T. Ramachandran vs Union Of India & Ors.

Per: Justice Sunil Thomas, Judicial Member -The applicant herein was a Loco Pilot under the Southern Railway in PB-2 of Rs. 9,300-34,800/- with Grade Pay of Rs. 4,200/-. While so, he was promoted on 22.5.2015 as Senior Loco Inspector [now Chief Loco Inspector (in short CLI)] in the PB-2 of Rs. 9,300-34,800/- with Grade Pay of Rs. 4,600/- on ad hoc basis. Accordingly, his pay was fixed at Rs. 36,280/- with Grade Pay of Rs. 4,600/-. He was superannuated on 30.11.2015. According to the applicant, he retired as CLI and had worked so, till his date of superannuation. Notwithstanding that he had retired as the CLI, his pension and retirement benefits were calculated as if he had retired as Loco Pilot/Mail. To substantiate this, the applicant placed reliance on Annexure A3 PPO, dated 28.11.2015. He was not paid the annual increments due on 1.7.2013, 1.7.2014 and 1.7.2015. According to the applicant, when he inquired about it with the office of the 2^nd respondent, he was informed that they were not aware of the method of calculating increment, if the band pay exceeded the maximum of the pay band. He further claimed that since the pay had exceeded the maximum, the respondents ought to have drawn his pay in PB-3 with Grade Pay of Rs. 5,400/- at least from 1.7.2014, if not, from the date of his promotion. He claimed the benefit on the strength of Rules 10 and 13 of Railway Servants (Revised Pay) Rules, 2008. He claimed that he was entitled for fixation and pay of increments accordingly. Claiming it, Annexure A4 representation was submitted on 17.12.2015. There was no reply. His retirement benefits were paid at the reduced rate. Hence, the OA was filed. The relief sought was to quash Annexure A3 to the extent it fixed the applicant’s pension as if he was superannuated from service as Loco Pilot (Mail) on 30.11.2015, to direct the respondents to fix his pension and other retirement benefits taking note of his superannuation from service as CLI on 30.11.2015 and to pay him all consequential benefits. Another relief sought was to direct the respondents to grant him annual increments and other benefits with effect from 1.7.2014 in PB-3 plus Grade Pay of Rs. 5,400/- in terms of Rule 10 of the Railway Servants (Revised Pay) Rules, 2008 and to grant the consequential benefits.

Respondents filed a detailed reply statement contending that the applicant was promoted as Senior Loco Inspector in Pay Band-2, on ad hoc basis only. It was subject to the condition that he will be confirmed only on passing of a written test conducted for regular promotion as CLI. He failed in the written test and as such was reverted to his parent cadre of Loco Pilot (Mail). Hence, his claim that he was entitled for the monetary benefits while holding the post of CLI on ad hoc basis was not sustainable. The post of CLI was a selection post and due to administrative reasons the selection could not be completed. Consequently, he being the senior most Loco Pilot (Mail) in Trivandrum Division was placed as CLI on ad hoc basis, subject to passing of the selection test before being absorbed on regular basis. Since he failed in the written test, he was reverted to his parent cadre on 27.11.2015, fixing his pay at Rs. 28,850/- plus Grade Pay of Rs. 4,200/- in Pay Band-2 as Loco Pilot (Mail). Pensionary benefits were granted accordingly. It was contended that the applicant’s claim that he continued to hold the post till his retirement was not true. He was reverted to the post of Loco Pilot (Mail) on 27.11.2015 by Annexure R1 office order dated 27.11.2015. As per Annexure A1 it was specifically provided that he will not have any claim for continuance, promotion, continuation, seniority in the category of Senior Loco Inspector, unless he was selected and placed in the panel though regular selection which will be processed subsequently. To substantiate that the applicant had failed in the written test, the respondents relied on Annexure R2 results. It was stated that Annexure A2 order of superannuation was issued before the issuance of Annexure R1 order reverting him as Loco Pilot (Mail) with effect from 27.11.2015. Annexure A2 was issued so as to enable the applicant to check his service records and vetted before paying retirement benefits on the last working day of his office. Regarding the claim for annual increment from 1.7.2014, it was stated that further orders were to be passed by the Headquarters, Madras. It was stated that fixation of pay on promotion to officiate as CLI was done as per Rule 1513(c) of RII. The claim that the applicant was superannuated as Chief Loco Inspector was not true. In the light of Annexure R1 reversion order, he was entitled for retirement benefits as Loco Pilot (Mail) in PB-2 of Rs. 9,300-34,800/- plus Grade Pay of Rs. 4,200/- and was granted all the benefits.

