Monday, May 10, 2010

PATNA HIGH COURT JUDGEMENT ON PAYMENT OF ARREARS FROM 1-1-96 TO 18-02-2003

CIVIL WRIT JURISDICTION CASE No.11452 OF 2005




1. SUDAMA SINGH, SON OF LATE TULSI SINGH, RESIDENT OF RAILWAY

HUNDER ROAD, EAST LOHANIPUR, P.S.- KADAM KUAN, AND DISTRICT-

PATNA.

2. DINDAYAL PANDIT, SON OF SRI RAMCHANDRA PANDIT, RESIDENT OF

VILLAGE NATHOPUR, P.S.- PARSA BAZAR, P.O.- KURTHAUL, DISTRICT-

PATNA.

3. NAGENDRA PRASAD SINGH, SON OF LATE R.B. SINGH, RESIDENT OF

VILLAGE CHHOTI BADALPURA, P.O.- KHAGAUL, P.S.- DANAPUR,

DISTRICT- PATNA.

4. BIRENDRA KUMAR YADAV, SON OF SRI JAGDEO PD. YADAV, RESIDENT

OF MOHALLA KHAJE KALAN, SABJI MANDI, PATNA CITY, P.S.-

KHAJEKALAN, DISTRICT- PATNA.

5. MADHUR KUMAR RAI, SON OF SRI HULAL RAI, RESIDENT OF VILLAGE

SHAHPUR DIARA, P.O.- AND P.S.- SONEPUR, DISTRICT- SARAN

(CHAPRA).

6. BRIJ MOHAN PRASAD MEHTA, SON OF SRI SHIVA BALAK PRASAD,

RESIDENT OF MOHALLA NEHRU TOLA, P.S.- BEGAMPUR, P.S.- CHOWK,

PATNA CITY, DISTRICT- KPATNA.





---------------------------petitioners



Versus



1. THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF

RAILWAYS, RAIL BHAWAN, NEW DELHI.

2. THE RAILWAY BOARD THROUGH ITS CHAIRMAN, RAIL BHAWAN, NEW

DELHI.

3. THE CHAIRMAN, RAILWAY BOARD, RAIL BHAWAN, NEW DELHI.

4. THE DEPUTY DIRECTOR, PAY COMMISSION-V-RAILWAY BOARD, RAIL

BHAWAN, NEW DELHI.

5. THE FINANCIAL COMMISSIONER, RAILWAYS, RAILWAY BOARD, RAIL

BHAWAN, NEW DELHI.

6. THE GENERAL MANAGER, EAST RAILWAY, CALCUTTA.

7. THE CHIEF PERSONNEL OFFICER, EASTERN RAILWAY, CALCUTTA.

8. THE GENERAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR (BIHAR).

9. THE FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER, EAST

CENTRAL; RAILWAY, HAJIPUR (BIHAR).

10. THE CHIEF PERSONNEL OFFICER, EAST CENTRAL RAILWAY HAJIPUR

(BIHAR).

11. THE DIVISIONAL MANAGER, DANAPUR DIVISION, EAST CENTRAL

RAILWAY, DANAPUR, DISTRICT- PATNA.

12. THE SENIOR DIVISIONAL PERSONNEL OFFICER, DANAPUR DIVISION,

EAST CENTRAL RAILWAY, DANAPUR, DISTRICT- PATNA.

13. THE CENTRAL ADMINISTRATIVE TRIBUNAL, PATNA BENCH PATNA,

THROUGH ITS REGISTRAR.





-----------------------------------Respondents

For The Petitioners :M/s Pushkar Narain Shahi,



Ravi Kumar, Sanjeet Kumar Singh.







For The Respondents :Mr. Shabbir Ahmad, Advocate

P R E S E N T

THE HON'BLE MR. JUSTICE S.K.KATRIAR

THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL



S.K. Katriar, J.


This writ petition is directed against the order dated 30.06.2005(Annexure-13), passed by the Central Administrative Tribunal, Patna Bench, in O.A no. 925 of 2003 (Sudama Singh & Ors versus The Union of India & Ors), whereby the original application preferred by the present petitioners have been rejected, and the decision of the respondent authorities granting higher pay-scales to the category of the employees of the petitioners on notional basis, has been upheld.



2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The recommendations of the Vth Pay Commission constituted by the Union of India were enforced w.e.f. 1.1.1996. The Indian Railways adopted the report of the Pay Commission by framing the Railway Services (Revised Pay Rules), 1997, in terms of Article 309 of the Constitution of India marked Annexure-1. After the recommendations of the Vth Pay Commission were enforced, anomalies were pointed out with respect to the recommendations so implemented. The Indian Railways considered the same, and issued orders rectifying the anomalies. In so far as the grant of appropriate pay-scales to the category of Accounts Establishment is concerned, to which the petitioners belong, the Ministry of Railways issued notification dated 7.3.2003 (Annexure-3), giving appropriate pay-scales to



the employees of this category. The supplementary notification dated 16.6.2004 (Annexure-9), deals with the post-retirement benefits admissible to this category of employees. The petitioners complain about the following clause of Annexure-3, whereby notional benefits were given to the petitioners:

“ The above revised pay scales have been granted on notional basis with effect from 01.01.96 and actual payment prospectively from the date of approval of Cabinet i.e. 19.02.2003.” The same was challenged by preferring the original application before the Tribunal, praying therein that they should have been given the actual money benefits w.e.f. 1.1.1996, the date on which the recommendations of the Vth Pay Commission were enforced, rather than giving the benefit notionally. The original applicants also raised the issue of discriminatory treatment. The same has been rejected by the impugned order, inter alia, on the ground that the petitioners have not been given discriminatory

treatment.

