Emihgm @y N IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR meHGOUR OFHHATTIS /4. D.Sitaramaiah Dogre S/o D. Neeliah ongre Aged about 55 years Guard S.E.C.Railway R/o- Railway Colony, Bhilai Marshalling yard Bhilai (CG) 5. P.K.Roy S/o M. D Roy Aged about 46 years Guard S.E.C.Railway R/o Railway Colony, Dallirajharah, 4Dist- Durg (C.G) W 1 CGAR n D Writ PetitiOn é 273 /2005 PETITIONERS 4. s.K. Malwar S/o Late Shri G.N.Malwar Aged about 41 years Guard s.E.C.Railway R/o— Deorikhurd, Bilaspur (CG) 1/ 2. Ramesh kumar S/o Late RamchandraYadav Aged about 41 years, Guard S.E.C.Railway R/o- NeW'Loco Colony, Bilaspur (C.G) /3. BK. Dongre S/o Late Chaitram Dongre Aged about 48 years, ggfég‘COPY Guard S.E.C.Rai1way u v L R/o-R.T.S. Colony, Bilaspur (CG) RESPONDENTS /6. G.S. Moryanai S/o Late N. D Moryani Aged about 56 years Guard S.E.C.Railway R/o Deepak Niwas Katora Talab, Raipur (CG) M.V.S.R. Raju, S/o Late Shri M.Rama Raju Aged about 43 years Guard, SEC Railway, R/o Loco Colony Raipur (C.G) . UNION OF INDIA Through The General Manager 'South Eastern Railway Garden Reach, Calcutta-43 (W.B) , The Central Administrative Tribunal, Bench at Bilaspur (CG) Through its Registrar Divisional Manager ,/“3 . SEC Railway, Bilaspur (C.G) . Sr. Divisional Personnel officer, S.E.C Railway, Raipur (C.G) General Manager, S.E.C Railway, Headquarters Office, Personnel Dept. Bilaspur (C.G) 5. ,r /7. Versus i, 6. Sr. Divisional Personnel officer, S.E.C Railway, Bilaspur (C.G) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS PROHIBITION CERTIORARI ETC. OR ANY OTHER DIRECTION OR ORDER TO DO JUSTICE IN THE MATTER. N HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon’ble Shri Justice LM. Quddusi and Hon’ble Shri Justice Prashant Kumar Mishra Writ Petition No.6273 of 2005 S.K.Malwar and athers versus Union of India and others ORDER FOR CONSIDERATION Sdl— Prashant Kumar Mishra Judge t? Hon’ble Shri LM. Quddusi J.: v i w i I x M Post for 2.} - (LL-2010 Sd/- Prashant Kumar Mishra Judge #m Petitioners Resgondents p (Annexure P— dismissing’ Original petitioners. IGH COURT OF CHHATT!SGARH AT BILASPUR DB: ' Lion’ble Hon’ble Shri Shri Justice Justice LM. Pras Quddusi and hant Kumar Mishg Writ Petition No.6273 of 200 S.K.Maiwar and others VSI‘SUS Union of india and others I ORDER (Passed on &3 Qiy2010) er Prashant Kumar Mishra, J.: 1) passed by the Centrai Administrative Tribunai Application No.467/2005 preferred by the ‘Sr.TNC’) together with t may become due and 3. Briefly stated, the facts of the case are that the petitioners were promoted as Sr.TNC in the officiating capacity on ad hoc basis in the scale of Rs.330-560 corresponding scale being Rs.1200-2040 vide order dated 30-7-1986 (Annexure P-2). The petitioners subsequently cleared the suitability test for regular promotion to the post of Sr.TNC in the scale of Rs.1200-2040 on the basis of the suitability test held on 28—8-1988 and 11-2-1989. The result of suitability test was declared on 19-6-1989 (Annexure P-3), however, before declaration of result of the suitability test for regular promotion on the post of Sr.TNC, the petitioners were promoted as Goods Guards in the scale of Rs.1200- 2040 (RPS) vide order dated 7-4-1989 (Annexure P-4). The petitioners joined on the promoted post of Goods Guards in the month of April, 1989 on different dates. 4. According to the petitioners, after joining as Guards, their pay was reduced to the minimum pay of Goods Guards contrary to the rules and they were put to loss of three to five increments below and their separate representations against the wrong fixation of pay as well as a joint representation dated 24-2-1999 (Annexure A-7 with the original application) yielded no result. Relying on the Railway Board’s letter dated 24-5-1999 (Annexure P-5), the petitioners are claiming proper fixation of pay as per F.R.