14 AMENDED WRIT PETITION (Amended portion has been typed in Italics) IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS W.P. No. 4509 of 2005 Sameer Pancley, son of Shri Rajkumar Pandey, aged about 37 years, resident of House of Shri K.L.'Mishra, Ganjpara, Durg (Chhattisgarh) Versus :1) Union of India, Ministry of Railway, through the Secretary, Railway Board, New Delhi. :2) The Senior Divisional Personnel Officer, South Eastern Railway, Bilaspur (Now Raipur), (Chhattisgarh) :3) The Assistant Personnel Officer, Welfare, South Eastern Railway, Bhilai, (Chhattisgarh) :4) Central Administrative Tribunal Caraves Building , 15, Civil Lines, Jabalpur (Madhya Pradesh) PETITIQN^JNDER ARTICLE 226 fis 227 OF THE CONSTITUTION OF INDIA K! K HIGH COURT OF CHHATTISGARH AT BILASPUR Divlsion Bench: Hon'ble Shri Justice I.M. Quddusi Hon'ble Shri Justice Prashant Kumar Mishra, W.P.No.4198/2005 Petitioners Respondents Versus Satish ^imarAgrawal and another. Union of-tndia and others. W.P. N0.4505/2005 Petitioner/ Applicant Respondents/ Non-applicants Versus Partha Pratim Pathak Union of India and others. W.P. N0.4509/2005 Versus Sameer Pandey Union of India and others. Petitioner Respondents Aopearance: Shri H. B. Agrawal, Sr. Advocatewitti Smt. Meera Jaiswal in W.P. No. 4198/05 & 4509/05 Shri Raja Sharma, counsel for the petitioner in W.P. No. 4505/05. Miss Naushina Afrin Ali, Advocate on behalf of Shri Amit Choudhari, Standing counsel for Railways/Fespondents. Writ PetitionS under Article 226/227 of the CCTtstitution of Imlia ORAL ORDER (31.03.2010) Per Shri I.M. Quddusi. J. Heard counsel for the parties at length. (2) Since the issue involved in all the writ petitions, is one and the same, therefore, they are being disposed of by this common order. :v-'^:, -t. ••ff"s'"Tta g •:TT.-.».?' ...^'- WJ>.Nos.4198/2005. 4505/2005 & 4509/2005 (3) The petitioners have challenged the order of the Central Administrative Tribunal passed in O.A. Nos. 850/03, 1021/04 & 525/04 whereby the Onginal Applications have been dismissed. All the writ appellants sought inter-division transfers to the next below post to which they were holding in their divisions, but their gifewince was that they were not given proper pay protection on such transfer. Before proceedings further, it is necessary to rerrate the short facts of tte case, for appreciation of the quesfion, raised for determination by the petitioners. (4) Petifioner no.1 of Writ Petftton hto.4188/2005 namely SaUsh Kumar Agrawal who was woridng as CASM/Dadar, Bombay, V.T. of Central Raihray in the pay scate of Rs.1400-2300/- sought his transfer as ASM in the pay scale of Rs.1200-20W- in Bilaspur Division of South Eastern Railway. The same was altowed with the following condBions: (i) That he will not seek the re-toansfer to his parent Raihiyay/Unit; (ii) He is not eligible for transfer passss, transfsr allowances and joining time ete., He will accept the bettom seniority of initial grade as ASM in scate Rs.1200-2040/. (RPS). He reported the duty in South Eastem Raihway on 12.04.1994. Similariy the other writ petiUoner of W.P.No.4198/2005 namely Jayant Marate who was working as Asst. Station Master in the pay scale of Rs.140&-2300/- in Sholapur Division of Central Raihway sought his transfer to lower post of Asst. Station Master in the pay scale of Rs.1200-2040/- in Bilaspur Dh/ision efS.E.C. Railway, which was allowed on 02.12.1984. (5) Petitioner of Writ Petition hto.4505/2005 namsly Partha Pratim Pathak who was a Senior Booking Clerk in, Narkher Station, Nagpur Division of Central Railway inthepayscaleofRs.1200-2(M<y-soughthis transfer to Bilaspur Dwision of South Eastern Railway on the lower post of W.P.Nos.4198/2005. 4505/2005 & 4509/2005 Commercial Clerk in pay scale of Rs.975-1540/-. His prayer was allowed with effect from 25.03.1M7. (6) Petitioner of W.P.No.4509/2005 namely Sameer Pandey who was woridng on the post of Senior Ticket Collector/TTE in the pay scale of Rs.1200-2040/- in Bhusawal Division of Central Railways sought his transfer to Bilaspur Dwision of S.E. Railway on.&ie lower post of Tteket Collector in the pay scale of Rs.950-1540/- which was allowed witti effect from 23.06.1997. 1; (7) The question before ttie Central AdministraUve Tribunal for determination was that when a person working In the Hgher po^ sought inter-division transfer to a tower post on Ws own request, how his pay would be re-fwed in the lower post and whether he would be entitled to get pay protection. In all the cases, the Original Applications were dismfesed by the Tribunal, hence the instant writ pefitions have been filed. (8) Leamed counsel for the petittonere subm'rt that they have challenged the impugned order passed by the Tribunal interalia on ttie ground that the prtitioners are entitled to get the protectfon of the last pay drawn on their joining in the lower scale. (9) The Railway Board vide letter dated 24.02.1M5 issuedCorpeeUon Slip following amendment to Para 604 of IREM Vol.l (1989 Edn), which reads as under: "In exercise of powere conferred by proviso to Article 309 of the Constitution, the president is pleased to direct that sub-para (iii) may be inserted below para sub-para(a)(ii) under para 604 of Indian Railway Establishment Manual Volume 1 (Editton 1989) as in the advance copy of correction stip no.19, sent , herewith. iS3r}ih. It^5^t:^ ?t3'E1BHrf'E W.P.Nos.4198/2005.4505/2005 & 4509/2005 In all matters, not specifically covered under these rules, Ministry of Raihway's Order/Presidenfs decisions issued from time to time as obtained under eRtwhile