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Judgment
O R D E R
Per: Justice Narendra Kumar Johari, Member (Judl.) :- The present Original Application has been filed by the applicant while he was working as Divisional Electrical Engineer (G), RNCC, ECR, Rajendranagar Coaching Complex, Rajendra Nagar, Patna. The applicant was granted promotion to Sr. Scale (Adhoc) vide orders dated 21.02.2013 / 26.02.2013 (Annexures-A/2 & A/3, respectively). Thereafter, the applicant submitted his representation dated 26.02.2013 (Annexure-A/4) before the Sr. Divisional Personnel Officer, ECR, Danapur with contention that since he has been promoted to Sr. Scale vide order dated 26.02.2013 as such, his promotional increment, as per increment fixation norms of 6th Pay Commission, be granted from 1st July, 2013. He further submitted that the above date of increment is not to be changed. As such, if increment is granted on date of promotion, next increment cannot be due in February 2014 and it will fall on 1st July, 2014 i.e. on fixed annual increment date for all employees. As per applicant if increment is fixed on date of promotion, then there will be no incremental benefit on promotion. Accordingly, the applicant requested for fixation of his promotional increment from 1st July, 2013. Further, vide order dated 05.02.2015 (Annexure-A/5) the applicant was ordered to be appointed in Group ‘A’/ Junior Scale of Indian Railway Service of Electrical Engineering (IRSEE) w.e.f. 11.06.2014, Panel Year 2013-2014 (DITS & seniority from 11.06.2009). On 30.03.2015 (Annexure-A/6) the applicant again submitted his representation before the Sr. DPO, Danapur by referring his earlier representation mentioning that since he was promoted to Group-‘A’ w.e.f. 11.06.2009 as such, his pay fixation might be fixed from 1st July (date of increment) on his regularisation in Sr. Scale post. Again, vide representation dated 23.02.2016 (Annexure-A/8) the applicant by referring his earlier representations submitted that his fixation was done from the date of his promotion i.e. from 26.02.2013 and his regular annual increment which was due on 1st July 2013 was not granted to him. Thereafter, next increment was granted to the applicant on 01.07.2014 which means that he was not granted increment except advancement of 125 days for one time. If he could have been promoted 125 days later, he could be getting regular increment on 01.07.2013 as well as one increment for promotion. Accordingly, if he could have been promoted 57 days earlier than 26.02.2013 then also he could be getting promotional increment as well as regular increment on 01.07.2013. He further requested to the authorities that his promotion might be regularised in the Sr. Scale by allowing him fixation of pay on promotion from the date of increment i.e. from 01.07.2013 and arrange pay fixation accordingly.
Despite several representations submitted by the applicant since his case remained undecided hence, he sought information under RTI Act vide his application dated 22.07.2016 (Annexure-A/9) which was replied by the authority vide letter dated 11.08.2016 (Annexure-A/10) informing the applicant that his matter was referred to Railway Board for advice in the matter and the reply is still awaited. The applicant again submitted an application dated 21.03.2017 (Annexure-A/11) before the CPO/Administration-cum-1st Appellate Authority, ECR, Hajipur, reiterating his grievances. In reply, the applicant was informed that his matter was sent to Accounts/EGA Section and action would be taken after receipt of the advice. The application of the applicant was still left undecided, therefore, he approached to the Web Portal ‘Nivaran’ (Platform for Resolution of Service Related Grievances of Serving and Former Railway Employees). Subsequently, the claim of the applicant was rejected by a non-speaking order dated 20.07.2017 (Annexure-A/1). Aggrieved by the above rejection of his claim, the applicant approached this Tribunal with the following relief:-
“8A. The decisions of FA&CAO, East Central Railway, Hajipur, dated 20.07.2017 as well as of CPO, East Central Railway, Hajipur dated 20.07.2017, communicating the applicant vide their non speaking orders :- In view of above case, matter has been re-examined and it is decided that re-fixation does not appear to be permissible in this case.”, conveyed to applicant through Nivaran Web Portal, as contained in Annexure-A/1, may be quashed and set-aside.
B. The respondent authorities may be directed to allow benefits of increment to the applicant w.e.f. 1st of July, 2013 on his promotion to Sr. Scale with all consequential benefits and to arrange pay fixation of applicant accordingly.
