1 S-4 D.B. CIVIL WRIT PETITION NO. 1948/2003 1. U.O.I. 2.Railway Board M.M.Singhvi Vs. 3.Northern Railway 4.D.R.M. Date:- 08.08.2007 HON'BLE MR. RAJESH BALIA,J. HON'BLE MR. MAHESH CHANDRA SHARMA,J. Mr. S.P. Sharma, for the petitioner. Mr. Salil Trivedi, for the respondent. Heard learned counsel for the parties. This petition is directed to challenge the order passed by the Central Administrative Tribunal dated 27.01.2003, dismissing the original application filed by the petitioner for fixation of pay scale on the basis of his promotion to selection grade in the pay scale of Rs. 4500- 5700 from Junior Administrative Grade carrying pay in the time scale of Rs. 3700-5000. At the time of promotion given to the petitioner from 01.02.92 petitioner was drawing the salary as Junior Administrative Grade of Rs. 4700/-. The brief background for the controversy is in compass of the following facts. The petitioner had retired as Senior Divisional Operative Manager (Planning) on 31.10.1993 while 2 he was in Junior Administrative Grade carrying time scale Rs. 3700-5000 in terms of recommendation made by the IVth Pay Commission. After the petitioner's retirement certain persons were promoted from Junior Grade scale Rs. 3700- 5000 to Selection Scale of Rs. 4500-150-5700 w.e.f. 01.07.1992 and 01.07.1993 which included two names of Officers who were junior to petitioner namely R.N. Basu and Padmanabhan. This led to filing a representation. Having received no response the petitioner filed Original Application No. 293/1997 which came to be disposed of by the Tribunal vide its order dated 11.08.1998 directing the respondents to consider the representation of the petitioner within time bound directions. Pursuant to the aforesaid direction, after consideration the petitioner's representation was allowed vide order dated 28.05.1999. The petitioner was promoted to the Selection Grade Rs. 4500-5700 w.e.f. 01.07.1992 which was to continue up to date of his retirement. At the request of the petitioner his date of future increment was not altered and continued to remain 1st February. Pursuant to the grant of promotion to the Selection Scale, the petitioner's salary was 3 fixed, in the new pay scale. However, considering the promotion of petitioner to be to a non-functional Selection Scale, not carrying assumption of higher duties and responsibility of more importance, he was not given benefit of fixation in terms of FR 22 (1)(A)(1) of the Fundamental Rules read with para 13 and16 of the Railway Establishment Code which formed Corresponding provision. According to the petitioner, on being promoted to the Selection Scale his pay should have been fixed as such above his current stage in the lower pay scale by grant of one increment in the lower pay scale and advance increment in the higher pay scale. For the purpose of treating the grants of Selection Scale as non-functional selection grade scale reliance was placed on the circular of Railway Board issued on 07.06.1989 by the respondent which inter alia stated that when a Railway employee is appointed on one post to another, and where the appointment to the new post does not involve assumption of duties and responsibilities of greater importance than those attached to the old post, including appointment to a non-functional selection grade, he will draw at initial stage the pay of time scale of the new post equal to his pay in respect of the old post, or if there is no such stage, the stage next above to his pay in respect of the old 4 post. The other facts which are not in dispute are that the petitioner's post falls in the cluster of Group 'A' post in which cluster of officers are appointed on four different time scales of pay starting at bottom at Rs. 3000-100-3500-125- 4500 and goes up to pay scale designated as the Senior Administrative Grade 5900-200-6700. The four time scales are designated as Senior Time Scale (i) Rs- 3000-100-3500- 125-4500,(ii) Junior Administrative Grade Rs. 3700-125-4700- 150-5000 Selection Grade Rs. 4500-150-5700 and (iv) Senior Administrative Grade Rs. 5900-200-6700 all in ascending order corresponding to the pay scale for the officers posted at Railway Board as Deputy Director, Joint Director, Director and Executive Director respectively. The officers appointed in these time scales of pay amongst group 'A' officers are likely to be posted by inter-changing the posts that is to say that they if posted in Railway Board will carrying corresponding designation and responsibilities of that post. A person who has been in appointed in Selection Scale of 4500-150-5000 can be posted at Railway Board or outside Railway in field posting. If an incumbent who is holding the post in Junior Administrative Grade i.e. 3700-125-4700-150-5000 amongst officers of group 'A' when posted under the Railway Board is designated as Joint Director. That means officer is designated 5 as in Junior Administrative Grade while in field posting out side the Railway Board but when comes to Board is designated as Joint Director. This interchangeability is not in dispute and the fact remains that when a person is promoted from lower grade to higher grade, in administrative ecseleon he is liable to be posted against post carrying higher or more important responsibilities having control