railway Board's memorandum dated 15.5.1987 on the subject of recruitment of Traffic/Commercial Apprentices. The two questions are : (1) the purport of the memorandum; and (2) the validity of the same.
2. There has been a cleavage of opinion among the various Central Administrative Tribunals (CATS) of the country. Most of the Tribunals have rejected the understanding of the Union of India - the main appellant relating to the meaning and scope of the memorandum. The Ernakulam Bench of the Tribunal has even regarded the memorandum as invalid.
3. The broad contents of the memorandum may be noted. It brought about some changes in the recruitment of Traffic/Commercial Apprentices - one of the changes being that on and from 15.5.1987 the recruitment of these Apprentices would be made in the pay scale of Rs. 1600-2660 (this scale earlier was Rs. 1400-2300) and, instead of all the posts being filled up by promotions, ratio of promotees was made 75%, and of the remaining 25%, 10% were required to come through Railway Recruitment Boards and 15% on the basis of Limited Departmental Competitive Examination. The pre-1987 Apprentices laid their claim for the higher scale of pay on the basis of 1987 memorandum: and it is this claim which has come to be allowed by the majority of the CATs.
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4. The appellant has challenged the legality of this view. It has also been contended that the memorandum is not invalid for the reason given by the Ernakulam Bench or, for that matter, any other reason. The learned Counsel appearing for the respondents have supported the view taken by the majority of the CATs insofar as the benefit of higher pay scale is concerned. According to them the memorandum is also invalid because of its discriminatory nature and introduction of arbitrary cut-off date.
5. To decide the controversy, it would be apposite to apprise ourselves as to what was the procedure of recruitment before the memorandum in question; and what was really meant by the word 'Apprentices'. We have put this aspect at the forefront because the Tribunals, who have granted the benefit of higher pay scale, have done so, with respect, without applying their mind to the relevant provisions of the Indian Railway Establishment Manual, hereinafter the Manual, dealing with the recruitment of (1) Traffic Apprentices; and (2) Commercial Apprentices. Rule 123 of 1968 Edition of the Manual deals with recruitment of Traffic Apprentices and Rule 127 with Commercial Apprentices. It is apparent from this Manual that the posts to be held by Traffic Apprentices before the 1987 were of : (1) Assistant Station Masters; (2) Assistant Yard Masters; (3) Traffic Inspectors; and (4) Section Controller (in the scale of Rs. 1400-2600). Insofar as Commercial Apprentices are concerned, these posts were of: (1) Assistant Claims Inspectors/Supervisors; (2) Assistant Commercial Inspectors; (3) Assistant Rates Inspectors (Goods and Coaching); and (4) Other Inspectors for outdoor duties. This apart, the pre-1987 position was that in the Traffic and Commercial Departments posts in pay scale of Rs. 1400-2300 were being filled up to the extent of 25% by direct recruits, of which 15% were from open market and 10% from Limited Departmental Competitive Examination; and the balance 75% by promotion from lower grade. Further, the term 'Apprentices' was being actually used to cover 'direct recruits', as distinct from 'promotees'. Another thing to be noted, which again missed the Tribunals in question, is that when the pay scale of Rs. 1400-2300 was being paid to Traffic/Commercial Apprentices, the higher pay scale of Rs.

1600-2660 was being paid to those who were in a higher grade.

6. Though the above is disputed by Mrs. Sharda Devi, appearing for some of the respondents, we entertain no doubt on this score, because from what has been stated in para 6 of the Affidavit filed by T. P. V. S. Sekar Rao, Deputy Chief Personnel Officer, South Central Railway Headquarters Office, Secunderabad, it appears that the pay scale of Rs. 1400-2300 was being made available to Traffic Inspector Grade III, whereas scale of Rs. 1600-2660 was meant for Traffic Inspectors Grade II. Similarly, Commercial Inspectors, Grade III, was getting the scale of Rs. 1400-2300 and Commercial Inspector, Grade II, the scale of Rs. 1600-2660. Mrs. Sharda 10 Devi has referred to us in this connection to the Table "Avenue of Promotion for SS/Tls." finding place at page 82 of this counter, to bring home her point. This chart itself shows that there are promotional posts and the old scale of Rs. 455-700 (which on revision became Rs. 1400-2300) was meant for some Traffic Apprentices and not all. We may refer in this context to what finds place in Section B of Chapter II of the Manual. This Section deals with Rules governing the promotion of Group 'C' and shows that some promotional posts have been categorised as selection posts and some non-selection. The aforesaid chart relating to the 'avenue of promotion' has itself mentioned which are the non-selection posts and which are selection posts.