3. We have perused the materials on record, and considered the submissions of learned counsel for the parties. The petitioners are obviously aggrieved by the aforesaid notification dated 7.3.2003 (Annexure-3), and the consequential notification dated 16.6.2004 (Annexure-9), dealing with post-retirement benefits, whereby the benefit of higher pay-scale has not been given effect retrospectively, but on notional basis. As stated hereinabove, the Annexures- 3 and 9 applied to the employees of the Accounts Establishment of the Indian Railways,



and the petitioners belong to this category of employees.

4. Before we proceed further, we must notice the three other notifications issued by the Eastern Railway which is relevant in the present context, and is summarized herewith for the facility of quick reference:



(i) The notification dated 8.12.1998 (Annexure-4), with respect to pay-scale of Artisan staff in Railways , whereby higher pay-scales were granted after the anomalies in the recommendation of the Vth Pay Commission were detected, whereby revised pay-scales were granted with effect from 1.1.1996. The relevant clause is reproduced herein below for the facility of quick reference



“INDEX NO. 1057: Revised pay Scales of Artisan Staff in the Railways consequent upon – Vth Central Pay Commission.”



(ii) The notification dated 26.11.1999 (Annexure-5), with respect to pay-scale of Master Cook in Catering, Medical and Canteen Departments, whereby revised

pay-scales were granted with effect from 1.1.1996. The relevant clause is reproduced hereinbelow for the facility of quick reference.



“INDEX NO. 1057. Revised Pay Scale allotted to Hd. Cook and Master Cook of Catering Dept. Medical Dept. and Canteen staff w.e.f. 1.1.1996.”



(iii) The notification dated 21.1.2003 (Annexure-6), with



respect to pay-scale of Primary School Teachers in Railway Schools with monetary benefits w.e.f. 1.1.1996. The relevant clause is reproduced herein below for the facility of quick reference:



INDEX NO. 1057- The senior and selection Grade Scales of Primary School Teachers in Railway Schools be revised w.e.f. 01.01.1996.



5. It is thus evident that of the four categories of employees of the Indian Railways, namely, Artisan Staff, Master Cook in Catering, Medical and Canteen Departments, and Primary School Teachers, have been given uniform treatment by identifying their appropriate pay-scales, and granting them monetary benefits w.e.f. 1.1.1996, the date on which the recommendations of the Vth Pay Commission were enforced. On the other hand, the employees of Accounts Establishment have been given a differential treatment. They have not been given monetary benefits w.e.f. 1.1.1996, but have instead been given notional benefits w.e.f. 1.1.1996, as a result of which they have been deprived of the differential amount of salary for the period 1.1.1996 to 19.2.2003. This calls for serious consideration.



6. The only logic advanced by the respondent authorities before the Tribunal was that these three categories of employees had threatened to proceed on strike, leading to mutual negotiations, and bipartite settlements. The Tribunal has, therefore, concluded that there was a sound basis to treat the



three categories of employees differently. In the absence of such agreement governing the employees of the Accounts Establishment, the Tribunal has concluded, it cannot be said to be a case of discriminatory treatment.

7. We have given our thoughtful consideration to the matter, and entirely disagree with the approach of the learned Tribunal. Threat of strike, and the consequent agreement, cannot be a valid basis for such a discriminatory treatment. We consider it to be a most unsound basis which can never be said to provide reasonable differentia with the object sought to be achieved. No logic has been advanced that the category of employees of Accounts Establishment have to be differently treated, say, for example, nature of duties and functions, in absence of which we have no hesitation in holding that this category of employees has been subjected to hostile discrimination. It was open to the respondents to give notional benefit to the employees of the Accounts Establishment, provided the same principle were applicable to all categories of employees, in the absence of which it falls foul of Articles 14 and 16 of the Constitution of India.

8. In the result, we set aside the order dated 30.6.2005, passed in O.A. no. 925 of 2003, and the orders dated 7.3.2009 and 16.6.2004 (Annexures- 3 and 9), stand modified. We take this writ petition to be in a representative category for all employees of the Accounts Establishment of the Indian Railways. all of whom shall get the benefits of appropriate pay-scales w.e.f.



1.1.1996, with payment of arrears of salary, but without the obligation of payment of interest. It goes without saying that the post-retirement benefits of such employees, who have already superannuated, shall be revised, apart from payment of arrears of salary.

There shall be no order as to costs.





Kishore K. Mandal, J : I agree.

Patna High Court

9th April, 2010

NAFT/pkj



(S.K. Katriar, J.)

