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Judgment
Mohan Pyare, Member (A)
Shri Santosh Kumar Kushwaha, learned counsel for the applicants and Shri Raj Pal Singh, learned counsel for the respondents are present.
By means of this OA, the applicants have sought the following reliefs :
“(i)The Hon'ble Tribunal may graciously be pleased to quash the impugned order dated 23.12.2020 and further direct the respondents to step-up the pay of the applicants in respect of their juniors, who have joined the Guard Cadre after the respective applicants, with all consequential benefits. Etc.
(ii) The Hon'ble Tribunal may graciously be pleased to pass order or direction as deem fit and proper in the interest of justice.
(iii) Award costs in favour of Applicants.”
The brief facts of the case are that the applicants were appointed on compassionate ground to the post of Goods Guard and were sent for statutory training. Thereafter, applicant no.1 joined the post on 18.04.1989, while the applicant no.2 had joined the post on 07.12.1990. The applicant no.1 was considered for promotion to the post of Goods Guard in pay scale Rs. 1350-2200 and got promotion on 15.12.1994, while the applicant no.2 was remain intact in the pay scale Rs. 1200-2040. The respondents have issued seniority list of Guard Cadre as on 01.4.1999 vide letter dated 13.4.1999 which shows that the applicant no.1 was working in the Guard Passenger (Pay Scale Rs. 5000-8000) with seniority at Sl. No.76 while Shri Akhilendra Kumar Mishra was placed at Sl.No.81. Similar, applicant no.2 was working as Goods Guard pay scale Rs. 5000-8000 and was placed at Sl.No.20 while Shri Aainul Haq Ansari and Mohan Prasad Singh were working as Goods Guard in Pay Scale Rs. 4500-7000. The junior persons named Ainul Haque Ansari, Mohan Prasad Singh to the applicant no.2 and Shri Akhilendra Kumar Mishra junior to applicant no.1 along with others have approached the Hon'ble Patna Bench of this Tribunal and claimed for seniority from the date, when they have been given appointment letter to the post of Guard, which was disposed of vide order dated 08.06.2001. In compliance of the aforesaid order, the respondents have issued the order dated 25.01.2005, 01.04.2005 and 30.05.2005, which has been challenged by senior person named Anand Kumar Singh by filing O.A. No.1412 of 2005, which was finally allowed on 30.11.2010. The respondents have issued final seniority list of Guard Mail up to 01.01.2012, in which name of the applicant no.1 is at Sl.No.54 while his junior Akhilendra Kumar Mishra was at Sl.No.58. Applicant No.1 was posted and working as Guard Mail since 20.12.2010 while Shri Akhilendra Kumar Mishra was posted as Guard Mail only on 29.07.2011. Similarly applicant No.2 (at Sl.No.13) was working as Guard Passenger since 31.05.2003 while juniors Shri Ainul Haque Ansari (at Sl.No.27) and Mohan Prasad Singh (at Sl.No.28) working as Guard Passenger from 30.5.2005. An anomalies came into light to the applicant No.2 from the said list dated 21.02.2014. The applicant was getting pay @ Rs. 19340-4600 on the other Juniors Guard were allowed pay @ Rs.19440 + 4600/- but no reason was given to the applicant. On 07/13.10.2015, the respondents have further issued seniority list, in the said list, name of the applicant no.1 was find place at Sl.No.37 while juniors had been placed at Sl.No.39 and below, similarly applicant no.2 was find place at Sl.No.56 while juniors were placed at Sl.Nos.68 and 69. One junior person Shri Akhilendra Kumar Mishra has been retired on superannuation on 31.01.2016 which pay @ Rs.94100/- which the applicant No.1 was drawing pay @ Rs.86,100/- in October 2018 and juniors to applicant No.2 were also drawing higher pay, so they represented on 05.06.2016 to the Respondent No.3. The applicants have again represented on 26.11.2019 to respondent No.3 for removal of anomalies arisen in the pay of the applicants. The respondents have passed the impugned order dated 23.12.2020 and communicated the applicants that applicants were appointed on different dates based on different way of recruitment came into the cadre of Guard, so applicants cannot be given benefits of stepping-up of pay in respect of juniors, as Shri A.H. Ansari and others were of one panel but joined on different dates due to administrative reasons, so they have been given benefits of seniority from 16.4.1982 in respect of Shri B.B. Mall. The respondents have taken shelter of the Hon'ble Tribunal Patna Bench's order dated 07.01.2011 passed in O.A. No.621 of 2005; Lalan Chaudhary and others Vs. U.O.I. and others, which is not applicable to applicants, as the said issue has already been settled by this Hon'ble Bench in case of Anand Kumar Singh V/s U.O.I. and others, in which those juniors were contesting parties in the Ο.Α. No.1412 of 2005; Anand Kumar Singh V/s U.O.I. and others, which attains finality. The reasons given by the respondents for non stepping up of pay in respect of juniors as per Para 303 of I.R.E.M. Vol.I is itself violative to the order and directions dated 30.11.2010 passed in O.A. No.1412/2005, which specifically discussed the issue involved for fixation of seniority of the such employees who are junior after passing the statutory training for the post of Guard and it does not matter from which date they have been declared to be selected. Hence, this OA.
