Central Administrative Tribunal - Kolkata
Tapan Roy Choudhury vs C L W on 16 August, 2018
o.a. 1682 of 2016
1
NTRAL ADMINISTRATIVE TRIBUNAL
CALCUTtA BENCH, KOLKATA MIRY
No. O.A. 1682 of 2016
Hon'ble Ms. Bidisha Banerjee, Judicia' Member
Coram
Hon'ble Dr. Nandita Chatterjee, Administrative Member
1. Tapan Roy Choudhury,
S/o Rebati Mohan Roy ChoudhurY,
Aged about 54 years,
Working as. Junior Engineer(W)
- 5,tr-eet
Qrs hka rapjafl;..
r. -
Dis1B'urdWafl,P1fl 1ri
2. UttanU
At preiesidiflg
ht at Street-G.AV.,
Qrs. - 15C, CLW, Chittaranjan,
Dist. - Burdwan, Pin 713331.
5. Suhash Ranjan Saha,
S/o Late Anirudha Saha,
Aged about 53 years,
Working as Junior Engineer(W),
At present residing at Street-4,
Ors. - 17A, CLW, Chittaranjan,
Dist. Burdwan, Pin - 713331.
6. Mrinal Kanti Sarkar,
2' o.a.16820f2016
S/ o Late Sailendranath Sarkar,
Aged about 54 years,
Working as Junior Engineer (W),
At present residing at Street - 65,
Q.rs-20A, SLW, Chittaranjan,
Dist, - Burdwan, Pin - 713331.
7. Kamal Krishna, Bej,
S/ o Late Joy Krishna Bej,
Aged about 55 years,
Working as Junior Engineer (W),
At present residing at Street - 21,
Qrs-23A, CLW, Chittaranjan,
Dist; urdwan, Pint7r13.331.
'
SI o Late Ramkinkar PaI,' fr
.
/ Aged about 54 years,
.c .
N.orkingas'Junipr Epgi.neer (W), .A-
At present residingat Street-64,
1!.
- Qts-6A, CLW, Ghittaranjar
ur
-
-
U t- Ad abMt 54'Ja rs,. 'I
Working as,Junioi ErIgine er (W),
UAL ? • ç,r
At present resi'dinat Street-2,
,i
, Qrsl.3B, CLW, Chittaraijan,--"..
,. .
'.•
BurdwãfiV Pin --21333.1/
' fêrs:.45A, CLW, Chitjakaih,
Dist. - Burdwan, Pin - 713331.
Manik Kumar Hazra,
S/ o Late Bholanath Bazra,
Aged about 54 years,
Working as Junior Engineer (W),
At present residing at Street-4,
Qrs-3B, CLW, Chittaranjan,
Dist. - Burdwan, Pin --713331.
man Ranjan Ta,
S/o Late i. P.Ta,
Aged about 54 years,
3 o.a. 1682 of 2016
;!
fit
Working as Sr. Section Engineer (W),
At present residing at Street-6,
Qrs-6A, CLW, Chittaranjan,
Dist. - Burdwan, Pin 713331.
All the applicants are working under the overall
Control of the General Manager, CLW, Chittaranjan.
Applicarks.
Versus
1. The Union.of India
Through the GenerálMa.ger,
Ghittara:nja&9rn9tjve..W&rkS
N
1.
anjal .Bfirván,
' PIN-713331 '
/
c7 2. Ghief'PrsorineltOffice.
I Chittaranjan Loconiotive bMIWorks, 00-
r, f ,
&t Chittaranjan, Dist' -- 4.Burdwan,
It PlN7133314
'I
izitta ra nja
' PiN-7i31\ \ )t
w J
.• I
!. W
,4.. Dy..;D.irector :-.•. .
- p
Pa.yCommissio n--V, ffr•'
Rilway Board, MinistroJ RaiIays,
Ii Rail Bhavan,
NewDëlhi--i4000I ? / I
ç /
- .. -Th
' ,f
5 Sec re ry'
wa•yB.q?r.
Ministryof Railways
Rail Bhavan,
New Delhi - 110001.
Respondents.
For the applicant : Mr. C. Sinha , Counsel
For the respondents : Mr. M.K. Bandyopadhyay, Counsel
Reserved on : 12.07.2018
Date of Order: 6 .08.2018
ri
4 o.a. 1683 of 2016
ORDER
e, Judicial Member This O.A. has been filed in order to seek the following reliefs:
"8.(a) Liberty be granted under Rule 4(5)(a) of CAT (Procedure) Rule 1987 to allow the applicants to file & maintain the original application jointly.