over his Junior Officers in the lower pay scale, in the field as well as in the Railway board. On being appointed to Selection Scale of Rs. 4500 to 5700 the petitioner who was earlier in Jr. Administrative scale of Rs. 3700 to 5000 became an officer whose designation and status became equalent to Director in Railway board from that of Joint Director. It also can not be disputed and denied that a post of Director carries higher or more important responsibilities than Joint Director. The other position in the matter of promotions which is in dispute before us is that in terms of Rule 209 of the Railway Establishment Code Vol.1 Fifth Edition-1985 “ 6 Promotions to the Administrative Grade are dependent on the occurrence of vacancies in the sanctioned establishment and are made wholly by selection; mere seniority does not confer any claim for such promotion. The vacancies in Group A posts in different selection scales are determined by the Railway Board on a fixed percentage on the basis of the total strength of the cadre consisting the whole cluster of group 'A' officers. Such vacancies in each scale has been determined by the Railway Board with varying percentage from time to time and promotion is granted from lower pay scale to the higher pay scale on a time bound consideration. At the relevant time, the time bound promotion program was stated to be that to an incumbent in Senior Time Scale of Rs. 3000-100-3500-125-4500 or a (Deputy Director) in the Railway Board, appointed to Jr. Administrative Grade in pay scale of Rs. 3700 to 5000 was admissible on completion of 4 years in that pay scale. To the Jr. Administrative Grade petitioner had already been promoted at due time and appointment by promotion to Selection Grade was to be granted on completion of 14 years and to Senior Administrative Grade in pay scale of 5900-200- 7 6700 was to be granted after completion of 18 years service. However, these promotions/appointment in next higher pay scale are not to be considered on seniority alone but depended on satisfaction of the Committee that the over all performance of the officer was good and that he has at least two “very good” grading in last five ACR's. That is also the only method and criterion for promotion amongst the officers of group 'A' as required in terms of Rule 209 which are followed for last so many years and apart from appointment by promotion to the next higher grade by way of appointment in higher Selection Scale, no other exercise of promotions had taken place. In the aforesaid circumstances when no other methodology of promotion was followed then the way in which the petitioner is appointed in higher grade by appointing in higher time scale of pay by the criterion of regular promotions, the grant of higher pay scale in cluster o group A officers cannot be considered. Mere placement in higher pay scale as a scheme to combat stagnation. 8 The finding of the grant of non-functional selection grade to the petitioner in the facts and circumstances of the case is not comprehensible. It is not the case of respondent that the grant of time bound Selection Scale through process of selection of incumbent by criteria of performance as in the case of promotion to higher post. It is not a scheme to remove stagnation while keeping the officers on the same post or cadre as ordinarily envisaged under the scheme for grant of time bound selection scale under the Government of Rajasthan order dated 25.01.1992, wherein incumbent who has not secured any promotion but continues in the same grade for a period of 9 years is automatically placed in the next higher grade in the selection scale, subject to his service being satisfactory on the basis of seniority alone. It does not require even creation of posts in higher scale, nor it is like grant of selection scale to a Judicial Officer in a cadre continuing for a period of 5 years without any promotions. In such event also a civil Judge (JD) remains a civil judge (JD) on grant of selection scale as has been recommended by the Shetty Commission for Judicial Officers. But where there is an appointment from lower pay scale to higher pay scale regularly in upgradation of status and being posted and change in cadre with eligibility of being posted on higher post carrying responsibilities of greater importance as 9 the present case, it is to be held that such an appointment by way of promotion inhere promotion to a post carrying higher responsibilities. The same has been clarified by the Board in a circular of Railway Board order dated 12.12.91 which has been reproduced in Vol.2 of the Railway Establishment Code Section Reprint 2005 at page 6:- “(2)Duties and responsibilities of greater importance for the purpose of Rule 1313 (FR-22): (i) ....... (ii) Appointments of the following classes shall be deemed to involve the assumption of duties and responsibilities of greater importance- (a)... (b)... (c).... (d) appointment to a senior or inter- administrative post from a junior administrative post or from a lower grade; (e) appointment to a senior administrative post from an intermediate administrative post; (f) appointment to a senior administrative post in the erstwhile scale of Rs. 1800-2250 from a senior administrative post in the scale of Rs. 1800-2200(RS).” The Railway Board order dated 12.12.91 which is after the order dated 7.6.89, clearly states that when appointment to the new post is deemed involve such assumption of duties or responsibilities of greater importance, entitling the incumbent to fixation on that basis. 