Vijay Kumar Singh vs Union Of India & Ors.

(Delivered by Hon’ble Mr. Justice Om Prakash VII, Member (J)

Shri P K Srivastava, holding brief of Shri Santosh Kumar Singh, learned counsel for the applicant and Shri Dharm Raj Pal, learned counsel for the respondents, were present at the time of hearing.

The instant original application has been filed seeking following relief:

A compendium of the facts as have been narrated in the present original application is that the applicant who is a permanent employee in the office of the respondents is aggrieved by the impugned order dated 16.6.2009 passed by the Divisional Railway Manager, Northern Railway, Lucknow whereby his representation dated 20.4.2009 was rejected by the respondents and thus seeks implementation of the order dated 11.3.1994 whereby he was promoted as first fireman in the grade of Rs. 950-1500/- w.e.f. 4.12.1992. On the strength of the order dated 11.3.1994, the applicant seeks grant of actual benefit of pay fixation pursuant to that order along with all consequential benefits.

Disclosing a brief history of the case, learned counsel for the applicant submits that the applicant was initially appointed as Loko Cleaner in the diesel shed at Mughalsarai. On 29.12.1989, he was promoted as second fireman in the pay scale of Rs. 825-1200/-. The next promotional post for the second fireman was the first fireman in the pay scale of Rs. 925-1500/- in accordance with the criteria laid down in the Indian Railway Establishment Manual. Learned counsel submits that in accordance with the aforesaid Manual, the applicant was ought to have been promoted as first fireman in the pay scale of Rs. 950-1500/- sometime in the year 1991-1992 when the applicant completed two years of satisfactory service in the second fireman grade. However, the same was not done. Aggrieved by this, in the year 1994-95, the applicant preferred several representations to the respondents but they went unanswered. Learned counsel for the applicant submits that although the applicant was punished in a consequent to a departmental inquiry but in appeal, the punishment imposed upon the applicant was reduced to one year. Again, in revision (Appeal), the competent authority amongst the respondents reduced the punishment from one year to six months.

Referring to annexure no 1, learned counsel for the applicant argued that although the applicant was promoted as first fireman in the pay scale of Rs. 950-1500/- w.e.f. 1992 itself and order regarding pay fixation has also been issued, surprisingly he has not been accorded the benefit of the same till date which has cause his irreparable loss. Aggrieved with the non-implementation of the pay fixation pursuant to the letter dated 11.3.1994, the applicant initially preferred a representation before the respondent and in the event of no reply, he approached the Tribunal by way of Original Application No. 330 of 2009. The Tribunal disposed of the OA directing the respondents to decide the pending representation of the applicant by way of a reasoned and speaking order.

To substantiate the above arguments, learned counsel for the applicant draws our attention to the pay slips for the period from 1992 onwards which clearly shows that the applicant was made payment of salary without any correction, fixation in terms of the letter dated 11.3.1994. Furthermore, by way of their order dated 16.6.2009, the respondents illegally observed that the applicant’s pay has correctly been fixed in terms of the letter dated 11.3.1994.

Concluding his arguments, learned counsel for the applicant submits that without any application of mind, the respondents have passed illegal impugned orders. The applicant never disputed the pay fixation rather it was his prayer that the pay fixation in terms of the letter dated 11.3.1994 should be given effect.

Learned counsel for the respondents vehemently opposes the prayer of the applicant and referring to the counter affidavit argues that on account of punishment awarded to the applicant in a disciplinary case under the Railway Servants (Discipline & Appeal) Rules, 1968, his pay was reduced from the stage of Rs. 920/- per month to the initial stage of Rs. 825/- per month in the pay scale of Rs. 825-1200/- with effect from 04.06.1992 for a period of three years without postponing his future increments vide letter dated 06.06.1992. In an appeal preferred by the applicant under Rule 18 of the Railway Servants Rule, his punishment was further reduced to 02 years and then again to 01 year and eventually to 06 months. Accordingly, the applicant’s pay was restored to Rs. 920/- per month in the pay scale of Rs. 825-1200/- with effect from 04.12.1992 and on accrual of annual increment applicant’s pay was raised to Rs. 940/- per month on 01.01.1993.

