Central Administrative Tribunal - Chandigarh
Darshan Singh vs M/O Railways on 9 May, 2018
Author: P. Gopinath
Bench: P. Gopinath
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(OA No. 060/00884/2017)
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
...
Order reserved on: 24.04.2018
ORIGINAL APPLICATION N0. 060/00884/2017
Chandigarh, this the 9th day of May, 2018
...
CORAM: HON'BLE MRS. P. GOPINATH, MEMBER (A)
...
Darshan Singh, aged 82 years, son of Late Hari Singh, resident of F-
1/2, Dyal Bagh, Ambala Cantt.
....Applicant
By Advocate: Sh. Sarjit Singh, Sr. Advocate alongwith Sh.
Jagdeep Jaswal
VERSUS
1. Union of India through Secretary to the Government of India,
Ministry of Railways, Rail Bhawan, New Delhi.
2. Divisional-cum-Manager, Northern Railways, Ambala Cantt.
3. Chief Works Manager, Jagadhari Workshop, Northern Railway,
Jagadhri District, Yamuna Nagar.
....Respondents
By Advocate: Sh. R.T.P.S. Tulsi, Sr. Adocate alongwith Sh.
A.K. Sharma
ORDER
MRS. P. GOPINATH, MEMBER(A):-
The grievance of the applicant is that in spite of the judgement dated 24.08.2011 of High Court in CWP No. 9581-CAT of 2011 titled Agia Ram & Ors. Vs. UOI and upheld by the Supreme Court in SLP (Civil) No. 29160 of 2012 titled UOI Vs. Agia Ramn, the representation of the applicant has been rejected vide impugned 2 (OA No. 060/00884/2017) order dated 01.05.2017. Applicant draws attention to the recent pronouncement of the Apex Court in which the Apex Court had pulled up respondents for not implementing the judgements which had attained finality and were forcing applicants to approach the judiciary again and again for the same relief, thereby, clogging the courts with cases which could have been decided at the level of the executive.
The prayer of the applicant is to refix his pension on the basis of the revised pay scale of Rs. 5000-8000 w.e.f. 01.11.2003. The date of retirement of the applicant is 31.08.1993. The pay scale of Junior Engineer II/Mistri was revised ten years after applicant‟s retirement w.e.f. 01.11.2003 and they were granted the pay scale of Rs. 5000- 8000. The pension which is to be calculated on the last pay drawn, would not apply to the applicant as the pay was revised to Rs. 5000- 8000 w.e.f. 01.11.2003 ten years thereafter, on a date way beyond the date of retirement of the applicant, i.e. 31.08.1993.
2. Applicant argues that though he had retired as a Mistri, the pay of Mistri having been upgraded post applicant‟s retirement, is applicable for pension revision of the applicant.
3. The main argument of the respondents is that when the restructuring in Northern Railway was done, the order of re- structuring had very clearly stated the following:-
Relevant extract of RBE Railway Board Circular No. 177 of 2003
13. Upgradation of the post of Supervisor(erstwhile Mistries) 13(a) Subject to provisions of Para-13.2 below, all the posts of Supervisors (erstwhile Mistries) in grade Rs.4500-7000 + Rs. 100 Special Allowance (excluding Supervisors (P.Way) should 3 (OA No. 060/00884/2017) enbloc be upgraded to the posts of Junior Engineer Gr. II in the pay scale of Rs. 5000-8000 and merged with the respective cadre of Technical Supervisors with its spread effect in higher grades Rs. 5500-9000, 6500-10500 & 7450-11500 as per the revised percentage distribution of posts prescribed for Technical Supervisors in these orders.
13(b) 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 to and merged with the posts of Junior Engineer (P.Way) Gr. II in the pay scale of Rs. 5000-8000 with its spread effect in higher grades of JE-I, SE & SSE in grades Rs. 5500- 9000, 6500-10500 & 7450-11500 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.
