Dinesh Kumar Yadav & Ors. vs Union Of India & Ors.

The present O.A has been filed by the applicants under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-

The brief facts of the case are that the applicants have been working on different posts, such as Booking Clerk, Parcel Clerk, Ticket Distributor and in the Clerk Room in the Railway Department. They have been discharging the duties of these posts for several years with the approval of the competent/higher authorities. However, despite having performed these duties for a long period, the respondents have neither granted regular appointment to the applicants against the said posts nor paid them the salary and allowances attached to such work. The applicants have continuously performed the duties assigned to them with due devotion and sincerity. Their services were utilized by the respondents in the Booking Office, Parcel Office and Clerk Room for several years. The applicants, therefore, claimed regular appointment and payment of salary/allowances for the period during which they actually performed the duties of the respective posts. The applicants have stated that, having taken work from them against the sanctioned/approved duties and posts for such a long period, the respondents cannot deny them the corresponding service benefits and salary Central Administrative Tribunal^{for the work actually performed. Accordingly, the applicants approached} this Tribunal seeking appropriate relief regarding their appointment and payment of salary/allowances for the periods mentioned below:

Applicant Post/Work Performed Period of Work Nos. 1 Booking and Parcel Work 10.11.2013 to 15.07.2023 2 Booking Clerk, Etawah 10.11.2013 to 15.07.2023 3 Booking Clerk, Etawah 10.11.2013 to 15.07.2023 4 Parcel Clerk 17.04.2017 to 30.04.2024 7 Parcel Clerk 2014 to April, 2024 8 Parcel Clerk 2015 to April, 2024 Ticket Distributor and 15.10.2013 to 10.05.2015 and thereafter 9 thereafter Parcel Clerk 11.05.2015 to 20.04.2024 10 Parcel Clerk 2015 to April, 2024 Ticket Distributor and 04.09.2013 to 09.10.2015 and thereafter 12 thereafter Parcel Clerk up to 30.04.2024 13 Clerk Room 2011 to 2022 14 Clerk Room 2012 to 2022 15 Clerk Room 2013 to 2024

The learned counsel for the applicants, during the course of oral arguments, stated that he does not press relief No. (iii), whereby the applicants had claimed regularization of their services. In view of the said statement, relief No. (iii) is treated as not pressed and is deleted from consideration. Accordingly, the present Original Application is being considered and decided in respect of the remaining reliefs.

Per contra, the respondents have filed their counter affidavit contending therein that the applicants were appointed as Parcel Porters in the Railway pursuant to the directions issued by the Hon’ble Supreme Court in its orders dated 09.05.1995 and 22.08.2003. The Hon’ble Supreme Court had permitted the Railway Administration to utilize their services for other manual work according to its requirements. Subsequently, the post of Parcel Porter was surrendered in Prayagraj Division in the year 2014 and the applicants, being Group-D employees, were utilized for other duties as per the exigencies of work. It is the case of the respondents that the applicants were, on certain occasions, assigned booking and parcel related work due to shortage of regular staff and such deployment was only temporary. Mere performance of such duties did not confer any right upon the applicants to claim regular appointment to Group ‘C’ posts or the corresponding pay scale. Appointment to Group ‘C’ posts is made through Central Administrative Tribunal direct recruitment or departmental selection in accordance with the prescribed rules. Therefore, the applicants’ claim for regular appointment to Group ‘C’ posts and payment of the corresponding pay scale is not legally sustainable and accordingly the instant original application is liable to be dismissed with costs.

Rejoinder affidavit has also been filed in which the applicant has reiterated the same facts as stated in the OA and denied the contents of the counter affidavit. Nothing new has been mentioned in the rejoinder affidavit.

I have heard Sri Rakesh Kumar Dixit, learned counsel for the applicants and Shri Bashist Tiwari, learned counsel for the respondents and perused the record.

