AI Structured Summary
Not yet generated for this judgment
Judgment
Radhe Shyam Sharma, J.—The petitioner has moved the instant writ petition challenging order dated 21.10.2010 (Annexure P-1) passed by Central Administrative Tribunal, Jabalpur in Original Application No. 307/2009, whereby the petitioner''s original application was dismissed. Facts of the case, as projected, in brief, are that when the Bilaspur Division was in the erstwhile South Eastern Railway, the petitioner was originally promoted from the post of Chief Law Assistant to the post of Assistant Law Officer by the South Eastern Railway on 22.1.2003. New South East Central Railway Zone (in short ''the SECR'') was formed with its headquarters at Bilaspur with effect from 1.4.2003. On 9.3.2006, the Railway Board sanctioned one post of Senior Law Officer (Senior Scale) for the SECR. In pursuance thereof, respondent No. 2 created a post of Senior Law Officer (Senior Scale), Bilaspur on 24.1.2007 (Annexure P-5). On 25.4.2008, the petitioner was found fit for promotion to the post of Senior Law Officer (Senior Scale) (on ad hoc basis) (Annexure P-6).
Before the promotion, the basic pay of the petitioner was Rs. 10750/- in the Pay-Scale of Rs. 7500-12000 in Junior Grade. After the promotion, pay of the petitioner was fixed at Rs. 11300/- in the Pay-Scale of Rs. 10000-15200 (Annexure P-8). When recommendations of VIth Pay Commission were implemented, respondent No. 2, all of sudden, re-fixed the pay of the petitioner in the Pay-Scale of Rs. 9300-34800 plus Grade Pay of Rs. 4800 (Junior Grade) (VIth Pay Commission), which is equivalent to the pay scale of junior Scale Officer in the Pay-Scale of Rs. 7500-12000 (Vth Pay Commission). The salary of the petitioner was fixed in the Junior Scale of Rs. 9300-34800 fixing his pay at Rs. 20.790/- from the month of September, 2008 (Annexure P-9) without giving him any notice or opportunity of hearing.
Being aggrieved with the said arbitrary decision of respondent No. 2 the petitioner represented on 1.10.2008 (Annexure P-10) requesting therein to rectify the mistake and correct the fixation of his pay and to pay him the arrears. Respondent No. 2 neither corrected the wrong fixation nor sent any reply to Annexure P-10, but, issued a letter No. P(HQ)/Gaz/GA/Bills/2584 dated 27.11.2008 (Annexure P-11) to the petitioner quoting reference to their letter No. ER NO. 135/2008 dated 5.8.2008. Respondent No. 2 neither provide copy/details of the said Board''s letter to the petitioner nor respondent No. 2, despite repeated requests, provided him a copy of their letter No. ER No. 135/2008 dated 5.8.2008, which was quoted under reference to their said letter dated 27.11.2008. The petitioner obtained a copy of the Railway Board''s letter dated 29.2.2008 (Annexure P-12) and having gone through the rules contained under para 8.2 thereof by way of instructions with its note below came to know about arbitrariness of the said rules. The rules imposing condition of 8 years is only for miscellaneous departments, which includes Law Department also. So far as Law Department is concerned, it is purely a different unit other than the miscellaneous department in respect of venue of promotion of Chief Law Assistant in Personnel Department and Commercial Department. One Chief Law Assistant can opt for selection of Assistant Personnel officer and Assistant Commercial Officer. Whereas in personnel and Commercial Departments no such rules and condition of 8 years are applicable for withdrawal of Senior Scale Pay on promotion in Senior Scale on ad hoc basis. Imposition of such conditions on the officer of Law Department in Senior Scale on ad hoc basis is clear discrimination with this cadre. The rules/instructions under para 8.2 is not applicable to the entire Group ''B'' Junior Officers of Indian Railways. There are two classes of officers, i.e. (i) Group ''A'' Officer Senior Administrative Grade and Junior Administrative Grade, (ii) Group ''B'' Junior Scale and Senior Scale under Indian Railways. Service conditions of all Group ''B'' Junior Officers are governed under uniform basic rules in respect of promotion in Senior Scale on ad hoc basis after completion of 3 years regular service, but rule (Annexure P-12) imposes condition of 8 years only for the Junior Officers especially of miscellaneous departments including Law Department, which is clear discriminatory. A Group ''B'' Officer of all other departments, on completion of three years'' service, is entitled to get promotion on ad hoc basis in Senior Scale with Senior Scale pay. This rule differentiates the Group ''B'' Officer from other two classes, i.e., (i) Group ''B'' Officer of Major Department, and (ii) Group ''B'' Officer of miscellaneous department, which is discriminatory. The petitioner, being ad hoc senior Law Officer and having not completed 8 years'' regular service in Junior Grade in Law Department, is suffering irreparable loss due to the impugned rules/instructions, which were under challenge in Original Application No. 307/2009 filed by him before the learned Tribunal.