( Kishore K. Mandal, J. )

Saturday, May 8, 2010

DELHI VISIT BY CENTRAL OFFICE BEARERS

Dated 6th May 2010


Dear Comrades,



I along with Sri. R.K. SARASWAT, President, REJI GEORGE, Secretary-Finance and PARTHA BHATTACHARJEE, Working president camped in New Delhi from 28th to 30th April to follow up the pending demands with Railway Board. We had fruitful meetings with top Railway Board Officials.

During our discussions with the Officials of Board we were given to understand that

1. The proposal for granting Grade pay of Rs.4800/- to Sr. AAs has been Cleared by competent authority and orders for the same is expected with in 10 days. This will enable all those who had their II ACP under the previous scheme to get Grade Pay of Rs.4800/- and they will get Rs 5400/- on completion of 30 years under the MACP scheme. We also requested for the clarification to calculating the 5% on the combined strength of SO(A)s and Sr.SO(A)s since both the cadres have been merged.

2. Orders on doubling the Qualification Allowance will be issued in a few days. AIRASA will continue to fight for the reintroduction of Grant of increments for passing App. IIA and App.IIIA.

3. The proposal sent to Finance Ministry for grant of higher Grade Pay Rs.4200/- to JAAs and Rs.5400/- to Sr.SO(A)/Sr.TIA/Sr.ISAs is under active consideration of the Finance Ministry.

4. We were also informed that VI PC Grades in respect of other categories like FPEs is still in pipeline.

5. Regarding the anomalies in MACP Railway Board officials informed that they have received large number of representations from all over Indian Railways ( in the format circulated by AIRASA) and the same are under active scrutiny and it is expected that the matter will be referred to Ministry of Finance shortly. However, the delegation had discussion with top officials including Member, Staff in the matter and impressed upon urgent positive action in the matter. We also came to know that the letter by CAG on the MACP anomalies is under active consideration by the Finance Ministry and some positive development is expected shortly. The delegation also pointed out that some Railways like S C Railway are refusing to act on the Clarificatory letter on MACP issued by Railway Board to Western Railway dated 28-01-2010 and requested the Officials to address the same to all Zonal Railways and Production Units.

6. The delegation’s demand for promotion of erstwhile Group D Staff now in Group C Status on seniority basis to the post of Accounts Clerk was appreciated and the officials agreed to put up the papers positively. AIRASA demanded modification of Recruitment Rules in this regard.

7. To mitigate the grievance of Accounts Clerks stagnated in the cadre for want of vacancies in JAA cadre, AIRASA requested for change in the 80 : 20 pattern as 40 : 60 since there are no direct recruitments being made. The proposal was well received and the Accounts directorate Officials promised to initiate papers in this regard. The matter will be followed up further.

8. We also reminded the demand for modification of Recruitment Rules for selection to the post of AAOs and submitted the copies of Recruitment Rules of other Organised Accounts and Audit which contains selection by seniority cum suitability only.

9. On the issue of creation of additional posts of TIAs/ISAs , reminders have been submitted to give adhoc promotions and the officials were requested to give directions to all the Zonal Railways to create additional posts of TIAs and ISAs.



Group B Status to SO(A)/TIA/ISA.

We expressed our anguish over non affording of Group B Status to SO(A)/TIA/ISA to top Railway Board Officials including Member, Staff and requested them to have a fresh look into the issue.



Restoration of three Additional increments to ASVs.

We pointed out to the officials despite permitting the Cash Office Staff who qualified App. IIA to volunteer for selection to the post of Accounts Stock Verifiers there is no huge response for volunteering to the post. Even the Special Allowance of Rs.1000/- has not attracted the AAs/JAAs to volunteer for the post of ASV. Hence we pointed out that the only way out is to restore the grant of three additional increments for qualifying in the App.IV Exam. We also insisted the need for extending the Special Allowance to those ASVs who came from the Cadre of JAAs. We also pointed out that many Railways are not granting MACP to Stock Verifiers duly taking their combined service in AA and ASV cadre and requested for issue of clarifications in this regard.

Grade Pay of Rs.4600/- to AAs and Arbitration Award :

The Apex JAC has reminded the Finance Minister to implement the Arbitration Award with cash benefit from 1-1-2006 and to extend the Grade pay of Rs.4600/- to all Accounts Assistants on par with Assistants of CSS.



The delegation met Hon’ble MPs Com. Basudeb Acharya and Shri. Raveendra Kumar Pandey. Both the MPs assured to take up the issue of Arbitration Award MACP anomalies with Finance Minister and Minister of DOPT personally.



Reminders on all other pending demands raised by AIRASA were also placed before the Railway Board.

Though Most of the Zonal Railways had implemented the Unit wise Dharna on 08-04-2010 in solidarity to the MASS CL program of other Audit and Accounts Staff, many Zonal Railways like Northern, NE, EC,SW,E Co and production Units have not participated in the program. It is once again reiterated that unless we show the same Unity and Solidarity as we had done during 1998 to 2003, it will be very difficult to achieve the pending demands. Huge participation in such programs only will pressurize the Government to look into our demands.



Yours Comradely,





(N.SRINIVASAN)

General Secretary