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Judgment
O R D E R
By Justice Om Prakash VII, Member (Judicial)
By means of this OA, the applicants have sought the following reliefs :
“(i)The Hon’ble Tribunal may be pleased to quashed and set aside the impugned order dated 24/25.08.2015 and 28.08.2015 passed by respondent No. 3.
(ii)The Hon’ble Tribunal may be pleased to direct the respondents not to reduce the grade of the applicants pursuant to the order dated 24/25.08.2015.
(iii)This Hon’ble Tribunal may be pleased to direct the respondents to not to disturb the applicants from their present place of posting at Electric Locoshed Jhansi”.
The brief facts of the case are that Applicant No. 1 was initially appointed as Assistant Loco Pilot in the pay scale of Rs. 950-1500/- in Jhansi Division and was thereafter promoted as Loco Pilot in the grade pay of Rs. 4200/-. He was medically examined by the Medical Board on 30.09.2010 and was declared medically unfit for the post of Loco Pilot Operating. He was, however, found fit for an alternative suitable post, including shunting duty, in terms of Paras 509 and 512 of IREM, 2000. Accordingly, respondent No. 3, by order dated 24.11.2011, posted him as Loco Foreman in Electric Loco Shed, Jhansi, in the grade pay of Rs. 4600/-. The said post was subsequently designated as Senior Loco. Applicant No. 2 was initially appointed as Diesel Cleaner in the year 1995 and was thereafter promoted as Assistant Loco Pilot and then as Loco Pilot in the grade pay of Rs. 4200/-. He was medically decategorized on 03.03.2008. Thereafter, a screening of medically decategorized staff was conducted in the office of respondent No. 3 on 22.12.2009. On the basis thereof, he was provided a suitable alternative post of Assistant Loco Foreman in the grade pay of Rs. 4600/-. Applicant No. 3 was initially appointed as Assistant Loco Pilot on 13.10.1986 and was subsequently promoted as Mail Driver vide order dated 24.08.2005 in the pay scale of Rs. 6500-10500/-. On medical examination, he was declared unfit to perform the duties of Loco Pilot and was accordingly medically decategorized for being provided a suitable alternative post. Thereafter, respondent No. 3, vide office order dated 11.04.2007, considered him for appointment to the post of Crew Controller. Thus, all the applicants were medically decategorized from their respective running posts and were provided suitable alternative posts by the Railway Administration. They were accordingly working against posts carrying the grade pay of Rs. 4600/- for a considerable period. However, vide the impugned order dated 24/25.08.2015, the respondents reverted the applicants from the grade pay of Rs. 4600/- to the grade pay of Rs. 4200/-, purportedly on the basis of Railway Board letter dated 30.04.2013. The applicants have challenged the aforesaid order on the ground that after their medical decategorization, they were provided suitable alternative posts and were duly placed in the grade pay of Rs. 4600/-. The subsequent reversion to the lower grade pay, after the applicants had been working against the higher grade for several years, has adversely affected their service benefits. Being aggrieved by the impugned order, the applicants have filed the present Original Application seeking appropriate relief.
Per contra, learned counsel for the respondents filed a counter affidavit stating that the applicants were medically de-categorized from the post of Loco Pilot after 01.01.2006 and, after screening, were absorbed/redeployed against suitable alternative stationary posts under the then existing Para-1307 of the Indian Railway Establishment Manual, Volume-I. At that time, 30% of pay in lieu of running allowance was taken into consideration for determining the pay of medically de-categorized running staff and, accordingly, the applicants were granted higher Grade Pay of Rs.4,600/-. It has further been stated that after implementation of the 6th Pay Commission, the Railway Board issued letter dated 30.04.2013 (RBE No.41/2013), clarifying that there could be no change in the pay scale while providing suitable alternative posts to disabled/medically de-categorized running staff. Consequently, Para-1307 of the Indian Railway Establishment Manual, Volume-I was amended vide Advance Correction Slip No.224. In view of the said amendment, the Grade Pay of Rs.4,600/- earlier granted to the applicants was withdrawn. It has also been stated in paragraph 8 of the counter affidavit that, even if the applicants were entitled to notice before passing the order dated 25.08.2015, the Railway Administration may be given liberty to issue show cause notice to the applicants and take an appropriate decision in accordance with rules. On this ground also, it has been submitted that the Original Application is liable to be dismissed.
