'I'OT HI6H COURT OF CHHATTIS6ARH AT BILASPlBt w.p No aasof 2002 CORAM: Hon'ble Shri S.R. Nayak, CJ & Hon'ble Shri Dilip Raosaheb &eshmukh, J. PETtTEONERS RESPON&ENTS 1. Suresh Chondra Sharma S/o G.P.SSmrma. aged abouf 40 yedu's, posted at Bila^pUT' : 2. Pravendra Kuinar S/o J'agdish Prasod posted at Khongsaro. : 3. Snutam Mcngal, S/o Mnngul Pua+ed u* KargiRoad. 4., Hakim Khan 5/o N<nwGEiaian,Posi®dat Bilaspur. : B. S.N.Dubey. S/o 5J*.Dubey, Posisd at Monendngarh. 6. Jagat Narayan, S/o Idiosekil, Posted at on9sara. 7. ftambolh Vndnv S/o Rumudhuf, P—tttd atBikispur. : 8. Jdmsy Malhew S/o Atathew posted aT Rupond. : 9. SohanlalSayaneS/oFakirChondBosted at Bibspur 10. S.C.Majhee S/o B.Majhur, P>»»*»du* Unwria. : It. Sumon Kumar Jha S/e Brij Kiriiore Jlw posfedat f^irgi fioad. 12. Ume* Prasad S/s ghatia ^ahsrte posted at &<writola. All are TCM 6rJU workino under TCL (L-2) S.EJiiy., giiaspur (C&) Versus : 1. The Unum of Indw, throu^i Senerol AAanager, South Eastem Rallwoy. Oarden Reach, KOLKATTA-700043. 2. Divisional Raih»ay Monnoer, Sou-th Edstern Raiiwiay, Siiaspur (Chhatttsgarii). 3. Sr. &ivisiond Personnel Officer, S.E.Rerilway, Bitaspur (CB) T- 4. Sr. Divisional Signal & Telecommunictri'ion Engineer, S.E.Railway, BilasjsuF (CS) 5. Oy.Chief Project Mflnoger/Rly. Etectrification, 5.6. Rty, Baa^iur (C&) 6. Cwrtral Adminis't'ra+ivc Tribunul, Bcn«*i at Jabalpur Through its Registrar. Jabafpur. Shri fAonmdra Shrwost<woi, Sr. Counacl wrth Shri Amri+B &«»»,CBUHBUI for the petitioners. 5hri P.S.Koshy, Counsel for -the resporetents No.2 to 5. OKAL OKt)ER (passed on l.O* January 2006) The following orol order of the Court iwas passed by S.R.NAYAK,C.J. 1. Out of 26 applicants before the Central Admmistnttive Tribunal, Jabalpur Bench, Jabalpur (for short the Tribunal) in O.A.No.325/98, only 12 applicants have preferred -this writ petition under Articles 226/227 of the Constitution of India. callino in question the validity and tegality of the order of the Tribunal dated 17t^ Jara»ry2002(>OiSsedinlh«etti<10.A.Tlw> Tribunul vid* impu9na«l order hos dismissed -the opplicotion filed by •theapplicantsand others. 2. The background facts leading to •the filing of the O.A. before the Tribunal, in brief, ore as follows: The petitioners were initially appointed os skilted Artison staff on oaaial rotes of ifKSf m Rculway Etectrification (R.E.) and they were 9ronted temporary status wi'th effect from 1.1.1984 after co«nele*ion of 360 days of continuous service. The R.E. staff who had acquired temporary status wA.f. t.1.1984 after bemg dechred suitofcle wid empanelled vide memo No.E/6e/Rectt736/Asse*s/S&T/RE/BSP. dated 20.12.1996 issuedby the Office of Sr. Dwisional Persownel -?' •7<~ s <" Officer for absorption as skillMl Artisan staff h the cadre of Telecom Maintainer (JCIA Srade-rEI) in the scale of Rs.950-1500 in open line, the petitioners herein were posted as TCM @r.TIL vide office order No.SAT/146, dated 20.1.1997 at various ptaces ooainst the then existing vacancies. The petitioners nnd others fifed O.A. before the Tribunal praying for protection of their pay in accordonca wj-th last poy drawn and seeking mandamus to -rtie Deparhnent that Iheir pay should be re-fixed as provided under para 602 of 1tie ftailwoiy Establishment Manual by appfying Funcbmental ftute 22fa). 3. The chim of the petitwners was opposed by the Department filing a detailed reply. The Tribunal having considered the rivnl clabns of -the parties and rule-position, did not find merit in the cluim of the petitioners and therefore, by -ttie order impugned in this writ petitipn. dismissed -the application. 