Learned counsel for the respondents submits that the applicant was allowed to officiate as First Fireman in pay scale Rs. 950-1500/-with effect from 04.12.1992 only on non-proforma basis as per rules through letter dated 11.03.1994 by fixing his pay at Rs. 950/- from 04.12.1992. The applicant’s next increment was also granted to him on pro-proforma basis by fixing his pay at Rs. 970/- on 01.12.1993, as he did not shoulder higher responsibility and his promotion was made as First Fireman only with retrospective effect. The applicant joined post of higher responsibility of First Fireman on 21.04.1994 at Varanasi. As per rules, the actual payment in the higher post of First Fireman was made from the date of actual date of joining i.e., 21.04.1994. The applicant’s pay was further raised to Rs. 990/- by granting annual increment on 21.12.1994. Therefore, the applicant’s pay was correctly fixed and payment was made accordingly to him with the relevant rules. Thus, learned counsel for the respondents submits, no illegality whatsoever can be attributed to the impugned order and the entire pay fixation of the applicant and grant of salary consequent to that has been done in accordance with the statutory rules and provisions.

We have considered the arguments advanced by the learned counsel appearing for the parties and gone through the entire record as have been referred to by them.

As the facts of the case have already been stated above, it would be a futile exercise to reiterate them. It is an admitted fact that the applicant was awarded punishment under the relevant Railway Servants (Discipline & Appeal) Rules, 1968. However, the punishment imposed upon the applicant was reduced several times so much so that it stood for 06 months as on 27.11.1992. The submissions of the learned counsel for the respondents and perusal of the contents elucidated in the counter affidavit reveal that the pay of the applicant was restored in accordance with the status of penalty imposed upon him. Furthermore, increments as and when due to him were granted periodically. After the punishment was reduced to six months, the applicant’s pay was restored to Rs. 920/- per month in the pay scale of Rs. 825-1200/- w.e.f. 04.12.1992 and on accrual of annual increment applicant’s pay was raised to Rs. 940/- per month on 01.01.1993. the applicant was allowed to officiate as First Fireman in pay scale Rs. 950-1500/- with effect from 04.12.1992 only on non-proforma basis as per rules through letter dated 11.03.1994 by fixing his pay at Rs. 950/- from 04.12.1992. The applicant’s next increment was also granted to him on pro-proforma basis by fixing his pay at Rs. 970/- on 01.12.1993, as he did not shoulder higher responsibility and his promotion was made as First Fireman only with retrospective effect. The applicant joined post of higher responsibility of First Fireman on 21.04.1994 at Varanasi. As per rules, the actual payment in the higher post of First Fireman was made from the date of actual date of joining i.e., 21.04.1994. The applicant’s pay was further raised to Rs. 990/- by granting annual increment on 21.12.1994. Therefore, the applicant’s pay was correctly fixed and payment was made accordingly to him with the relevant rules.

It is also pertinent to mention here that in terms of Railway Board’s letter dated 12.03.1987 which has been highlighted by the respondents in their counter, classification of non-gazetted posts of running staff as “selection” or “non-selection” consequent to revision of pay structure as recommended by the Fourth Central Pay Commission was made according to which, posts of Fireman ‘C’ (70%) pay scale Rs. 210-270, Fireman ‘C’ (30%) pay scale Rs. 260-350/Rs. 825-1200 and Fireman ‘B’ pay scale Rs. 260-350/Rs. 950-1500 were classified as “non-selection” whereas, the posts of Fireman ‘A’ / Diesel Assistant / Assistant Electric Driver pay scale Rs. 290-350/Rs. 950-1500/- (with and without special pay) were classified as “selection posts”. This clearly shows that at the time of applicant’s promotion as First Fireman, the said post was classified as selection post and therefore, the applicant could be promoted only after qualifying for it through a positive act of selection. Accordingly, the applicant appeared in the selection and after his selection, was promoted as First Fireman with effect from 4.12.1992 (on pro-proforma basis) in terms of Northern Railway Printed Serial No. 10738 and actual payment was made to him from 21.04.1994 i.e. the date when he shouldered the responsibility of higher post of First Fireman.

Thus, from the deliberations quoted above, we are of the considered opinion that no illegality whatsoever can be attributed to the order dated 16.6.2009 which has been challenged in the instant original application. It was a reasoned order passed strictly in terms of the statutory provisions governing the subject. The applicant was granted the monetary benefits periodically as were due to him. Thus, the instant original application is liable to be dismissed and is accordingly, dismissed.

All associated MAs stand disposed of accordingly.

No costs.