IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 6364 of 2007(S) ------------------------- OA.854/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER : --------------- K.MURALEEDHARAN PILLAI, AGED 59 YEARS, S/O.N.KUTTAN PILLAI, EDAVOOR HOUSE, PERUMON, KOLLAM, MOTOR VEHICLE DRIVER, O/O. DEPUTY CHIEF ENGINEER (CN), SOUTHERN RAILWAY, THIRUVANANTHAPURAM. BY ADV. MR. MARTIN G.THOTTAN RESPONDENTS : --------------- 1. UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, PARK TOWN, CHENNAI-600 003. 2. CHIEF COMMERCIAL MANAGER, SOUTHERN RAILWAY, PARK TOWN, CHENNAI-600 003. 3. CHIEF ADMINISTRATIVE OFFICER, O/O. CHIEF ADMINISTRATIVE OFFICER, CONSTRUCTION, EGMORE, CHENNAI-8. 4. CHIEF ENGINEER (CONSTRUCTION), SOUTHERN RAILWAY, EGMORE, CHENNAI. R1 TO R4 BY ADV. MS. A.RAJESWARI, SC, RAILWAYS MR. C.S. DIAS, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 6364 OF 2007 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE ORDER DATED 13.11.2006 IN O.A. NO. 854 OF 2003 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT. P2 : TRUE COPY OF THE MEMORANDUM NO. P. 524/CN/TVC DATED 21.07.1999 ISSUED BY THE 1ST RESPONDENT. EXT. P3 : TRUE COPY OF THE JUDGMENT DATED 02.11.2001 IN O.P. NO. 33023 OF 2001 DELIVERED BY THIS HON'BLE TRIBUNAL EXT. P4 : TRUE COPY OF THE REPRESENTATION DATED 05.11.2001 IN SUBMITTED BY THE PETITIONER TO THE GENERAL MANAGER. EXT. P5 : TRUE COPY OF THE LETTER NO. P (S) 443/I/CN/ORIGINAL APPLICATION 830/99 DATED 30.06.2003 EXT. P6 : TRUE COPY OF THE O.A. NO. 854/2003 (WITHOUT ANNEXURES) FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL/ERNAKULAM BENCH EXT. P7 : TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN O.A. 854/2003 EXT. P8 : TRUE COPY OF THE ORDER DATED 15.09.2004 IN O.A. 353/02 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH EXT. P9 : TRUE COPY OF THE ORDER IN O.A. 714/1999 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT. P10 : TRUE COPY OF THE ORDER IN O.A. 488/2002 PASSED BY THE CENTRAL ADMINITRATIVE TRIBUNAL, ERNAKULAM BENCH. /TRUE COPY/ P.A. TO JUDGE MANJULA CHELLUR, Ag. C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P(C) No. 6364 Of 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 12th day of December, 2011 JUDGMENT Manjula Chellur, Ag.C.J. Heard the learned counsel for the petitioner and the learned standing counsel for the respondents. 2. Admitted facts in the present petition are as under : The petitioner herein was initially appointed as a gangman in the cadre post w.e.f. 23.02.1980. Subsequently, he was transferred and posted as lascar in the ex-cadre post i.e. construction department. It is also not in dispute that the pay for the post of lascar is much less than the gangman, but, however, that was not challenged by the appellant at that time. It is also apparent that the petitioner came to be promoted as motor vehicle driver in the very same organization in the ex-cadre capacity and he subsequently retired after attaining superannuation as motor vehicle driver in the construction department itself. During the subsistence of the service, the department re-fixed his pay on the ground that it has to be re- fixed on par with the promotion in the cadre post. Aggrieved by the same, W.P(C) No. 6364 of 2007 :2: the petitioner approached the Central Administrative Tribunal (CAT) and the CAT has dismissed his petition upholding R-1. Aggrieved by the same, the petitioner is before us. 3. According to the learned counsel for the petitioner, the respondent authority, based on this Ext. P7/10(R-1), re-fixed the pay of the petitioner and the same is not applicable to the case of the petitioner, as he was never sent back to the cadre post. We note from Exts. P8, P9 and P10, several situations of this nature came up for consideration before the CAT, wherein Ext. P7/10 (R-1 before the CAT) was considered and disagreed with the contentions of the department, on the ground that, when the employee gets promotion in ex-cadre post, without being sent to the parent department, there is no justification to re-fix the pay on par with the cadre post. This issue had come up for consideration in O.P. Nos. 21075 & 29868 of 2001 and while referring to Ext. P7/10 (R-1), the learned lordships proceeded to hold at paragraph 2 (page No.3) of the judgment dated 28.05.2008 as under : “2. We heard the learned counsel on both sides. While the Writ Petition was heard, the learned counsel for the respondent applicant handed over to us a clarification issued by the Southern Railways dated 27.03.2000 concerning the fixation of pay of all employees in the revised scale as recommended by the 5th Pay Commission. The said clarification states that the fixation of pay W.P(C) No. 6364 of 2007 :3: in the cadre post will not have any bearing in the pay fixed and granted to an incumbent in ex-cadre post working in the construction wing. The fixation of pay in the cadre post in only to be implemented when the incumbent goes back to the parent cadre. As long as he continues in the ex-cadre post, the fixation of pay granted to him on the basis of the promotions earned, can be drawn by him. Than is the tenor of the clarification issued. The said clarification will practically covered the dispute raised in this O.P. Further, we agree with the reasons and conclusions of the CAT in Ext. P14 order. The applicant, who earned accelerated promotion in the Construction wing is entitled to enjoy the fruits of that promotion. Even if in the mean time, she is promoted in the parent cadre and notionally, her salary is fixed in that cadre, based on that fixation, the existing salary drawn by her cannot be reduced. In the result, the Original Petition is dismissed.” As a matter of fact, while reading the above paragraph, though the lordships have referred to Ext. P14 order of the CAT, virtually it was considering with the circular Ext. P7/10 (R-1), which was the subject matter of consideration before the CAT. The said circular was produced before the Division Bench in the above O.Ps. as Ext. P2. 4. After taking into consideration all these facts, the Division Bench of this Court, as stated above, disagreed with the contentions or the stand of the respondent. Even otherwise by reading Ext. P7/10 (R-1), what we understand is, as long as the employee is in the ex-cadre post, his promotion and pay has to be fixed in accordance with the ex-cadre post W.P(C) No. 6364 of 2007 :4: and not on par with the promotions that he could have had in the parent department. 5. In that view of the matter, we are of the opinion, the CAT was not justified in dismissing the application and accordingly we allow this writ petition, setting aside the orders of the CAT in O.A. No. 854 of 2003 dated 13.11.2006. We hereby quash Exts. P2 and P5 and direct the respondent authorities to recalculate pay of the petitioner in accordance with the post, he was holding till he retired i.e. motor vehicle driver, which came to be regularized on 01.07.1994. He is entitled to get all the consequential benefits and the department is directed to do above exercise within a period of six weeks from the date of receipt of a copy of this judgment. Sd/ MANJULA CHELLUR, Ag. CHIEF JUSTICE Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd