Central Administrative Tribunal - Ernakulam
M S Unnikrishnan Nair vs M/O Railways on 3 November, 2017
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00142/2014
----'-r~;:...;..;·cl""""''1"-"'1---' this the 3'!r~ day of Rvv~2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
1. M.S. Unnikrishnan Nair, S/o. Mohandas Senior Section Officer
(Accounts), Office of Senior Divisional Finance Manager, Southern
Railway, Thiruvananthapuram - 695 014, Residing at T.C.
51/3118( 6), Sai Niketan, Industrial Estate PO,
Thiruvananthapuram - 695 019.
2. Santhi Venkitachalam, Senior Section Officer (Accounts),
Office of Senior Divisional Finance Manager, Southern Railway,
Thiruvananthapuram - 695 014, residing at Gokulam, SRWA-8,
Snehapuri road, Karumom PO, Thiruvananthapuram-695 002.
3. A.M. Rasheeda Beevi, Senior Section Officer (Accounts),
Office of Senior Divisional Finance Manager, Southern Railway,
.Thiruvananthapuram - 695 014, residing at Ayswarya,
Kadaivila, Hospital Junction, Parassala,
Thiruvananthapuram - 695 502. Applicants
(By Advocate: Mis. Varkey & Martin)
Versus
1. Union of India, represented by Secretary to the Government of India,
Ministry of Railways, Railway Board, Rail Bhavan, ·
New Delhi-110001.
2. The General Manager, Southern Railway, Park Town PO,
Chennai - 600 023.
3. The Financial Advisor and Chief Accounts Officer,
Southern Railway, Park Town, Chennai-3.
4. The Senior Divisional Finance Manager,
Office of the Sr. Divisional Finance Manager,
Southern Railway, Thycaud, Thiruvandapuram-
695 014. Respondents
(By Advocate: Mr. V.A. Shaji)
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This application having been heard on 10.10.2017, the Tribunal on
03.--\\.-d_0\7 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
The short question involved in this case is whether restructuring of posts held by them and the consequential financial increase in the pay ·and allowances of the applicants would amount to promotion thereby depriving them of the benefits of the financial upgradation under ACP and MACP schemes or not?
2. The applicants are presently working as Senior Section Officer (Accounts) in the Southern Railway with more than 30 years of service. The . P1 and 2nd applicants were appointed as Clerk Grade-I on 2.7.1983 and 8.11.1982 respectively and 3rd applicant was appointed as Clerk Grade-II on 10.12.1979 and was subsequently promoted as Clerk Grade-I on 22.10.1982. On 1.4.1987 restructuring of posts took place and 80% of the posts of Clerk Grade-I were restructured as Accounts Officer without any selection process as an adjustment of cadre percentage distribution. Thereafter the 1st applicant was promoted to the post of Section Officer on 9.7.1990, 2nd applicant on 11.1.1991 and 3rd applicant on 16.11.1992. On 1.9.2008 when the pt financial upgradation under the MACP scheme was introduced their Grade Pay was increased to Rs. 5,400/-. The pt and 2nd applicants got one financial upgradation during 2008 but the 3rct applicant though with 34 years of service was denied of financial upgradation during 2008. The respondents erroneously considered the restruc~osts on • 3 1.4.1987 stating that it amounts to promotion therefore, the applicants are not entitled to benefits of MACP given therein in the existing Grade Pay. The respondents Railway relies on Annexure All which is impugned in this OA. The relevant portion of Annexure All reads:
"b) That Board's instructions No. PC-IV/86-Jrnp/30, dated 18-06-1987 and E(NG) 1-86/PM ·9/8, dated 27-08-87 while providing for introduction of higher functional scale of Rs.1400-2600 in Accounts Cadre to the extent of SlYl'O of the post of Clerk Grade-I!Rs. l 200-2040 . (including existing Sub-Heads) also simultaneously laid down that Staff in Grade Rs. 1200-2040 will be eligible for promotion to the higher grnde after minimum 3 years service in Rs. 1200-2040 provided they have passed Appendix-IA examination.
c) That .in terms of clarifications issued against S.No.3 I of Board's letter dated 19-02-2002 when only a part of the posts are placed in a higher scale and rest are retained in existing grade thereby involving re-distribution of posts. then it involves creations of another grade in the hierarchy requiring framing of separate recruitment rules of the upgraded posts. Placement of existing incumbents to the extent of upgradations involve in the upgraded posts will also be treated as promotion/upgradation and offset against entitlement under the ACP Scheme.