Learned counsel for the applicant submitted that the applicants were appointed on compassionate grounds as Goods Guards and, after completed statutory training, joined on 18.04.1989 and 07.12.1990, respectively. Applicant No.1 was promoted earlier and both applicants held senior positions in successive seniority lists, while their juniors namely Akhilendra Kumar Mishra, Ainul Haque Ansari, and Mohan Prasad Singh were placed below them.
Some junior persons filed OA No.517 of 1996, which was decided and review filed against that was also dismissed on 24.11.2004. In compliance of the above order dated 25.01.2005, 01.04.2005 and 30.05.2005 were granted seniority to respondents over the applicant w.e.f. 31.10.1988. Aggrieved by the above order one Anand Kumar Singh approached the Tribunal by filing the OA No.1412 of 2005, which was allowed on 30.11.2010, in which Patna Bench of this Tribunal have directed the respondents to maintain the seniority after that respondents have issued seniority list dated 01.01.2012 in which the name of applicant No.1 at Sl. No.54 while his junior Mr. Akhilendra Kumar Mishra was Sl. No.58. The applicant No.2 was placed Sl. No. 30 while his junior Anul Hak Ansari at Sl. No.27 and Mohan Prasad Singh at Sl. No.28. Based on the above seniority, the applicant No. 2 was given promotion to Guard Mail in the year 2014, thus, it is clear that the above seniority has become final and it should not have disturbed. Inspite of above, the juniors are getting higher pay than the applicant, which is in violation of RBE No.108 of 1994 and para 303 of IREM Vol.I. The seniority challenged after the order passed in OA NO.1412 of 2005 is not correct and hence rejected to allow this OA and direct the respondents to fix the pay at par with their juniors.
However, following certain Tribunal orders and administrative actions, the juniors were granted higher pay and seniority benefits, leading to pay anomalies despite applicants being senior and promoted earlier. The applicants repeatedly represented their grievances, citing the final order dated 30.11.2010 in O.A. No.1412/2005 (Anand Kumar Singh v. U.O.I.) which had already settled the seniority issue in favour of seniors. However, the respondents, relying on an unrelated case (O.A. No.621/2005, Lalan Chaudhary v. U.O.I.), denied the stepping up of pay under Para 303 of IREM Vol. I, stating that applicants came through different modes of recruitment. The applicants contend that this reasoning is contrary to the settled seniority position and violative of the Tribunal’s earlier order granting parity and protection of pay to seniors over their juniors.
The respondents have denied the contention of the applicant by filing the detailed counter affidavit and submitted that the applicant No. 1 Mahmood Raza Siddiqui was appointed on 21.04.1989 in scale of Rs. 1200-2040/-. The applicant No. 2 Arun Kumar Srivastava was appointed on 08.12.1990. It is submitted that applicant No. 1 was promoted from the post of Guard (Mail) to the post of Senior Guard (Mail) in scale of Rs. 1350-2200/-on 15.12.1994 and the applicant No. 2 is Goods Guard in the scale of Rs.1200-2040. It is further submitted that Shri Akhilendra Kumar Mishra, Enul Haque Ansari and other employees are selected employees from Railway Recruitment Board, Muzaffarpur, along with Shri B.B. Mall and have been posted in the Division on 01.04.1982, under which, according to the Original Application No. 621/2015 filed in the Hon'ble High Court, Patna, Mr. Akhilendra Kumar Mishra, Enul Haque Ansari and other employees along with Mr. B.B. Mall have been posted on 01.04.1992. It is submitted that the representation dated 26.11.2019 of the applicant has already been decided on 23.12.2020. On the basis of above discussions, learned counsel for the respondents has requested to dismiss the OA as devoid of merit.
In rejoinder affidavit, the applicant has reiterated the similar facts as given in the OA.
We have considered the rival submissions and verified the documents available on record as well as gone through the written arguments filed by learned counsel for the applicant.
It appears that entire controversy has started due to some interpretational issues arising out of the judgment of CAT Patna Bench in OA No.621 of 2005 and OA No.1412 of 2005. The order enclosed as Annexure-A-1 is very cryptic and is devoid of any reason. Under the circumstances, we are of the considered opinion that OA deserves to be allowed. Accordingly, the same is allowed. The impugned order dated 23.12.2020 is quashed and set aside. The respondents are directed to reconsider the claim of the applicant in the light of judgments of CAT, Patna Bench in OA No.621 of 2005 and OA No. 1412 of 2005 as well as the relevant RBE/instructions of the department and pass a detailed reasoned and speaking order within a period of four months from the date of receipt of certified copy of this order. The order so passed shall be communicated to the applicant without any delay. No order as to costs.
All MAs pending in this O.A. also stand disposed off.