To set aside and quash impugned Notice being no. GMA/TA/MACP/Gr. 'C' (Supervisors) dated 16/19.08.2016 issued by APO(Admn.), CLW, Chittaranjan as regard applicants are cbncerned.
To set aside end quash..JQpugned letter being no, PC-
Sby Dy. Director, Pay V/2009/ACP/21/SER ..dted :rl2.05.2015 Commission-V, Railway Board s ra r-z To direct té espondents to allow th'eapplicantS to enjoy the Financial UpgaIation under MAP.Scheme in Gradfay-, 6f.Rs. 4600 and has grant d'tö-r thm vaorder ed fl 7.200 and Rs. 4800 ....
05 01 2016k I
(e) I/ 1io:direct therespondentS, not to makeanrecoverWfr0m the salan , of the.apphcantStakIflg recounseofrDO.&T sO.ffice memorandum K. date
-. -
iThAiCrfr4ri rcfiin'd:.nv mol.Jn:t: if 'airead' .,,I. othe n'blTribunaI déê'rns it and L. Ml 1$, I I I in a nutshell, as p etdirheb.A., iss under:
2. Thecasecfthe'aPPlI 4 rk %•'t i 1 D ;fI .1 • - - -
1! The applicants'ere --3r1 agant Employment 0709198J,as DipjpTha Holders in Civil Notice Engineering. "th teroL.RaiIway BoardT orderfvide RBE 177/2003 applicants were uprad from the post ofWorks Mistry Gr I to Jr Engineer Gr-Il.and placed in Pay se 5OOU8O0Ow.e.f. 01.11.2003 beyond which the post of Works Mistries did not have pay existence. On being found suitable they were granted Financial Upgradations under MACP Scheme in GP of Rs. 4600 and Rs. 4800 respectively which was withdrawn vide impugned Notice dated 16/19.08.2016 with proposed recovery. Being aggrieved applicants submitted joint representations dated 07.09.2016 which having failed to yield any response, this O.A. has been filed.
3. During the pendency of the Original Application an impugned Office Order No. GMA/TA/01A/2017 dated 14.03.2017 was issued and thereafter this Tribunal, / 5 o.a.1683of2O16 vide Order dated 07.11.2017, granted liberty to the applicants to amend the Original Application.
Hence we proceed in terms of amended O.A.
4. The following facts are evident therefrom:
(I) A restructuring of certain Group 'C' and 'D' cadres were ordered.vide RBE 177/2003. The implications thereof were asunder:
GOVERNMENT OF iNtItBH.AR .
-
MINISTRY OF RAILWA'Y OF: RAILWAYS RALW
k
I (RAILWAY BOARD)
/ RBENp. 177/2003
No1:pCrW/20 03/ -
I
ubject Restructu adres. '-
:
.J.he Ministry review cadre ofcertain
KTIV i I
Group-'C' & 4iif side jtha Jjew to
IL RailwaS9AS d1result
strengthening andi
4: ,1. 49
ictional, operatioral and I of Lh review with the a ova of the ,adrninitrative reA Prsidnt that the staff as inEàted1in. the Annexures to ...this lflaccordance ithI the . I revised pe.(centagE Vérnriting the.e orders •• thfoIIoVin(deta1 uctions should :tivad 'carefully adhered
9. J•
- 4 \ to :
X •\ / ....
of~
- I Date of effct This restructpg of oa8res will be vith (hereinafter referred'o sacfied cadre strength as as cut-off date) cnthdatefllowing the date on which the cadres in the headquarter offices of new Znal Railways! new Divisions are closed. The benefit of restructuring will be restricted to the persons who are working in a particular cddre on the cut-off date.
2.1 These orders will not be applicable to ex-cadre & work-charged posts which will continue to' be based on worth of charge. I Fixation (Rule 1313 (FR 3. Staff selected and posted against the additidnal
22) R-1
-
higher grade posts as a result of restructu r ing will have their pay fixed under Rule 1313 (FR-
22)(l)(a)(1)-Rll on Proforma basis w.e.f theut- off date with the usual option for pay fixai on S T--
o.a. 1683 of 2016 6 ' as per extant rules.
The existing classification of the posts covered rEXjStfl classifCattOfl and 4.
by these the orders as 'selection' and 'IlQfl filling up of vacancies selection', as the case may be, remahiS unchange4 Action should be taken to position the employees on the basis of selection/flOfl selection/ suitability/ Trade Test, as the case may be. However, the instructiOnS contained in Para - 13.2 should be followed in case of placement of Supervisors (erstwhile Mistries) to grade Rs.5000-8000.
