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Judgment
All these petitions are arising out of a common order dated 6.12.2017 passed by the Central Administrative Tribunal, Jabalpur Bench Jabalpur (for
brevity “CATâ€) in the Original Application Nos.200/00402/2015, 200/00403/2015, 200/00404/2015, 200/00953/2015 because all the petitioners (the
applicants before the CAT) were similarly placed and were seeking similar reliefs in their respective original applications, therefore, all these petitions
are heard analogously and decided by this common order.
The challenge before the CAT was of the order dated 23.3.2015 issued by the respondent No.2/Divisional Railway manager (Personnel) West
Central Railway Habibganj, Bhopal denying the benefit of the running allowance to the petitioners on the pretext that the petitioners have not driven
the tower wagon independently and obtained the learning, therefore, in terms of the previous instructions issued in this regard, the tower wagon-cum-
vehicle driver, if drove the tower wagon, would be entitled for the running allowance to the mileage otherwise not. The relief was further sought to
direct the respondents to extend the benefit of the Circular of the Railway Board RBE No.7491 (SIC No.74/91) to the petitioners in the letter and
spirit with retrospective date and unpaid benefit attached to the post as per the said circular be granted alongwith interest @ 12% till realization. Any
other suitable relief may further be granted with cost.
The case of the petitioners before the Central Administrative Tribunal was that they were promoted for the post of drivers in the pay scale of
Rs.3050-4590, which has been revised to Rs.5200-20200 with Grade Pay of Rs.2800. After going through the process of promotion for the post tower
wagon drivers, the petitioners were selected. As per Annexure A/2 dated 31.3.2014, a letter was written from the office of the General Manager
(Personnel) West Central Railway, Jabalpur to the Jabalpur, Bhopal, Kota Divisions that the issue regarding filling up of the post of tower wagon
driver by following the procedure was raised before the head office. The competent authority has decided that the post of tower wagon driver ought
to be filled up as per the channel of promotion, therefore, it was requested to the respective divisions to fill up those posts. The contention of the
petitioners before the Central Administrative Tribunal was that after promotion as tower wagon drivers as per Circular (Annexure A/4) of the
Railway Board RBE No.7491 (SIC No.74/91), they are entitled to get the benefit of the running allowance at par with the other similarly situated
persons in Jabalpur, Kota and all other Indian Railways Divisions as they are getting the same benefits as applicable and payable to the Goods Train
Driver.
The respondents by filing their reply submitted that as per Annexure R/1 in the month of January/February 2015, the petitioners have not worked as
independent tower wagon drivers infact they have only taken the learning/handling of tower wagon. It is further averred that as per the Circular A/4,
the tower wagon drivers are classified as running staff whereas the petitioners are posted as tower wagon-cum-vehicle drivers, therefore, they would
not be entitled to get the benefit of Circular Annexure A/4 on account of their designation to the post of tower wagon-cum-vehicle driver as assigned
to them on their promotion. It is further said that as & when in exigency of the work, if their services are required to be taken as tower wagon drivers,
they may claim such benefit in terms of Annexure A/4. It is further said that the petitioners cannot be compared with Loco-Pilot Goods in terms of the
railway board letter dated 15.11.2010 issued in compliance of the judgment of Hon’ble the Supreme Court dated 8.7.2010 in S.L.P.(C)
No.365/2007 (Union of India & Others Versus Jagdish Pandey & Others.