7. From the aforesaid, it is clear that the memorandum of 1987 was really not one of revision of pay of the Traffic/Commercial Apprentices, as has been understood by those Tribunals who have conceded the higher pay scale. The higher pay scale was really meant for the Traffic/Commercial Inspectors of higher grade. Mrs. Sharda Devi's effort to satisfy us that the higher pay scale was really a revision on the basis of what finds place in para 2(ii) of the 1987 memorandum is founded on misapprehension inasmuch as the mention in that sub-para that "Traffic Apprentices absorbed in the cadre of Section Controllers in scale of Rs. 470-750/1400-2600 (RP) will be fixed at starting pay of Rs. 1600 on absorption", does not mean that these Section Controllers were given the pay Scale of Rs. 1600-2660, as urged by the learned counsel. All that was conveyed by this statement was that the Section Controllers, even though getting the revised scale of Rs. 1400-2600, their starting pay would be Rs. 1600. This was so required, according to Shri Malhotra appearing for the appellant, because the Trained Apprentices could become eligible for the post of Section Controller only after having two years' Yard experience in the grade of Rs. 455-

700. It is this pay scale which had become on revision Rs. 1400-2300; the unrevised pay scale of Section Controller was Rs. 470-750, which on revision became Rs. 1400-2600 ". So, what has been stated in para 2(ii) does not support the case of the respondents that the memorandum of 1987 really dealt with the revision of pay of all the Traffic/Commercial Apprentices.

8. We, therefore, hold that the Tribunals which allowed the benefit of pay scale of Rs. 1600-2660 to all the Traffic/Commercial Apprentices irrespective of the grade of the posts held by them, not only misunderstood the memorandum of 1987, but misconceived the provisions relating to the recruitment and promotion of these Apprentices as finding place in the Establishment Manual. Indeed, somehow or other they were oblivious of what has found place in the manual in this regard.

9. This leaves for consideration the question of validity of the memorandum. The Ernakulam Bench, which held the memorandum invalid, did so for the reason that the Railway 11 Board, which had issued the memorandum, could not have changed the provisions finding place in the Establishment Manual, which are statutory in nature, whereas the memorandum was categorised as administrative instruction. Now, there is no dispute in law that statutory provision cannot be changed by administrative instruction. But then, the Tribunal, despite having noted Rule 1-A of the Indian Railway Establishment Code (Volume-I) as published on 21st March, 1951 reading :

"Normally recruitment will be to the lowest grade of the lowest class but direct recruitment on limited scale to intermediate grades will be made in accordance with instructions laid down by the Railway Board from time to time".

ultimately failed to bear in mind the aforesaid provision. Rule 1- A which had come to be made pursuant to the power conferred by the the proviso to Article 309 and having stated that the recruitment in the lowest grade will, be made in accordance with the instructions laid down by the Railway Board from time to time, the rule itself permitted the Railway Board to issue necessary instructions, and the memorandum of 1987 having been issued by the Railway Board in exercise of this power, we hold that Board had valid authority to issue the memorandum.

10. Another submission made by Mrs. Sharda Devi in assailing the validity of memorandum was that though pre - 15-5-1987 Apprentices would get the scale of Rs. 1400-2300, the post 15- 5-1987 Apprentices were made available the scale of Rs. 1600- 2660, for no good reason, and so, the memorandum was arbitrary. This is more so as earlier the apprentices were to undergo training for 3 years, which was reduced to 2 years by the memorandum. Shri Malhotra's contention in this connection was that there was a change, of policy in the sense that Apprentices recruited after 15-5-1987 were to man the posts, not of Assistant Station Masters, Assistant Yard Masters etc. as before, but of Station Masters, and Yard Masters. It is because of this that higher pay scale was made available to them. It was also brought to our notice that the memorandum provided that the standard of examination for the Apprentices to be recruited after 15-5-1987 was required to be higher than that which,was prevailing, and if because of this, the period of training was made 2 years in place of 3, the same cannot make the policy unreasonable, as a two-year period for training is of sufficiently long duration to equip persons selected after a more rigorous test, with the knowledge required to man the posts in question. We agreed and state that if direct recruits passing examination of higher standard to man higher posts were required to be given higher pay scales, the same cannot be regarded in any way as discriminatory or even arbitrary. Such a policy decision is not unreasonable also.

