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Judgment
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
“(a)To direct the respondents to fix the salary of the applicant at Rs. 5675/- in the scale Rs. 5500-9000/- (in the V CPC scale) as on the date of his relief from Mumbai, Central Railway and continue at the same rate with the usual enhancements from time to time as per the prevailing rules in pursuance of the representations of the applicant, the last one being dated 04.11.2021, Annexure A13 and extend consequential benefits accordingly and
(b)Grant such other relief deemed fit having regard to the facts and circumstances of the case.”
Facts in brief are that the applicant was appointed as Junior Accounts Assistant on 14.05.1992 in Mumbai, Central Railway. He was promoted as Accounts Assistant on 14.05.1995 in the scale of pay of Rs. 1400-2600/-. He has been relieved of his duties in Central Railway with effect from 30.09.1996, having been transferred to the Southern Railway on request, in accordance with the terms of the order dated 30.09.1996. Thereafter, he has been promoted as Accounts Assistant. His pay has been fixed at Rs. 1320/- in the scale of Rs. 1200-2040/- (IVth CPC scale) with effect from 04.10.1996. It is the grievance of the applicant that on his transfer his pay has not been protected on the ground that he has not completed two years of regular service in the promoted grade of Accounts Assistant in Central Railway on the date of his transfer to Southern Railway. The applicant was deputed to work in Konkan Railway Corporation Limited, a Public Sector Undertaking on 31.10.1996 as Section Officer. He worked in Konkan Railway Corporation on deputation till 04.11.2006. On his return from deputation, the applicant was posted as Section Officer in Southern Western Railway, Hubli. Subsequently he has been transferred to Mysore division and posted as Section Officer in the Office of the Senior Deputy Finance Manager, Mysore. The applicant submitted a representation to the FA&CAO, Hubli on 04.08.2011 inviting his attention to the order of the CAT, Ernakulum Bench in OA No. 637/2006, DD: 30.10.2007 (M.S. Muthuvel and Ors. vs. Union of India and Ors.)seeking to extend the benefit of pay protection, and accordingly, to revise his pay with effect from 04.10.1996, followed by representations dated 29.07.2013 and 18.11.2020. As there was no response, the applicant submitted reminders dated 12.05.2021 & 04.11.2021. As the respondents have failed to redress his grievance, the applicant has approached this Tribunal.
Learned counsel Shri A.R. Holla representing the applicant submitted that the issue involved herein is no longer res integra in view of the orders of CAT, Ernakulam Bench in OA No. 637/2006, supra, and OA No. 1064/2010, DD: 07.09.2012 (N. Venugopal vs. Union of India and Ors.). The applicant is entitled to the pay drawn by him in the scale of Rs. 5500-9000/- with effect from 01.01.1996, which he was getting on his transfer from Mumbai, Central Railway to Southern Railway. The fact that he was placed in a lower scale of Rs. 1200-2040/- (IVth CPC scale) corresponding to the scale of Rs. 4500-7000/- (Vth CPC scale) on his transfer to Southern Railway, on request, shall not deprive his pay at the rate he was drawing while he was working in Mumbai, Central Railway. His pay has to be protected granting him the pay on par with the rate he was getting before his transfer in the earlier place not insisting that he must have worked in the post for a minimum period of two years.
Learned counsel Smt. P.K. Praneshwari representing the respondents submitted that the OA is barred by limitation. The applicant was transferred from Central Railway to Southern Railway on request by order dated 03.09.1996. The relief sought by the applicant is with respect to the pay protection not granted while fixing his pay of Rs. 1320/- in scale of Rs. 1200-2040/-. The applicant has conveniently waited till attaining the age of superannuation and at the fag end of his service, he has filed this OA.
Learned counsel submitted that the order passed by Ernakulam Bench in OA No. 637/2006, supra, is an order in personam and hence the ratio of the order does not apply to the present case. Keeping in view the representation of the applicant dated 04.08.2011 (Annexure A6), the respondent referred the matter to Railway Board vide letter dated 04.05.2012. Railway Board vide letter dated 16.04.2013 (Annexure A9) communicated that the applicant is not entitled to pay protection as per the extant rules. Despite the same, the applicant has not approached this Tribunal but placing reliance on the orders passed by the Ernakulam Bench in OA No. 637/2006, supra, and OA No. 1064/2010, supra, the applicant is now claiming relief belatedly, which cannot be entertained. The arguments of the learned counsel for the respondents mainly revolves around the delay in filing the OA.