The Central Administrative Tribunal while passing the impugned order referred the letter filed in reply and also referred the order of dismissal
passed in a previous round of litigation and made a mention to the orders passed by this Court in the writ petitions setting aside the said order of the
Tribunal and remitted the matter back to the Tribunal. The Tribunal upon hearing learned counsel for the parties further referred the letter Annexure
A/2 dated 31.3.2014 issued by the Senior Personnel Officer (M&D) on behalf of the Chief Personnel Officer, West Central Railway to all the
divisions of Jabalpur, Bhopal and Kota communicating to fill up the posts of Tower Wagon Drivers at the headquarter level. The Tribunal also referred
the conditions as enumerated in the document Annexure R/2 dated 11.2.2009 specifying their posts and Annexure A/3 to say that after qualifying the
said process of selection, the petitioners were promoted on the post of tower wagon-cum-vehicle drivers Grade-III as per order dated 10.6.1996. The
reference of certain orders posting all the individual petitioners have also been made alongwith the pay scale, however, the Tribunal observed that
looking to those orders, the petitioners were not promoted as “tower wagon driver†infact they were on promotion post as “tower wagon-cum-
vehicle driverâ€. In this regard, the Tribunal referred some documents regarding payment of mileage allowance to one of the applicant, namely, Karan
Singh and also the issue of educational qualifications. Thereafter, referring the rejoinder and reply to the rejoinder and the document (Annexure R/4)
to say that on 4.1.2010, the Bhopal Division has written a letter regarding cadre restructuring specifying the post of tower wagon-cum-vehicle driver
and arrived at a conclusion that the petitioners are not promoted as tower wagon drivers, therefore, they are not entitled to get the benefit of Annexure
A/4. Finally in Paragraph No.14 of the impugned order, the Tribunal concluded that as per Annexure R/2 dated 11.2.2009, the petitioners have never
been promoted as tower wagon drivers while infact they are working as tower wagon-cum-vehicle drivers, therefore, they are entitled for the mileage
allowance as and when their services are utilized as tower wagon drivers. The Tribunal further observed that it could not find any promotion order of
the petitioners as tower wagon drivers or the petitioners have passed any competence examination so the conditions as specified in the document
Annexure R/2 have not been fulfilled, therefore, they are not entitled to get any relief of quashment of the order dated 23.3.2015 issued by Divisinoal
Railway Manager (Personnel) West Central Railway Habibganj, District Bhopal asking the benefit of the running allowance in terms of the Circular
Annexure A/4 and accordingly all the original applications have been dismissed by the Central Administrative Tribunal.
Being dissatisfied with the dismissal of the original applications, the petitioners have knocked the door of this Court by filing these miscellaneous
petitions.
Learned counsel for the petitioners has strenuously urged that the Central Administrative Tribunal has misread the documents and not duly
considered the rules and spirit of the letter written by the General Manager (Annexure A/2) to fill up the posts of the tower wagon driver. It is said
that in the set up made by the Railway Board with respect to the cadre, no post of “tower wagon-cum-vehicle driver†is in existence in the Rules
framed by the Railway Board. However, the authorities cannot deny the benefit of the running allowance to the petitioners, who have been promoted
after following the procedure prescribed in terms of the instructions issued by the General Manager, West Central Railway (Annexure A/2) on the
post of tower wagon drivers. In case in the cadre of the Railway Board, the post of tower wagon-cum-vehicle driver is not available then passing an
order misnaming their promotional post in the promotion order as “tower wagon-cum-vehicle driver†in place of the post of “tower wagon
driver†by the royal employer without any support of law and to deny the benefit of the Circular (Annexure A/4) is not in accordance with law and
arbitrary, therefore, the Central Administrative Tribunal committed an error of law to dismiss the original applications.
It is also contended that the Annexure R/2 filed by the respondents has been taken into consideration by the Calcutta High Court in W.P.C.T
No.71/2007 (Union of India & Others Versus Amitava Pathak) after the order of the Central Administrative Tribunal, Calcutta and it was held that
the said circular is having no connection in the matter of grant of the running allowance. It is contended that in the latter part of the Circular
(Annexure R/2) dated 11.2.2009, the post of tower wagon-cum-vehicle driver has been shown, such post is not in existence in the cadre of the
Railway Board Rules and if any promotion is made by the department relying upon a circular inconsistent to the rules, it would not debar the
petitioners to get the benefits following the rules.
By filing the rejoinder, it is contended that the department in the pay slips of the petitioners have been shown them as “Senior Technical
(Fitter)†though their post is of “tower wagon drivers†and in the pay slip itself, they have not been classified as a running staff though the
Circular (Annexure A/4) contemplates so. In this regard, an explanation may be sought from the department, why they are preparing the pay slips of
the petitioners showing wrong posts as it has a serious consequence and may fasten criminal liability on the departmental officials. In this background,
it is urged that the order passed by the Tribunal may be set aside and the respondents may be directed to extend the benefit of the Circular (Annexure
A/4) treating the petitioners as “tower wagon drivers†and to extend the benefits of the running allowance at par with the Goods Drivers.