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11. The final submission in this regard was that the cut-off date "15.5.1987" is arbitrary. This also is not correct because the memorandum had come to be issued following many deliberations and discussions with different unions of which mention has been in detail in one of the documents on record. So, it cannot be said that the date (15.5.1987) is one 'picked out from a hat', in which case a cut-off date would be arbitrary, as stated by this Court recently in para 4 of Union of India v. Sudhir Kumar Jaiswal 1994 II CLR 1. We are rather satisfied that the date has relevance and the memorandum has come to be issued following the aforesaid discussion. So, we uphold the validity of the memorandum. Appeals @ SLP(C) Nos. 2533-35 of 1994

12. In these appeals, it was contended by Shri Das on behalf of respondent Nos. 2 to 4 that the cases of these respondents stand on different footing from other respondents, because, though they had come to be recruited pursuant to an advertisement of January 1985, they were called for training programme commencing from August 1989; and so, they should be taken as post - 1987 Apprentices, for which reason they would be entitled to the benefit of the memorandum. This contention has been advanced because of the language of sub- para (xii) of para 2 of the memorandum, according to which the revised pay scale of Rs. 1400-2300 was meant for "apprentices already under training". It was urged that the aforesaid respondents were not "under training" on 15.5.1987 as they had been called for training which was to commence from August 1989. Our attention was also drawn by Shri Das to a document at page 130 of the paper book, which is a communication of the Principal, Sonal Training School, addressed to the Chief Operating Superintendent by which the representation of 30 Traffic Apprentices for the absorption/posting in the pay scale of Rs. 1600-2660 was forwarded for consideration.

13. As to the last document, we would say that the same is inconsequential inasmuch as the Principal has only forwarded the representation. Though it is correct that the respondents were called for training from 1989, that is not enough to distinguish their case from other respondents inasmuch as they had come to be recruited pursuant to an advertisement of January 1985; and so, they have to be treated as pre-1987 Apprentices. What has been stated in sub-para (xii) cannot be taken in isolation; that has to be understood along with other provisions contained in the memorandum. If this were to be so done, we do not think if we would be justified in treating these respondents differently from other pre-1987 Apprentices because they were called for training in 1989. We have taken this view because it is known that at times there are no vacancies in training schools and so training programme has to be spread out. We, therefore, reject the contention advanced on 13 behalf of these respondents by Shri Das. Appeal @ SLP(C) No. 15438 of 1994

14. In this appeal, a separate argument was advanced on behalf of respondent no. 1, Prakash Chandra Ojha, who had approached the Patna Bench of the CAT with the grievance that he was unjustly and illegally denied promotion to Grade-I Commercial Inspector in 1990, despite his having been promoted as Commercial Inspector Grade-II by an order dated 21.9.1989, which was made effective from 11.10.1988, because of which he had become eligible for promotion to Grade-I on 11.10.1990, as the eligibility condition was completion of 2 years of experience in Grade-II. The Patna Bench held that the exclusion of this respondent from the list of eligible candidates for the selection meant for 1990 was wrong.

15. The aforesaid decision has been challenged in this appeal by the Union of India by contending that 2 years' period of experience has to be reckoned, not from 11.10.1988, but from 21.9.1989. There is no dispute that the eligibility condition is 2 years experience in Grade-II. Now, this respondent having really started working in Grade-II pursuant to the order of 21.9.1989, he could not have gained experience prior to the date he had joined pursuant to this order. The mere fact that his promotion in Grade- II was notionally made effective from 11.10.1988 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the person promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of too actual promotion.