Extant instruction for D&A/Vigi(aflCe clearance S will beappUcable for effecting promotions under thesederS with reference to the cut-
Minimum years' minImUm periOa oi flin1 service in each grade ion issUed frorn.time to time ci. In other rd residency ii 1or prorOtiOfl w various nôtbe reIaxed s d.tailed in thë,hné5(ureS to ncticis, duties t . -#" ti• Basic ng retructuredQ futctional and r risthilities Ø -.
Th1iitratiVe c'onsideatioflS, •.
c'edin higher SIS OR DL as
- .-
i'irtñr.flP shoul ncIu'de the
Iss of'these instructi.Ôfl5 the
ifd
Adjusti ent of excess /
number of posts:. XISlflg. nany grade in any numbe po . •1 cedS the .nImberâdmis5ie particular ca d r éThéx si SW ess may be on the revised rcerethe exc Wowe'dTh coninue t& be/phased out the .vcatio.ñof the posts by the exiting lncu,ruL,erlL. • t"ese orders, specific ).
the foot-notes for the levant categories in t he enclosed antlexures should 'str ctbe i strictly and carefully adhered to. 13(a) Subject to provisions of Para-13.2 below,all the posts of Supervisors (erstwhile Mistries) in grade ol Rs.4500-7000 + Rs. 100 Special 'Allowance (excluding Supervisors (P.Way) should enbloc be upgraded to the posts of Junior Engineer Gr. II in the pay scale of Rs. 5000-8000 and merged with the respective cadre of Technical Supervisors with its spread effect in higher gdes Rs. 5500-9000, 6500- 1050) & 7450-11500 as per 'the revised oercentage distributionof posts prescrib . d for L -
o.a. 1683 Of 2016 7 in these orders.
of the existing incumbents will be regulated as per the procedure given below:-
a. The existing regular incumbents of the of Supervisors (including posts 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. i..b.. suitability shall be adiudged by foflowing modified selection procedure accordjflg to which the selection will be based on
- --.......
.fl_I1LuI'y ... cnrwirio
- rperds and
fAl cnfidentiat reorts only_
ji,...... :.,_
•••superv.isors.(other.thafl ,. i•• :I The P. I •- .
O t get pro.riflOteQ w:Idue L;shaIl continüetO hald the post in e'x iting grade Rs 4500-7OO + Rs SA aersoflal ¶o therh. To this .• .ã thepps upgradto grade Rs )80.O0willbe operatedih the lower I2S45OO-7O00 + Rs1O.0 SAk.till f the vacatè;.the s'áme by ofmotifl, retiremt tc. On jbf-thêposts, th?lam ë shall tb. fr.
DatIcl).be operated'ir grade Rs f" !
(ii) Thé'applIcafltSj\ere conferred benefit of BE 1?703,vide dffice order / t S \ • - .5..,.
dated 23.06.2004 etrpcted Thfra-.....
.
. -.
of certain Gr. 'C' &
Consequent on
'D' categories vide Railway Board's letter No. PC-1II/2003/CRC/6 dtd. 09.10.2003 and 06.01.2004 circulated under CPO's letter NO. GMA/AU/CRC/2003 (Master file) of 01.04.2004 the following staff under Civil Engg. Department have been found suitable for the Post of JE - Gr.- i/W in scale Rs. 5500-9000/- as a result of scrutiny of service record and confidential reports with w.e.f. the date as noted below against the vacancies arising out of Restructuring.
Designation Date of effect
SI. Name
No.
JE - Gr.1/W 01-11-2003 Against the
1 Sri P.R. Saha
1
8 o.a.16830f2&L6
- Do - 01-11-2003 vacancies
Sri N.K. Dey.
arising out of
/ L
/ Sri B Prasad (SC) - Do 0141-2003 restructuring
/
Do 01 11 2003
4 Sri B Ojha
N
abvious reasons.
The above promotion is treated as provisional subject to finalisation of the Court Case bearing No. OA/No. 1346/97, B Ojha VS U. 0. I Sd!-
f .DV.CE(M)
i
-
1..• 'I
-
Dy.Eiy1) - concerned may be advised
2.
tibn fr fiatin day within On&frsoNr • i.
th
-
fom the
to si6mit theiri d
..- • L' "
date of issue of this Ordr irtefms of SlNo 4/92 ;derd 14.02.2O96 etracted Thev1 /ere furthr prornq
-.
..., . - .
as under:
(I A
CLW/ChittarnIafl
I
Dated 1442!2006
'CLW/TA/66/SE(W) Pt l\ ( I / V. /.•' '.• 590-1O500/- (RSR) Having be 1.ileçtekf.9r the post of SE(W) iry.e&e viderthis dftie'énal d!ev.n number dated03.02.006 he fdIIowing .".. staff %•• .. - _•_ I CE(14) /CLW/cRiTaoiflte toioficia e'is SEW ) in sale Rs under .
. fl5 n Civ il Engg .
6500-10500/-withimmdtf-tagnstexislPgVa9cle Deptt. (B.U.No61) .
-
SI. Name & Designation Control Present Pay in Pay fixed in' Gr. Rs. No. Number Gr. Rs. 5500- 6500-10500/-
9000/-
Sri S.K. Saha (SC), JE-I (W) 177025 Rs.7950/- P.M. Rs.8300/- PM. 01, Rs.7950/- P.M. Rs.8300/- PM.
Sri S.B. Chattopadhyay, 177869 JE-1 (W) Sri T.K. Gupta, JE-I(W) 177377 Rs.7950/- P.M. Rs.8300/- P.M. Sri P.R. Saha (SC), -do- 178001. Rs.7950/- P.M. Rs.8300/- P.M. 169201 Rs.7775/- P.M. Rs.8100/- P.M. Sri N.K. Sri D. Prasad (SC) --do- 405770 Rs.65501- P.M. Rs.6900/- PM.
I 355696 I Rs.7250/- P.M. Rs.7500/- P.M. Sri B. Ojha, iE-l(W) This has the approval of the Competent authority.
..-
9 o.a. 1683 of 2016 Sd!-
Dy. CE(M) Copy to:-
FA & CAO(E)/ (PF).
Dy. CE(M)/CLW/CRJ - for information please. The joining report df the above named staff may please be sent to this office early for further action. The staff concerned may please be advised to exercise optidn for fixation of his pay within one month from the date of issue of this Office Order in terms of SI. No. 4/92."
(iv) Vide office order dated 11.3.2010, the applicants were granted benefits of e extent relevant.) MACP scheme in the following manner: .. (extractedtÔ th..
oJ., '' :" .... •..
t
'.t
•
fi
Having been found suitable for financial upgadaion_.under the "Modified
- ..
?
(•.
leekes"} birculated vide .
Em'a
Assured 4
I -
' dfSrviSor W o cadre of Civil I'
SI io 54/0 thefo11w.. staff to tr 4600/-, Enginege'Departteflt ae Hoedo Iaëment Ri 4890/- & Rs'540O/ in PB s O0-8O0/- ( th1date as the ntjbhed aga inseaEh In Dafe ofi SI. N am &OeSIgflatIOfl . - Efft • gr Pay ! .1 No. L
-4 (A( --J '4uv/- 01.9.08 1 R. rjmder SSE(W). P_SI 861 175986\i 2& 4600/- 01.O9.08
17. I i RoychidhurY, JE-ifl /81 19d828, (q9.08] .1 I to be taken
(v) Suh befit ) s èretéxtended ;.._ vide order;,r4:• supra, w.' :
/. -
as follows:
away vide notice46/l9.8.L6 jAnnxUre -7).l1 h, noti
-- ._•_
-.- t-
I / (extracted to the e.tant relevant) 1 ,..
In terms of Railway Board's clarification regarding grant of financial upgradation under MACPs to Works Mistries vide letter No. PC- V/2009/ACP/21/SER dated : 12.05.2015 employees recruited as Works Mistry./ Supervisors in scale Rs. 4500-7000/- (Revised GP Rs. 2800/- PB-I).
1. The following SSE/SE of Civil Engineering department cadre who were granted 2nd and 3' MACPs with GP Rs. 4800/- and 5400/- in Pay Band Rs. 9300-34,800/- after taking initial appointment as "Works Mistry" in pay Rs. 380-560/- corresponding grade of Rs. 4500-7000!- (in Vth CPC) and in pay band of Rs. 5200-20,200!- with GP Rs. 2800/- (In Vth CPC) vide this office order of even No. dated 11.08.2010 is hereby withdrawn from the date it was granted, considering the fact that the injtial appointment in Works :----• I .
H. o.a. 1683 of 2016 10 Mistry will be treated as GP Rs. 2800/- instead of R. 4200/- dnd struCtUriflg granted vide Rty. Bd.'s RBE No. 177/2003 to the Wrks e a meger MistrieS will be treated as first promotiOn instead of treating it as with JE (Technical Supervisor) while granting MACP. AccordinglY the pay will be re-fixed after due revision of the order. Deduction against ver payment there on will be deducted on monthly instalments.
