Shafiq Ahmad vs Union Of India And Others

Om Prakash VII, Member (J)

By means of the present Original Application, the applicant has sought the following reliefs:

“ (i) The Hon’ble Tribunal may graciously be pleased to quash and set aside the impugned order dated 20.05.2003 passed by respondent No.3 (Annexure A-1), order dated 16.08.2012 (Annexure A-2) and order dated 19.05.2014 (Annexure A-3) passed by DRM/ NCR Allahabad and direct the respondents to extend similar benefits of similarly situate case of Shri Bachhoo Lal Patel/ Senior Clerk and to do correct proforma fixation of pay of applicant w.e.f. 23.3.1990 as Senior Clerk after review from the date he was absorbed after medically de-categorisation as Clerk.

(ii) The Hon’ble Tribunal may further be pleased to direct the respondents to allow the benefits of 3rd MACP in GP Rs. 4600 as given in respect of similarly situate case of Shri Bachhoo Lal Patel, Senior Clerk in which case pay scale of Switchman Rs. 1200-2040 and of Senior Clerk Grade Rs. 1200-2040 was treated as equal grade and pay scale and one promotional post and direct the respondents to treat and give similar benefits to the applicant also.

(iii) The Hon’ble Tribunal may be pleased to grant all consequential benefits while allowing the benefits as prayed above and revise his pension and other benefits accordingly with 12% interest.

(iv) Any other it or order or direction which the Hon’ble Tribunal deems fit and proper in the circumstances of the case may also kindly be issued and in the interest of justice.

(v) Cost of the application may also be awarded.

Brief facts of the case are that the applicant was appointed in Group ‘D’ category in pay scale of Rs. 196-232 as Lamp man on 05.03.1982 under SS/ N.Rly. Allahabad and thereafter he was promoted as Switchman Grade Rs.1200-2040 (RPS) on 08.12.1987. He took independent duty on 02.01.1988 and his pay was fixed @ Rs.1200/- per month. When he was working as Switchman, he failed the periodical medical examination for the post of Switchman and was declared medically unfit in A-2, A-3, B-1 and B-2 and fit in C-one and below with D.V. Classes vide medical certificate No.652047 dated 12.09.1989. Thus, he was medically decategorised and absorbed in lower grade and pay scale of Clerk Grade Rs. 950-1500 under Medical Superintendent/ Northern Rly. Allahabad vide letter dated 23.03.1990 and resumed his duty on 26.03.1990 having his pay fixed @ Rs. 1250/- plus Rs.10/- PP. The applicant represented to be absorbed in Senior Clerk Grade Rs.1200-2040 on 26.02.1990 and 23.03.1990 and again in January 1991, the applicant made a request to Senior Divisional Personnel Officer to post him in Senior Clerk Grade Rs.1200-2040 against the vacancy of senior clerk which is likely to occur in March 1991 but no response was made to the applicant. On 05.07.1995, on his own request, the applicant was transferred and posted to Personnel Branch in grade of Rs.950-1500 (RPS) vide letter dated 16.05.1995. Meanwhile, one Shri Bachhoo Lal Patel Switchman was medically decategorised on 01.09.1994 and also absorbed as Clerk Rs.950-1500 on 21.11.1994 but after review, he was given pay scale of Sr. Clerk Rs.1200-2040 from 21.11.1994 and proforma promotion. On 16.05.2002, the applicant was promoted as Senior Clerk Grade Rs.1200-2040 (RPS)/ Rs. 4500-7000 (RSR) in Personnel Branch on passing the due suitability test. On representation of the applicant, his case for giving equivalent grade of Sr. Clerk was considered vide Notice dated 20.05.2003 but he was not given proforma fixation from 23.03.1990 i.e. the date on which he was absorbed as Clerk but from 21.11.1994. The applicant made a representation dated 09.06.2003 stating that he has been unfairly granted proforma promotion w.e.f. 21.11.1994 and requested to review the matter and provide proforma promotion w.e.f. 23.03.1990. In this respect the applicant has also cited the provision for such review on absorption in lower grade which is permissible in terms of Master Circular No.25/91 and Para 1314 (c) of Indian Railway Establishment Manual Vol.I (ed.1989). Subsequently, he made several representations on 10.05.2004, 01.06.2005, 03.08.2007, 02.01.2010 and 03.02.2011 in this regard claiming equal treatment as Shri Bachchoo Lal Patel and grant of third MACP of GP 4600. Vide letter dated 16.08.2012, the claim of third MACP was rejected on the ground that comparison benefits of 3rd MACP at par with Shri Bachhoo Lal Patel of GP 4600 cannot be given to him. The applicant also represented several times on 09.12.2013/07.01.2014 in the ‘Internal Forum of Aap Ki Awaz’ with the above claims which were again rejected vide the impugned letter dated 19.05.2014. On 19.10.2015, another representation was made by him to the DRM, N.C. Railway, Allahabad but no response has been made to him. The applicant has been retired from service since 10.09.2013 and claims that he is getting less pension due to the above anomalies and wrong fixation of pay.