13.2 The placement of the existing incumbents will be regulated as per the procedure given below: -
a.The existing regular incumbents of the posts of Supervisors (including Supervisors/P.Way to the extent of upgradation of posts) will be placed in grade Rs. 5000-8000 without subjecting them to normal selection procedure. Their suitability shall be adjudged by following modified selection procedure according to which the selection will be based on scrutiny of service records and confidential reports only.
The Supervisors (other than P.Way) who do not get promoted to grade Rs. 5000-8000 shall continue to hold the post in the existing grade Rs. 4500-7000 + Rs.100 SA as personal to them. To this extent, the posts upgraded to grade Rs. 5000-8000 will be operated in the lower grade Rs. 4500-7000 + Rs.100 SA till the existing incumbents vacate the same by way of promotion, retirement etc. On vacation of the posts, the same shall automatically be operated in grade Rs. 5000-8000.
The cut-off date in Circular No. 177 of 2003 is for the benefit of restructuring and is restricted to employees who were in service as on 01.11.2003. Applicant was not in service as on 1.11.2003. The re-structuring not having any effect and impact on those who held the post of Mistri prior to issue of restructuring order, is, therefore not applicable to the applicant in this OA.
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(OA No. 060/00884/2017)
4. The respondents argue that the order of the High Court and the Supreme Court is per incuriam as this particular fact of date of application of restructuring was never brought before them and argued. Further, restructuring order also said that the restructuring involving the upgradation of the posts should be offset by surrender of post of Supervisor of equivalent money value. The applicant had not contributed any monetary value by surrender of post at the time when he was in service and engaged with the respondent department. A Government system is not static. From time to time in order to execute improvement In working systems, as also to provide better services to the public as in the case of the respondent department i.e. Railways, restructuring is attempted. While doing the restructuring, there is always a matching saving in the form of surrender of some number of posts, thereby, providing the way for giving higher pay structure to the restructured post. The applicant was not a part of the restructuring as he was not in service when restructuring was effected and therefore, the benefit of restructuring exercise cannot accrue to him including any increase in the pay scale.
5. As per R.B.E. No. 112/2008, para 5.2, once a Railway servant has rendered the minimum qualifying service of twenty years, pension shall be paid at 50% of the emoluments or average emoluments received during the last ten months, whichever is more beneficial to him.
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(OA No. 060/00884/2017)
6. The revision of pay scale in the year 2003 by the above Railway Board Circular cannot be read in isolation. It has to be read along with all the clauses incorporated in the circular including the fact of the applicant working in the particular cadre of Mistri on the cut off date. This fact was neither mentioned nor argued in Agia Ram‟s case (supra). Hence, that judgement can only be held to be a judgement in persona and de hors the mandate stipulated under the rules.
7. In UOI Vs. R.P. Singh, AIR 2014 SC 2541, the Apex Court has held that it is a settled rule that if a decision had been given per incuriam, the court can ignore it. Per incuriam are those decisions given in ignorance due to some facts not being brought to the notice of the court while delivering the order.
8. In UOI Vs. Manik Lal Baneerji, AIR 2006 SC 2844, the Apex Court has also held as follows:-
"......The Tribunal, unfortunately, did not apply its mind to that aspect of the matter and proceeded to grant relief to the Respondent herein solely relying on or on the basis of the said decision. Pritam Singh, in our opinion, did not create any binding precedent. Only because this Court dismissed the special leave petition, the same would not mean that any law within the meaning of Article 14 of the Constitution was laid down thereby. Pritam Singh was evidently rendered per incuriam as the statutory provisions relevant for determining the issue had not been taken into consideration."
Thus, the misconstruction of provision of law in one case would not give rise to similar misconstruction in other cases on the basis of the doctrine of equality. The State cannot be compelled to act contrary to the statutory rules framed by it, or violate the law laid down while implementing an order of restructuring.