Evidently, the case of Accounts Staff stands covered with aforementioned instructions and therefore their promotion/upgradation to the post of AA from JAA is to be taken into account for the purpose of ACP Scheme and offset against entitlement under the Scheme. From the aforementioned instructions, it is also evident that not only promotions but upgradations as well are to be taken into account for the purpose of /\CP Scheme and the notion that only promotions has to be reckoned for the purpose of ACP Scheme is incorrect.
d) That the ACP/MACP Schemes provides for grant of financial upgradation to the employee subject lo the fulfillment of terms and conditions prescribed for the respective Schemes. Therefore.; as per principle of equity any upgradation granted otherwise is requires to be taken into account for the purpose of grant of financial upgradation under the ACP/MACP Scheme. In respect of many other categories, DoP&T- the nodal department of Govt. on ACP/MACP Scheme have clarified that every financial upgradation is to be counted as upgradation and offaet against the financial upgradation under the MACPS."
3. Applicants' rely on Annexure Al order dated 26.8.2008 in OA No. 335/2007 of the Co-ordinate Bench of this Tribunal at Madras wherein it was held that the restructuring of posts taken place will not amount to promotion. Complying with the aforesaid order, relief was granted to the applicant in Annexure A 1 the Southern Railway issued Annexure A2 memorandum dated 17.9.2012. In that memorandum it is clearly stated that Annexure Al order was upheld by the High Court of Madras in WP No. y • 4 21112/2009 vide judgment dated 19.10.2010 and that the apex court had upheld the said decision of the Madras High Court in SLP CC _No. 9422/2011 vide order dated 4.1.2012.
4. The respondents in the reply statement state that in Annexure Al case the full facts and administrative instructions were not presented before the Madras Bench of the Tribunal and therefore Annexure Al cannot be relied upon as a precedent, it being a decision per incurium. According to the respondents the l51 and 2nct applicants were appointed as Clerk Grade-I on
2. 7.1983 and 18.11.1983 respectively and subsequently re'"designated as Junior Accounts Assistant (JAA) in scale Rs. 1200-2040/-. They were promoted as Accounts Assistant (AA) in scale Rs. 1400-2600/- with effect from 1.4.1987. The third applicant joined as Clerk Grade-II in scale Rs. 260-400/- on 10.12.1979. It was subsequently re-designated as Accounts Clerk. She was promoted as JAA on 22.10.1982 and as AA on 1.4.1987. Respondents further state that based on recommendation of 4th Central Pay Commission for broad parity in the pay scales of the staff in IA and AD and other Accounts Organizations, Railway Board vide its letter No. POC- IV/86-Imp/30 dated 18.6.1987 introduced a higher functional scale of Rs. 1400-2600 in the Accounts cadre to the extent of 80% of the posts of Clerk Grade-I (including existing Sub-heads). Para (4) of Board's letter dated 18.6.1987 categorically stipulates that orders regarding criteria for appointment to the higher functional grades requiring promotion to the grade of Rs. 1400-2600/- would follow. Further, vide para 2(i) of Board's subsequent letter No. E(NG)-I/86PM-9/8 dated 27.8.1987 it was decided v / ! • 5 that the designation of staff in grade Rs. 1200-2040/- will be Junior Accounts Assistant and those in grade 1400-2600/- will be Accounts Assistant. Board's said letter dated 27.8.1987 further prescribed the eligibility criteria for promotion to higher grade of Rs. 1400-2600/- as 3 years service in Rs. 1200-2040/- provided the employee has passed appendix II examination. Thus, from a reading of Board's instructions dated 18.6.1987 and 27.8.1987 it is evident that while providing for introduction of higher functional grade of Rs. 1400-2600/- it also prescribed the eligibility criteria of 3 years service in scale Rs. 1200-2040/- for promotion to that higher grade. It is pertinent to submit that the order dated 18.6.1987 and 27 .8.1987 prescribing introduction of higher functional grade of Rs. 1400-2600/- in Accounts cadre and condition for promotion to that higher functional grade are statutory in nature in terms of Hon'ble Supreme Court's ruling passed in the matter of P.R. Subramaniyan (1978) 1 SCC 158 holding that orders issued by the Railway Board for general applications to non-gazetted Railway servants are treated as rules having force of provision to Article· 309 of the Constitution of India. The ACP/MACP Scheme has been devised as safety nets to deal with problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenue. Further, the ACP/MACP scheme provided for placement in higher scale/grade along with benefit of pay fixation. Therefore, on the principle of equity, financial upgradation allowed under any dispensation is also required to be taken into account for the purpose of ACP/MACP Scheme and this position has been clarified in respect of several categories. In the applicants' case, the introduction of higher functional?e of.Rs. 1400- • 6 2600/- not only improved their promotional prospect but they were also allowed benefit of pay fixation under FR22C along with option for .pay fixation as admissible in case of promotion. Thus, as per policy perspective regarding ACP/MACP scheme the same requires to be reckoned for the purpose of these schemes. Respondents pray for rejecting the OA.