We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
The main defence of the respondents that the OA is barred by limitation deserves to be rejected for the reason that pay and pension is recurring cause of action. Before the Ernakulum Bench in OA No. 1064/2010, similar arguments were advanced on behalf of the respondents inasmuch as delay aspect is concerned. Addressing the same, Ernakulum Bench has held that “as the applicant is subjected to recurring loss of pay, we hold that this OA is not barred by limitation as urged by the respondents.” That being so, the only issue that subsist for our adjudication is inasmuch as the protection of pay on inter divisional transfer on request in a lower post. As observed by the Ernakulam Bench in OA No. 1064/2010, supra, in OA No. 701 and 703/2005 it has been held that under Rule 227, transfer on request for inter divisional posting is permissible and according to the latest clarification by DOPT, pay drawn in the higher pay scale shall be protected at the stage of pay in the lower pay scale. For an inter divisional transfer the loss sustained by the railway servant will be loss of seniority and he being placed at the lower pay scale, the pay drawn prior to such transfer has to be protected and fixation of pay shall be as contained in paragraph 2 of the OM dated 14.02.2006. There cannot be any other possibility for fixation of pay.
Coming to the argument of the respondents that the applicant was not holding a lien on a permanent post, order in OA No. 893/1997 has been referred to, by Ernakulam Bench wherein, it has been observed that Rule 1313 as amended on 12.12.1991 does not prescribe the qualification of holding a lien on the permanent post. Reference is made to the order in OA No. 1041/1995 wherein it has been observed that the administrative instruction varying from Rule 1313 of Indian Railway Establishment Code (Volume II) issued by the Chief Personnel Officer was unsustainable as the said officer was not competent to issue such an instruction dated 21.12.1994. It has been reiterated that the two year rule does not appear to be one intended do away with the settled rights of the employees. The relevant paras of the said OA No. 1064/2010 reads as under:
“10.In view of the above settled legal positions the prescription of two years service in the old post to qualify for the benefit granted by other provisions is not to be applied. Following the above decisions we hold that the applicant is entitled to protection of pay without completing two years of regular service in the promoted higher grade of Station Master Grade-III in the scale of pay of Rs. 1400-2300/- (IVth CPC)/Rs. 5000-8000/- (Vth CPC). But in view of the long delay on the part of the applicant in making the claim for protection of pay, payment of arrears will have to be restricted to 3 years prior to the filing of this OA on 29.11.2010. Accordingly, the Original Application is allowed as under.
11.The respondents are directed to fix the pay of the applicant w.e.f. 3.12.1996 duly protecting the pay of Rs. 5150/- drawn by him with all consequential benefits arising there from with arrears of pay restricted to three years prior to filing of this OA and thereafter and to issue appropriate orders in this regard within a period of sixty days from the date of receipt of a copy of this order. No order as to costs.”
As already noticed, the defence set up by the respondents in the reply statement and the arguments advanced is to the period of limitation and nothing is forthcoming on the merits of the case. In the light of the decisions of the Ernakulam Bench, supra, we are of the considered view that the issue involved herein is squarely covered in favour of the employees. We have no reasons to differ from the same. Hence, following the decision of the Ernakulam Bench in OA No. 637/2006 dated 30.10.2007 and OA No. 1064/2010 dated 07.09.2012, we pass the following:
:ORDER:
The respondents are directed to refix the pay of the applicant with effect from 04.10.1996 duly protecting pay of Rs. 1440/-drawn by him with all consequential benefits arising therefrom with arrears of pay restricted to three years prior to filing of this OA.
Compliance shall be made in an expedite manner, in any event not later than 8 weeks from the date of receipt of certified copy of the order.
OA stands disposed of accordingly.
No order as to costs.