IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No. 15010 of 2004(J) ------------------------------------- PETITIONER(S): ---------------------- P.D.DEVASIA, AGED 60 YEARS, S/O.JOSEPH DEVASIA, RETIRED HEAD CONSTABLE, RAILWAY PROTECTION FORCE, PUNALUR, RESIDING AT VALEMANNIL VEEDU, EDAPALAYAM P.O. QUILON DISTRICT, KERALA. BY ADV. SRI.T.C.GOVINDA SWAMY SRI.MANNATIL KUMAR SMT.D.HEERA RESPONDENT(S): ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF RAILWAYS, NEW DELHI. 2. THE DIRECTOR GENERAL, RAILWAY PROTECTION FORCE, NEW DELHI. 3. THE CHIEF SECUIRTY COMMISSIONER, RAILWAY PROTECTION FORCE, MOORE MARKET COMPLEX, CHENNAI - 3. 4. THE DIVISIONAL SECUIRITY COMMISSIONER, RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, DIVISIONAL OFFICE, MADURAI ADV. SRI.VARGHESE P.THOMAS, SC, RAILWAYS FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 15010/2004-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RAILWAY BOARD ORDER RBE NO.171/1997 DATED 04/12/1997. EXT.P2: COPY OF THE RAILWAY SERVANTS UNDER RBE NO.233/99 DATED 1/10/1999. EXT.P3: COPY OF THE REPRESENTATION DATED 04/06/02, ADDRESSED TO THE FOURTH RESPONDENT. EXT.P4: COPY OF THE REPRESENTATION DATED 05/10/2002, ADDRESSED TO THE THIRD RESPONDENT. EXT.P5: COPY OF THE REPRESENTATION DATED 15/03/2003, ADDRESSED TO THE SECOND RESPONDENT. EXT.P6: COPY OF THE REPRESENTATION DATED 09/07/2003, ADDRESSED TO THE FOURTH RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION DATED 10/02/2004, ADDRESSED TO THE THIRD RESPONDENT. EXT.P8: COPY OF THE LETTER BEARING NO.UXP/535/STEPPING UP DATED 01/03/2004 FROM THE FOURTH RESPONDENT. EXT.P9: COPY OF THE PAY SLIP OF THE PETITIONER PERTAINING TO THE MONTH OF MARCH, 04. EXT.P10: COPY OF THE PAY SLIP OF SRI.R.SAMUTHIRAPANDIAN FOR THE MONTH OF JANUARY, 2004. EXT.P11: COPY OF THE PAY SLIP OF SRI.A.P.GANESAN FOR THE MONTH OF JANUARY 2004. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE BOARD'S LETTER NO.PC-V/2003/1/6/2 DATED 03/01/06. EXT.R1(b): COPY OF THE LETTER NO.X/P.524/PCV/2002 DATED 29/07/02. EXT.R1(c): COPY OF THE LETTER NO.X/P.535/MISC. DATED 08/04/2004. EXT.R1(d): COPY OF THE RAILWAY BOARD LETTER NO.PC-V/97/G/4 DATED 04/12/1997 WITH MODIFICATION LETTER DATED 30/06/2000. //TRUE COPY// P.A. TO JUDGE Rs/ T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.15010 of 2004-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2008. JUDGMENT The petitioner seeks for various reliefs in the writ petition to the effect that he is entitled to have his pay fixed in the scale Rs.3050-4590/- with effect from 1.1.1996, in scale Rs.3200-4900/- with effect from 4.12.1997 and in scale Rs.4000-6000/- with effect from 1.10.1999 and consequential benefits of arrears of pay and allowances. 2. The problem arose admittedly when an anomaly crept in resulting in his juniors getting higher pay due to grant of advance increments. 3. The bare facts necessary for the disposal of the writ petition are the following: The petitioner is a retired Head Constable of the Railway Protection Force. He superannuated from service on 29.2.2004 while working at Punalur Railway Station of Southern Railway. He was initially appointed in the Railway Protection Force on 20.9.1966. Subsequently, in the year 1985 the Railway Protection Force became an armed force of the Union and consequently the designation of Rakshak and Senior Rakshak came to be changed as Constable and Naik respectively. On 1.1.1986 based WPC 15010/2004 2 on the report of the 4th Central Pay Commission the Constables were granted the replacement scale of pay of Rs.825-1200/- and Naiks were granted the scale of pay of Rs.950-1500/-. The petitioner was promoted as Naik subsequently and was placed in the scale of Rs.950-1500/-. He was also granted the benefit of pay fixation with effect from 1.3.1987. The Vth Central Pay Commission report was accepted with effect from 1.1.1996. The scale of pay as on 1.1.1996 of Constables was Rs.2750-4400/- and that of Naik was Rs.3050-4590/-. This was again revised by Ext.P1 order. The Railway Board subsequently introduced the Assured Career Progression Scheme for Railway servants as evidenced by Ext.P2. The petitioner subsequently came to notice that his juniors were receiving a higher pay than him because they were granted two advance increments even while they were continuing as Constables. The petitioner took up the matter before the competent authority by submitting various representations, the last one being Ext.P7. By Ext.P8, he was given a reply. A reading of Ext.P8 shows that the respondents also understood that there is an anomaly when they made a comparison of his pay with the pay of his junior. It is stated in Ext.P8 itself that Head Constables who were promoted before 1.1.1996 were not allowed the benefit of two advance increments and this resulted in anomaly between Constables and Head Constables, even though WPC 15010/2004 3 the date of appointment is the same. It was informed that the matter will be solved only by the Railway Board. It is at that stage the petitioner filed this writ petition seeking various reliefs. 