4. We heard the leamed counsel for the pari'ies. Siri Amrito Das, teamed counsel for the petitioners would strenuoush^ contend 1+iat in terms of the provisions of F.R. 22 (a) read with para 602 of the R.E.Manual, the claim of -rtie petitioners is well fwinded ond therefore, the Tribunal ought not to have dismissed •tte cwlication. On •ttie other hand, leamed stonding counsel for the Kailways. uwuld support the impugned order and adopt the reasons stated bv •the Tribunal in Itie impugned order. 5. Having heard learned counsel for the pnrties. a short question ihat arises for our decision is whether the view taken by the Tribunal could be faulted wilh on ony permissible ground of Judicial revfew. Before we deal with -that question. since -the claim of 1+ie petitioners is grounded on the provisions of F.R. 22 ffX<>)(!) read —ithpara 602 of -'l' -4 ^'^•- R.E. Manuat, it is appropriate to notice those provisions. F.ft; 22©(a)(l)reads as foltows: "F.R.22.CI) The initial pay of a Sovmment servantwho is appointed to a post on a tt'me-scafe of pay is reguiorfed <w folhws:— (a)(l) Where a 6ovemment servont holding a post, other •fhan tenure post, »»a subs+antive or •femporary or officwtting cupacrty is promoted or <yponrted in a substpntive, leniponay or officiatmg uynci-ty, as -the case nwy be, subject to tiw fulfihnent of ihe eligibtlity conditions as prescribed m the relevant RecrurtmCTrt Rules, to cno-ther post carrymg duties ond respondbilities of greater importance Ihm -fhose orMuchmg to ^w posf held by hiffl, his initia) pay in the time-scate of the higheF post shall be fixed at the stnge next aboye the notional pay arrived at by increcsing his pay 'm respect of tiw lower post held by him re9ularly by on ino^meirt a't the stage at which such pay has accnwd or tnifses one hundred on(y], whichever is more. [Scwe in coses of appointnnent on ckqnrtation to an ex cadre post, or to a post on ad hoc basis or on direcr recruitment basis], the Sovemment servani ^iai'! have •the option, to be exercised witiiin one monlh from 1+ie date ofpromotion orcppointment, as tfie case moy be. to hwe ihe puy fixed under this rule from +he date of such promotion or cppointment or to have the pay fixed initiafly at ihe stage of ihe tiroe-scate of itie new post abow the pay m tiie lotwer grade or" post from •rfiidi h6 is promoted on reyilor bosis, which mcy be refixed m accordance wi'rti this rute on Ihe date of accrual of next increment in the scale of •rtie pay of -the lower gnde or post. Ih cases where an a/Aoe promotion is foijowed by regufcxr oppomtment twtfwut bred<, the optfon is admissible as from the date of initial typointment/promotiwt.to be exercised wrthin one monlti from Ihe dcrte of such regular (yponrhncnt; Provided that where a Soverronent servant is. immedia'fely before his promotion or appointtnent on regukr basis to a higher post, drawing pay at tiie maximum of the time-scak of th®tower post, his initktl pay in 1he time-scale of 1+ie higher post ^wH be flxed ar •the stcge next efowe -the pcy notiwially arrtved nt by mcreasin9 his pay in respect of •the bwer post held by -?- him on reyjlcr basis by on cunount equal -h) Ihe fc»t increment n ihe time-scufe of -fhe lower post or [rupees one hundred], whichever is nwre." Para 602 of Railway Establirfiment Manual reuds as follows: 'Para 602. F.R.22(a) atlowed pay last drawn to count for incpements in the post." 6. We are also of -fhe opinion that even the provisions of F.R. 22CIV) have also bedu'ing on the decision moking ond •therefore. it needs to be notjced. It reads as follows: >122CtV) Notwithstanding onything contasied in this nife, where a fiovemment ses'vant hofding an ex caeire post is promoted w cppointed regutarly to a post in his cadre, his pay in the cadrepost will be fixed only with