Rejoinder affidavit has also been filed by the applicants, reiterating the facts stated in the Original Application except the date of appointment of applicant No.1 as the year 2015 and denying the contents of the counter affidavit. Nothing new has been stated in the rejoinder affidavit.
We have heard Shri S.M. Ali, learned counsel for the applicants and Shri Raj Pal Singh, learned counsel for the respondents and have perused the records.
Learned counsel for the applicants submitted that the applicants were medically de-categorized from the post of Loco Foreman on different dates and were given the benefit of RBE No.254 of 1999, pursuant to which their pay was fixed extending Grade Pay of Rs. 4600/-Central Administrative Tribunalon their appointment to alternative posts. Subsequently, the respondents issued RBE No.41 of 2013 and by the impugned order dated 24/25.08.2015, withdrew the benefit already granted to the applicants under RBE No.254 of 1999 and also directed recovery of the alleged excess payment. Learned counsel for the applicants further submitted that RBE No.254 of 1999 was issued on 01.10.1999 and the applicants were medically de-categorized and accommodated against alternative posts much before issuance of RBE No.41 of 2013. Therefore, the benefit already granted to the applicants under RBE No.254 of 1999 could not be withdrawn on the basis of RBE No.41 of 2013. Referring to RBE No.41 of 2013, learned counsel for the applicants further submitted that there is nothing in the said circular to show that it was to operate retrospectively. Since RBE No.41 of 2013 was issued only on 30.04.2013, the benefit already granted to the applicants before the said date could not be withdrawn and recovery could not be made from them. Learned counsel for the applicants also placed reliance upon RBE No.254 of 1999 and the judgment of the Hon’ble Supreme Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334, and prayed that the Original Application be allowed and the impugned order be quashed.
Learned counsel for the respondents, referring to the counter affidavit, submitted that the applicants were wrongly granted the benefit of RBE No.254 of 1999 and, in view of RBE No.41 of 2013, they were not entitled to the said benefit. Therefore, the respondents were justified in withdrawing the benefit and initiating recovery of the excess payment. Learned counsel for the respondents further referred to paragraph 8 of the counter affidavit and submitted that, even if it is held that the benefit was withdrawn without issuing notice and without giving an opportunity of hearing, the respondents may at the most be directed to issue a show cause notice and provide an opportunity of hearing to the applicants before passing any order of recovery. Learned counsel for the respondents also referred to Para-1307 and Para-1308 of the IREM, Volume-I, and submitted that certain changes were made after issuance of RBE No.41 of 2013. He, therefore, submitted that the Original Application has no merit and is liable to be dismissed.
We have considered the rival submissions advanced by the learned counsel for the parties and gone through the entire record.
Before discussing the submission raised across the bar, it will be useful to quote the RBE No. 254 of 1999:-
“GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS
(RAILWAY BOARD)
No. E(NG)I-98/PM2/8 New Delhi, dated 1.10.1999
The General Manager (P), All Indian Railways and Production Units. (As per standard list)
R.B.E. No. 254/99
Sub:- Comparison of grades of running staff with those of stationary staff for the purpose of promotion/selection.
As the Railway Administrations are aware, Board had, under their letter No. E(NG)I-89/PM2/8-A dated 10.01.1992, circulated the equivalence of grades of running staff with grades of stationary staff for the purpose of promotion for the stationary categories where both running and stationary staff are eligible and considered together.
