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Judgment
Om Prakash VII, Member (J)
Shri Vinod Kumar, learned counsel for the applicant and Shri Arvind Singh, learned counsel for the respondents, are present and heard.
The instant original application has been filed seeking following relief:
“(i) To issue an order or direction in the suitable nature quashing and setting-aside the noting part of impugned promotion order/letter dated 23.09.2022 in respect of the applicant only.
(ii) To issue an order or direction in the suitable nature directing the respondents department to make proper pay fixation of applicant w.e.f. 06.08.2020 to the post of Technician-II in grade pay of Rs. 2400/- alongwith in pay grade of Rs. 4200/- to the post of Technician-I at pay level-5 with all consequential benefits.
(iii) To issue an order or direction in the suitable nature directing the respondents department to release the arrears of salary after proper fixation of pay of the applicant in grade pay of Rs. 2400/- w.e.f. 06.08.2020 as well as in grade pay of Rs.4200/- within stipulated time which may specified by this Hon'ble Tribunal.
(iv) To issue any order or direction, which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(v) To award the cost of the application to the applicant.
The brief facts of the case are that applicant is an Ex-Army personnel who has been given re-employment in the respondent’s department under the ex-servicemen quota through RRC and as such he has joined to the post of Helper/Signal/G.P. 1800 on 01.06.2012. The applicant was served a memorandum dated 12/15.07.2019. On dated 26.11.2019, respondents proceeded to pass the punishment order on the basis of the inquiry report and stopped the annual increment of the applicant for a period of two years w.e.f. 01.07.2020. Against the punishment order passed by the respondents, the applicant filed an appeal dated 19.02.2020 before the appellate authority which has been dismissed by confirming the punishment order dated 26.11.2019. Thereafter applicant again submitted representation before the higher authority, but no heed was paid on his representation. In the meantime a trade test was conducted in the department for the purpose of promotion from the post of Technician Grade-III (signal) Level-2 to Technician-II, in which the applicant appeared and was declared successful vide the result dated 21.07.2020. In pursuance of the aforesaid result, the applicant was promoted to the post of Technician-II in grade pay of Rs. 2400/- but he was not paid the salary of the promoted post. Again the applicant was promoted to the post of Technician-I vide order dated 23.09.2022, but in the said promotion order a rider has been imposed that said promotion order would become effective w.e.f. 01.07.2024 which is quite illegal. It is also averred that effect of punishment order dated 26.11.2019 has already been expired on 30.06.2022 and the applicant has undergone the punishment, therefore the restriction imposed by the respondents in the impugned order does not sustained in the eye of law, thus present O.A. was filed with the aforesaid relief.
Per contra, respondents have filed their Counter Affidavit refuting the facts disclosed in the OA and submitted that the applicant was found suitable for promotion to the post of technician-II/Level-IV vide order dated 21.07.2020, and he was promoted but salary of the promoted post was not paid to him in light of R.B/Estt. No. 89/2005 as well as Para no. 5.1 and 5.3 of the Master Circular no. 37. Again applicant was promoted to the post of Technician-I from Technician-II vide impugned order but promotion was to be effective w.e.f. 01.07.2024 in view of the aforesaid R.B.E. Thus there is no illegality or perversity in the impugned order. Hence, prayer was made to dismiss the instant O.A.
A rejoinder affidavit has also been filed by the applicant reiterating the same facts as has been mentioned in the O.A.
We have heard the learned counsel for the parties.
Submission of learned counsel for the applicant is that applicant is an ex-army personnel and has been re-employed in the respondent’s department. When applicant was discharging his services, one chargesheet was served upon him and after enquiry, disciplinary authority passed the punishment order dated 26.11.2019 whereby two annual increment of the applicant for the period of two years w.e.f. 01.07.2020 was stopped. The appeal filed against the aforesaid punishment order was also dismissed by the appellate authority. In the meantime, department conducted the trade test for the purpose of promotion from the post of Technician-III (signal), level-II to Technician-II, in which the applicant appeared and was declared successful vide result dated 21.07.2020. Applicant name was placed in the list at serial no. 21. On 21.07.2020, the applicant was promoted to the post of Technician-II in grade pay of Rs. 2400/- in level-IV with posting order at the Project Unit in Kanpur. Since then applicant was discharging his duties with full satisfaction of the authorities concerned after joining on the aforesaid promotional post. Although the applicant was performing the duty of the promotional post but no annual increment was credited in the pay slip of the applicant by the respondents’ department w.e.f. 01.07.2020 to 30.06.2022 under the garb of punishment order dated 26.11.2019. Again applicant was found suitable for promotion to the post of Technician-I and vide order dated 23.09.2022, he was promoted to the post of Technician-I along with 62 other similarly situated employees. Referring to the promotion order dated 23.09.2022, learned counsel for the applicant further argued that although applicant was promoted vide aforesaid order but a note was mentioned in the promotion order that applicant’s promotion will be effective w.e.f. 01.07.2024. Referring to the aforesaid fact, learned counsel for the applicant further argued that applicant had joined the first promotional post but he was not getting salary of the promotional post nor the increment despite the fact that he successfully discharged the duties of the promotional post. Two years experience as provided in the note has been completed by the applicant prior to the promotion and thereafter he was promoted thus, creating a rider in the promotion order dated 23.09.2022 regarding effective date of promotion w.e.f. 01.07.2024 is illegal. It was next argued that punishment imposed upon the applicant was effective only up to the year 2022, i.e., 30.06.2022 and no any other punishment was imposed upon the applicant, thus restrictions imposed by the respondents in the impugned order is not sustainable. Condition stipulated in the impugned order has already been fulfilled by the applicant. It is also argued that since applicant was performing his promotional duty in compliance of the result dated 21.07.2020 joining the duties on new posting place with higher responsibility, thus applicant is also entitled for pay on the principle of equal pay for equal work. Thus referring to the entire facts and circumstances of the case, learned counsel for the applicant argued that rider as note no. 2 contained in promotion order dated 23.09.2022 be set aside and applicant promotion from Technician-II (level-IV) to Technician-I (level-V) be made effective from the date of promotion itself. It was next argued that arrears of salary and increment of higher post of first promotion be also directed to be paid to the applicant.