4. Respondents 1 to 4 have filed a detailed counter affidavit wherein Exts.R1(a) to R1(d) have been produced justifying the action taken by them. Ext.R1(b) is the communication of the Chief Security Commissioner to the Director of Pay Commission, Railway Board, New Delhi, wherein it has been reported that there is anomaly in view of the fact that the juniors were granted two advance increments in January 1996. It was also suggested that in order to set right the discrepancies, two advance increments be granted to the Senior Head Constables also, so that there will be no discrepancies in pay. Ext.R1(c) will show that the petitioner was informed that the grievances raised by the petitioner will be considered when the guidelines are received from the Railway Board. Subsequently, by Ext.R1(a) it was informed by the Ministry that the matter was examined in consultation with the Department of Personnel and Training and that they have clarified that since the case is not covered under the extant orders for stepping up of pay, the same cannot be granted to the Senior Constables. 5. The question is whether in spite of the fact that the respondents have correctly understood that there is an anomaly, the refusal to redress the WPC 15010/2004 4 grievance of the petitioner is justified. Learned counsel for the petitioner brought to my notice Note 9 of Rule 7 of Vth Pay Commission Acceptance Orders for Railway Employees, 1997 which is extracted below: “Note 9 – In cases, where a Senior Railway servant promoted to a higher post before the 1st day of January, 1996 draws less pay in the revised scale than his junior who is promoted to the higher post on or after the 1st day of January, 1996, the pay of the senior Railway servant should be stepped up to an amount equal to the pay as fixed for his junior in that higher post. The stepping up should be done with effect from the date of promotion of the Junior Railway servant subject to the fulfillment of the following conditions, namely:- (a) both the junior and the senior Railway servants should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre. (b) the pre-revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical. © the senior Railway servants at the time of promotion have been drawing equal or more pay than the junior. (d) the anomaly should be directly as a result of the application of the provisions of Rule 1313 (FR 22) of Indian Railway Establishment Code Volume II or any other rule or order regulating pay fixation on such promotion in the revised scale. If even in the lower post, the junior officer was drawing more pay in the pre-revised scale than the senior by virtue of the advance WPC 15010/2004 5 increments granted to him, provision of this Note need not be invoked to step up the pay of the senior officer.” A reading of the above Note will show that if the conditions prescribed therein are satisfied, the stepping up of pay shall be allowed with effect from the date of promotion of the junior Railway servant. It is submitted that in the case of the petitioner, all the conditions have been satisfied and therefore what is expected of is to rectify the anomaly. It is evident that the said Note 9 under Rule 7 of the Vth Pay Commission Acceptance Orders for Railway Employees, 1997 has not been considered by the Railway Board and they were merely guided by the opinion of the DOP & T, as evidenced by Ext.R1 (a). In that view of the matter, the entire issue needs a re-examination at the hands of the Railway Board. 6. In order to enable the first respondent to reconsider the matter, I set aside R1(a). The first respondent will consider the matter in the light of the relevant rule as quoted above and also in the light of the recommendation contained in Ext.R1(b), by the Chief Security Commissioner, and pass fresh orders within a period of three months from the date of receipt of a copy of this judgment. It is to be borne in mind by the competent authority that the anomaly as such resulting in junior getting a higher pay has to be rectified, since the same has resulted not because of WPC 15010/2004 6 any action on the part of the petitioner or any adverse order against him at any point of time while he was serving the Force. The first respondent will communicate the decision taken in the matter, to the petitioner within three weeks from the date of passing of a fresh order, as directed already. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/