reference to his presunytive pay 'm fhe cndre post whtdt he would Incive held but for his holding cny cs< codre post outside -the ordinary tine of service by virtue of which he becomes etigibie for aich promofion or appointment." F.R.22CI)(a)(l) provides -that "where a Sovemment servant holding a post, other thon a tenure post, 'm a substantive or +emporori/ or officiatina capaci-tv (emphasis is by the Courf) is promoted or oypomted in a substcmtive, temporory or officiating capacity, as +he case may be. subject to the fulfillment of -the eligibility conditions as prescribed in tiie relevant Recruitment Rutes, to another post carrying duties and responsibijities of greater importance thcui those attachino to the post held by him, his initia) pay in the time-scate of Ihe higher post shafl be fixed at the stage next above Kie notioncd pay arrived at by increasin9 his pay in respect of the lower post held by him regularly by an increment at the stoge at which such pay as accrued [rupees one hundred only], whichewr is more'. / -k~ 7. We are at loss to understond hw» the above provision would come to the aid of -the petitioners. It is not their case that before they were empanelled ond their services were absorbed as skilfed Artisan staff i.e. in the cadre of Telecom Maintoiiner fTCM) by memo No.E/©E/Recn./36/Assets/SAT/RE/BSP. ctated 20.12.1996. they were holdin9 a substantive post or temporary post or officiating post in the cadre of Telecom Maintainer CTCM). The uncontested position is that all the petitioners made entry intro services in R.E. organization as skilled Artisan staff on casual rote of pay md aibsequently •they acquired temporary status wx.f. 1.1.1984. Therefore, the provision of F.R.22CO(a)(l) could not be pressed into service to sustain -the chim of -the petitioners. 8. At this s-hage itself, the provisions of F.R.ZZCtV) needs to be noticed becouse -that provision is a straight answer to deny the cbim of the petitioners. As per F.R.22CEV). where a Sovernment servant holding cn ex cadre post is promoted or appointed regukxrly to a post in his cadre, his pay in -the cadre post will be fixed only with reference to his presumptive poy in the cadre post which he wouU have held but for his holding any ex cadre post outside the ordinary line of service. In other words, if the petitioners were to hold ex cadre post of Telecom Maintainer O'CM) before their absor()tion vkle memo No.E/6E/Recn./36/Assets/SAT/RE/BSP, dated 20.12.1996. the provisions of F.R.22CEV) could have been pressed into service in support of the chim mode by the petitioners. Therefore. even F.R.22CEV) is of no hetp to -the petitioners. If 1+ie provisions of F.R.22CE)(a)(l) and F.R.22C[V) are of no help to Ihe petitioners •h? sustain -tfte claim, then even paragraph 602 of the R.E. Manual on which reliance is pkxced, is of no help to Ihe petitioners. We say this beccuse pcu'agraph 602 of R.E. Marual simply says that F.R.22(a) allows pay last drown to count that increments m the post. If we read -y- -¥- what is stuted in paro 602 of R.E. Manual in •rtie eontext of F.R. 22CE)(a)(l) or F.R.22CIV), then only i* makes sense, otherwise, para 602 itself is not comprehensive nor does it make any sense. Be that as it may, e;«cutive instruction contamed para 602 of Raihway Establishment Manual has no tegal consequence or efficacy to alter or modify theprovisions of F.R.22CE%«i)(l)dnd/OFF.R.22CIV). Therefore, the vjew taken by -the Tribunal is unexceptionoble and Ihere is no warrant for us to interfere with its order. 9. In Ihe result cnd for the fonsgoing reaBons, this «wttpetitwn is dismissed, however, with no order as to costs. Sd/- Chief Jusdce Dilip Sdl- Raosaheb Deshmukh judge