MACP to be revis flaiiik nrticularS of MACP granted and Actual I MACP to be upgradatiofl MACP initially Date of pay/GPI SI, Name /IJp Granted revised initial on appointed No. gradation Appointment Initial as Appt. granted JE Grill 1 MACP He houid Sri Tapan Ty. Mistry TTh19iJ 800 /- GP be ehtitled
4. 1 01.11.2003 in Roy Gr.i/ 4600/- for rJE.
ChowdhUry 26.0906.. w.e.f MACP Ofl
SSE ACP -. 010908 01092008
nd on GP
10 '2 ..
Cif!_ MAC. in Rs.4600/-
2 3rd
• GP and
22.07.05
4800/ MACP on
23102016
•• i.j! . -.
01 0908 on GP
- o..AQñfl/-
f
,hich the u e nt
(vi) Theç'rent ori Lom
dsasu AV ;
noticè da,ted -16/19.8.1 t'J - • Gener,IM.ne1 %! th EasrriRailWa.
Ota Works
rwrri nciaL
all' ' ......
\
c! . ' .1- followed
.,..,•-_
- SER'S.letter- INoSER/p WE.E/122,dt.12.Ol reference, it is stated that With reference Scale of Rs.
Works Mistries/SuPervisor have never been allowed the pay is 50008000/GP4200. Instead, in terms of para 13 (a) of Board restructuring letter dated 09.10.2003 (RBE No.177/2003) all te posts of Supervisors/Works Mistries were upgraded to the post of JE GkU. and the existing regular incumbent of the post of Supervisors were plced in pay scale of Rs. 5000-8000 based on modified selection procedure nd benefit of pay fixation under Rule 1313 (FR-22) (1) (a) (1) R-ll (erstwhile FR-22-C) with the usual option for pay fixation as per extent rules. urther, the supervisors who could not get promoted to the grade of, 5000-8000 0 SA as continue to hold the post in excising grade of Rs. 4500-7000+IS.10 personal to them.
/ ____
- - -..--------. -.--.---.. --a----
-.--------
,1 o.a. 1683 of 2016 11 From the above factual position relating to the case of Supervisors, it is evident that staff initially appointed as Work Mistry/SupervisorS in scale of Rs. 4500-7000 (revised as GP Rs. 2800/- PB-i) were upgraded to the post of i.E Gr.11 in scale of Rs. 5000-8000 (revised as GP Rs. 4200/PB-2) on promotion through modified selection procedure. Since, as per policy instructions on MACPS, grant of financial upgradation under the Scheme is allowed from the date of actual joining of the post in the entry grade on direct recruitment basis, as such, it is not feasible to treat GP Rs. 4200/PB-2 as entry grade i.e direct recruitment grade of Work Mistry' Supervisor for the purpose of MACP Scheme.
Sd!-
(N.P. Singh) Dy:Directaay Commission-V RThJay Board"
5. T /2003 was treated them in 2010 d
6. 1-1n ."proro1 33 5/2 ppl ied emphas scale of Rs. 330 -_onseguent upon gcdmmendatiOn of the.Fourth Pay Commission -the above ?é1aced by the replacement scale of the above scale is Rs. 1200 2040. Thereafter during 1987 the restructuring of posts took place, the applicant's pay was revised in. the pay scale of Rs. 1400-- 200. The claim of the applicaht in pursuance of the Fifth Pay Commission on the ground that though he has been serving since 1983 he has not been aiven any benefit of promotion or benefit of ACP Scheme. Accordingly prayed to allow the O.A."11
The respondents' contention therein was recorded as under.:
-
/7 12 o.a.1683of2O16 / "The respondents had averred that the applicant was appointec. Os / Clerk Gr. / in the scale of pay of Rs. 330 -- 560 on 4.8.1980. He was promoted / - . - I A 1007 ;-
on .L.'*.L.J()I II i.ii of Rs. 1400-2600 dUt to ti-in nni crrrlp -----
OS /-CCOUfltS 5515Wf1L /4 cadre restructuring of Accounts cadresj The applicant was not holding a Sub-Head nor Selection post in the higher scale of clerical cadre/ the post of Grade Sub-Head in the promotion on regular basis According to Para 6 of Annexure / to the Board's letter dated 1.10.199 fulfilment of normgl promotion norms such as trade test, bench mark, departmefltql Group D employees shall be examination, seniority-cum- fitness in case of ensured for the grant of benefits under ACP Scheme and denied all other averments of the applicant and prayed to dismiss the O.A."
The Tribunal found and held as under:
. -
---j-
the higher scales of
"The question regOrdin
lt has now been
pay has beeñurlf.h
nk 1er scales in the
decided ,that e1O.tibn of number of posts in accounts ca.dr's2thay be 75-3200.P • 88% SelorjOffiërs (A/cr)S) 75-2440 •4 . 1.
; 20%
of i
2300-EB-60-2600_ 1 88°'
del
ij i 2O%J
ti Of R.[ 1200
it thàhie is no
,cturindffof post.
4V.
5/CRO dated
l RaW'ay Board's Ietter,-Nb. W-
restructuring of cerainGrc _A/OUnts and nt, th?-rejvant Parg41ea'ds as?pI / 1 Thssfication 6verby these orders "4. Thkeexistn tJie'p?'s as 'SéIectiohand 'ñonsèlecti-Ijbri' asth cas.e may -be remains unchanged Howeverfor,.1hepurIYóe of,jmplementation of these orders, if an'ihdividual Railway se-rrvarirbecomeS due for promotion to post classified as a 's/eletiOii' post, the existing selection procedure will stand modified in such a case to the extent that the selection will be based only on scrutiny of service records and confidential reports without holding any written and/or viva-voce test. Naturally under this procedure the categorization as 'Outstanding' has been decided upon by the Ministry of Railways as a one time exception by special dispensation, in view of the numbers involved, with the objective of expediting the, implementation of these orders. Similarly for posts classified as 'non-selection' at the time of this restructuring the promotion will be based only on scrutiny of service records and confidential reports. This makes clear that the applicant does not require to pass any examination for entitlement of the benefit of ACP scheme. What is to be considered is the competency and the I
--
13 o.a. 1683 of 2016 Confidential Reports. In the present case there are no bad rport Ogainst the applicant. In that view of the matter, the applicant is entitled for the benefit of ACP." This makes clear that the applicant does not require topass', aiy examination for entitlement of the benefit of ACP scheme. What is toj considered in the competency and the Confidential ?eports. In the prSeflt? Case there are no bad report against the applicant. In that view df the matter, the applicant is entitled for the benefit of ACP."
The order was upheld in High Court on 10.10.2010 and the SLP against it was dismissed on 4.1.2012.
Citing the aforesaid Ld. 0 lds1renU0uSlYutge that the issue has
7. .1 been finally settled.
emerly O the
8. PercontraLd.
1 CounelOrthe.reponents,
-f. ve
_r./
.j. .I
I -
rSF
4500-70 00/-
dk
e pst f JM
thoo
contenton woDid submitthat st reS
+
Arn
Rs. Io0/SA) has beé upgaedt6 sç!.
_ srfT
5000-8000/- with on
m0d
t
se e ctoagal
t. flt re dvacane vide RBE
promot
tio
-
1I '¼s,,
:' */
p oto(A y~A-LRly.oard's
No.17/2003, hence, it mtreate d letter ro E(NG)1-7/PM-7/9 'LO / :erjvaloflter1tion5 We _/ ii .,.
and perused t also!ebd ç1 atio1svhet èh "upgradatiori" .was a The issue that "promotion".
We noted that the applicant's prayer seeking stay of the impugned crders were virtually turned down on 6.717 but they did not challenge it higher up.
Ld. Counsel for the applicant stressed upon the contents at para 13(a) of restructuring order which reads as under:
14 o.a.1683of2016 7, "13(a) Subject to provisions of para -- 13.2 below, all the posts of Supervisors (erstwhile Mistries) in grade Rs. 4500-7000 + Rs. 100 Siecial Allowance (excluding Supervisors (P.Way) should enbloc be up grade d to the posts of Junior Engineer Gr. II in the pay scale of Rs. 5000-800 and merged with the respective cadre of Technical Supervisors with its sread effect in higher grades Rs. 5500-9000, 6500-10500 & 7450-11500 as pr the revised percentage distribution of posts prescribed for Technical Supervisors in these Orders."