The respondents have filed their reply reiterating the averments made in the return filed before the Central Administrative Tribunal and the reply to
the rejoinder explaining the discrepancies and producing the documents. On 9.4.2019, this Court found that the controversy surrounds in a narrow
compass and it is fully covered by the decision of the Calcutta High Court and also the instructions of the Railways. The Court observed that looking
to the document brought on record, it is required to be clarified by the Railways that is there any post available in the name of “tower wagon-cum-
vehicle driver†in the cadre? The Court further sought information that under what circumstances, the pay slips of the petitioners are being prepared
in the name of the Senior Technical (Fitter)? Though they are not holding any such post and whether any such discrepancy is with any other post? On
9.4.2019, the matter was put up in a post lunch session but on being asked by Shri N.S.Ruprah, Advocate, time was granted upto 1.5.2019. The
matters were taken up for hearing on 1.5.2019 but again time as sought was granted and thereafter the cases were put up on 2.5.2019 and thereafter
on his request listed today for further orders.
Meanwhile, the Railway has filed explanation in compliance to the order of this Court dated 9.4.2019 explaining the term “running staffâ€
showing that how the promotion is to be made as specified in Railway Establishment Manual Volume (1) (Revised Edition 1989) as per Annexure R/3.
It has been stated on oath that “the Railway Board, New Delhi do not have the post of “tower wagon-cum-vehicle driver†in the set up of the
Railway Boardâ€. Thereafter in reference to the letter dated 11.2.2009 (Annexure R/2) issued from the office of the General Manager (Personnel), it
is said that he made a policy to fill up the post of “tower wagon-cum-vehicle driver†from artisan staff and they would be entitled for the mileage
allowance when they are working as per Annexure P/5. It is said that the Integrated Payroll & Accounting System (in short “IPASâ€) has been
developed by the Center For Railway Information System (in short “CRISâ€). Because the post in the name of the tower wagon-cum-vehicle
driver is not in the cadre and set up of the Railway Board, therefore, for disbursement of the monthly salary in IPAS cadre, the said post was shown
otherwise the software would not accept the same, therefore, the post of Senior Technical (Fitter) has wrongly been mentioned bonafidely and the
authority does not have any malafide intention in showing wrong post or to deprive the petitioners for grant of benefit of the running allowance. It is
further said that the correspondence in the matter for change of the name of the post and to show proper post is in progress in the IPAS, therefore,
the explanation may be accepted.
On 6.5.2019, an application for placing the relevant information on record has been filed by the Railway interalia contending that the driver, who
runs a tower wagon, is called a tower wagon driver. A tower wagon is different from a railway engine. The railway engine pulls a full train whereas a
tower wagon generally runs alone having a distance of 20-25 kilometer per day. It may be used for the purpose of repair and maintenance or repair of
the vehicles as and when required and it does not use for pulling of the passenger train or the goods train. It is said that the Erstwhile Central Railway
had the jurisdiction of Bhopal at that time. The General Manager had created a post of tower wagon-cum-vehicle driver. However, on possessing the
qualification as specified in the letter of the General Manager, the post of tower wagon-cum-vehicle driver was differentiated from the post of the
tower wagon driver for which he has the power. They further explained the Pay Roll & Independent Modules ( in short “PRIMEâ€) and the work
which is to be done for the CRIS, which developed the Integrated Payroll & Accounting System and stated that because the post of the tower wagon-
cum-vehicle driver is not available, therefore, in the Pay Roll, upto December 2015, the post of the petitioners has been mentioned as Senior Tower
Wagon Driver with a Code TT-333-00. The said post is called as Running Senior Technical Tower Wagon Driver and having its abbreviation as
Senior Tower Wagon Driver. Thereafter, from the next year, the post has wrongly been mentioned as Senior Technical (Fitter) to which the action is
in progress. It is said that the tower wagon-cum-vehicle driver is not a member of the running staff, therefore, he/she is not entitled to get the benefit
of the same. For correction in the Pay Roll, a letter has also been written on 3.5.2019, however, treating it to be a bonafide mistake, and the regret as
expressed by the authority, no further action may be taken in this regard.