In reply to the reply statement a rejoinder was filed specifically contending that the applicant was never reverted as Loco Pilot (Mail) and that the applicant continued as CLI. There was no substitute to the applicant. Hence, he was entitled to pension and benefits calculated on the emoluments de facto drawn by the applicant as on the date of superannuation. It was stated that the applicant was neither reverted nor was he communicated about the order of reversion. Annexure R2 produced by the respondents would show that all those who had participated in the written examination failed and there was no regular selected candidate to replace the applicant. The pension was calculated under the Rules based on the emoluments that the Railway servant was actually drawing as on the date of retirement or the average of emoluments the employee has been drawing for the past preceding 10 months whichever was beneficial to the servant concerned. The applicant placed reliance on RBE 112 of 2008 dated 15.9.2008 and the Railway Services (Pension) Rules, 1993 produced as Annexures A5 and A6 respectively. It was contended that he continued as the CLI until superannuation. Since there was no substitute, he continued to discharge the functions of the CLI.

Heard both sides and examined the records.

The applicant herein who was the senior most Loco Pilot (Mail), ERS was promoted to officiate as SLI purely on ad hoc basis by Annexure A1 order dated 21.5.2013. It inter alia, prescribed that applicant will not have any claim for continuance, promotion, continuation and seniority in the category of CLI unless he was selected and placed in the panel through regular selection, which will be processed subsequently. Annexure A1 shows that the applicant was placed in the pay band Rs. 9,300-34,800/- plus Grade Pay of Rs. 4,600/- and his pay was fixed at Rs. 36,280/- plus Grade Pay of Rs. 4,600/-.

Thereafter, Annexure A2 office order dated 5.10.2015 was issued informing that the applicant who was working as ad hoc CLI/ERS will be due for superannuation on 30.11.2015.

The specific contention of the applicant was that he continued to hold the ad hoc post of CLI and retired as such on 30.11.2015. According to him, the retirement benefits and his pension has to be calculated on the basis of the last drawn salary. On the other hand, this contention was vehemently opposed by the respondents on a specific premise that the applicant was reverted to his original post of Loco Pilot (Mail) by Annexure R1 order dated 27.11.2015. Annexure R1 states that consequent to the finalization of selection for the post of CLI, the applicant herein who was promoted as CLI on ad hoc basis was reverted to his parent cadre as LP (Mail) with effect from the date of issue of the office order and posted to ERS.

Normally, Annexure R1 being an official office order would have been singularly sufficient to hold that the applicant was reverted. It has to be presumed that when official orders are issued, it was acted upon and such document has to be given to its credence on its face value. The order is seen dated 27.11.2015, and the copies of it were marked to various offices, including a copy marked to the CLI.

However, in the rejoinder, the specific contention of the applicant was that Annexure R1 was not served on him; it was not acted upon and that the applicant factually continued to hold the post of CLI till his retirement. It was specifically affirmed and reiterated that applicant was not reverted nor was he communicated with the order of reversion. It was contended that he continued to officiate as the CLI until superannuation from service. The learned counsel for the applicant to supplement it, placed reliance on Annexure R2 which was the result of the written examination for selection to the post of CLI. It gave the details of the marks obtained by each of the candidate. It was specifically mentioned therein that the minimum qualifying marks in the selection was 60%. Admittedly, the applicant failed in the examination. It is also clear that all other candidates who had appeared along with him failed to secure 60% marks and none of the above person was selected. In the above circumstances there seems to be some justification in the contention of the applicant that since nobody was qualified there was no other person to take charge and hence, the applicant was directed to continue to hold the post notwithstanding Annexure R1.