2.The question of equivalence of grades has since been reviewed in the light of the scales of pay introduced on the basis of the scales of pay recommended by the Fifth Central Pay Commission. The matter has been raised by NFIR also in the PNM meeting with the Board. The matter has been considered in consultation with both the Federations. It has been decided that the grades of running staff may be equated with those of the stationary staff as indicated below:-
Scale of Pay Scale of Stationary Post to Category of Running Staff
Applicable which Equated
I. Loco Running
i)Mail/Express Drivers/Sr. Passenger 6000-9800 6500-10500 Drivers/Sr. Motormen
ii) Passenger Drivers/Motormen/Sr. Goods 5500-9000 6500-10500 Drivers
iii) Goods Drivers 5000-8000 5500-9000
iv) Sr. Shunting Driver 5000-8000 5500-9000
v)Shunting Driver 4000-6000 5000-8000
vi) Sr. Diesel Asstt./Sr. Elect. Asstt./Sr. 1st 4000-6000 5000-8000 Fireman
vii) Diesel Asstt./Elect. Asstt./1st Fireman 3050-4590 4000-6000
II. Traffic Running
i)Mail Guards/Sr. Passenger Guards 5500-9000 6500-10500
ii) Passenger Guards/Sr. Goods Guards 5000-8000 5500-9000
Central Administrative Tribunaliii) Goods Guards 4500-7000 5500-9000
iv) Sr. Asstt. Guard 4000-6000 5000-8000
v)Asstt. Guard 3050-4590 4000-6000
Please acknowledge receipt.
Hindi version will follow.
No. E(NG)I-98/PM2/8 New Delhi, dated 1.10.1999
Copy to:-
1.The General Secretary, All India Railwaymen's Federation, Room No. 253, Rail Bhavan, New Delhi (with 35 spares).
2.The General Secretary, National Federation of Indian Railways, Room No. 256E, Rail Bhavan, New Delhi (with 35 spares).
3.All Members, Departmental Council and National Council and Secretary, Staff Side, National Council, 13-C, Ferozeshah Road, New Delhi (with 90 spares).
4.The Secretary General, Federation of Railway Officers' Association, Room No. 256A, Rail Bhavan, New Delhi (with 5 spares).
5.The Secretary General, Indian Railway Promotee Officers' Association, Room No. 268, Rail Bhavan, New Delhi (with 5 spares).
for Secretary/Railway Board
Copy to:-
PPSs to CRB, FC, MS, MM, MT, ML, ME. PSs to EDE, EDE(N), EDE(Ros), EDA, EDE(IR), EDE(RRB), EDPC-I & II, JS, Dir(MPP), LPC, DE(Res), JDE(R)I & II, JDE(Rep), JLE(D&A), JDPC, DDE(N)I & II, DD(Code Revision), DDE(LR)I & II, DDE(LR)I, E(NG)II, E(Rep)I, II & III, E(SCT)I & II, E(MPP), Sec(E), E(RB)II, E(G) with two spares, AC-II with 15 spares, Code Revision Cell with 10 spares”.
It will also be useful to quote RBE No. 41 of 2013:-
“RBE No. 41/2013
Subject:- fixation of pay of disabled/medically unfit running staff on being appointment against alternative (stationary) posts in revised (6th CPC) pay
structure
Reference Railway Board’s letter No. E(NG)I-96/RE-3/9(2) dated 29.04.1999 containing procedure for absorption of disabled/mentally unfit Railway servant in alternative employment, framed pursuant to the enactment of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act-1995.
2.Consequent upon implementation of revised pay structure inter-alia involving merger of various pre-revised scales and comprising running Pay Bands & Grade Pay based on recommendations of 6th Central Pay Commission, a question has arisen regarding methodology for fixation of pay of medically unfit running staff on being posted/appointed against stationary posts. The matter has, accordingly, been considered by the Ministry of Railways (Railway Board) and based on the recommendations of a Committee constituted for the purpose, it has been decided that while determining pay in Pay Band for the purpose of fixation of pay of medically unfit running staff in alternative (stationary post), an amount equal to such percentage of basic pay (pay in Pay Band + Grade Pay) representing pay element of running allowance as may be in force from time to time may be added to the existing pay in Pay Band and the resultant figure (ignoring the Central Administrative Tribunalfraction of rupee, if any) rounded off to the next multiple of 10, would be the pay in the Pay Band in the alternative post with no change in the Grade Pay of substantive post, in suitable alternative post . An illustration in this regard is enclosed as Annexure-I.