-22(C) presently Rule 1313(FR22)(1 )(A)(i)R-n. l/\(> \ 5. The petitioners thereafter preferred Original Application lAdministrative Tribunal ‘directing the petitioners to make detailed rr\epresentation to be decided by the competent authority bya detailed i l l‘No.8'22/1999, which was disposed of on 20-4-2004 by the Central $ and reasoned order. Their representations were later on rejected and thereafter they preferred Original Application N.467/2005 bfore the Central Administrave Tribunal, wich has been dismissed by the impugned order. 6. The stand of the respondents/Railways is that since before the petitioners could be regularly promoted as Sr.TNC after declarationof their result of the suitability test, they having joined on the pt of Goods Guards in the same scale on different dates in the month of April, 1989, they are not entitled to the protection of their pay which they were receiving as officiating S.TNC in view of the provision contained in F.R.-22(C), hich was clarified by Advance Correction ’ Slip No.14 of the ldian RailWay Establishment Code (Annexure R—3), whrein it is mentioned that the regularly promoted staff are entitled for fixation of pay on,promotion on similar grade but such protection is not available in the case where the promotions in the earlier similar grade \ i was made on ad hoc basis. According to the respondents, since they were not regularly promoted as Sr.TNC at the time when they joined as \c Goods Guards, their pay has been fixed by-taking the pay of their existing regular post, i.e., Train Numbering Clerk (TNC) in the scale of Rs.950-1’500 and the same has been done as per the prevailing rule. lt is further stated by the Railways that the Railway Board Circular dated 24-5-1999 (Annexure P-5) is applicable in a case where regular promotion is made but not for ad hoc promotion. ‘7 The issue, which needs Consideration and adjudication in this jpetition, is whether the petitioners are entitled to benefit of Rule j . W313<FR22)(1)(A)(I)R—u [erstwhile F.R.—22(C)] together with the o e ti h os r w n e Railway Board’s Ietter dated 24-5-1999 (Annexure P-5) or such entitlement is not available to the petitioners on the ground that they were not regularly promoted as Sr.TNC. 8. Annexure R-1 is the Railway Board's letter dated 12-12-1991 with Advance Correction Slips No.14 and 15 amending Rule 1313. Clauses (1) and (2) ofthe Advance Correction Slip No.14 is required to be perused, which is reproduced hereunder: "ADVANCE CORRECTION SLIP NC.14 The existing Rule 1313(FR-22) of the lndian Rilway Establishment Code, Volume-ll (Sixth Edition—1987) shall be substituted by the following:- Rule 131 3(FR-22)(l) The initial pay of a railway servant who is appointed to a post 'f on a time scale of pay is regulated as follows:— _ i (a) (1) Where a railway servant holding a post, other than a tenure post, in (a substantive or temporary or omciating capacity is promoted or appointed in substantive, temporary or officiating capacity as the case may be subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of‘the lower ’post held by him regularly by an increment at the stage at which such pay has accrued or rupees twenty five only, whichever is more. Save in cases of appointment onde‘putation to an ’ex-cadre " post, or to a post on adhoc basis, the Railway servant shall a @ 5 hav the option, to be exercised within- one onth from the date of promotion or appointment a the case ma be, to hav the pay fixd under this rule from the date of such promotn or appointment or to have the pay fixe initially at the stage of th time scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in acordance with this rule on the date of accrual of next increment in the scale of the ay of the pay of the lower grade or post. In cases where an ad-hoc promotion is followed by reglar appointment without break, the option is admissible as from the date of initial appointment/promotin, to be exercised within one month from the date of such regular