WPC 121/2011 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PEITTION (Civil) No. 121/2011 UNION OF INDIA & ORS. ....Petitioners Through Kumar Rajesh Singh, Advocate. VERSUS SHRI S.K. ROY …..Respondent Through Ms. Jasvinder Kaur, Advocate. CORAM: HON’BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA ORDER % 11.02.2011 SANJIV KHANNA, J. Union of India assails the order dated 6th September, 2009 passed by the Central Administrative Tribunal in OA No. 785/2007 and the order dated 8th August, 2010 dismissing the review application. 2. By order dated 6th September, 2009, OA NO. 785/2007 filed by the respondent was allowed and the order dated 8th June, 2006 was quashed with the following directions:- “Respondents are directed to extend the applicant fresh option regarding his two promotions for fixation of pay and accordingly fix WPC 121/2011 Page 2 of 6 the pay, which would entail removal of anomaly and bringing him at par with his juniors and colleagues. This would further entail revision of his retiral dues and arrears, which shall be determined and paid to applicant, within a period of three months from the date of receipt of a copy of this order. No costs.” 3. The undisputed facts are that the respondent S.K. Roy had joined as a clerk on 24th April, 1966 and was promoted as Guard (goods) on 20th January, 1989, Guard (Passenger) on 28th September, 1991, Senior Guard (Passenger) on 25th October, 1994 and was promoted as Guard (Mail/Express) on 21st December, 1995. The grievance of the respondent was regarding fixing of his pay in the promotional grade from the next low grade and that the same were fixed without taking into account the increments, as a result of which the respondent was being paid lower pay compared to his juniors and colleagues. The respondent retired on 31st August, 2005 and requested the petitioner for fixation of his pay at par with his juniors and collegues. This requested was turned down by the order dated 8th June, 2006 passed by the petitioner. WPC 121/2011 Page 3 of 6 4. OA No. 785/2007 was earlier allowed by the Tribunal vide order dated 21st February, 2008. This order was challenged before the High Court and was set aside on the ground that it was a non-speaking and non-reasoned order. Accordingly, the matter was remanded to the Tribunal and parties were directed to appear before the Tribunal on 18th March, 2009 vide order dated 9th February, 2009. 5. The petitioner/the Union of India did not appear before the Tribunal on 18th March, 2009 and subsequently when the original application was taken up for hearing on 6th October, 2009. The aforesaid order specifically records that the matter was passed over twice but there was no appearance on behalf of the petitioner. Accordingly, the petitioner was proceeded ex-parte, but the counter affidavit filed by the petitioner was taken into consideration. 6. The petitioner thereafter filed a review application which has been dismissed by the subsequent order dated 18th August, 2010. 7. Learned counsel for the petitioner has submitted that the Tribunal has erred and has wrongly failed to take into consideration the notification dated 16th October, 2003 with regard to fixation of pay WPC 121/2011 Page 4 of 6 under Rule 1313 of the Indian Establishment Code, Volume-II which is para materia and similar to Fundamental Rule 22(C). According to this notification, the respondent was required to exercise his option within one month from the date of promotion. 8. It was pointed out to the learned counsel for the petitioner that the notification relied upon is dated 16th October, 2003, whereas the respondent was last promoted as Guard (Mail/Express) on 21st December, 1995 and, therefore, the said notification was not applicable. Learned counsel for the petitioner could not meet and answer the aforesaid contention regarding applicability of the notification dated 16th October, 2003. 9. It may be noted that it is a contention of the respondent that he did not receive any letter or communication stating that if the respondent wanted to exercise option in fixation of pay in promotional grade, he must exercise the option within one month. It is also submitted that it is difficult to believe that respondent would have accepted a lower pay without protest if he was aware of the facts and circumstances. On the other hand, learned counsel for petitioner has WPC 121/2011 Page 5 of 6 submitted that the promotions were made in way back in 1989, 1991, 1994 and the last promotion was made in 1995. It is submitted that the respondent retired on 31st August, 2005 and till his retirement he did not raise any objection or claimed that his pay was not correctly fixed in accordance with Rule 1313 of Indian Railways Establishment Code Volume II (IREC II). It is pointed out that the respondent had made a representation after his retirement which was turned down by the order dated 8th June, 2006. 10. Keeping in view the aforesaid factual position and balancing out equities, it is directed that the pension of the respondent will be re- fixed after proper fixation of pay and the anomaly pointed out by the respondent will be corrected bringing him at par with his juniors and colleagues. The respondent’s retirement benefits will also be calculated on the said basis. The same will be paid by the petitioner to the respondent within a period of two months from today. However, respondent will not be entitled to payment of arrears of salary till the date of his retirement on 31st August, 2005. To the extent of computation of retirement benefits and fixation of pension, we do not WPC 121/2011 Page 6 of 6 find any reason to interfere with the order passed by the learned Tribunal. The error or mistake has been directed to be corrected by correct fixation of the respondent’s pension and retirement benefits. It will be unjust and unfair that the respondent is not paid pension and retirement benefits on the basis of pay-scale which he was entitled to and should have got in accordance with Rule 1313 of IREC-II. 11. The writ petition is disposed of with the aforesaid modification. SANJIV KHANNA, J. CHIEF JUSTICE February 11, 2011 kkb