13. On 14.3.17 (A-14 to Amended OA), vide impugned order, the MACP benefits already granted to the appl.icanUh 2012, was modified to the extent as follows 115 ira,, Re Name As drn' . To be drawr [1 ma No (S/Shri) ? IBand Pay Grade Total ' w e1 Designaton Bands '(Rs.) Grade Pay TI ij i1 i Pay (Rs, 1.(Rs.) 1 rk ContfoINo. t. t ______ _____ -
4. Tapn R7 l6990/- .0O/i 219d/, O1'.0,2j 6-T60/ '90/- 20f/ 0.09.2 OP 00, Chowdhury EII 19 699'/ 46g0/ 21590/' 01972 6 17650/ 800/ 00 , 18330/ ç 800/ 23f30/,O1x07,2 17640J 4600/ 22240f_ 01072 4800/ 28830/ 01t07 2. 183i0/ 4600/ 22910/ 01 0 2 19030/ 01 4 _______ 01 072 i9000j 4600/ 23600/ ..pl 07 2 19750/ 400/ 24550/
-J 0$2 .. LJP ____ 400/- 22907 0107. .9710/- 4600/- 24310/- 0I07.2 20490/ 212p/- 4800/ [f,______ 26050/- 01,07.2 2044O/ .46óo/'. p10 07.2 23040/-
,r014 014 d f k 2O4O/F'4800/2684O/- 01.07.2 212015/- 40c?/; 2800hP 01.07.2 üi 4800/ N-2.7650/- 01.07.2 21-98O/k. 4600/f 265S6/- 01.07.2 2285'0/-
4016 f 016 I _
22780/- _•-00/- .r758O/- 23.10.2
14. We further discerned the following:
(i) CAT Madras Bench in O.A. 335/2007 has not laid down any law that movement of Mistries in 360-560/- 3rd CPC, 1400 - 2300 revised 4th cPC 5th CPC with grade pay of Rs. 2800 in 5th CPC to and 4500 * 7000/- in rd Technical Supervisor PWI/TOW/BRI (Rs. 425 - 700 in 3 CPC, 1400 2300 th in 4 CPC, 5000-8000/- with GP Rs. 4200/- in the 5th CPC) due to cadre
-.-•• E-
o.a.1683 of 2016 15 "placement" and not "promotion". The Bench has deliberated upon the right of Clerk Grade-I in Rs. 330 - 560/- grated repla'cemeflt scale of Rs. 1200 - 2040/- raised to Rs. 1400 - 9300/- upon estructuring does not amount to promotion. cadre restructuring, that such r Mistries re-designated as supervisor in GP 2800 10 remained a feeder
(ii) post to re-designated Technical Supervisor with higher GP of Rs. 420 a sts.
evident from the Recruit j _ •i HS or equi)aleflt (in) The .entry qual ifi 4. I s4 degree in' Civil with Diploma iihngin F E$ Engineering. _J3 gher ma igher Dwing w&ds with p riok"
orIhighei grade fixed under Rule posts ruIt!eS till
- , f the riit-cff date 1313 with the usual option for pay fixation as per extant rules."
Hon'ble Apex Court in BSNL --vs- R. Santha Kumari Velusamy & Ors. 01(9)
15. SCC 510 laid down the following conditions to be fulfilled to term a movement as "promotion" . It has held as under:
the prindples relating to promotion and "29. On a careful analysis of aforesaid decisions, the following principles up gradation in the light of the emerge:
r -----
/ o.a. 1683 of 2016 16 ' (I) Promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both - that is, advancement to a higher position and advancement to a higher pay scale. - are described by the common term "promotion' does not mean that they are the some. The two types of promotion are distinct and have different connotations and consequences.
(ii) Up gradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an up gradation, the candidate continues to hold the some post ttiout any change in the duties and responsibilities but merelyretsfahigjier pdscale l (ni) Therefore, whenthere -is an advancement toahigher pay scale 71 n bebid.td.be a ,ent t1hig/r. pay GeneralLyupqiäW,.tipjjreiâte 1 to all positçthis in a / ni heriod ofr service.
with4rfLéQce tceniority (I a.vjjiable to all mpllSyee'sin the &gojyaflrit will up gradation simplicitei., But ifr :bnsideration of s corn parative;r:t or suitability for grxi upgradation or benefit 3fq avanc en ighe ày it will be a promotion. A mere sucbe.m$e.es whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of up gradation simpliciter. Where the up gradation involves a process of selection criterib similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as up gradation.
(v) Where the process is an up gradation simpliciter, there is no need to apply the rules of reservation. But where the upgradationinvolves.a selection process and it therefore a promotion,, the rules of reservation will apply.