C. Any other relief/reliefs as the applicant is entitled and your Lordships may deem fit and proper in the ends of justice.”
The opposite parties have filed their written statement in which they have mentioned that the pay, on date of promotion of applicant, was fixed from 26.02.2013 which is just and proper. As per existing adhoc promotion norms the request of the applicant to fix his pay from the date of next increment (in lower grade) as per his option, is not permissible. As per extant rules, on adhoc promotion in Sr. Scale (to the Group ‘B’ officers) of all the organised services, option for pay fixation from the date of next increment in lower grade is not allowed and as such, the grievance and claim of the applicant was examined and after careful consideration of all the facts and rules on the subject, it was found that the re-fixation, as prayed by the applicant, is not permissible.
The applicant has filed rejoinder against the written statement in which he has stated that the contention made by the opposite parties in their written statement is against the norms of Railway Board’s order RBE No. 138/2007, dated 31.10.2007. It is further submitted in the rejoinder that the applicant has pointed out that his pay was fixed on 26.02.2013 as per existing adhoc promotion norms. The applicant had applied to fix his pay from the date of increment as increment date has not to be implemented from the date of promotion. The applicant had also applied for his fixation of pay from the date of increment on regularisation in Sr. Scale. The applicant has further submitted that this is not only a case of adhoc promotion in Sr. Scale rather, it is the case when a junior is working to regular Sr. Scale, why an eligible senior should work on adhoc promotion, why his pay cannot be fixed as per regular promotion when provision in Rule is available. Had the applicant been promoted later he would have been granted annual and promotional increments. The promotion granted earlier should be advantageous to employee than later promotion. Resultantly, the applicant has been denied the benefit of his one increment. Consequently, the applicant is facing financial injury which is current and would continue during his entire service career as well as at the time of retirement also. Therefore, the written statement filed by the opposite parties has no force and deserves to be rejected.
Counsel for opposite parties has submitted the written argument which has been kept on record.
We have heard the contentions of learned counsels appearing for the parties and have carefully gone through the record.
The case of the applicant is that he was promoted in Sr. Scale on adhoc basis vide order dated 26.02.2013 and was granted the promotional pay from 26.02.2013 itself. He was not satisfied by his fixation of pay from the date of promotion, rather he had requested to fix his pay from 1st July 2013. According to applicant, on pay fixation from the date of promotion i.e. from 26.02.2013, he was not granted the increment as per time scale. He was only granted advancement of 125 days for one time. The counsel for the applicant argued that if he could have been promoted 125 days later, he could have been granted regular increment on 01.07.2013 as well as one increment for promotion. Learned counsel further submitted that if the applicant would have been promoted 57 days earlier, from 26.02.2013, then also he would be getting promotional increment as well as regular increment on 01.07.2013. Accordingly, by rejection of claim the applicant has been denied benefit of one increment.
The counsel for the applicant based his argument on Para 2(b) of RBE No. 138/2007, dated 31.10.2007. He has referred to Para 2(b), (c) and 3 of above RBE, which reads as under:-
“2 (a)
(b)The saving clause of Rule 1313 [FR22(1)(a)(1)-R.II (Sixth Edition-1987)/Second Reprint Edition 2005, lays down that except in cases of appointment on deputation to an ex-cadre post, or to a post on adhoc basis or direct recruitment basis, the Railway servant shall have the option to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment to have the pay Central Administrative Tribunalfixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be re-fixed in accordance with this rule on the date of accrual of next increment in the scale of pay of the lower grade or post. In cases where an adhoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment.
(c)Under Rule 1314 [FR 22(I)(a)(2) – R.II (Sixth Edition-1987)/Second Reprint Edition 2005, also there is a provision that on appointment on regular basis to such new post, other than an ex-cadre post on deputation, the Railway servant shall have the option, to be exercised within one month from the date of such appointment, for fixation of pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.
3.It is reiterated that in order to enable the officials to exercise the option within the time limit prescribed, the option clause should invariably be incorporated in the promotion/appointment order so that there are no cases of delay in exercising the options due to administrative lapse.”