Annexure A2 was explained by the respondents by contending that it was issued in advance, only to caution about his date of superannuation and also to take note of the dates of retirement and birth as pr records. It was also contended that since Annexure A2 was issued much anterior to Annexure R1, the applicant was designated as working as ad hoc CLI. It was in consequential, it was contended.

It is pertinent to note that in spite of the specific and categorical assertion by the applicant that Annexure R1 was not communicated to him, not acted upon and notwithstanding it, since no other person was selected, he was directed to continue to hold the office, was neither disputed by filing an additional reply statement nor it was sought to be discredited by other documents. In the nature of above specific pleading, it was incumbent on the Railways to answer it. This factual aspect should have been denied either by specific denial or demolished by producing documents to show that applicant, in obedience to Annexure R1 reported at his parent office, or that another officer was posted/given ad hoc appointment, in place of applicant. Absolutely no document was forthcoming to show that the applicant joined his parent cadre on reversion. The respondents have also not disclosed the person who took charge of CLI after Annexure R1. The contention of the applicant that he was continuing to hold the post of CLI till his date of superannuation could have been easily demolished by specifically referring to the documents available with the office to show that the applicant stood reverted and took charge of that office. It could have also been established that after Annexure R1 another person took charge of the CLI in place of the applicant. Respondents did not even attempt to disprove this pleading. There is not even an affirmation from the respondents denying the specific assertion by the applicant that he continued to hold the post of CLI till the date of superannuation.

To substantiate the contention of the applicant that he continued to hold the post of CLI till the date of superannuation, MA No. 1359 of 2016 was filed by the applicant calling upon the respondents to produce the muster roll pertaining to the Loco Inspectors maintained by the Crew Booking Centre at Ernakulam Junction Railway Station for the period from 1.1.2015 to 31.12.2015. Pursuant to the direction issued by this Tribunal on 20.12.2016, the muster roll was produced. Since it was produced on the request of the applicant and not voluntarily by respondent, it was suo moto marked on the side of the applicant as Annexure A9. Annexure A9 shows that the applicant had signed the muster roll during the month of November, 2015 till 10.11.2015. Thereafter, he was on sick leave till 26.11.2015. He has signed on 27^th and 28^th November, 2015. 29^th November, 2015 is marked as ‘R’, stated to be the day of rest. Thereafter, on 30^th November, 2015 there is an endorsement which is not clearly discernable. There is also an endorsement in that muster roll that the applicant was terminated with effect from 30.11.2015 vide office order No. 46/2015/Elec./OP dated 05.10.2015, which is admittedly Annexure A2. Strangely there is no reference to Annexure R1 in Annexure A9. The crucial fact is that even though the respondents specifically contended that the applicant was reverted by Annexure R1 on 27.11.2015, he is seen to have signed on the muster roll as CLI on 27^th and 28^th November, 2015. His absence on 29^th as day of rest is also marked in the muster roll of CLI, which clearly indicates that notwithstanding Annexure R1, the applicant continued to sign the muster roll of CLI. This document has to be appreciated in the background of absence of denial of the specific averment in the Original Application as well as in the rejoinder that the applicant retired as CLI on 30.11.2015. In the light of the materials placed before us, it has to be concluded that the applicant continued to hold the post of CLI till the date of his retirement.

The next grievance of the applicant was that he was not paid the increment due to him on 1.7.2013, 1.7.2014 and 1.7.2015. According to the applicant, in case of promotion from one Grade Pay to another in the revised pay structure, the fixation will be done in accordance with Rule 13 of the Railway Servants (Revised Pay) Rules, 2008. The said Rule reads as follows:

In the light of the above Rule, according to the applicant, the pay of the applicant was fixed taking into consideration the fact that the applicant was running staff and the applicant’s pay in the lower grade must be basic pay plus 30% of the basic pay.

The applicant also placed reliance on second proviso to Rule 10 of Railway Servants (Revised Pay) Rules, 2008 which reads as follows:

It was contended by the learned counsel for the applicant that by virtue of Annexure A1, his pay was fixed at Rs. 36,280/- plus Grade Pay of Rs. 4,600/-. Accordingly, the said pay exceeded the maximum of PB-2 at Rs. 34,800/- with effect from the date of Annexure A1 which was 21.5.2013. Accordingly, his pay ought to have been in PB-3 plus GP of Rs. 5,400/- at least with effect from 1.7.2014 and again with effect from 1.7.2015, it was contended.

