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Judgment
O R D E R
Delivered by Hon’ble Mr. Mohan Pyare, Member-(Administrative)
Shri Rajesh Kumar, as well as Shri P.K. Mishra, learned counsel for the applicant and Shri K.K. Ojha, learned counsel for the respondents are present.
By way of this original application the applicant has sought the following reliefs:-
“a.) To issue an order or direction in the nature of certiorari to quash and set aside the impugned order dated 04.6.2018 (Annexure A-1) passed by the Respondent No.4.
b.) To declare the action of the respondents in not granting the Grade Pay 5400/- as given to similarly placed junior persons applicants arbitrary as illegal, discriminatory and arbitrary.
c.) Issue an order or direction in the nature of mandamus to the respondents to extend the benefits of order dated 05.08.2011 (supra) in Ο.Α. No.1075 of 2010 (CAT Madras Bench) to the applicants from the date of grant of it to the juniors with arrear of pay/pension and other consequential benefits with interest @ 12% PA.
d.) Issue an order or direction in the nature of mandamus to the respondents to grant Grade Pay Rs.5400/- to the applicants under MACP from the date of grant of it to the juniors and re-fix the pay/pension accordingly.
e.) Issue any further orders or direction, which this Tribunal may deem fit and proper in the circumstances of the case.
f.) Award the appropriate cost in favour of the applicants.”
The brief facts of the case are that the applicants joined Railway Service on the post of Accounts Clerk (CG-II) under the administrative control of respondent no.4, passed the All India departmental examination of Appendix-II and Appendix-III-IREM and got promotion to Section Officer/Senior Section Officer/ISA/Sr.ISA/TIA/Sr.TIA. Some of the juniors who could not pass the departmental examination were considered for MACP and got more pay (Grade pay of Rs.5400/-). The applicants submitted a joint representation dated 04.07.2017 followed by reminder dated 05.03.2018 which has not been acted upon, hence they have filed this original application.
Learned counsel for the applicant has submitted that similarly situated persons of Accounts department of Southern Railway approached Central Administrative Tribunal, Madras by filing OA No.1075 of 2010 and vide order dated 05.08.2011 the Tribunal ordered to extend the benefit of Grade pay of Rs.5400/- at par with their juniors. Aggrieved by the judgments of CAT Madras, respondents approached Hon’ble High Court Madras by filing writ petition No.1078, 10046-10049 & 18262/2012. The Hon’ble High Court of Madras upheld the order passed by the CAT Madras and dismissed the writ petition filed by the respondents. Aggrieved by the order of Hon’ble High Court respondents approached the Hon’ble Apex Court by filing SLP (C) C.C.No.17241-17246/2014 which was also dismissed by the Hon’ble Supreme Court of India vide order dated 07.11.2014. Review petition against the dismissal of SLP by the respondents has also been dismissed by the Hon’ble Apex Court. The competent authority southern Railway implemented the order and direction dated 05.08.2011 passed by CAT Madras in OA No.1075 of 2010 in a letter dated 06.11.2015.
The similarly situated persons of Accounts department of South Western Railway also approached the CAT Bangalore by filing OA Nos.170/0049-00080/2016 which was allowed vide order dated 07.09.2017. The applicant of the above original application were extended the benefit of pay upgradation with grade pay Rs.5400/- vide office order dated 30.11.2017. The applicant’s have cited the above orders of CAT Madras and Bangalore as well as judgment of Hon’ble High Court of Madras and judgment of Hon’ble Apex Court. On 04.07.2017 the applicant has given representation followed by reminder dated 05.03.2018. As there was no response from the respondents, the applicants have filed OA No.326/2018 before the CAT, Allahabad which was decided by directing the respondents to decide the representation dated 05.03.2018 of the applicants by passing a reasoned and speaking order. The respondents have rejected the claim of the applicant without taking into consideration the judgment of CAT Madras passed in OA No.1075 of 2010. The order dated 04.06.2018 passed by respondents no.4 is a non-speaking order without assigning any reasons and is violative of principles of natural justice. The relevant portion of the order is quoted below:-
“Besides challenging the said impugned order the applicants have also challenged clause 10 and 11 of the MACP Scheme which prevents stepping up of pay of seniors at par with the juniors in the application as stated above.”