On the other hand, the counsel for opposite parties has submitted that Group ‘B’ officers when promoted in Sr. Scale on adhoc basis is granted fixation benefit of pay from the date of adhoc promotion and not from the date of his increment as per option of the applicant. Learned counsel further submitted that in the case of promotee officers they are given incremental benefit of fixation of pay on adhoc promotion in time scale of pay plus Grade Pay of Rs.6600/- whereas, the directly recruited officer when promoted on adhoc basis they are granted charge allowance from Junior Scale to Sr. Scale. Accordingly, with regard to present applicant, his pay has been fixed on 26.02.2013 i.e. from the date of his Central Administrative Tribunaladhoc promotion in the time scale of pay plus Grade Pay of Rs.6600/-. There is no provision of regularisation in Sr. Scale of Group ‘B’ officer and re-fixation on option basis from the date of increment. Learned counsel for opposite parties based his argument on the provisions of RBE No. 313 of 1999.
The above RBE No. 313/99 is related with the fixation of pay of Group ‘B’ Officers on promotion to Sr. Scale on adhoc basis and on induction in Jr. Time Scale (Group –‘A’). The relevant provisions of RBE are reproduced herein below for ready reference:-
“Queries are being received from a few Railway administrations regarding admissibility of option for fixation of pay from the date of next increment when a Gr. ‘B’ Officer is promoted directly to Gr.’A’ Sr. Scale on adhoc basis and at the time of refixation on induction Gr.’A’ (JTS).
In this connection, attention is drawn to the clarification given against point No. 4 of Board’s letter No. E(P&A) II-81/PP4 dated 19.03.1985 wherein it was clarified that option under FR 22C is not permissible in respect of adhoc promotions. Further, in the revised Rule 1313 (FR 22(I)(a)(1)R.II (erstwhile FR 22-c) also, it is specifically laid down that above option is not permissible in the adhoc promotions.
The above option is also not envisaged in the specific methods of pay refixation allowed to Gr.’B’ Officers on induction in Gr.’A’ JTS w.e.f. 01.01.1986, vide Board’s letters of even number dated 10.09.1992 and 22.06.1993. The above position was already clarified to CPOs and FA&CAOs of All Indian Railways & Production Units vide this office endorsement of even number dated 13.02.1996.
The pay of concerned officers may please be regulated/refixed accordingly, if already not done.”
The above RBE No. 313/99 has been issued to clarify and remove the anomalies regarding the fixation of pay on adhoc promotion and has been issued subsequent to RBE No. 138/2007. This RBE 313/99 specifically provides that in case of promotion of Group ‘B’ Officer to Sr. Scale on adhoc basis, the promotee officer is not entitled to give option of fixation of pay in accordance with the provisions of FR 22(c).
FR 22(c), now restructured as FR-22(I)(a)(1) governs the initial pay fixation for Central Government employees upon promotion or appointment to the post carrying higher duties and responsibilities which makes the provision that employees can elect to have fixation directly from the date of promotion or from the date of his next ensuing annual increment in the lower post. The provisions of FR 22(I)(a)(1) reads as under:-
“F.R.22.(I)(a)(1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or [rupees one hundred only], whichever is more.
[Save in cases of appointment on deputation to an ex cadre post, or to a post on adhoc basis or on direct recruitment basis], the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under the rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an adhoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment.
*Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post or rupees one hundred, whichever is more.”
RBE No. 313 of 1999 has cleared all the anomalies with regard to fixation of pay for the officer who is promoted to Sr. Scale on adhoc basis. The present applicant has also been promoted in Sr. Scale vide order dated 26.02.2013 on adhoc basis who was given his appointment to Group ‘A’/Jr. Scale of Indian Railway Service of Electrical Engineering (IRSEE) w.e.f. 11.06.2014, vide order dated 05.02.2015. (The copy of the Memorandum has been filed by the applicant as Annexure-A/5 to the OA).
In view of the pleadings, documents on record, arguments advanced by the counsel for both the sides and RBEs submitted by the counsel for the parties, we are of the confirmed view that since the applicant was promoted to Sr. Scale on adhoc basis vide order dated 26.02.2013, therefore, he is not entitled to give any option for fixation of his pay from 01.07.2013. Hence, the OA, being devoid of merit, is liable to be dismissed.
Accordingly, the OA is dismissed with no order as to costs.