16. We, therefore, hold that the view taken by the Patna Bench qua this respondent is not sustainable.

Conclusion

17. All the appeals, therefore, stand disposed of by setting aside the judgments of those Tribunals which have held that the pre-1987 Traffic/Commercial Apprentices had become entitled to the higher pay scale of Rs. 1600-2660 by the force of memorandum of 15.5.1987. Contrary view taken is affirmed. We also set aside the judgment of the Ernakulam Bench which declared the memorandum as invalid; so too of the Patna Bench in appeal @ SLP(C) No. 15438 of 1994 qua respondent No. 1. We also state that cases of respondents Nos. 2 to 4 in appeals @ SLP(C) Nos. 2533-35 of 1994 do not stand on different footing.

18. Despite the aforesaid conclusion of ours, we are of the view that the recovery of the amount already paid because of the 14 aforesaid judgments of the Tribunals would cause hardship to the concerned respondents/appellants and, therefore, direct the Union of India and its officers not to recover the amount already paid. This part of our order shall apply (1) to the respondents/appellants who are before this Court; and (2) to that pre-1987 Apprentices in whose favour judgment had been delivered by any CAT and which had become final either because no appeal was carried to this Court or, if carried, the same was dismissed. This benefit would be available to no other. "

Thereafter a bench of three learned Judges of the Hon'ble Apex Court in the SLP No.5373 of 1997 vide order dated 6.11.1997 directed that the matter be placed before the Constitution Bench, since the judgment in M.Bhaskar case was delivered by coequal Bench. The referral order reads as under:-
"In this special leave petition the grievance of the petitioners is against the Direction No.2 contained in Para 18 of the judgment of this court in Union of India & Ors. Vs. M. Bhaskar & Ors., 1996 (4) SCC 416 passed by the Bench of Three learned Judges whereby it has been directed that the order contained in para 18 would apply to pre-1987 apprentices (Traffic) in whose favour judgment has been delivered by any CAT and which had become final either because no appeal was carried to this Court or, if carried, the same was dismissed. The learned counsel for the petitioners has challenged the correctness of these directions on the ground that finality of the orders passed in the case of the petitioners as a result of the special leave petition filed against the order of the CAT having been dismissed by this Court, could not be reopened as a result of the said directions. Since the judgment in M Bhaskar's case (supra) was delivered by a Bench of three learned judges of this Court, we consider it appropriate that the matter be placed before the Constitution Bench. It is directed that the matter may be placed before the Hon'ble Chief Justice for directions in this regard.
In the meanwhile, it is directed that the Status quo with regard to reversion in rank and reduction in pay scales shall be maintained, as it exists today."

Thereafter the Hon'ble Constitution Bench in the case of E.S.P.Rajaram and Ors. vs. Union of India and Ors.

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(2001) 2 SCC 186 considered the matter of reference and observed as under:-

"5. The main thrust of the arguments of learned counsel appearing for the appellants was that the observations and directions given by this Court in M. Bhaskar's case (supra) particularly in paragraph 18 thereof are unsustainable since it was passed without giving any notice to the appellants and/or other similarly placed employees who were seriously prejudiced by such directions. Elucidating the contentions, the learned counsel submitted that the appellants who had been given fitment in the higher scale of pay, Rs.1600-2660 and on that basis some of them had got further promotions should not have been subjected to the directions in the judgment of this Court particularly when the special leave petition filed by the Union of India and the Railways against the judgment of CAT (Madras Bench) dated 4th of December, 1989 in OA No. 322 of 1988 and 488 of 1987 (the appellants were applicants in OA 322 of 1988) accepting their claim for the higher scale of pay had been dismissed in limine by this Court. In any view of the case, submitted the learned counsel, the principle of natural justice required that the appellants should have been given notice and afforded an opportunity of hearing before the order prejudicially effecting their interest was passed.
6. The learned Additional Solicitor General appearing for the respondents on the other hand contended that in the context of the facts and circumstances of the case and the nature of the controversy raised, this Court rightly passed the order, issuing the directions in paragraph 18 of M. Bhakar's case (supra) for the purpose of bringing about uniformity amongst all the employees similarly placed, that is, those who were recruited as Traffic Apprentices prior to 15-5-1987. The further submission of the learned Addl. Solicitor General was that this Court taking note of the hardship which may be caused to the appellants and other similarly placed employees issued the further direction that no recovery shall be made of the amount which they might have received in the higher scale of pay. In the submission of the learned Addl. Solicitor General, the directions in paragraph 18 of the judgment were issued with a view to do complete justice between all pre-1987 Traffic Apprentices and therefore calls for no interference.

