IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SEVENTEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED And THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO.27259 of 2008 Between: 1 Union of India, Through The Chief Personnal Officer, East Coast Railways, B-2, Chandroosekharpur, Railway Complex, Bhubaneswar. 2 The Divisional Railway Manager, East Coast Railways Waltair (RS & PO) Visakhapatnam. 3 The Senior Divisional Personnel Manager, East Coast Railways Waltair (RS & PO) Visakhapatnam. ...PETITIONERS AND Sri S.V. Ramana S/o. Late Venkataramana, O/o. Sr. DME, DRM Bldg., East Coast Railway Visakhapatnam. ...RESPONDENT Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ or certiorari or any other appropriate writ order or direction calling for the records pertaining to O.A No. 10-7-2008 on the file of Central Administrative Tribunal, Hyderabad Bench, Hyderabad and quash the same as illegal, arbitrary and un-constitutional and further declare that these orders have been passed without any jurisdiction vested in the Honourable CAT Hyderabad Bench, Hyderabad. Counsel for the Petitioner: SMT.PUSHPINDER KAUR Counsel for the Respondent No: The Court made the following: THE HON'BLE MR JUSTICE GHULAM MOHAMMED AND THE HON’BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO.27259 of 2008 ORDER: (Per the Hon’ble Mr Justice Ghulam Mohammed) This Writ Petition is filed seeking a Writ of Certiorari to quash the order dated 10.07.2008 in O.A.No.78 of 2007 on the file of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (“the Tribunal” for brevity) as illegal, arbitrary and unconstitutional and further, to declare that the order was passed without any jurisdiction, whereby and where under the Tribunal allowed the O.A. to the extent of holding that the applicant therein was entitled to protection of pay. The facts of the case in brief are that the applicant filed the O.A. claiming protection of his pay of Rs.5,600/- drawn by him as ad hoc Head Clerk in the scale of pay of Rs.5,000 – 8,000/- in the construction organization on his repatriation as Senior Clerk in the scale of pay of Rs.4,500 – 7,000/- in the Open Line (parent unit) from June 2001. The letter No.BS.1/16 dated 10.05.2006 issued by the Divisional Personnel Officer of the office of the second petitioner rejecting his claim for such protection was specifically impugned. The applicant was appointed as Junior Clerk in S&C Organization of construction unit with lien in the Open Line by the second petitioner herein, vide his order dated 08.04.1988. He joined on the same date in the scale of pay of Rs.950 – 1,500/- (:Rs.3,500 – 4,500/-). He was promoted as Senior Clerk in the scale of pay of Rs.1,200 – 2,040/- (Rs.4,000 – 7,000/-) in the S&C Organization of construction unit with effect from 1991 on ad hoc basis. He was further promoted as Head Clerk in the scale of pay of Rs.1,400 – 2,300/- (Rs.5,000 – 8,000/-) on ad hoc basis, vide order dated 29.05.1997. He was repatriated to the Open Line in June 2001 and he joined on 27.06.2001. At the time of repatriation, he was drawing a pay of Rs.5,600/- in the scale of pay ofRs.5,000 – 8,000/- as ad hoc Head Clerk in S&C organization. On his repatriation, his pay was fixed at Rs.5,125/- as Senior Clerk in the scale of pay of Rs.4,500 – 7,000/- treating him as promoted on regular basis on 27.12.1995 to the cadre of Senior Clerk in the scale of pay of Rs.4,500 – 7,000/- in the Open Line. He was subsequently promoted as Head Clerk on regular basis in the scale of pay of Rs.5,000 – 8,000/- on 27.10.2001. Aggrieved by the pay fixation orders dated 25.07.2001, the applicant submitted representations on 20.08.2005 and 12.04.2006. While there was no reply to the first representation, the second representation was rejected by the second petitioner i.e., the order impugned. The case of the applicant is for protection of pay drawn by him as ad hoc Head Clerk and not for counting the period of such ad hoc promotion in his parent department in the Open Line. The matter was contested and the petitioners filed counter to the extent that when the applicant was working in the construction organization, he earned ad hoc promotion as Senior Clerk and Head Clerk without any eligibility and against the rules. Being the lien holder in the cadre of the Open Line, he was promoted as Senior Clerk on regular basis in the Open Line with effect from 27.12.1995. His pay had been re-fixed as Senior Clerk from the date of regular promotion with effect from 27.12.1995 after granting the notional increment as per rules. Learned counsel for the applicant referred to the representation dated 12.04.2006 and clarified that the applicant was only asking for pay protection in the light of the Railway Board’s instructions under Establishment Serial No.125/2001 and cited case laws in Bhadei Rai v. Union of India and others[1] and Badri Prasad and others v. Union of India and others[2], wherein the Apex Court held that the employees, who were given ad hoc promotion and worked for a number of years, are eligible for pay protection when they are reverted from the promotional posts. The applicant also brought to the notice of the Tribunal the order dated 04.02.2008 passed in O.A.No.11 of 2006 in which directions were given to the petitioners to give full protection to the pay last drawn by the applicant in the construction organization. The applicant therein had worked in a deputation post for a period of more than 12 years. In Badri Prasad and others v. Union of India and others (2 supra), the Supreme Court granted relief based on the decision in Inderpal Yadav v. Union of India, wherein relief was granted by modifying the order of the Tribunal and of the High Court and it was directed that the appellant’s pay, which he was last drawing on the date of his repatriation from Group ‘C’ post to Group ‘D’ post, shall be protected. It was further directed that appellant shall be considered for promotion to Group ‘C’ post in his turn with others, with due regard to the fact of his having passed the screening test and his work and performance for twenty years in the post of Rigger in Group ‘C’. Since he has been working and discharging duty, the Tribunal directed that the applicant is entitled to protection of pay but his services were to be regularized as Head Clerk only from the date of his regular promotion and the O.A. was, accordingly, allowed to the extent indicated. Learned Standing Counsel contended that when once an illegal order was passed ignoring the rules, resulting in the applicant being promoted, the Tribunal ought not to have granted the relief claimed. Thus, the Tribunal committed an error in granting the relief to the petitioner with regard to protection of pay. She relied on the decision reported in Haryana State Minor Irrigation Tubewells Corporation v. G.S.Uppal[3], wherein it was held that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the Courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. We are of the view that there is no dispute with regard to the said proposition. Now, the question that arises for consideration is with regard to granting pay protection to the applicant, when he has been discharging duty for a period of more than twelve years. Learned counsel for the respondent relied on the decision reported in Bhadei Rai v. Union of India and others (1 supra), wherein it was held that the order of reversion from promoted post of Rigger to the substantive post in the parent department was unquestionable but the appellant, therein was held entitled to pay protection. A perusal of the judgment shows that it is squarely applicable to the facts of the present case. Hence, the Tribunal has not committed any error so as to warrant interference under Article 226 of the Constitution of India and the Tribunal has passed a just and reasonable order in exercise of its jurisdiction. In the absence of any error, the Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed. _____________________ (GHULAM MOHAMMED, J) _________________ (SANJAY KUMAR, J) 17th December 2008 RRB [1] AIR 2005 SC 2404 [2] AIR 2005 SC 2531 [3] (2008) 7 SCC 375