After hearing learned counsel for the parties and looking to the finding as recorded by the Central Administrative Tribunal, the moot question
arises for consideration as to whether any post of tower wagon-cum-vehicle driver is in existence in the cadre of the Railway Board or in the Rules
framed by the General Manager having competence to frame such rules? In case such post is created, would it not inconsistent with the cadre of the
Railway Board and can such action be allowed to stand? Whether the finding recorded by the Tribunal denying the benefit of the Circular Annexure
A/4 to the petitioners because they are not holding the post of tower wagon driver is justified? Whether the reference of the Circulars (Annexures
A/2, R/2, R/4) made by the Tribunal denying the relief is justified and is it not based on misreading of those documents in the context of the Rules of
the Railway Board?
To elucidate the questions posed for answers in the facts of the preset case, first of all, we have to deal with the question No.1, which relates to
the existence of the post of tower wagon-cum-vehicle driver in the cadre and the set up of the Railway Board and the Rules framed thereunder. In
this regard, as per the explanation given by the Railway Board before this Court in furtherance to the order dated 9. 4.2019 in Paragraph No.4, on an
affidavit it is said as under:- “The Railway Board, New Delhi has not set up the post of the tower wagon-cum-vehicle driverâ€. Thereafter, by
filing an application on 6.5.2019 for placing the relevant information on record, it is said that the Indian Railway Establishment Code Volume (1)
(Edition 1971) has now been revised to incorporate all amendments issued upto 31.12.1983 incorporating the revised provisions issued with the assent
of the President in exercise of the powers conferred on him under Article 309 of the Constitution of India. Thereafter, in reference to Chapter-1 of the
Code, it is said that as per Clause 123, the Railway Board has full power to make the rules of general application to Group-C & Group-D railway
servant under their control. Clause 124 further states that the General Managers of the Indian Railways have full power to make the rules with regard
to the Railway Servants of Group-C and Group-D under their control provided they are not inconsistent with any rule made by the President or the
Ministry of the Railways.
On perusal of the aforesaid clauses, it is apparent that the full powers to make the rules of general applications of Group-C & Group-D of the
Railway Servant is with the Railway Board and the General Manager may have a power to make rules of Group-C & Group-D of their control
provided it should not be inconsistent with the rules of the Railway Board. Meaning thereby if any cadre has been formulated for Group-C and Group-
D employees of his control by the General Manager in exercise of the powers as conferred under Clause 124, it should be in-consonance with the
Rules of the Railway Board formulated by the President or the Ministry of the Railways.
Nothing has been brought on record to show that the General Manager, West Central Railway has ever exercised the power under Clause 124 to
classify the post of “tower wagon-cum-vehicle driver†for the employees of their control distinguishing it from the post of “tower wagon
driver†undisputedly created in the set up by the Railway Board. A document (Annexure R/2) dated 11.2.2009 has been relied upon by the Central
Administrative Tribunal. The document (Annexure R/2) dated 11.2.2009 was issued in reference to the Circular dated 29.4.1991, which is not
available on record but it relates to the running allowance to which a Railway Board decision (Annexure A/4) dated 10.4.1991 is on record and which
is not in dispute. In the letter (Annexure R/2), it is said that how the promotion is to be made on the post of tower wagon driver and thereafter in the
latter part of the Circular, it is said that in the Bhopal Division, the tower wagon-cum-vehicle driver, who fulfills the conditions as specified in the Kota
Mandal, would be entitled to the mileage allowance.
On being asked by the Court as to what is the basis to differentiate these posts, learned counsel representing the Railways on having instructions
from the officers present in the Court, namely, Shri Ajay Kumar Sharma, Divisional Finance Manager, West Central Railway, District Bhopal and Shri
Jeev Raj Kothari, Divisional Personnel Officer, West Central Railway, District Bhopal, said that they do not possess any such rule and lays their hands
to decide the issue as per the pleadings and the material brought on record.
On perusal of the aforesaid, it is apparent that the Railway Board does not have any post of tower wagon-cum-vehicle driver. As per Annexure
A/2 dated 31.2.2014 written by the General Manger, West Central Railway, it was the instruction to all the Divisions that the post of tower wagon
drivers be filled up following a procedure meaning thereby the General Manager was aware that there is no post of tower wagon-cum-vehicle driver
in the cadre of the Railway Board and it is only the post of the tower wagon driver, therefore, directed for filling up of those post following a
procedure as prescribed. The said fact finds support from the affidavit filed on 29.4.2019 in the shape of the explanation and compliance of the order
of the Court dated 9.4.2019. Thus, it is concluded that the post of “tower wagon driver†is only in existence and there is no post of “tower
wagon-cum-vehicle driver†in the cadre of the Railway Board. Therefore, by showing the post of tower wagon-cum-vehicle driver, the claim of the
petitioners to grant or to refuse the running allowance cannot be decided.