7. Since, the thrust of the arguments of the learned counsel appearing for the petitioners and the intending interveners was that the observations in paragraphs 17 & 18 of the judgment in M.Bhaskar's case (supra) by which they have been seriously prejudiced were not made without giving notice to them, we specifically asked the learned counsel to place their arguments on the merits of the directions contained in the said paragraphs for the purpose of satisfying ourselves if a re-look at the said 16 decision is necessary. The learned counsel could not raise any contention of substance questioning the correctness of the decision in the aforementioned case except stating that many of the persons who were parties in the cases decided by the Tribunal taking the contra- view and some others had been given benefit on the basis of the decision of the Tribunal and some of them have even got further promotions which have become vulnerable in view of the decision of this Court in M. Bhaskar case (supra). It was their contention that this Court should have made it clear that the decision in M. Bhaskar case (supra) will not affect the parties in whose favour judgments have been delivered by any bench of CAT and which had become final either because no appeal was carried to this Court or if carried the same was dismissed and further the benefit should have been extended to others who though not parties in any proceeding before any bench of CAT had been given service benefit on the basis of the judgment delivered by a bench of the CAT taking the view which was rejected by this Court in M. Bhaskar case (supra).

8. We have carefully perused the judgment in M. Bhaskar's case (supra). The decision in that case has been taken on a detailed analysis of the relevant provisions of the Indian Railway Establishment Code and the Indian Railway Establishment Manual (1968 Edn.), and in the light of certain general principles of law relating to recruitment cogent reasons have been given in support of the findings and conclusions arrived at in the judgment. As noted earlier no contention was advanced before us pointing out any serious error in the decision therein. We are satisfied that in the facts and circumstances of the case placed before their Lordships the decision is correct and warrants no interference.

9. If it is necessary to trace the source of power of this Court to issue the directions and pass the order as in paragraph 18 of M Bhaskar's case (supra) one can straightaway look to Article 142 of the Constitution. The said provision vests power in the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any case or mater pending before it. The provision contains no limitation regarding the causes or the circumstances in which the power can be exercised nor does it lays down any condition to be satisfied before such power is exercised. The exercise of the power is left completely to the descretion of the highest court of the country and its order or decree is made binding on all the Courts or Tribunals throughout the territory of India. However, this power is not to be exercised to override any express provision. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a super structure. This Court has not hesitated to exercise the power under Article 142 of the Constitution whenever it was felt necessary in the interest of justice.

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21. In the case of N.A. Mohammed Kasim (Dead) and another vs. Sulochana and others (1995) Supp(3) SCC 128 which arose from a civil suit this Court in the facts and circumstances of the case considered it fit for invoking Court's power under Article 142 for giving equitable relief to the plaintiff-respondents, not on ground on which they claimed relief in the suit but on the ground of promissory estoppel equity and fair play.

22. From the conspectus of the views expressed in the decided cases noted above it is clear that this Court has invoked the power vested under Section 142 of the Constitution in different types of cases involving different fact situations for doing complete justice between the parties.