appointment. Provided that where a railway servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time cale f the lower ost, is‘initial py ’in‘te time" ‘al of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last ' increment in the time scale of the lower post or rupees twenty five, whichever is more;'v ' 2. When the appointment to the new post does not involve such assumption of duties and responsibilities or ‘ greater importance, he shall draw as initial pay, the stage of the time scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis; Provided that where the minimum pay of the time scale of the new post is higher than his pay in respect of the .. post held by him regularly, he shall draw the minimum as the linitial pay; r x{, l l Provided fu‘rther that in a case where pay is fixed at [the same stage, he shall continue to draw that pay until such l l l e m s y e e io d e c p u o ' s o p h a h sce time as he would have received an‘ increment in the time scale of the old post; in cases where pay is fixed at this higher stage, he shali get his next increment on completion of the period when an increment is earned in the time scale of the new post. On appointment on regular basis to such a new post, other than to an ex—cadre post on deputation, the Railway servant shall have the option, to be exercised within one month from the date of such appointment for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.” 9. The above—quoted Advance Correction Slip No.14 issued on 12— 12-1991 was examned and explained by the Railway Board vide i Annexure P-5 dated 24-5-1999,,7whichi also needs perusal and is reproduced hereunder: “GOVERNMENT OF lNDlA, MINISTRY OF RAILWAY. RAILWAY BOARD Machine No.PC-lV/99/07/101/50 S.No.346 RBE 119/99, New Delhi Dt:24.5.99 General Manager — All Indian Railways & Production Units etc. Sub:—Fixation of Pay under Rule 1313(FR- 22)(1)(A)(l)R-ll (erstwhile FR-22-(C) on appointment from One Post to another . carrying identical Scales of Pay. *** There are instances on the Indian Railways where in l lfeeder Post and Promotional Post are placed in identical iscales of Pay although the promotional posts have duties Land responsibilities of greater importance than those of the feeder posts. Both Posts from the Part of the AVC of the employee for further promotion to higher grades and movement from feeder to Promotional posts involves an act of selection (written examination with or without viva- vocs & Trade Test or Aptitude Test etc.). There has been a Iong standing demand of staff Federations for fixation of Pay under Rule 1313(FR22)(1)(A)(I)R-I| (erstwhile FR 22C) in the case of above nature. The matter has been examined in detail by the Ministry of Railway in consultation with Ministry of Personnel Public grievances & Pensioner (DOP&T) President is pleased to decide that Benefit of Pay fixation undr Rule 1313(FR23)(1)(a)(l)R—|| [erstwhile Rule 1316 (FR22C) may be allowed in the‘under’mentioned Cases of Promotion made between 1.1 .86 to 31 .1295. The persons concerned may be given an option to e exered wrthm the Three Months from the date of sue of these orders to have their Pay re-fxed under Rule 1313(FR22(1)(a)(1). Arrears may also be allowed , wherever dues. If any other categories fulfilling the Criteria menned In para 1 above come to the notice of IndMdual Rl Administration speCIfc proposal containing the relevant details may be sent to Railway Board for further examinations. tio l y r K, l e b crs Is Feeder Categogy Categom to which Promoted 1 Br.Mistry Rs.1400—2200 Br.lnspector Rs.1400—23OO 2. Works Mistry Rs.1400-2300 IOW Rs.1400-2300 3. P.W.Mistry Rs.1400-2300' ‘ PWI-Gr.