10 It also says in Para 3:- (iii) that where the appointment shall not involve the assumption of duties and responsibilities of greater importance if the post to which it is made is on the same scale of pay as the post, other than a tenure post, which the railway servant holds on a regular basis at the time of his promotion or appointment or on a scale of pay identical therewith. These two assumptions raised in circular dated 12.12.91 are in consonance with ordinary sense of the terms of promotion that mere posting an incumbent to different post in the same pay scale does not result in carrying duties and responsibilities of greater importance than those attaching to the post held by him. But a promotion from lower grade to higher grade or higher post inheres into it carrying responsibilities of greater importance. There is no dispute before us, that if the placement in Selection Scale from senior scale carries with it responsibilities of greater importance then incumbent on placement in Selection Scale by way of promotion is entitled to get his fixation in terms of Rule FR 22(1)(A)(1) of Fundamental Rules reads with Corresponding Provision of Railway Establishment Code by fixing pay of the incumbent at stage next above his pay in the pay scale in which he is getting his present pay by grant of one increment in the existing pay scale that is in the lower pay scale and 11 advance increment in the higher pay scale. As the petitioner was entitled in terms of his promotion to the next higher grade by way of his placement in the Selection Scale by a process of selection which is method of promotion under in Rule 209 it implies therein carrying on higher responsibilities of greater importance and that is not mere placement in higher pay scale while retaining the same post and status in service. The purpose of the expression “at appointment on post with greater responsibilities” under Fundamental Rule 22 read with corresponding Provision of Railway Establishment Code denotes the eligibility of being posted on a post carrying higher responsibilities of greater importance otherwise than by any further process of selection of promotion. A person with present status in services can be required to occupy many different posts, carrying verifying degree of responsibilities. Actual posting to more important or less important positions is not the domain of the employee. Actual post held and to which a person in posted depends on the discretion of the employer and on such fortuitous factor the fixation of pay scale cannot be made dependent, once he is promoted to a stage wherefrom he can be posted to verifying positions. 12 For example if a person in being appointed in selection pay scale while he is posted at field and is simultaneously posts as Director Railway Board, he will be entitled to fixation under FR 22 as if he has been promoted to a post with higher responsibilities is not in dispute. But a person simultaneously placed in same pay scale, if not posted immediately at different place, it would not mean that his appointment is to a post not carrying greater responsibilities. Taking any other viewed will amount to hostile discrimination in violation of articles 14 & 16 of the Constitution. The said clause of non functional promotion/appointment can only be related to giving a pay scale without upgrading his status in service. For example under scheme against stagnation Raj. Govt. had issued circular on 25.1.92 that an incumbent who had not been promoted for 9 years will be granted selection scale in the same cadre. In such event when a Lower Division Clerk is given selection scale under the scheme, he is not eligible to be posted to higher posts merely on account of his drawing higher pay scale. He can only be allowed to hold higher post carrying greater responsibilities by prompting him to that post. But in the case like present one where appointment to higher pay scale is not automatic but by process of selection of merit criterion, it cannot but be held to 13 be promotion under Rule 201 confering higher responsibilities of greater importance on such appointment and has to be dealt with accordingly in the matter of fixation in higher pay scale. Accordingly, the petition is allowed. The order of the Tribunal under challenge is set aside. The Original Application of the petitioner is allowed and the respondents are directed to make the fixation of the petitioner's pay in Selection scale of Rs. 4500-150-5700 in accordance with the law as has been stated above afresh by granting one increment in lower pay scale and one increment in higher pay scale and allow him all consequential benefits by recomputing the arrears payable to the petitioner. Retrial benefits must also be redetermined. Arrears falling due to him as a consonance be paid to the petitioner within four months with interest at the rate of 10% w.e.f the date of making of the first order of fixation. There shall be no order as to costs. (MAHESH CHANDRA SHARMA),J. (RAJESH BALIA),J. arti