23. In the case on hand the controversy relates to the scale of pay admissible for Traffic Apprentices in the Railways appointed prior to the cut-off date. The controversy in its very nature is one which applies to all such employees of the Railways; it is not a controversy which is confined to some individual employees or a section of the employees. If the judgment of the tribunal which had taken a view contrary to the ratio laid down by judgment of this Court in M. Bhaskar's case (supra) was allowed to stand then the resultant position would have been that some Traffic Apprentices who were parties in those cases would have gained an unfair and undeserved advantage over other employees who are or were holding the same post. Such enviable position would not only have been per se discriminatory but could have resulted in a situation which is undesirable for a cadre of large number of employees in a big establishment like that of the Indian Railways. To avoid such a situation this Court made the observations in paragraph 17 of the judgment. At the cost of repetition we may reiterate that since the main plank of argument of the appellants was that since they were not parties in the case they had no opportunity to place their case before this Court made the observations in paragraph 17 of the judgment as aforementioned we specifically asked learned counsel appearing for the parties to place the argument in support of their challenge to the observations made by this Court on merits. No point of substance assailing the observations on merits could be placed by them. The only contention made in that regard was some of the employees who were given benefit in the judgments of the CAT have got further promotions and they may lose the benefit of such promotion in case the observations made in paragraph 17 of the judgment are allowed to stand as it is. We are not impressed by the contention raised. If some employees were unjustly and improperly granted a higher scale of pay and on that basis were given promotion to a higher post then the basis of such promotion been on a non-existent; the superstructure built on 18 such foundation should not be allowed to stand; This is absolutely necessary for the sake of maintaining equality and fair play with the other similarly placed employees. However, in our considered view, it will be just and fair to clarify that any amount drawn by such employees either in the basic post (Traffic Apprentice) or in a promotional post will not be required to be refunded by the employee concerned as a consequence of this judgment. This position also follows as a necessary corolary from the observations made by this Court in paragraph 18 of the judgment in M.Bhaskar's case (supra).

24. On the discussions made and the reasons set forth in the preceeding paragraphs the appeal is dismissed but in the circumstances of the case without any order for costs. "

