Central Administrative Tribunal - Ernakulam
N.B.Sheela vs Union Of India Represented By General ... on 1 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.758/10
Thursday this the 1st day of September 2011
C O R A M :
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER
HON'BLE Mr.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. N.B.Sheela,
W/o.M.N.Jaychandran Nair,
SM/III/Southern Railway,
Ernakulam Junction.
Residing at Mundamattam,
Thodupuzha, Idukki - 685 584.
2. N.Ramesh,
S/o.Natesan,
Station Master/III/Ochira R.S.
Residing at Remyas, Njakkanal PO,
Kayamkulam, Alapuzha Dist. ...Applicants
(By Advocate Mr.M.P.Varkey)
V e r s u s
1. Union of India represented by General Manager,
Southern Railway, Chennai - 600 003.
2. Sr. Divisional Personnel Officer,
Southern Railway, Trivandrum - 695 014.
3. Sr. Divisional Finance Manager,
Southern Railway, Trivandrum - 695 014. ...Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil)
This application having been heard on 1st September 2011 this
Tribunal on the same day delivered the following :-
O R D E R
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER Seeking rectification of the anomaly in the matter of fixation of the pay by Annexure A-1(a) and Annexure A-1 (b) while implementing the financial upgradation, the applicants have approached this Tribunal.
2. The facts in brief are as follows : the 1st applicant was appointed as the Assistant Station Master in Palghat Division of the Southern Railway in 1990. She was subsequently promoted to Station Master, Grade III in the scale Rs.5000-8000/- on 1.5.1994. She was then transferred to Trivandrum Division on 7.3.2002 on her request and was absorbed as Assistant Station Master in scale Rs.4500-7000 on a pay of Rs.5875 + 25 (Personal Pay). No annual increment was granted which fall due on 1.5.2002. On upgradation to scale of pay of Rs.5000-8000 effective from 31.1.2003 under the ACP Scheme, her pay was fixed at Rs.6050/- only. She was granted increments in the said scale on 1st January from 2004 onwards and reached a pay of Rs.6500/- on 1.1.2006. Based on that pay, she was fitted in the 6th Pay Commission pay structure in the Pay Band 2 (Rs.9300-34500 + Rs.4200 GP). In the case of the 2nd applicant he was appointed in 1983 as ASM and promoted as SM/III in scale Rs.5000-8000/- in 1985 and as SM/II in scale Rs.5500-9000 on 30.1.1996. He was transferred to Trivandrum Division on 1.7.1996 and absorbed as ASM in scale Rs.4500-7000 on a pay of Rs.6000 + Rs.25 (PP). Here also he was not granted annual increment on the due date of 1.1.1997 but only on 1.7.1997, 1.7.1998 etc. On regular promotion as SM/III in scale Rs.5000- 8000 with effect from 27.9.1998 his pay was fixed at Rs.6350/- only. He was also granted increments in that scale on 1st September thereafter and reached a pay of Rs.7400/- on 1.9.2005. Based on the 6th Pay Commission pay structure he was fitted in Pay Band 2 as in the case of the 1st applicant. As per the Railway Board order clarifying issues like pay protection on inter divisional request transfer, subsequent increment dates, re-option for pay fixation etc. which was communicated in the Circular No.86/2009 dated 20.5.2009 effective from 12.12.1991. The applicants came to know that their increments and fixation were not in conformity with the statutory rules. Hence representations were made seeking to rectify the anomaly by Annexure A-2(a) and Annexure A-2(b) representations respectively filed by the applicants 1 and 2. Since there was no response they approached this Tribunal by filing O.A.133/10 and O.A.229/10 which were disposed of by orders dated 19.2.2010 and 17.3.2010 respectively. Copies of the orders are exhibited as Annexure A-3 (a) and Annexure A-3
(b). The respondents were directed to consider the representations and pass appropriate orders. Subsequent to that Annexure A-1 (a) and Annexure A-1 (b) were passed in purported exercise of compliance with the directions issued by this Tribunal. It is contended that Annexure A-1 (a) and Annexure A-1 (b) orders are not in accordance with the law and the pay fixation made therein leads to anomalous result. It is contended that such anomaly has been rectified in similar case by direction issued by this Tribunal as is evident from order passed in O.A.51/10 dated 17.8.2011 passed by this Tribunal. They accordingly seek appropriate directions to be issued rectifying the anomaly.