The petitioner again sent a representation to respondent No. 2 on 4.12.2008 (Annexure A-9 of the original application) and also annexed therewith a copy of the Railway Board''s letter dated 29.2.2008. Respondent No. 2 showed his inability to take any action in light of the Railway Board''s letter dated 29.2.2008. Thereafter, the petitioner sent another representation dated 22/23.12.2008 (Annexure P-13) through respondent No. 2 to the Secretary, Railway Board, New Delhi (respondent No. 1) challenging the vires of para 8.2 of the Railway Board''s letter dated 29.2.2008 (Annexure P-12) with a note below elaborately justifying his claim of Senior Scale Pay. The above representation dated 22/23.12.2008 of the petitioner was sent by respondent No. 2 to respondent No. 1 on 12.2.2009 (Annexure P-14)
Since respondents No. 1 and 2 did not respond the above mentioned representations made by the petitioner, he moved the original application, being O.A. No. 307/2009. Against dismissal of the original application by the Tribunal, he has preferred the instant petition.
Shri Amrito Das, learned counsel for the petitioner argued that para 8.2 of the Railway Board''s letter dated 29.2.2008 (Annexure P-12) is ultra vires because it violated Articles 14 and 16 of the Constitution. Group ''B'' Officers of other wings in the Railways were not being subjected to this condition which had been imposed only on certain specific posts, one being that of the Law Officer. Learned counsel referred to Rule 209 (B) of the Indian Railway Establishment Code, Vol. I and submitted that appointment to the posts in the Junior Scale were made by selection on merits from amongst Group ''B'' officers of the departments concerned with not less than three years of non-fortuitous service in the grade. He further submitted that plea of the petitioner regarding Rule 209 (B) was not properly considered by the Tribunal. The Tribunal passed the impugned order in slipshod manner. The petitioner challenged letter dated 27.11.2008 (Annexure P-11) before the Tribunal, but the Tribunal did not decide its validity or otherwise. He further argued that when other Group ''B'' officers could be promoted to Junior Scale in Group ''A'' only with three years of service, it was unreasonable for the Railway Board to say that Law Officers were to draw only charge allowance, if they had not put in 8 years of regular service. He further submitted that para 8.2 of the railway Board''s letter dated 29.2.2008 (Annexure P-12) should be struck down and it should be held that the petitioner was entitled to salary under regular Senior Scale of Pay instead of the charge allowance. He further submitted that there should be no recovery from the petitioner on the basis of the letter of respondent No. 2 and the pension of the petitioner should be fixed properly. The impugned order passed by the Tribunal is not in accordance with law and lacks proper application of mind. Therefore, the impugned order deserves to be set aside.
Shri P. Sam Koshy, learned counsel for respondents No. 1 and 2 argued that the impugned order passed by the Trubunal is a well reasoned and speaking order considering all the submissions and contentions of the petitioner. The scope of judicial interference and judicial scrutiny gets minimized inasmuch as the High Court does not sit as an appellate Court against the decision of the Tribunal and it only ensures that the provisions of law have been duly considered by the Tribunal and that the findings arrived at by the Tribunal are not perverse. The High Court can also ensure that the Tribunal has not exceeded its jurisdiction while deciding the case of the petitioner and in the absence of all these, the High Court, in exercise of the extraordinary jurisdiction of supervisory powers over the decision of the Tribunal, may not interfere with the findings arrived at by the Tribunal as a matter of routine. Admittedly, the petitioner was promoted as Senior Law Officer in Group ''B'' (Senor Scale) (on ad hoc basis) on 25.4.2008 as is evident from Annexure P-6. Since the promotion of the petitioner was on ad hoc basis, the circular Annexure P-12 (Clause 8.2) would be applicable to the petitioner for the reason that the petitioner had not completed 8 years service on Group ''B'' post on the date when he was granted ad hoc promotion in the Senior Scale of Pay, i.e. on 25.4.2008 and, therefore, all that the petitioner would be entitled for is the charge allowance in addition to the substantive post in junior scale. The relevant circulars were issued by the Government of India, Ministry of Railways from time to time. In the light of the above said circulars passed by the Ministry of Railways, it is established that the order under challenge, i.e., the order of the Tribunal dated 21.10.2010 (Annexure P-1) is justified, legal and proper and does not warrant any interference and the instant writ petition deserves to be rejected.
We have heard learned counsel appearing for the parties and have perused the petition and the documents appended thereto with utmost circumspection.
The Learned Tribunal arrived at the findings that the basic point to be noted here is that the posts of Law Officers are very few in number and, therefore, the cadre of Law Officers cannot be compared with other cadres who have a large strength of officers. The Railway Board circular dated 29.2.2008, particularly, para 8.2 thereof deals with only those specific groups of officers whose cadres are very much limited in number. Therefore, the Railway Board circular in question is based on reasonable classification and is not hit by Articles 14 and/or 16 of the Constitution. The argument of the learned counsel for the petitioner based on Rule 209 (B) of the Indian Railway Establishment Code Vol. I is also misconceived because that rule deals with regular promotion of Group ''B'' Officers to Junior Scale in Group ''A'' Service. In the present case, we are concerned with fixation of pay on promotion of the petitioner on ad hoc basis to senior scale. Therefore, Rule 2009 (B) of the Indian Railway Establishment Code Vol. I is not relevant at all in the present case.
It is not disputed that vide letter dated 25.4.2008 (Annexure P-6), the petitioner was found fit for promotion to Senior Scale (on ad hoc basis). In office order dated 25.4.2008 (Annexure P-7) it is mentioned as under:
Note:
The promotion of Gr. B. Officer to SS is purely on ad hoc basis and the officer is liable to be reverted to JS/Gr. B when regular officer become available. The promotion of the above mentioned office has the approval of General Manager and subject to not undergoing any punishment and no DAR/VIG/SPE cases pending against him. The officer shall draw pay in SS under normal operation of rules.
From perusal of the document Annexure P-7, it appears that the promotion of the petitioner was purely on ad hoc basis and the petitioner was liable to be reverted to Junior Scale or Group ''B'' post on availability of a regular officer.
In Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Others, the Hon''ble Supreme Court observed that when the respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The respondent being an employee of the appellant had to break his period of stagnation although he was the only person amongst the non-diploma-holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy.
The relevant part of the ''Consolidated Instructions Governing Officiating Promotion from Group ''B'' to Senior Scale on Ad Hoc Basis (Annexure P-12) reads thus:
Entitlement of Pay of Ad Hoc Promotion to Sr. Scale:
8.1 (a) The Group ''A'' (Junior Scale) officers, on ad hoc promotion to Sr. Scale will be entitled to a charge allowance, at the rates prescribed from time to time by the Board (The Quantum of charge allowance w.e.f. 1.1.96 is Rs. 750/- p.m.) in addition to their pay in Junior Scale.
[ No. E(GP)85/1/48 dated 31/12/1985]
[ No. E(GP)99/1/33 dated 12/7/2000]
8.1 (b) The Group ''B'' officers, on ad hoc promotion to Sr. Scale will be entitled to draw pay in the Senior Scale under normal operation rules.
[ No. E(GP)85/1/06 dated 19/5/1989]
8.2 Group ''B'' officers who have not put in 8 years of regular service in Group ''B'', on their ad hoc promotion to Senior Scale in the miscellaneous departments, will be entitled to draw charge allowance, as prescribed from time to time, subject to the usual conditions. The quantum of charge allowance w.e.f. 1.1.96 is Rs. 750/- p.m. On completion of 8 years of regular service in Group ''B'', they are entitled to draw pay in senior scale with the approval of G.M.
[ No. E(GP)81/1/91 dated 1/4/1991]
[ No. E(GP)99/1/33 dated 12/7/2000]
[ No. E(GP)96/1/11 dated 1/11/2004]
Note: Miscellaneous Departments are Hindi, Printing & Stationary, Law, Chemical & Metallurgical and Public Relations etc.
The above quoted notifications No. E(GP)99/1/33 dated 12/7/2000, No. E(GP)81/1/91 dated 1/4/1991, No. E(GP)99/1/33 dated 12/7/2000 and No. E(GP)96/1/11 dated 1/11/2004 have been filed by respondents No. 1 and 2.
In view of the above facts and circumstances of the case, we are of the opinion that the learned Tribunal rightly arrived at the finding that the Railway Board circular dated 29.2.2008, particularly para 8.2 thereof deals with only those specific groups of officers whose cadres are very much limited in number. Therefore, the Railways Board circular in questions is based on reasonable classifications and is not hit by Articles 14 and/or 16 of the Constitution.
The petitioner was moved the instant petition seeking to invoke jurisdiction of this Court under Article 226/227 of the Constitution, questioning the validity of the impugned order, passed by the learned Tribunal. The instant petition, as afore-stated, prima facie seeks to invoke supervisory jurisdiction of this Court under Article 227 of the Constitution.
In Jai Singh and Others Vs. Municipal Corporation of Delhi and Another, the Hon''ble Supreme Court observed thus:
13....The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It cannot be exercised like a ''bull in a china shop'', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it cannot substitute its own conclusions or the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objection of ensuring that there is no miscarriage of justice.
In B.K. Muniraju Vs. State of Karnataka and Others, the Hon''ble Supreme Court observed thus:-
It is settled law that a writ of certiorari can only be issued in exercise of extraordinary jurisdiction which is different from appellate jurisdiction. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals or authorities in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. In regard to a finding of fact recorded by an inferior tribunal or authority, a writ of certiorari can be issued only if in recording such a finding, the tribunal/authority has acted on evidence which is legally inadmissible, or has refused to admit an admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amount to an error of law. It is needless to mention that a pure error of fact, however grave, cannot be corrected by a writ.
It is useful to refer to the decision of this Court in Surya Dev Rai Vs. Ram Chander Rai and Others, wherein, in para 38, it was held as under: : SCC p. 695)
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provision of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
In the light of above discussion, we are satisfied that the learned Tribunal has rightly arrived at the conclusion that the Railway Board circular dated 29.2.2008 is not hit by Articles 14 and/or 16 of the Constitution.
Before the Tribunal, the petitioner mainly sought relief of declaration of Railway Board circular dated 29.2.2008 as ultra vires being arbitrary and in violation of Articles 14 and/or 16 of the Constitution as also sought suitable modification thereof.
On perusal of the relief clause of the original application filed by the petitioner before the Tribunal and comparing the same with the reliefs sought by the petitioner in the instant petition, we find that the petitioner has sought many other reliefs which were not claimed by him before the Tribunal. The petitioner cannot be allowed to claim fresh relief by way of the instant writ petition. In the result, the writ petition, being devoid of any merit, deserves to be and is accordingly dismissed. There is no order as to costs.