9. The applicants in the present proceedings have challenged the order dated 2.12.1996 (Ann.A/1) so far as cancellation of promotion of the applicants is concerned and direction is sought for restraining the respondents from reverting the applicant from the post of Station Superintendent. Perusal of this letter reveals that as per order of CAT-Jaipur Bench dated 2.6.1992 passed in OA No.602/1990 the Traffic Apprentices were given proforma promotion in the scale of Rs. 1600-2660 and arrears were also given from the date they were originally absorbed in the category of Station Master scale Rs. 1400-2300. On the basis of the above order, the applicants have been given consequential benefits of seniority in the scale of Rs. 1600- 2660 from the date of their original absorption and given further proforma promotion in the scale of Rs. 2000-3200 on the basis of proforma seniority of the scale of Rs. 1600- 2660. The respondents filed SLP before the Hon'ble Apex 19 Court against the order dated 2.6.1992 of the Jaipur Bench of this Tribunal, which was decided in favour of the respondents and accordingly, the respondents have decided to reckon the seniority of the Traffic Apprentices based on their joining in the scale of Rs. 1400-2300 and their further promotions in the scale of Rs. 1600-2660 and Rs. 2000- 3200 were regulated accordingly and not on the basis of proforma promotion given to them in the scale of Rs. 1600- 2660. Resultantly, the seniority given to them based on the scale of Rs. 1600-2660 and further proforma seniority and promotion required to be cancelled and revised seniority on the basis of absorption in the scale of Rs. 1400-2300 was required to be worked out. It is admitted fact that the applicants were given the scale of Rs. 1600-2660, proforma seniority and promotions in the higher grade on the basis of the order dated 2.6.1992. After the judgment in the SLP filed by the respondents before the Hon'ble Apex Court, the benefit given to the applicants was required to be withdrawn and the applicants were required be given the benefit of seniority and promotion based on their original pay scale of Rs. 1400-2300 as they were having no right for the benefits of the scale of Rs. 1600-2660 after the judgments of the Hon'ble Apex Court. However, taking into 20 consideration the hardship likely to be faced by the applicants, the respondents have decided not to recover the arrears paid to the applicants in the scale of Rs. 1600-2660.
10. The applicants have also sought quashing of order dated 28.1.1997 (stated to be placed at Ann.R/2 but it is found at Ann.R/6) so far it relates to the applicants. Bare perusal of this order makes it clear that the benefit of the pay scale of Rs. 1600-2660 was extended to the persons on the basis of the order of CAT-Jaipur Bench in OA No.537/1992 subject to the decision of the SLP filed before the Hon'ble Apex Court on provisional basis. On the basis of provisional seniority and promotion, they were given promotion in the scale of 2000-3200 and 2375-3500. After the judgment of the Hon'ble Apex Court in the SLP dated 6.5.1996, the said benefit has been withdrawn.
11. After going through the above orders dated 2.12.1996 (Ann.A/1) and 28.1.1997 (Ann.R/6), it is clear that these were passed after the matter attained finality at the level of the Hon'ble Apex Court and the benefit extended to the applicants in compliance of the order of this Tribunal was required to be withdrawn and they were to be placed at a stage, which existed prior to extending the benefit of the 21 order passed by the CAT-Jaipur Bench. After the matter attained finality at the level of the Apex Court, the applicants have no right to claim benefits of the order of this Tribunal and they have to be placed at a stage which existed prior to granting the benefit of the scale of Rs.
1600-2660 and thereafter to be given the consequential benefit of the scale of Rs. 1400-2300.
12. The learned counsel for the applicants heavily relied on a correspondence letter dated 04.1997 (Ann.A/8), contending that vide this letter the railways has issued necessary directions for determining seniority of the applicants and other similarly placed employees and going by this direction, it is clear that the matter stands decided and therefore, the respondents may be directed to decide the seniority of the applicants accordingly and that the applicants have already promoted to selection posts cannot be reverted until the seniority has been given as per Ann.A/8.
On the contrary, the learned counsel for the respondents submitted that the applicants were given promotion on the basis of provisional seniority lists and they did not face the selection before promotion to the selection 22 posts. Therefore, this contention cannot be accepted as the letter as Ann.A/8 is not a policy decision, but a correspondence from one authority to another authority and also that the applicants have not challenged any decision taken thereafter by the respondents on the basis of this correspondence.
13. After considering the rival contentions of both the parties on this aspect, it is noted that in the OA the applicants have only challenged the order Ann. Ann.A/1 and Ann.R/6, by which the benefits given earlier on the basis of order of this Tribunal has been withdrawn. In the rejoinder, they are trying to establish a new case of their inter-se seniority, after merging of scales of Rs. 425-640 and Rs.
455-700 into a single revised scale of Rs. 1400-2300, without placing on record or challenging any seniority list or contrary order or any decision not in consonance with Ann.A/8. Since it is a very old matter and much water has flown after issuance of Ann.A/8, therefore, without challenging the orders in this regard and placing the relevant documents on record, this issue cannot be gone into. The main challenge in this OA was cancellation/withdrawal of benefit given in the scale of Rs.
1600-2600 to the applicants, based on Railway Board 23 Memorandum dated 15.5.1987, who were originally in the scale of Rs. 1400-2300. As per the above referred judgments of the Hon'ble Apex Court, the applicants were not held entitled, therefore, benefit was required to be withdrawn. It appears that the applicants are twisting the main issue in subsequent proceedings as it was not an issue of fixing seniority between the two scales merged into one scale, but it was related to the issue of benefit of the Railway Board Memorandum dated 15.5.1987 to pre-1987 and post-1985 recruitees. The applicants in the instant OA were given provisional seniority and promotion based on the pay scale of Rs. 1600-2660, and according to Railway Board Memorandum dated 15.5.1987 (validity of which has already been upheld by the Hon'ble Apex Court), they were not entitled for the said pay scale. The said benefit extended to the applicants was since subject to final decision in the SLP filed by the respondents and after the final verdict of the Hon'ble Apex Court, this has to be withdrawn/cancelled and seniority has to be redrafted accordingly.
14. Needless to add here that a Coordinate Bench of this Tribunal at Allahabad vide order dated 31.03.2011 in OA No.1429/2002 in the case of Smt. Kurti Devi Srivastava 24 vs. Union of India and Ors. has dealt with a similar issue.
The applicants therein were pre-1987 Commercial Apprentices. At the time of promotion of the applicants in the pay scale of Rs. 1600-2660, the respondent No. 3 to 6 were working in the next lower pay scale of Rs. 1400-2300.
In pursuance of the judgment of the Banglore Bench the Respondent No. 3 to 6 although they were pre 15.5.1987 Commercial Apprentices were granted the benefit of higher pay scale of Rs. 1600-2660 under the Railway Boards Memorandum dated 15.5.1987 respectively with effect from 15.7.1987. While the applicants were granted pay scale of Rs. 1600-2660 as per their normal channel of promotion with effect from 1.3.1993. Respondent No. 3 to 6 got it with effect from 15.7.1987. Thus respondents placed them over and above the applicants in the seniority list of Rs. 1600- 2660 and therefore, the applicants became junior than the respondent No. 3 to 6 in the aforesaid pay scale. As a result thereof, the Respondent no 3 to 6 were further granted promotion to the next higher pay scale of Rs. 2000-3200 with effect from 16.9.1993 (Respondent No. 3) and with effect from 4.9.1993 (Respondent No. 4, 5 and 6). After the judgment of the Hon'ble Apex Court in the case of M.Bhaskar, the respondents issued directions to 25 implement the aforesaid judgment of the Hon'ble Supreme Court of India reverting all the Traffic/Commercial Apprentices who got the benefit of grade of Rs. 1600-2660 as per this Tribunal's judgment by challenging Railway Board's Memorandum dated 15.5.1987. In spite of the aforesaid direction, subordinate authorities have not taken any action against the Respondent No. 3 to 6 by reverting them from the pay scale of Rs. 1600-2660 to that of Rs.
1400-2300 and refixing their seniority accordingly.
Accordingly, the applicants filed the aforesaid OA praying for direction to the respondents to grant consequential benefit of promotion of higher pay scale of Rs. 2000-3200 including the refixation of seniority in the aforesaid pay scale as a necessary consequence arising out from the impugned order as well as in pursuance of the judgment of constitutional Bench of the Hon'ble Supreme Court in the case of E.S.P. Rajaram. The Coordinate Bench considered the matter on the basis of judgments of the Hon'ble Apex Court in the case of M.Bhaskar and E.S.P.Rajaram and various provisions as also the Railway Board Memorandum dated 15.5.1987 observing that :-
"9. The above decision is clear in that in the event of any one having been fixed the higher pay scale, they have to face reversion in pay scale but no recovery 26 shall be effected. Again, none could be allowed to get the benefit of the unintended higher pay scale in respect of seniority much less promotion based on such in unintended seniority. Here exactly is the grievance of the applicants. They would not have any grudge as to higher pay having been granted to the private respondents, but certainly when the private respondents have stolen a march over the applicants in matter of seniority on the basis of erroneous fixation of pay scale to the private respondents, the chances of promotion of the applicants would have certainly depleted which is the cause of concern. Today the applicants have all but retired. Their claim for promotion is not to have the fixation of pay and drawal of arrears. Their claim is only to the extent of notional fixation of pay for the purpose of pension and other terminal benefits. For, they have not physically worked in the higher post. Under these circumstances, all that could be done is to reschedule the seniority of the applicant and consider their case for promotion to the higher post carrying the pay scale of Rs 2000 - 3200 from the date the private respondents had been granted the higher pay scale and from that stage, to work out the notional fixation of pay upto the time of superannuation of the applicants which would reflect the last pay drawn, and the said pay on the last month would be the basis for working out the pension and other terminal benefits. By this method, the private respondents would not be affected but the applicants would be rendered full justice."