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(OA No. 060/00884/2017)
9. The respondents have also placed the following judgements on record:-
(i) Prem Kumar Vs. High Court of Delhi through R.G. & Ors., 2014(14) SCC 417
(ii) State of U.P. & Ors. Vs. Rajkumar Sharma & Ors., 2006(3) SCC 330
(iii) District Basic Education Officer Vs. Dhananjai Kumar Shukla & Anr., 2008(3) SCC 481
(iv) K.S. Krishna Swamy Vs. UOI, 2007 (2) SLR 22
(v) Kunnashada Muthukoya Vs. Administrator U.T. of Lakshadweep, 2008(2) SCC (L&S) 844
(vi) UOI Vs. R.P. Singh, 2014 AIR SC 2541
(vii) A.R. Antulay Vs. R.S. Nayak, (1988) 2 scc 602 In A.R. Antulay (supra), Lordship Sabyasachi Mukharji observed as follows:-
" ..............‟Per incuriam‟ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
The court also observed that "..............It is a settled rule that if a decision has been given per incuriam the court can ignore it." In such an instance, the judgement relied upon by the applicant would be a judgement in persona and not a judgement in rem.
In K.S. Krishna Swamy (supra), the Apex Court had held that the scale of pay drawn by the pensioner at the time of superannuation would be the basis on which the pension is fixed. The court had also held in para 13 that it is common knowledge that the corresponding increase in any Pay Commission is of the scale of pay and not of the post held by a retiree. Hence, the nomenclature relied upon, is scale of pay and not the post which 7 (OA No. 060/00884/2017) may have been upgraded, but, a post not held by the applicant at the time of his retirement.
In Kunnashada Muthukoya (supra), the Apex Court held in para 10 that the contention of the appellant with reference to pay revision should be with reference to pay scale of the post last held, if accepted, would lead to confusion, uncertainty and inconsistency. Revision of pay subsequent to release of Pay Commission recommendation fixes the pay with reference to the corresponding pay scale of the post last held. The Pay Commission has always made the revised pay scale corresponding to the existing pay scale in the case of serving Government employee and last pay drawn in case of retired persons. No person can seek the benefit of pay in a post which he has not held or in which post he had not worked.
10. In response to the applicant‟s contention that his case was fully covered by the Jurisdictional High Court and therefore, relief should be granted, the judgement of Apex Court in Prem Kumar (supra) comes to mind wherein the Apex Court has held that it was a wholly misconceived notion of judicial discipline that one cannot ignore or deviate from a judgement of its own Jurisdictional High Court. In State of UP Vs. Raj Kumar Sharma (supra), the court had held that Article 14 of the Constitution does not envisage negative equality. If the State had committed a mistake, it cannot be forced to perpetuate the same mistake time 8 (OA No. 060/00884/2017) and again. No court can be forced to give a relief which would be contrary in law.
11. It is not the business of the Tribunal to fix the pay scales of employees in any organisation under its jurisdiction. The respondent organization is a highly unionized organization wherein the staff federations would have certainly been consulted while such restructuring was undertaken and a decision taken that the restructuring and its benefits would only apply to persons who are in service when the restructuring order was implemented. Such a view was held by the Apex Court in Supreme Court Employees Welfare Association Vs. UOI, AIR 1990 SC 334 as follows:-
"36. ..... It is not the business of this Court to fix the pay- scales of the employees of any institution in exercise of its jurisdiction under Article 32 of the Constitution. If there be violation of any fundamental right by virtue of any order or judgment, this Court can strike down the same but, surely, it is not within the province of this Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution."
12. That if a cut off date has been fixed for disbursing benefits of restructuring, the same should be adhered to, was reiterated by the High Court of Gujarat in Viju Parkey Vs. UOI decided on 19.03.2013 as follows:-
"5. Therefore, the things are clear that though the decision of amalgamation was declared on 09.10.2003, it is made clear in the same order that date of effect of amalgamation and promotion after amalgamation and thereby benefits of restructuring shall be restricted to the persons after the cut off date and not before the cut off date."9
(OA No. 060/00884/2017)
13. Respondent also brings to notice Rule 6, 49, 90 and 102 of Railway Services (Pension) Rules, 1993 which are applicable in the case of pensioners and are extracted as follows:-
"6. Regulation of claims to pension or family pension. - (1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a railway servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be. (2) The day on which a railway servant retires or is retired or is discharged or is allowed to resign from service or dies as the case may be, shall be treated as his last working day.