5. A rejoinder was filed by the applicant stating that all the applicants were placed in the scale of pay of Rs. 1400-2600/- as Accounts Assistant with retrospective effect from 1.4.1987 in conformity with Annexure· R3 RBE No. 188/1987, and the respondents have at present termed it as a promotion ignoring the fact that it is a pay revision. It is also stated by the applicants that such placement of the applicants in the scale of pay of Rs. 1400-2600/- as Accounts Assistant may be a promotion or promoted so later from the grade of Rs. 1200-2040/- to the grade of Rs. 1400-2600/-. However, this question is well settled by the decisions of the Principal Bench of this Tribunal in OA No. 3606of2013.
6. In the additional reply statement it is again stated by the respondents that as per the statutory provisions the appointment from Junior Accounts Assistant to Accounts Assistant is not only promotion but upgradations as well are to be taken into account for the purpose of ACP/MACP schemes. It is further stated by the respondents .that infact restructuring amounts to poromotion and that the periodical restructuring of posts in Group-C and D categories effected are not confined to Accounts Department alone but spread over to other departments as well and hence financial upgradation in y .
• 7accordance with promotion otherwise also may fall out and it may cause flood of likely litigations by employees of other Departments, opening a pandora's box. The respondents state that two other similar OAs i.e. OAs Nos. 383/2013 and 384/2013 relying on Annexure Al order filed in the Madras Bench of the Tribunal have been dismissed by that Bench. According to the repsondents the re-designation of the applicants as Accounts Assistant was based on their fulfilling the conditions of three years service in the feeder cadre of Junior Accounts Assistant and have passed appendix-II examination as per the eligibility requirements prescribed by the IREM paragaph 171(5). According to the respondents the applicants have been granted pay fixation vi de FR22( c) which applies in the case of employees on promotion.
7. Heard Mr. Martin G. Thottan, learned counsel appearmg for the applicant and Mr. V.A. Shaji, learned counsel appearing for the respondents at length. Perused the record.
8. The matter involved in this case has been covered by Annexure Al order of Chennai Bench of this Tribunal. Annexure Al order has attained finality consequent to confirmation of the same by the High Court of Madras in Writ Petition No. 21112/2009 vide judgment dated 19.10.2010 . . Relying on the Annexure Al decision of the Madras Bench the Principal Bench of this Tribunal in OA No. 3606/2013 has also passed a final order i~ a similar case vide order dated 15.10.2014. The Principal Bench while allowing the aforesaid OA observed as under:
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"4. We have heard both sides and have perused the material on record. The basic contention of the applicants is that they are squarely covered by the judgment of Chennai Bench of this Tribunal in OA-335/2007 dated 26.08.2008. This order has been upheld by Hon'ble High Court of Madras and SLP filed against the same has also been dismissed by Hon'ble Supreme Court. The applicants have, therefore, prayed that they be extended the same benefit as was given to the applicants of the aforesaid O.A. The respondents on their part have not denied that the applicants are similarly placed as applicants of OA-335/2007. They have simply stated that the judgment in OA-335/2007 may not be treated as a precedent since it was an order per incuriam. In our opinion, this contention of the respondents cannot be accepted. The aforesaid order has not only been upheld by Hon'ble High Court of Chennai but even the SLP filed against the same had been dismissed; Hon'ble High Court of Mumbai has also passed a similar order in Writ Petition No. 559/2008. If the respondents were aggrieved by this order they should have taken recourse to appropriate judicial proceedings rather than claiming that this order was per incuriam. On the contrary they have implemented the same vide their order dated 13.08.2012."
A copy of the judgment of Bombay High Court referred to in .the aforequoted order of the Principal Bench has been produced in this case as Annexure A3.