3. The respondents in their reply statement denied the stand taken by the applicant. There is no anomaly in the matter of fixation of pay as according to them the pay fixation is done strictly in conformity with the rule. Since this Tribunal only directed consideration of the representations that has been done while issuing Annexure A-1 (a) and Annexure A-1 (b). They prayed that the application be dismissed.
4. The short point that arises for consideration is as to whether in the matter of fixation of pay of the applicants, there arises any anomaly liable to be rectified. In an identical situation this Tribunal in O.A.51/10 categorically held that the benefit of 1313 (a) (I) of the IREC [equivalent to FR 22 (I) (a) (i)] be extended to the applicant therein at the time of grant of first ACP and bring his pay to Rs.6050/- as on 1.10.1999 and increment of the same annually as on 1.10.2000 etc. and fix the pay of the applicant under the 6th CPC recommendations with effect from 1.1.2006 and arrive at the correct pay payable to the applicant for all these months. Arrears arising therefrom shall also be worked out and made available to the applicant. Time limit was also fixed for compliance of the same. The facts which lead to the reliefs as moulded in the above application are contained in Para 8 to 12. We may extract the same as under :-
"8. The applicant's pay as on 30.09.1999 was admittedly Rs.5875/-. Had there been no ACP scheme, his next increment would have fallen due on 01.03.2000 and his pay would have been Rs.6050/- from that date. With the grant of ACP which is in the higher pay scale the applicant's pay as on 01.10.1999 has been fixed at Rs.5900/- and it continued as on 01.03.2000 also which means that after financial upgradation the applicant was getting less pay than the pay he would have got, had there been no financial upgradation at all. This situation is certainly anomalous.
9. The scheme relating to ACP is specific as to the fixation of pay on the grant of financial upgradation. The Railways have simply adopted the ACP scheme as provided by the DOPT vide order dated 09.08.1999. The said scheme inter- alia provides as under :-
" On upgradation under ACP scheme pay of an employee shall be fixed under the provisions of FR 22(I)(a)(1) subject to a minimum of financial benefit of Rs.100/- as per the DOPT OM dated 05.07.1999. The financial benefits allowed under the ACP Scheme shall be final and no pay fixation benefits shall be accrued at the time of regular promotion ie; postings against the functional posts in the higher grade. "
10. It is exactly the above provision that has been incorporated in clause 6 of Annexure A-2. Admittedly at the time of grant of ACP the pay fixation of the applicant was not made keeping in view the above provisions. Thus the applicant has established his case ie; pay from Rs.5875 should be revised to Rs.6050/- on the date he was accorded the benefit of ACP, ie; 01.10.1999.
11. Provision exists for exercising option for deferring the benefit of ACP till the date of next increment. That being optional, in the absence of such an option the applicant may not be entitled to the benefit arising out of exercise of such option.
12. In the counter an attempt has been made about the delay involved in seeking the claim. The matter of resjudicata was also raised therein. These technical objections are to be rejected in view of the fact that the respondents themselves wereto apply the provisions of Railway Board's circular dated 01.11.2007 read with 17.04.2007 and thus the pay of the applicant has to undergo an upward revision in respect of his increment. The respondents have implemented the said order only recently. Since ACP is directly linked with the last pay drawn prior to grant of ACP and such last pay drawn underwent a change as late as in 2008, the application having been filed in 2010 after exhausted administrative remedies, no delay can be attributed to the applicant."
5. We are in respectful agreement with the view taken by this Tribunal in the aforesaid case. We do not find any reason to discriminate the applicants herein from that of the applicant in O.A.51/10. Accordingly, after hearing both the sides and after perusal of all the materials placed on record, we direct the respondents to afford the benefits of 1313 (a) (I) of IREC [equivalent to FR 22 (I) (a) (i)] to the applicants at the time of grant of first ACP and to bring the pay to Rs.6200/- as on 31.1.2003 in the case of the 1st applicant and in the case of the 2nd applicant to Rs.6500/- as on 27.9.1998 and to pay the increments annually on the respective dates in accordance with the law. The applicants were also entitled for the arrears falling due on implementation of the above directions. The respondents shall work out and pass appropriate orders in the light of what has been stated in the foregoing paragraphs and pay all the benefits within a period of four months from today. The OA is allowed as above.
(Dated this the 1st day of September 2011)
K.GEORGE JOSEPH JUSTICE P.R.RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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