Where there is a restructuring, of some cadres resulting in creation of additional posts and filling of those vacanCies by those who satisfy the conditions of eligibility which includes a rñinimum period of 'p 17 o.a. 1683 of 2016 service, will attract the rules of reservation. On the other hand, where the restructuring of posts does, not involve creation of additionqi posts but merely results in someof the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservatio!1"
RBE 177/2003 on cadre restructuring, explicitly envisages at para its 14 that "existing instructions with regard to Reservation of SC/ST wherever applicable will continue to apply". Therefore it has attributes of regular promotion in terms of the Judgment supra.
NWR 'iied in (2008) 9 5CC 242, it was succInctlyflel( has been understood in F \ n-,,nervice law iv dvancemeflt'tO higher
-
t .1 and Appp,nt(nent of
position orLrank but alsc . ,
I
ELL createdcisa rçsu!t of
emplçyees:tO higher :
A. --•.;
larly whp?mp1oYee5'
restràcturlflg, held on .J ii•
h r-•
fitnesw sjt5dgedW1thr I.
,
n...a.besto'ed to the
I
16. Rither we w,uld ! S. I
\.\
. I I
*
\ \!c:c
F .,
1 (a) (i) (R-ll)
FRi2) (11
scale of 5000
h,.
- 8000/
\
•. cojd not get promoted
[erstwhile FR 22Uc)was
--.]
/
grade of Rs. 4500-7000/-
to Rs. 5000-8000/- conti + Rs. 100/- Special Allowance personal to them.
The implications of Rule 1313 (FR 22)(1)(a)(i)(R-11)IerStWhile FR 22(c)] is set out below:
Rule 1313 - FR-22 (1)(a)(1) - The initial pay of a railway servant who is appointed to a post on a time scale of pay is regulated as follows:--
(a)(1) Where a railway servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity as the case may be, / .-.-. .--------------.-- ..--•-------
18 o.a. 1683 of2016 subject to the fulfilment of the eligibility conditions as prescribed in the post carrying duties and relevant Recruitment Rules, to another • responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees twenty five only, whichever is more.
Save in cases of appointment on deputation to an ex-cadre post, or to a post on ad-hoc basis, the railwai servant shall have the option, to be exercised within one month from the date of promotion or appointment as thecase may be, to have the pay fixed under this rule from the date or such promotion or appointment or to have •thepay fixed initially at the stage of the time scale of the new post aboyethe pay-inthe lower grade or post 177, proñ.i6tre d b euIàrbsiS, whiEhmay be re-fixed in from which he is - - .-
accordance with .sSulèon the date ofTdruOf • nthincremeflt
.-• in the
-. ..-
scale of the pabfthe pay of the lower grade or ôst.'lt U• --( caès where an ad-
- .--. --
hoc proriition is follow brFerUlaaPP0ifltmeflt withobt- break, the
:'•- WC ,.a tetfof - to
option is aimissible afrdm the d M*. T IN -
be exercised withiptonon fro thedae ofsuch regu lar-arpOifltment.
i immediafç - -
béfore his
- Provided .that
- I • - - -.
prOmoion or appointmEnt OJ regUlarasIstoa higher post, drawing pay at of .the time:c1 ofhlcwer pcst,INs iIk nitial payin the time the - .
thecstage next above - the pay
-.
scaI. of the - -4 L
'
,ønotidnally nghisayJnresPeCt of the lor pq't held
Ss 11 4. the
.byhim - on - . '
regularsbyjn'ar duntequI • pthe last incemenin
1
• $ •
time scale of the lower post orfrupees twentyfive, whichever ,tnor,
-.
-- been applied to lt'relates topay. fixation I \ ' I I erstwhile Mistris,onrestruCtLking. .?
r.'U/
I
.. ' - •- •L '• f
.:• q.
/ , /
17. In view ofthe above we faiItocoricurWitftthe vi.e'i tha.t5the placement of
- -
the Mistries in GP 2800 tor:that of Stipervis&c(IOW) inGr5 42o0, under a modified selection procedure, on the basis of ACRs,foHowig reservation policies, with.
change in nomenclature due to cadre restructuring and pay fixation in terths of FR 22 (1)(a)(1)/ Rule 1313 (ibid)ias not a promotion.
Therefore, the revised MACP order was legal.
However, in view of parä (i) & (iii) of Rafiq Masih's judgment as cited by the applicant, the respondents are allowed to proceed with revision of MACP grant •
--••-- •- -----•----------••------
-
1' o.a.1683Of2OlG 19 but restrained from recovering the amount wrongly paid, if upon revision of the (1st, 2nd & 3rd) any amount is found recoverable from the applicants.
MACP
/ -
(Bidisha Banrjee)
(Dr. Nandita Chatterjee) Judicial Member Administrative Member d rh