49. Emoluments: - The expression - (a) "emoluments", for the purpose of calculating various retirement and death benefits, means the basic pay as defined in clause (i) of rule 1303 of the Code which a railway servant was receiving immediately before his retirement or on the date of his death:
Provided that the stagnation increment shall be treated as emolument for calculation of retirement benefits;
(b) "pay' in these rules means the pay in the revised scales under the Railway Services (revised pay) Rules, 1986;
Provided that „pay element‟ of Running Staff shall also include fifty-five per centum of the basic pay for reckoning emoluments.
Note 1. : If a railway servant immediately before his retirement or death while in service had been absent from duty on leave for which leave salary is payable or having been suspended had been reinstated without forfeiture of service, the emoluments which he would have drawn had he not been absent from duty or suspended shall be the emoluments for the purposes of this rule:
Provided that any increase in pay (other than the increment referred to in Note 4) which is not actually drawn shall not form part of his emoluments.
Note 2. : Where a railway servant immediately before his retirement or death while in service had proceeded on leave for which leave salary is payable after having held a higher appointment. Whether in an officiating or temporary capacity, the benefit of emoluments drawn in such higher appointment shall be given only if it is certified that the railway servant 10 (OA No. 060/00884/2017) would have continued to hold the higher appointment but for his proceeding on leave.
Note 3. : If a railway servant immediately before his retirement or death while in service had been absent from duty on extraordinary leave, or had been under suspension, the period whereof does not count as service, the emoluments which he drew immediately before proceeding on such leave or being placed under suspension shall be the emoluments for the purposes of this rule.
Note 4. : If a railway servant immediately before his retirement or death while in service, was on earned leave and earned an increment which was not with-held, such increment though not actually drawn, shall form part of his emoluments
90. Revision of pension after sanction - (1) Subject to the provisions of rules 8 and 9 pension once sanctioned after final assessment shall not be revised to the disadvantage of the railway servant unless such revision becomes necessary on account of detection of a clerical error subsequently:
Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by the Head of Office without the concurrence of the Railway Board if the clerical error is detected after a period of two years from the date of sanction of pension.
(2) For the purpose of sub-rule (1), the retired railway servant concerned shall be served with a notice by the Head of Office requiring him to refund the excess payment of pension within a period of two months from the date of receipt of notice by him.
(3) In case the railway servant fails to comply with the notice, the Head of Office shall, by order in writing, direct that such excess payment shall be adjusted in installments by short payments of pension in future, in one or more installments, as the Head of Office may direct.
102. Date from which pension becomes payable - (1) Except in the case of a railway servant to whom the provisions of rule 53 apply and subject to the provisions of rule 9 and 10 a pension, other than family pension, shall become payable from the date on which a railway servant ceases to be borne on the establishment.
(2) Pension, including family pension shall be payable for the day on which its recipient dies.
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(OA No. 060/00884/2017) Rule 6 very clearly states that the pension or family pension shall be regulated by the provisions of these rules in force at the time when a railway servant retires i.e. 31.08.1993 in case of applicant and not 2003 when the post was upgraded and the applicant was not in service being a retired person. Rule 49 further goes on to say that the pension so fixed will be on the basis of what a Railway servant was receiving as pay immediately before his retirement/on death. Rule 49 also says that any increase in pay not annually drawn by a retiree shall not form part of their emoluments, and the applicant‟s case is squarely covered by this rule. We notice that these provisions relating to drawl of pension had not been discussed in Agia Ram‟s case (supra) on which applicant places reliance to support his case.
14. Applicant‟s pension was fixed as per existing Pension Rules on the date of retirement of Pensioner and as per rules governing restructuring which has no provision for retrospective application. For the foregoing discussion, we find no merit in the OA and the same is rejected. No costs.
(P. GOPINATH) MEMBER (A) Dated:
ND* 12 (OA No. 060/00884/2017)