Contradicting the claim of the applicant, the respondents, in their counter reply, state that the impugned orders in the original application have been passed by the competent authority on the basis of the instructions and the relevant provisions of the Indian Railway Establishment Manual and the case of Shri Bachchoo Lal Patel depends upon altogether new facts. The case of the applicant is also not of a recurring nature and the original application is barred by limitation. The applicant has already been granted due benefits of proforma fixation vide order dated 20.05.2003 as Senior Clerk and difference of actual payment and seniority after joining the Personnel Branch on accepting bottom seniority. He has also been granted the benefit of M.A.C.P Scheme in grade pay of Rs.4200 on 05.03.2006, and nothing more is due to be paid to the applicant.

We have heard learned counsel for the parties and perused the records.

Learned counsel for the applicant argues that fixation of pay of the applicant was not correctly done either in case of proforma promotion or in giving benefit of third MACP GP 4600 as given to Shri Bachcho Lal Patel who was also given proforma fixation of pay as Senior Clerk grade Rs.1200-2040 from the date of his absorption in lower grade post of Clerk. It is pointed out that Pay scale of Switchman Rs. 1200-2040 and Senior Clerk Rs. 1200-2040 are equivalent grade and absorption in an equivalent grade cannot be treated as two promotions and in case of Shri Bachchoo Lal Patel he was allowed benefit of GP 4600 and fixation of pay accordingly. Thus, the action of the respondents is discriminatory and against the statutory provisions contained in para 1314 (c) of Indian Railway Establishment Manual Vol. I (ed. 1989).

Learned counsel for the respondents, on the other hand, contends that since there was no post of senior clerk available in the Medical Department, the applicant being High School passed was considered for clerical cadre by the duly nominated screening committee and accordingly the applicant assumed the charge w.e.f. 26.03.1990. It was only on the basis of the request made by the applicant, his case was considered and after due approval of the competent authority, the detailed order dated 20.05.2003 was passed by the competent authority. Shri Bachchoo Lal after being medically decategorised was considered on the basis of vacancy available to the post of Senior Clerk on 21.11.1994 while, on the contrary, the applicant Shri Safiq Ahmad was medically decategorised on 12.09.1989 and assumed charge of Clerk on 23.03.1990 and as per rules, the representation of the applicant can only be considered within three years and as such it is absolutely false to allege that the case of the applicant is identical. Thus, the case of the applicant has rightly been considered as per his entitlement by extending the benefits of seniority and the proforma fixation admissible under the rules from the due date which cannot be said to be illegal, arbitrary, discriminatory or contrary to the statutory provisions. The claim of the applicant is devoid of any merits and is liable to be dismissed.

We have considered the rival contentions of learned counsel for the parties and perused the entire documents on record.

From the perusal of order dated 30.05.2003, it is evident that while working as SWM in the pay scale of Rs. 1200-2040/- (Rs, 4500-7000), applicant medically decategorized on 01.09.1989 and on his own request he was absorbed as Clerk in the pay scale of Rs. 950-1500/- (Rs, 3050-4590) and accepting bottom seniority in the Medical Department. It is also relevant to mention here that applicant has also requested to reconsider his case for re-absorption as Senior Clerk in the pay scale of Rs. 1200-2040/- (4500-7000) within one year of his absorption in lower grade of Rs. 950-1500/- (Rs, 3050-4590). The department has also decided that applicant be allowed alternative job of Sr. Clerk in the pay scale of Rs. 1200-2040/- (4500-7000) w.e.f. 21.11.1994 on proforma basis i.e. the date of absorption of Shri Bachhoo Lal Patel, who was junior to the applicant in the seniority of SWM. Impugned order dated 16.8.2012 is also stated that applicant has given three upgradations/promotions, which is as under:-

From the perusal of aforesaid fact, it is crystal clear that applicant has been given three financial upgradations/promotions and as per MACP scheme three financial upgradations/promotions is required to be given to the employees. It is also worth mentioning here that applicant has also accepted bottom seniority in the medical department. Hence, we are of the opinion that since applicant has already accepted bottom seniority in the medical department, hence he has not to be claimed parity with Shri Bachhoo Lal Patel.

In view of the aforesaid observations, we find that applicant is not liable to be granted reliefs which he has sought in the OA and accordingly, OA is dismissed. No order as to costs.