Nothing has been brought on record to show that the General Manager in exercise of the powers conferred on him under Clause 124 of Chapter-1
of the Railway Code constituted a post of “tower wagon-cum-vehicle driver†making distinction from the post of the “tower wagon driverâ€
for Group-C & Group-D staff of their control, therefore, the latter part of the Circular Annexure R/2 dated 11.2.2009 referred by the Central
Administrative Tribunal is without any basis. As the said circular does not find support from the Rules, therefore, it cannot be relied upon distinguishing
the post of tower wagon driver with the post of tower wagon-cum-vehicle driver. In any case, if any different post is created by the General Manager
as per Clause 124 itself, such creation may not be inconsistent with the Rules of the Railway Board, though such post of the tower wagon-cum-
vehicle driver is not in existence in the cadre of the Railway Board. Therefore, held that there is no such post of “tower wagon-cum-vehicle
driver†in the cadre of the Railway Board and only the post of “tower wagon driver†is available in the cadre.
Reverting to the remaining questions having co-relation with each other, it is to be noted here from the discussion made hereinabove, it is only the
post of the tower wagon driver in the cadre of the Railway Board and there is no post of tower wagon-cum-vehicle driver in the cadre. The Central
Administrative Tribunal while passing the order impugned observed that in reference to the Annexure R/2 dated 11. 2.2009, as the petitioners are not
working on the post of tower wagon driver and working as tower wagon-cum-vehicle driver, therefore, they are not entitled to get the benefit of the
running allowance. As stated hereinabove, the latter part of the Circular (Annexure R/2) does not have any support from the Rules or Law. In this
backdrop, the officer of a Division of the Railway cannot create a post by their own inconsistent to the Rules, therefore, latter part of the Circular
(Annexure R/2) cannot be relied upon to deny the benefit to the petitioners.
It is to be noted here that the respondents have followed the procedure as prescribed in the matter of promotion of the petitioners and they
underwent the process of selection and their results have been declared as evident from the documents available on record and those documents have
not been disputed. Thereafter, they have been promoted by issuing the order (Annexure A/3) dated 10. 6.1996 but in the said promotion order, their
post has been shown as “tower wagon-cum-vehicle driver†though such post is not in existence. No explanation has been put forth, how the
officers of the Railway Board can mention the post tower wagon-cum-vehicle driver, which is not in the cadre of the Railway Board, though they
underwent the procedure of promotion of tower wagon driver.
Once it is concluded that under the instructions of the Railway Board or their Higher Authorities, the procedure has been followed only for the
post of a tower wagon driver to fill up the said post by way of promotion and it has been successfully cleared by the petitioners undergoing the
process. If in an order of promotion, the department refers not existing post of tower wagon-cum-vehicle driver, it would not debar them from getting
the benefit as applicable to the post of tower wagon driver. It is clarified in the facts as discussed above, the department have wrongly shown their
post as “tower wagon-cum-vehicle driver†misnaming the post of “tower wagon driver†in the order of promotion. Thus, the department is
bound to issue the fresh order of promotion correcting their name of the post as tower wagon driver or to issue corrigendam in this regard. The
adverse finding recorded by the Tribunal regarding non-promotion of the petitioners as “tower wagon drivers†stands set aside.
In view of the aforesaid, it is clear that the petitioners have been promoted as tower wagon drivers, however, for grant of the running allowance,
the Circular (Annexure A/4) would be applicable to them. In this regard, the Circular (Annexure A/4) relied by the petitioners asking benefit is
relevant, therefore, it is reproduced as under:-
R.B.E No.74/91
Subject : Payment of Running Allowance to Tower Wagon Drivers. No.E (P&A) III78/RS-III, dated 10.4.1991
The question of classifying Tower Wagon Drivers as Running Staff has been carefully examined by the Board and it has been decided that wherever
the Tower Wagon Drivers are not being treated as Running Staff, they may be classified as Running Staff for all purposes, prospectively with
immediate effect. Such of the Tower Wagon Drivers reclassified as Running Staff should be also paid the running allowance at the rates applicable
for Goods Drivers category prospectively. Post cases decided otherwise shall not be reopened.