9. The contention of the respondents seems to be based on paragraph 171 of the IREM Vol. I which states that the post in the grade of Accounts Assistant is by way of promotion of Junior Accounts Assistant after completing 3 years of service in that grade and have passed appendix-II examination. According to the respondents the aforesaid provision in IREM, which has the status of a statutory rule under Art.309 of the Constitution, makes the posting of Accounts Assistant as a promotion of Junior Accounts Assistant and this statutory provision could not be brought to the notice of the Madras Bench of this Tribunal during the adjudication of Annexure Al case. The respondents therefore, contend that Annexure A 1 order was passed per incurium.
• 910; We feel that the above contention of the respondents cannot be heard again at this stage when two. other Benches of this Tribunal have already considered this matter. It is worth noticing that Annexure MA-1 order was upheld by the High Court of Madras and that the SLP filed against the Madras High Court judgment was dismissed. It has been clearly stated in the aforesaid orders and judgments of the High Courts that the restructuring of cadres which has resulted in placing the employees on a higher pay scale cannot be termed as a promotion for the purpose of further financial upgradations like ACP or MACP.
11. In our view this being the ratio laid down in the aforementioned orders and judgments, the provisions in the IREM relied on by ·the respondents cannot be resorted to. There is nothing in record to show that at the time of restructuring of their cadre the applicants in this case have infact been promoted. The mere fact that the post of Accounts Assistant is to be filled up by promotion of Junior Accounts Assistant, as provided in paragraph 171 of IREM, Volume I does not stand in the way of placement of the applicants in the upgraded post consequent to the restructuring that took place. we are unable to agree with the respondents when they argue that every financial upgradation is to be counted as upgradation to be offset against the financial upgradation under MACPs especially in matters relating to the upgradation occuring as a consequent of restructuring of the cadres based on the recommendations of Pay Commissions or by way of policy decisions. Therefore, denial of ACP/MACP benefits t_o the applicants on the ground that they received promotion at the time of upgradation of • 10 posts will not stand in the eye of law.
12. In the light of the above discussion, we hereby quash and set aside Annexure All and direct the respondents to consider Annexures A4 to A6 and pass appropriate orders to grant the applicants financial upgradation due to them and give all consequential service benefits with retrospective effect from the date of their eligibility. The cash benefits due shall however be limited to three years prior to the date of filing of the OA i.e. 26.2.2014. It is further ordered that· the pensionary benefits of applicant No. 3 shall accordingly be modified and the revised pension papers shall be issued in her favour. The aforesaid exercise in respect of all the applicants shall be completed by the respondents within two months from the date of receipt of a copy of this order.
13. The Original Application is allowed as above. Parties shall suffer their own costs.
(E.K. Bff~ T BHUSH:N)
ADMINISTRATIVE MEMBER
(U. SARATHCHANDRAN)
JUDICIAL MEMBER
"SA"
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Original Application No. 180/00142/2014
APPLICANT'S ANNEXURES
Annexure Al - True copy of the order dated 26.8.2008 in OA 335/2007
of Madras Bench.
Annexure A2 - True copy of the order dated 17.9.12 issued by the 3rct_
respondent.
Annexure A3 - True copy of the judgment pronounced on 29th
September, 2009 by Honourable High Court, Bombay. Annexure A4 - True copy of the memorandum No. 15/2013 dated 4.3.2013 issued by the respondents.
Annexure AS - True copy of the representation submitted by the first applicant dated 8.7.13.
Annexure A6 - True copy of the representation submitted by the second applicant dated 8.7.13.
J Annexure A7 - True copy of the representation submitted by the third applicant dated 8.7.13.
Annexure A8 - True copy of the letter No. P.135/TVC/Admn./Rep/MACP dated 17.7.2013 to the third respondent.
Annexure A9 - True copy of the letter No. P535/HQA/MACPS/ADMNNol.II dated 24.7.13.
Annexure AlO - True copy of the letter No. P.135/TVC/Admn/MACP/928 dated 23/24.12.13.
Annexure All - True copy of the order No. PCV/2009/ACP/7/SCR dated 5.2013.
RESPONDENTS'ANNEXURES Annexure RI - True copy of the order No. PC-V/99/I/1/l dated 1.10.1999.
Annexure RII - True copy of the extract of the IREM Para 171 .
.
Annexure Riii - True copy of the order RBE No. 158/87 dated 18.6.1987. Annexure RIV - True copy of the order RBE No. 222/87 dated 27.8.1987. .;I •• ~ ii 12 Annexure RV - , True copy of the order RBE No. 24/2002 dated 19.2.2002.
Annexure RVI - True copy of the office order No. 32 dated 4.7.1~88 Annexure RVII - True copy of the office order No. Gl 79/TVC/Admn/47A dated 19.10.1987.
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