Regarding the claim of the applicant that he was not drawn the increments, the only answer given in the reply statement was at paragraph 6 wherein it was specifically stated that the matter needs to be clarified from the headquarters. Even according to the applicant though he had inquired with the Railways regarding the mode of drawing increments, it was stated that they were not aware of the method of increments in cases where the band pay has exceeded the maximum of the pay band.

Pursuant to our direction regarding the amount paid to the applicant, an affidavit was filed by the respondents dated 28.2.2024. The affidavit clearly gives the detailed statement regarding the step-by-step calculation of his retirement benefits and pension. It was stated that the pension was refixed based on the 10 months emoluments prior to his date of retirement. It is seen that the claim of the applicant that he continued to hold the post of CLI and that he was not granted the increment at least from 1.7.2015 are not reflected in the affidavit.

Pending the proceedings, the respondents filed an affidavit dated 20.7.2023 by which it was stated that in compliance of the order of this Tribunal dated 13.6.2023 and based on the revised pension order issued in favour of the applicant, a sum of Rs. 3,93,230/- towards pension arrears and difference in commutation of pension was remitted to the account of applicant by Annexure R3. This is taken on record.

An evaluation of the entire materials on record clearly indicates that the pension of the applicant and the terminal benefits were calculated on the basis of his pay as a CLI up to 26.11.2015 and thereafter on the basis that he was reverted to the post of Loco Pilot (Mail). In view of our finding that he continued to hold the post of CLI till the date of superannuation, the entire benefits payable to him is liable to be re-calculated. The entire arrears due to him has to be worked out and paid within 3 months from the date of receipt of this order. In the light of the contention of the applicant that he ought to have been placed in PB-3 and that by virtue of the second proviso to Rule 10 of Railway Servants (Revised Pay) Rules, 2008 and also that he was entitled for increment at least from 1.7.2015, we feel that a decision needs to be taken at a higher level as claimed by the respondents. Accordingly, we are inclined to direct the General Manager, Southern Railway, Madras (respondent No. 1) to take an appropriate decision on this in accordance with law within a period of three months from the date of receipt of a copy of the order. The right of the applicant to challenge that decision is reserved.

In the light of the above, the OA is liable to be allowed holding that the applicant is entitled for his pay and retirement benefits treating him as continuing in service as CLI till the date of his superannuation. Regarding relief No. (iii) in the OA appropriate decision shall be taken by the 1^st respondent and the arrears if any, payable to him shall be paid within a period three months from the date of receipt of a copy of this order.

OA is allowed to the above extent. No costs.

Annexure A1 – True copy of office order bearing No. 33/2013/Ele (OP) dated 21.5.2013 issued on behalf of the 2^nd respondent.

Annexure A2 – True copy of office order bearing No. 46/2015/Elec(OP) dated 5.10.2015 issued on behalf of the 2^nd respondent.

Annexure A3 – True copy of Pension Payment Advice bearing No. 0604211509 dated 28.11.2015 issued on behalf of the 4^th respondent.

Annexure A4 – True copy of representation dated 17.12.2015 addressed to the 3^rd respondent.

Annexure A5 – True copy of Railway Board order bearing RBE No. 112/2008 dated 15.9.2008.

Annexure A6 – True copy of extract of Rule 49 of the Railway Services (Pension) Rules, 1993 referred to in Annexure A5.

Annexure A7 – True copy of the 7^th CPC revised PPO dated 24.10.2018 issued from the office of the 4^th respondent.

Annexure A8 – True copy of the revised pension payment order dated 8.1.2019 issued by the 4^th respondent.

Annexure A9 – True copy of the muster roll of November, 2015.

Annexure R1 – True copy of OO No. 49/2015/Ele(OP) dated 27.11.2015.

Annexure R2 – True copy of Note No. V/P.608/VI/CLI/301 dated 12.11.2015.

Annexure R3 – True copy of the letter dated 23.6.2023 issued by the Manager Centralized Pension Processing Centre of State Bank of India/Thiruvananthapuram.