15. So far contention of the applicants that the applicants should have been given opportunity of hearing, prior to passing of the order of Ann.A/1 is concerned, the Hon'ble Apex Court in the case of E.S.P. Rajaram has observed that "if some employees were unjustly and improperly granted a higher scale of pay and on that basis were given promotion to higher post then the basis of such promotion being non-

27

existent; the superstructure build on such foundation should not be allowed to stand. This is absolutely necessary for the sake of maintaining equality and fair play with the other similarly placed employees." In view of above observations, the contention of applicants regarding affording opportunity before passing of the order Ann.A/1 and Ann.R/6 has no merit.

16. In view of above discussions taking into consideration the ratio propounded by the Hon'ble Apex Court in the case of M.Bhaskar and E.S.P. Rajaram (supra), the respondents cannot be said to be at fault in withdrawing the benefit of the scale of 1600-2660 which was based on the order passed by this Tribunal granting benefit of the Railway Board's Memorandum dated 15.5.1987 to the pre-1987 Traffic Apprentices. Since the controversy involved in the present matter has attained finality vide the above referred judgments, therefore, we find no reason to interfere in the matter.

17. The OA is accordingly dismissed with no order as to costs. 

(ARCHANA NIGAM)                           (HINA P.SHAH)
 ADMV. MEMBER                             JUDL. MEMBER
R/
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