Learned counsel for the respondents argued that initially the applicant was appointed to the post of Helper/Signal/G.P. 1800/- on dated 01.06.2012 against ex-servicemen quota through RRC. Later on, he was promoted to level-II on 26.12.2016, again he was promoted vide order dated 21.07.2020 from Technician-III to Technician-II/Signal/Level-IV but since the applicant had been punished vide order dated 26.11.2019 and punishment order was in continuance, thus pay fixation for promotional post was not made. Thereafter applicant was promoted to the post of Technician-I, level-IV w.e.f. 01.07.22 on the basis of seniority cum suitability. It was further argued that as per railway board group ‘c’ non-gazetted master circular-37 and promotion policy and procedure under para 5.1 and 5.3 and also according to RBE no. 89/2005 dated 26.05.2005, the applicant had not completed two years experience and due to this reason promotion order of the applicant was made effective w.e.f. 01.07.2024. It was further argued that there is no illegality, infirmity or perversity in the note no. 2 of the impugned order and applicant is not entitled for any remuneration of promotional post in compliance of the promotion order dated 21.07.2020 nor the rider created in the promotional order dated 23.09.2022 can be made ineffective. Thus referring to the entire facts and circumstances of the case and facts mentioned in the counter affidavit, learned counsel for the respondents argued that O.A. lacks merit and is liable to be dismissed.
We have considered the rival submissions and gone through the entire records including the written submission.
Before analyzing the submissions across the BAR, it will be useful to quote the RBE 89 of 2005 dated 26.05.2005, which is as under:-
(R. Vijayan Nair)
Dy. Director Establishment(D&A)
Railway Board
Facts contained in para no. 5.1 and 5.3 of Master Circular No. 37 is also quoted herein below:-
(5.1) The minimum period of service for eligibility for promotion within Group 'C' should be two years in the immediate lower grade irrespective of whether the employees belong to reserved community or not.
(5.3) The condition of two years minimum service has to be satisfied at the time the promotion is actually made. Thus employees who are regular in the relevant lower grade can be considered according to the procedure laid down but a person, who is empanelled, can actually be promoted only when he completes two years service in the immediate lower grade. Accordingly, a suitable note to this effect should be inserted in all suitability lists which included names of candidates who have not completed two years of service in the lower grade at the time suitability was adjudged.
In the instant case, punishment as disclosed in the preceding paras was imposed upon the applicant vide order dated 26.11.2019. Applicant was promoted to the post of Technician-II (level-IV) w.e.f. 01.07.2020. Vide impugned order dated 23.09.2022, the applicant has been promoted to the post of Technician-I (Level-V) and note no. 2 in the impugned order indicates that promotion made through the order dated 23.09.2022 will be effective from 01.07.2024. Applicant case is that when he was promoted vide order dated 01.07.2020 to the post of Technician-II (level-IV), he immediately joined the duties on 06.08.2020 at the posting place and was working shouldering higher responsibilities of the promotional post.
It is an admitted fact between the parties that salary according to the promotional post against the promotion order dated 01.07.2020 have not been paid to the applicant. Currency period of punishment imposed upon the applicant vide order dated 26.11.2019 was continuing till 30.06.2022. R.B/Estt. No. 89/2005 clearly reveals that clarification was issued by the Department of Personnel and Training and it was decided that in such type of cases promotion is to take effect only from the date subsequent to the expiry of the currency of the penalty. The employee would be entitled to pay fixation in the promotional grade w.e.f., the date of actual promotion. In such a situation if the language used in the aforesaid R.B/Estt. No. 89/2005 is taken into consideration, no illegality or infirmity is found in the action of respondents whereby they have not paid the salary of promotional post up to 01.07.2022 on the next promotional post because punishment imposed upon the applicant vide order dated 26.11.2019 was continuing. As far as note no. 2, the rider contained in the impugned order dated 23.09.2022 is concerned, clarification in the aforesaid R.B/Estt. No. 89/2005 itself makes it clear that promotion will be effective from the date subsequent to the expiry of the currency of the penalty. In that situation two years experience as contained in note no. 4, has not been completed by the applicant. It appears that due to this reason, note no. 2 was inserted in the impugned order. Since promotion was to be effective after expiry of the currency of the punishment, thus period during which applicant has worked as Technician-II shall not be taken into consideration as two years experience to effect the promotion order dated 23.09.2022 starting from 2022 itself.
As far as equal pay for equal work claimed by the applicant is concerned, present case is entirely different with the aforesaid principle. Applicant case is governed by the R.B/Estt. No. 89/2005 dated 26.05.2005 as well as the provisions of para 5.1 and 5.3 of Master Circular no. 37, thus applicant plea in this respect can also not be allowed.
Thus on close scrutiny of entire facts and circumstances of the case and discussions made hereinabove and also in view of the guidelines laid down in R.B/Estt. No. 89/2005 dated 26.05.2005 as well as the provisions of para 5.1 and 5.3 of Master Circular no. 37, we are of the view that prayer made in the application are not liable to be allowed and O.A. lacks merit and the same is liable to be dismissed. Accordingly, the instant O.A. is dismissed. All associated M.A. also stand disposed of.
No costs.