3.For this purpose, Para 1307 and 1308 of Indian Railway Establishment Manual, Volume-I, (Revised Edition-1989) First Re-print Edition-2009 may be amended as per Advanced Correction Slip No.224 as Annexure-II.
This issues with the concurrence of the Finance Directorate of Ministry of Railways”.
The Hon’ble Supreme Court in the case of Rafiq Masih (supra) has held as under:-
”It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i)Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service).
(ii)Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii)Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv)Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v)In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover”.
It is an admitted position between the parties that the applicants were medically decategorized from the post of Loco Foreman on different dates and were thereafter appointed against suitable alternative posts on different dates, while extending to them the benefit of Grade Pay of Rs. 4,600/-. Subsequently, by the impugned order, relying upon RBE No. 41 of 2013, the benefit already granted to the applicants was withdrawn and their pay was refixed. A perusal of RBE No. 41 of 2013 does not show that the instructions contained therein were given retrospective effect. In the absence of any specific provision to that effect, the said instructions cannot ordinarily be applied to an appointment made prior to it issuance.
Central Administrative Tribunal13. So far as applicant No. 1 is concerned, as stated in paragraph No. 4 of the rejoinder affidavit, he was posted as Loco Foreman in July, 2015 yet in para 4.11 of OA date of applicant on suitable post is shown as 24.11.2011. RBE No. 41 of 2013 has already been issued in the year 2013. However, the pleadings in respect of applicant No.1 are contradictory, yet, it appears that he was appointed on 24.11.2011. This fact finds support from the impugned order also. Therefore, it is necessary to verify from the original service records the actual date of his alternative appointment. If he was given alternative appointment after issuance and implementation of RBE No. 41 of 2013, his case would require consideration in the light of the said RBE. On the other hand, if his alternative appointment was made before issuance of the said RBE, the same could not be applied to him retrospectively.
The position of applicant Nos. 2 and 3 is different. It is admitted from the pleadings that they were given alternative appointment before issuance of RBE No. 41 of 2013. Since the said RBE does not contain any provision giving it retrospective effect, the benefit already granted to applicant Nos. 2 and 3 could not have been withdrawn on the basis of the said RBE. Accordingly, the impugned order dated 24/25.08.2015, to the extent it withdraws the benefit of RBE No. 254 of 1999 and refixes the pay of applicant Nos. 2 and 3, cannot be sustained.
So far as applicant No. 1 is concerned, he has already retired from service. Therefore, even if, upon verification of the original service records, it is found that the benefit of RBE No. 254 of 1999 was wrongly extended to him and his pay was required to be refixed, no recovery of the amount already paid to him shall be made. The principle laid down by the Hon’ble Supreme Court in Rafiq Masih (supra) case squarely apply in the case of applicant No.1 as there is also no allegation that applicant No. 1 obtained the benefit by fraud, misrepresentation or concealment of facts.
In view of the above discussion, the Original Application is disposed of with the following directions:
In respect of applicant Nos. 2 and 3, the impugned order dated 24/25.08.2015, to the extent it withdraws the benefit of RBE No. 254 of 1999 and refixes their pay, is hereby quashed and set aside. The respondents are refrained from withdrawing the benefit already extended to them under RBE No. 254 of 1999. If any recovery has already been made from them pursuant to the impugned order, the recovered amount shall be refunded within a period of three months from the date of receipt of a certified copy of this order. No further recovery shall be made from them on the basis of the impugned order.
In respect of applicant No. 1, the respondents shall verify from the original service records the actual date of his alternative appointment and determine whether such appointment was made before or after the issuance and implementation of RBE No. 41 of 2013. The said exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.
However, irrespective of the result of such verification and any consequential refixation of pay, no recovery shall be made from applicant No. 1, he being a retired employee, in view of the law laid down by the Hon’ble Supreme Court in Rafiq Masih (supra), there being no allegation of fraud, misrepresentation or concealment against him.
There shall be no order as to costs.
All pending MAs stand disposed of.