Submission of learned counsel for the applicants is that although the applicants were initially appointed as Group ‘D’ employees, they have been continuously discharging the duties of higher posts such as Booking Clerk, Parcel Clerk and Shift In-charge/Batch Prabhari for several years. The applicants were assigned these duties by the Railway authorities and were permitted to work under the control of the Station Superintendent/competent superior authorities. Learned counsel for the applicants further submitted that the applicants have placed on record the Private Cash Register and UTS Roll Register, which show that they were actually performing the duties of Booking Clerk for a considerable period. Similarly, applicant nos. 13, 14 and 15 have been continuously performing the duties of Shift In-charge in the Luggage/Clock Room at Kanpur Central Station since 2015. According to the applicants, the posts against which they were working were sanctioned posts and carried higher responsibility and higher pay than their substantive Group-D posts. It was further submitted that the applicants performed the duties of the higher posts regularly, continuously and to the satisfaction of the superior authorities. They were entrusted with the work and responsibility attached to those posts, including work relating to cash handling. Therefore, the respondents cannot take work of a higher post from the applicants for several years and, at the same time, deny them the corresponding pay and allowances attached Central Administrative Tribunal^{to such post. It was again argued that the applicants had been performing} duties involving greater responsibility continuously for about five to six years and, therefore, their claim for payment of the corresponding pay and allowances cannot be rejected merely on the ground that their substantive appointment was against Group-D posts. The principle of equal pay for equal work was also relied upon in support of the applicants’ claim. It was also submitted that after the applicants made representations for grant of higher pay and regularization, some of them were removed from the duties which they had been performing and were transferred to other work. Thus, according to the applicants, such action was intended to create an artificial break in their continuous performance of higher duties and could not defeat their legitimate claim for the pay and allowances for the period during which they had actually performed such duties. Thus, the learned counsel for the applicants submitted that the respondents having utilized the services of the applicants on higher Group-C posts for a long period and having taken work and responsibility attached to those posts, are liable to grant them the corresponding pay and allowances, including arrears, for the period during which they performed such higher duties. In support of his contentions, learned counsel for the applicants placed on record following case laws:-

In rebuttal, the learned counsel for the respondents submitted that the applicants were appointed as Parcel Porters in Group ‘D’ in compliance with the directions of the Hon’ble Supreme Court. Their substantive status has always remained that of Group ‘D’ employees. The fact that they were, on certain occasions, asked to perform booking, parcel or other work does not change their status or entitle them to the pay scale of Group ‘C’ posts. It was further submitted that the applicants were utilized for booking and Central Administrative Tribunal^{parcel related work only according to the exigencies of work and shortage} of regular staff. Such deployment was temporary and did not amount to appointment or promotion against the posts of Booking Clerk, Parcel Clerk or Shift In-charge. The applicants were never regularly appointed to those posts through the prescribed mode of recruitment or selection. Learned counsel for the respondents further submitted that mere performance of some duties of a higher post does not create a right to claim the pay and allowances attached to that post. The principle of ‘equal pay for equal work’ cannot be applied merely on the basis of similarity of some duties. The nature of duties, responsibilities, qualifications, recruitment process and the service conditions of the respective posts are also required to be considered. Learned counsel for the respondents further submitted that the applicants cannot claim arrears of pay and allowances for the entire period merely because they performed certain duties for a long time. There is no rule under which a Group ‘D’ employee automatically becomes entitled to the pay scale of a Group ‘C’ post by performing its duties without being appointed to that post in accordance with the prescribed rules. Thus, learned counsel for the respondents submitted that the applicants are entitled only to the pay and allowances of their substantive posts. Since they were never regularly appointed or promoted to the posts of Booking Clerk, Parcel Clerk or Shift In-charge, their claim for the hghigher pay scale, arrears and interest is not legally sustainable. Thus, the Original Application, therefore, deserves to be dismissed. L Learned counsel for the respondents has placed on record the judgment of the Hon’ble Supreme Court in A.I. Railway Parcel & Goods Porters Union v. Union of India & Others, decided on 22.08.2003 in Writ Petition (Civil) No. 433 of 1998.

I have considered the rival submissions of the parties and have gone through the record.

The question which arises for consideration is whether the applicants are entitled to the pay and allowances attached to the posts of Booking Clerk, Parcel Clerk and Shift In-charge/Batch Prabhari for the period during which they actually discharged the duties of those posts.

At the outset, it is clarified that the applicants are not pressing their claim for regularization against the higher posts. Therefore, the issue of Central Administrative Tribunal regular appointment to the said posts is not being considered. The limited question is whether the respondents can deny the applicants the appropriate pay merely because their substantive appointment was against Group-D posts, when they were admittedly utilized for performing the duties of higher posts.

In the present case, the applicants have specifically pleaded that they were continuously working as Booking Clerk, Parcel Clerk and Shift In-charge/Batch Prabhari for several years. They have also placed on record the Private Cash Register and UTS Roll Register in support of their claim. The applicants have further stated that they were entrusted with the duties and responsibilities of the said posts by the Railway authorities and discharged such duties to the satisfaction of their superior officers.

The respondents have mainly opposed the claim on the ground that the applicants were appointed as Parcel Porters in Group-D and their deployment on booking and parcel-related work was only temporary. However, the mere fact that the applicants were not regularly appointed to the higher posts cannot, by itself, answer the claim for payment for the work actually performed. The claim for higher pay and the claim for regular appointment are two different issues.