|l| Rs.1400-2300 4 Mistry Rs.1400-23OO J Chargeman-‘B’ Rs.1400— 2300 5. Console Supdt. Rs.2325- 3500 Asstt. Programmer Rs.2375-3500 6. Hammerman Rs 950 1500 Blacksmith Rs.950-1500 7. ASM/SM Rs 1400 2300 AYM — Rs.1400-2300 8 Mistry Rs.1400-2300 TXR — Rs.1400-23OO 9 v SM/Sr.Trn.Clerk/SWM m z; r Rs.1200-2040 .Goods Guard Rs 1200- 2040 10. SWM — Rs.1200-2040 ASM Rs 1200-2040 11. Khalasi Helper — Rs.800— 1150 W/Mate Rs 800 1150 The position after implementation of 5‘“ P.C. recommendations is under examination and till funher order, similar cases of Promotions made after 1.1.96 will continue to be governed by extant Rules regarding frxation of Pay or promotion. This issues with concurrence of Finance Directorate of Ministry of Railways (Raiiway Board). Hindi Version will foiiow. Sd/- (S.C.Manchanda) Executive Director Pay Commission Railway Board" 1o. 0n a careful reading of"the“Rui'e‘13t3(FR22)(1)(A)(I)R-II [erstwhile F.R.—22(C)] as amended by Advance Correction Slip No.14 and further clarified by Annexure P—5 dated 24-5-1999 issued by the Railway' Board, a railway servant for being entitled to pay protection of the post held by him on being promoted to another post, it is necessary that the promoted post should carry duties and responsibilities of greater importance than those attaching to the post held by him. In the present matter, the petitioners in paragraph. 6.7 of the petition have averred that the post of Goods Guard to which they have been promoted is under the category of running staff, whereas the category of Sr.TNC/TNC (feeder post) comes in the category of stationary cadre, thus, their contention is that the post of Guard carries responsibilities of greater importance. This averment in paragraph 6.7 of the petition has not been traversed by the respondents in paragraph 17 of the return i i which is the reply of the paragraph 6.7 of the writ petition. The only l contention of the respondents is that the petitioners are not entitled to ithe benefit of Rule 1313(FR22)(1)(A)(I)R-i| [erstwhile F.R.-22(C)], y t , t i fx Advance Correction Slip No.14 and its- clarification by the Railway Board vide Annexure P-5 on the ground that since their promotion on the post of Sr.TNC was on ad hoc basis, they are not entitled to the beneht of the above mentioned rules issued by the Railway Board. However, on perusal of Annexure P—3, it would be seen that the petitioners have, 'in fact, passed the suitability test for promotion to the post of Sr.TNQ thereby regularizing their ad hoc promotion made on the post of Sr.TNC vide Annexure P~2 dated 30-7-1986. As reflected in Annexure P-2, the suitability tests for regular promotion to the post of Sr.TNC were held on 28-8-1988 and 11-2-1 989. Though the results were declared on 19-6-1989 but the same would relate back to the date of examination. The learned Central Administrative Tribunal has also recorded in paragraph 5 of the impugned order that the petitioners were regularized as Sr.TNC on 19-6-1989. Thus, it is found that the petitioners were promoted as Goods Guard, which carry-duties and responsibilities of greater importanCe and were in fact regularized as Sr.TNC on 19-6-1989 after their clearing the test held on 28-8-1988 and 11-2-1989, i.e., prior to 7-4-1989 when they were promoted as Goods Guard. 11. On the basis of above, this Court is of the opinion that the petitioners are entitled to benefit of Rule 1313(FR22)(1)(A)(|)R-ll [erstwhile F.R.—22(C)] as amendedl'b’y Advance Correction Slip No.14 ‘ and clarified by the Railway Board vide Annexure P-5 dated 24-5-1999. t‘The impugned order passed by the learned Central Administrative Tribunal, thus, deserves to be and is hereby set aside. V }O {(1% 12. The Railway Board shall now fix the pay of the petitioners by giving benem of Rule 1313(FR22)(‘1)(A)(i)R-il [erstwhiie F.R.-22(C)] as amended by Advance Correction Slip No.14 and clarified by the Railway Board vide Annexure P-5 dated 24-5-1999. The petitioners are also entitled tor the arrears of pay after re-fixation of their pay as held above. The writ petition is, thus, allowed. There shall be no order E: as to costs. ’3 _ sdi- , . sw- ‘ LM-Quddeus .\ ‘ PraShant Kumar Mishra