Per contra the respondents have filed the counter reply and submitted that the applicants are not similar to that the applicants in OA No.1075/2010 of CAT Madras. The CAT Madras while considering OA No.10411/2011 has upheld the legal validity of para 20 of MACP Scheme dated 10.08.2009. The SLP (C) arising out of the order of CAT Madras Bench in OA no.1075/2010 was dismissed at admission stage without going into the merits of the case and same cannot be construed as upholding of the order of lower court. Dismissal of SLP filed under Article 136 of the Constitution of India does not amount to upholding of the order from which the leave to appeal is sought. The admissibility of stepping up of pay/grade pay under MACP has been adjudicated by CAT Madras in OA No.10411/2011 and Tribunal held that earlier passed order in OA No.1075/2010 is passed per-incurium. In WP No.12808/2014, M.V. Ramkrishnan Vs. U.O.I. & Ors The Hon’ble High Court of Madras has rejected the claim of the juniors for grant of higher grade pay under MACP scheme at par with their juniors who were drawing their grade pay as per their entitlement. The applicants in the present original application have been granted three promotions in turn and are not entitled for benefit under MACP scheme. The speaking order passed by respondents in compliance of order in OA No.326/2018 is a reasoned and detailed order. There is no illegality in the order and on the basis of above submissions, requested to dismiss this original application being devoid of merit.
In their rejoinder affidavit the applicant has submitted that the applicant of this original application are similarly situated persons of OA No.1075/2010 before the CAT Madras Bench. OA No.10411/2011 of CAT Madras is not similar. The CAT Bangalore also passed the order dated 07.09.2017 in OA No.170/00049-00080/2016 relying upon the judgment of CAT Madras. The Hon’ble High Court of Madras and Hon’ble Apex Court order. The Railway Authority has implemented the above order of CAT Bangalore after dismissal of the appeal filed by the Railway before the Hon’ble High Court, Karnataka. Respondents have mentioned that dismissal of SLP was not on merit but they have not raised the issue of dismissal of their review application by Hon’ble Supreme Court of India at all.
Respondents have filed supplementary counter affidavit and through that they have submitted that against the order of CAT Bangalore and Hon’ble High Court of Karnataka dated 29.10.2018 in the matter of T. Dannapa & Ors. a SLP bearing Dy. No.47991/2018 is still pending adjudication.
We have heard the rival submissions of the learned counsel for the parties and verified the documents available on record.
The relevant paragraph no.6 and 8 of OA No.1075/2010 of CAT Madras is reproduced below:-
“6.From the records, it is seen that the applicants who were initially appointed as Clerks and having been qualified in the departmental examinations at various stages have been promoted to the post of Accountants and Section Officers. Subsequently, the applicants were promoted as Sr. Accountants and Assistant Accounts Officers based on the seniority and all the applicants are holding the post of AAOs. The above facts are admitted by the official respondents in their reply. In the reply it is also admitted that the private respondents have not acquired the qualifying examinations for promotion as Section Officers and accordingly they were stagnated at the level of Sr. Accountants When the facts are like this, it appears that and introduction of MACP scheme while implementing the recommendations, three financial up gradations were extended to respondents. According to the respondents, they are rightly granted the upgradation and the grade pay of Rs.5400/- was given to them based on the eligibility criteria of the above scheme. We are not in agreement that the above reasoning as contended by the official respondents as well as by me private respondents. When the fact remains that the applicants having qualified in the departmental examination and able to gain further promotion as per the Recruitment Rules and also exercising as against the private respondents, we are at loss to note as to now they could be given lesser pay, whereas the private respondents were given higher pay. We do not find fault with the official respondents by devising the scheme to extend the benefits of such of those employees who are stagnating in service for number of years but that does not mean that in the guise of Implementation of the said scheme, persons like the applicants who acquired the necessary qualifications viz. completion of the departmental exanimations and gained regular promotions as per Recruitment Rules could be given lesser scale of pay The private respondents who are holding the position of Sr. Accountants functioning under the control of the applicants cannot be fixed in a grade pay higher than the applicants. In fact, F.R.22 provides for the removal of anomalies by stepping up the pay of seniors when their juniors happened to draw more pay. In the Instant case, the private respondents who are functioning inferior than the applicants and who are not even qualified to be promoted to the post held by the applicants are given higher pay scale, in the guise of Implementation of the scheme which is unsustainable in law.