In State of Jagjit Singh (supra) and others, (2017) 1 SCC (L&S), the Hon’ble Supreme Court has held as under:-

The judgment of Jagjit Singh (supra) further shows that the mere difference in the manner of appointment cannot by itself defeat a claim for pay parity where the employee is actually performing the same or similar duties and responsibilities. At the same time, the burden is on the employee to establish such similarity. In the present case, the applicants have relied upon the relevant registers and the long period for which they were entrusted with the duties of the higher posts. Therefore, the claim cannot be rejected merely on the ground that their substantive appointment was against Group ’D” posts.

The judgment of the Hon’ble Allahabad High Court in Uma Kant Pandey (supra) case, is also relevant. In that case, the petitioner was a TGT but was directed to work as Teacher In-charge against the post of Head Master for more than three years. The respondents opposed the claim on the ground that he had not been formally promoted to the higher post. The Hon’ble High Court rejected the said defence and held that where an employee actually works on a higher post in an officiating capacity, denial of the salary attached to that higher post is not justified. The Court relied upon the principle laid down by the Hon’ble Supreme Court in Selvaraj Vs. Lt. Governor of Island, Port Blair (1998) 4 SCC 291 and directed payment of the difference in salary for the period during which the petitioner actually worked on the higher post. The aforesaid judgment is particularly relevant to the present case. The respondents cannot escape of their own arrangement by assigning higher duties to the applicants for a long period and thereafter deny them the corresponding financial benefit only on the ground that no formal promotion was made. If the applicants actually discharged the duties and responsibilities of the higher posts under the orders or with the knowledge of the competent Railway authorities, the respondents cannot deny payment merely because the applicants continued to hold their original posts.

The respondents have relied upon the judgment of the Hon’ble Supreme Court in A.I. Railway Parcel & Goods Porters Union (supra), wherein the Railway Administration was permitted to utilize the services of the absorbed Railway Parcel Porters for any other manual work according to its requirements. However, the said judgment does not authorize the Railway Administration to require an employee to discharge the duties and responsibilities of a higher post without payment of the corresponding pay. Therefore, the said judgment does not support the respondents’ contention in the present case. The applicants’ claim has to be examined on the basis of the official records to determine whether they actually discharged the duties of the higher post and, if so, for what period, for consideration of the corresponding financial benefit in accordance with the applicable rules.

In the present case also, the applicants have not made a claim merely on the basis of the nomenclature of the posts. Their case is that they were actually performing the duties of Booking Clerk, Parcel Clerk and Shift In-charge/Batch Prabhari for substantial periods. They have relied upon official records such as the Private Cash Register and UTS Roll Register to support their claim. The respondents, therefore, cannot defeat the claim without examining whether the duties actually performed by each applicant were the same or substantially similar to the duties of the corresponding regular post.

The respondents have argued that temporary deployment does not confer any right to regular appointment to a Group-C post. There can be no dispute with this proposition. However, the applicants are no longer pressing the relief of regularization. Therefore, the said defence does not answer the limited claim for payment for the period during which higher Central Administrative Tribunal^{duties were actually performed. The present claim is for financial benefit} for the work already taken from the applicants and not for automatic promotion or regular appointment.

Thus, in my considered view, the objection of the respondents that the applicants were Group-D employees and were never regularly promoted to the higher posts is not sufficient to reject their claim for pay and allowances. The respondents are required to consider the actual duties performed by each applicant, the period for which such duties were performed, the nature and responsibility of such duties and the corresponding pay scale of the post.

In view of the above discussion, the Original Application is partly allowed. The respondents are directed to examine the claim of each applicant separately on the basis of the official records, including the relevant duty records, registers, orders and other records available with the Railway Administration, and to determine the period during which the concerned applicant actually discharged the duties and responsibilities of the corresponding higher post, namely, Booking Clerk, Parcel Clerk or Shift In-charge/Batch Prabhari, as the case may be. If, on such verification, it is found that any applicant had actually discharged substantially the same duties and responsibilities of the corresponding higher post, the respondents shall calculate and pay to such applicant the difference between the pay actually drawn by him and the minimum of the pay scale applicable to the corresponding higher post for the verified period, together with such allowances as may be admissible under the applicable rules. The aforesaid exercise shall be completed and the requisite orders shall be passed within three months from the date of receipt of a certified copy of this order allowing the applicants opportunity of hearing for placing their stand and producing the documents. The applicants shall also be entitled to simple interest at the rate of 6% per annum on the amount found payable, calculated from the date of filing of the Original Application till the date of actual payment. No order as to costs. All associated MAs are disposed of.