This has the approval of the President and issue with the concurrence of the Finance Directorate of the Ministry of Railways.
On perusal thereto, it is clear that the question came up for consideration as to whether the tower wagon drivers are not treated as running staff,
which has been clarified interalia observing that the tower wagon-cum-vehicle drivers are running staff and they be classified as running staff for all
purposes and they are also entitled for the running allowance. Thus, it is to be held that after going through the procedure as prescribed, if the
petitioners have been promoted on the post of tower wagon drivers then merely misnomer of the post in the order would not debar them from getting
the benefit of the running staff as permissible under the Board’s decision Annexure A/4. The subordinate authorities are not supposed to
misinterpret the circular of the Railway Board showing a nomenclature of a different post, which is not in existence in the Rules of the Railway Board
and such an action of the authorities is arbitrary and capricious, which cannot be accepted under the law.
In view of the foregoing observations, the findings as recorded by the Central Administrative Tribunal in reference to the Circular (Annexure R/2)
are hereby set aside and it is held that the said circular is inconsistent to the rules of the Railway Board and the petitioners are holding the post of
tower wagon drivers, however, they would be entitled to the benefit of the Circular (Annexure A/4).
During the course of the hearing, much emphasis has been lay referring the Circular (Annexure R/4) whereby the officers of the Railway Board
have referred the verdict of Hon’ble the Supreme Court and certain observations of the Calcutta High Court whereby the Supreme Court has
given liberty to determine the pay scale with respect to the independent post and accordingly the decision had taken that the tower wagon drivers are
not entitled to get the pay scale of Rs.5800 at par with the Goods Drivers and they shall continue to be in the pay scale of Rs.4000-6000 & Rs.4500-
7000. This is a distinction of the scale of pay in the cadre of the tower wagon driver and it is having nothing to do with the matter of grant of the
running allowance as per the decision of the Railway Board at par to the Goods Drivers treating them as the running staff in different cadre of tower
wagon drivers.
In view of the foregoing discussion, the Circular Annexure R/4 is of no help to the respondents, therefore, in reference to the said circular, if any
contrary finding has been recorded by the Central Administrative Tribunal, it cannot be regarded by this Court as per law and is hereby set aside.
Still one thing, which remains to be adjudicated, is as to why the department without any basis is showing the petitioners as tower wagon-cum-
vehicle driver, senior technical (TW-VD) and sometimes as senior technical (fitter) and as to why their pay scales and pay slips are being prepared
showing these posts. After perusal of the explanation, this Court is unable to accept such action on the part of the department. But because a regret
has been shown by the departmental officials, however, without making any comment in this regard, it is suffice to observe that such mistake ought to
be rectified by the department within a period of two months from the date of communication of this order classifying the petitioners as tower wagon
drivers in a scale whichever they are getting or applicable and correct the Pay Roll. This Court hope and trust that if any such mistake is in the Pay
Roll of the Railway Department, it may be examined and may be rectified thereby there should not be any anomaly in the posts and scales of the
employees and it should be as per Rules of the Railway Board.
In view of the foregoing discussion, these petitions succeed and are hereby allowed. The order impugned commonly passed by the Central
Administrative Tribunal Jabalpur Bench, Jabalpur on 6.12.2017 in Original Application Nos.200/00402/2015, 200/00403/2015, 200/00404/2015,
200/00953/2015 stands set aside. The order Annexure A/1 passed by the authorities denying the benefit of the running allowance on the pretext of not
working or taking the training is of no substance, therefore, it also stands quashed. It is directed that the petitioners or alike employees be declared
tower wagon drivers by issuing orders in this regard. It is further directed that in terms of the Circular (Annexure A/4) issued by the Railway Board,
they would be entitled to get the benefit of the running allowance as permissible to them under the law. Let such exercise must be completed by the
respondents within a period of four months from the date of communication of this order and accordingly all the consequential benefits shall be
granted. In the facts & circumstances of these cases, the parties are directed to bear their own costs.