8.For the reasons stated above, the present O.A. is disposed of in the following terms:
"There will be a direction to the respondents to grant the revised pay to the applicants by extending the benefit of MACP Scheme in favour of the applicants by fixing their Grade Pay of Rs.5400/- from the date on which the said benefit was extended to their juniors and to disburse the accured arrears, if any to the applicants within a period of four weeks from the date of receipt of a copy of this order".
However, we are not inclined to quash the clause 10 and 11 of the O.M. dated 19.5.2009 as prayed for by the applicants.”
The Hon’ble High Court of Madras in Writ petition No.1078,10046 to 10049 and 18262 of 2012 in which para 13 which is relevant is reproduced below:-
“13.In the case on hand, the private respondents 4 to 26 in the original applications are admittedly juniors to the private respondents in these writ petitions and they did not qualify on time for getting their promotion and consequently got stagnated and on account of the same, they are not conferred with higher grade pay of Rs.5,400/-. The Tribunal has taken into consideration of the fact that admittedly the private respondents 4 to 26 did not pass the departmental tests on time and got stagnated at the level of Senior Accountants and since they have been conferred with higher grade pay of Rs.5,400/-, has rightly granted the said relief in their favour. It is to be pointed out at this juncture that the private respondents 4 to 26 in the original applications have not been put to any prejudice and what the Tribunal done was, merely stepped up the pay scale of the original applicants to that of the private respondents 4 to 26 and it is in tune with the principle of parity and equity enshrined in Article 14 of the Constitution of India."
The Hon’ble High Court of Madras has dismissed the writ petition No.1078, 10046 to 10049 and 18262 of 2012 filed against the judgment of CAT Madras in OA No.1075/2011. The judgment of Hon’ble High Court of Madras has been affirmed as SLP/review petition against the said order has been dismissed by the Honble Apex Court. CAT Bangalore in OA No.170/00049-00080/2016 vide order dated 07.09.2017 has also allowed the above Original applications.
The verification of facts involved in OA No.1175/2011 of CAT Madras and Writ petition No.12808/2014 of Hon’ble High Court of Madras arising out of the above original applications reveals that the applicants in the original application were initially appointed in the cadre of messenger in Group ‘D’ in the year 1968 and promoted to LDC through departmental examination in 1982. The respondents in the above original application i.e. K.P. Radhakrishnan and E. Sathyanathan were appointed as LDCs by way of direct recruitment during 1984. Hence rightly they were treated different from the applicant of OA No.1075/2010 and in writ petition no.12808/2014. The applicant and private respondents have two different source of entry and are uncomparable.
The Hon’ble High Court of Madras in para 7 of the judgment have held as under:-
“In the case on hand, the scheme governing the direct recruitees does not cover the petitioner. Therefore, the petitioner cannot claim the same benefits as a matter of right. Accordingly, this writ petition is dismissed. No costs.”
A careful scrutiny of the facts available in the original application reveal that facts in the case relied upon by the respondents is different from the facts in this original application. Further, the stand taken by the respondents that dismissal of SLP by Hon’ble Apex Court does not establish the rights of the applicants are also untenable. Moreover, respondents also filed review petition in the Hon’ble Apex Court which was also dismissed. In the circumstances the ratio decided by the Hon’ble High Court in affirming the order of CAT Chennai attained finality. The facts involved in the present original application are similar to the facts decided by CAT Madras, affirmed by Hon’ble High Court of Madras and SLP/Review Petition dismissed by Hon’ble Apex Court.
Based on the above parity CAT Bangalore and Hon’ble High Court of Karnataka have also granted the similar benefits to applicants. The pendency of SLP against the above judgment of Hon’ble High Court of Karnataka has no impediments on the issue decided by Hon’ble High Court of Karnataka till it is reversed by Hon’ble Apex Court.
As applicants in the present original application are similarly situated to applicants in OA No.1075/2010 before CAT Madras, hence they are entitled to similar benefits.
Accordingly, the respondents are directed to extend the benefit of grant of grade pay of Rs.5400/- to applicants from the day their juniors were granted benefit of Rs.5400/- grade pay. They are also directed to disburse the arrears with simple interest @ 6.5% till date of disbursement within four months from the date of receipt of this order.
With the above direction, the original application is allowed to the above extent. No Costs.
All the related MAs stands disposed of.