para 604 of IREM (1989 ediflon) will continue to apply. These rutes shall come into fbree from the date of issue. ADVANCE CORRECTION SUP No.ir The following may be inserted as sub- para(a)(iii) in pata 604 of IREM (1989 edition) below sub-para(a)(ii) "When a Govemment servant holding the higher post subslanthrely on regular basis seete transfer from that higher post to a lower post at his own request and the pay drawn in such hlgher post Is tess than orequal to the maximum of the scate of pay of the lower post, ;then the pay drawn in such highsr post will be protected. When a Govemment servant seeks transfer to a post from which he was promoted, it wll be freated as a case of reverefon and his pay ;will be fixed at a stage what he woutd have drawn, had he not been promoted. When appointment on transfsr from a higher post to a lower post is made on his own request under Rute 227(d)(2) - Rl (FR-15-A(2) and the maximum pay In the pay scate of that post is lower than his pay in respect cf the old post held regulariy, he shall draw that maximum as his initial pay, in accordance with FR 22(1)(a)(3)." (10) In letter dated 17-01-97, after examining th®same, the Correctlon Slip No.19 was further clartRed thert when a substantive holder of higher post seeking voluntary fransfer to a lower po^ to another unit, and when his pay drawn in the higher post is l^s than d-Nagss •^tCCKTS-* y s W.P.Nos.4198/2005. 4505/2005 & 4509/2005 or equal to a maxlmum of the scale of pay of the lower post, his substanth/e pay is to be protected, and that clarification would take retrospective efTect from the date of issue of Board's Letter i.e., 24- 02-1995. (11) In the above regard, a circutar letter No. F(E)ll/91/Misc/2 dated 20-08-99 has been shown by the leacned Standing Counsel for the Railways, and another circular dated 14-TO-1999 has also been shown in which it has been mentioned that the demand of the staff has been examined and the position is clarifled as under: "In terms ofthe exlent nAes (inctuding ACS No. 19 issued under Board's letter of even number dt. 24-2-95) in the case of an employee holding a higher post on regu\ar basis and has completed a minimum period of 24 months in that higher post and seeks transfer on his own request to a lower post, fixation of his pay in the lower grade would be done at the stage equal to the pay drawn by him in the higher post subject to the maximum of the lower post not being exceeded. In case there is no stage in the lower grade equal to the pay belng drawn by the employee in the higher post, hls (ay in the lower grade will be fb<ed at the stage next below the pay being drawn in the higher post and the difference wlll be paid as personal pay to be absorbed in future increments. Accordingly, in an example cited by the staff sicte of an employee holding regular basis a post of Chargeman 'A' in the scale Rs.1600-2660/- and drawing pay of Rs. 1750/- seeks transfer to a lower post of Chargeman 'B' in scale Rs. 1400-2300/-, his pay will be fixed at the stage of Rs. '[7201- and the difference of Rs. 30/- will be paid as personal pay absorbable in future increments. No DA is admlssibte on the personal pay under the extant mles." W.P.N08.4198/2005. 4505/2005 & 4509/2005 However, the above amended rule does not show Uiat the same would be applicable with retrospective effect and that no benefit can be paid to the petitioners. (12) The latest cireular shown before us is dated 14-02-2006, issued by the Ministry of Personnel, Publtc Grievance and Pensions Department of Personnet & Training, Govt' of India, New Delhi, along with office memorandum dated 04-01-2007, by whteih it has been mentioned that the demand of the staff side has been examined in consuttation with the Ministry of Finance and it is clarified that on transfer to the lower posyscale under FR 15(a), the pay of a Govemment servant, hokling a post on regu\ar basis, will be fixed at a stage equal to ttie pay drawn by him in the higher grade. If no such stage is available, then the pay will be fixed at the stage next below the pay drawn by him in the higher post and the difference may be granted as personal pay to be absorbed in future increments. If the ma)dmum of the pay scale of the lower post is less than the pay drawn by him in the higher post, his pay may be restricted to the maximum under FR 22 (1)(a) (3). However, it was mentionKl in office memorandum of Ministry of Personnel, Public Grievance and Pensions Department of Personnel & Training, Govt. of India, New Delhi dated 1402-2006 that transfer to lower post is made subject to certain terms and conditions then the pay may be fixed accordingly to such terms and conditions. Thus, the benefit of this clrcular cannot be made available to e petitioners. (13) In our opinion, the pettUoneR are entiUed to get the benefit of pay protection in accordance with Para 604 of the Indian Railway Establishment Manual Vol.l (1989 Edn). Therefore, we set aslde ttie !/u W.P.Nos.4198/2005.4505/2005 & 4509/2005 impugned orders passed by ttie leamed Central Administrath/e Tribunal and dispose of all these writ petitions wHh the direcUon that the petitioners shall be entiUed to get their pay flxed In accordance with the atoresaid provisions and the CorrecUon Slip Issued and were applicabteat the Sme of their appointment to their respective lower grade posts. Accordingty, their pay shall be flxed as eariy as possible wittiin a period oftwo months from the date ofreceiptofcopyofthis order. (14) Nocost(s). ?/ Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge Kamde/ Rao