Union of India (UOI) vs V.S. Mishra and Others

Suresh Kait, J.—The present petition is directed against the order dated 07.08.1997 passed in OA No. 1882/1991 by the Principal Bench of Central Administrative Tribunal, New Delhi. The petitioner feels aggrieved by the aforesaid judgment/order whereby OA of the respondent is allowed.

The respondents herein had filed OA challenging the impugned order dated 16.09.1988 of the Railway Board. The respondents herein were working as Technical Supervisors in the Mechanical Department of Railways. In pursuance of the IVth Central Pay Commission, the revised pay scale was fixed to different categories of persons including that of respondents. While fixing the revised pay, some of the juniors of the respondents were getting higher salary than the respondents. Accordingly, they filed representation before the Railway Board claiming stepping up of salary qua to that of their juniors. The Jhansi Division of the Central Railways passed an order stepping up the pay of about 30 senior Loco Supervisors with reference to the higher pay fixed to their juniors. However, the Railway Board issued a letter dated 16.09.1988 by saying that stepping up of pay could not be allowed to any person other than those belonging to Running Staff appointed as Loco Running Supervisors and in whose cases 30% of the basic pay is taken as an additional pay and allowance. On this, the Jhansi Division issued the impugned orders cancelling the earlier order whereby the pay of seniors was stepped up. The respondents herein, who were adversely affected by this cancellation order filed OA before the Tribunal and the Tribunal allowed the OA, the relevant portion of which is reproduced as under:

We see considerable force in the submission of the petitioners and since almost all the petitioners have retired, there is no question of payment of arrears. The respondents are, in the circumstances of the case, directed to fix the pay as the last pay drawn notionally after giving the benefit of stepping up as given to those petitioners in the above stated OAs, and pay fixation may be made according to law to disburse the revised pension from the date of superannuation. It goes without saying that the petitioners will be entitled to arrears of pension in accordance with Rules. In case of the petitioners who are not retired, this order will apply prospectively for the purpose of pay fixation.

The respondents have now retired. They have pointed out that against the aforesaid impugned order, number of OAs were filed and were allowed by the Tribunal and the SLPs filed against them have also been dismissed. Learned Counsel for the petitioner has submitted that there is a category of staff called ''Running Staff'' such as Drivers, Guards, Firemen, Shunters and brakemen. According to the rules, the running staff are getting �Running Allowances'' and the said amount is paid in order to encourage and induce the staff to do running duties. Since this staff is doing running duties, therefore, running allowance is considered to be normally containing a component of pay. On promotion of running staff to non-running post, they are given by pay fixation in a new grade with add-on of 30% to the basic pay drawn by them in running category. Accordingly, if Loco drivers, firemen etc. are promoted as Loco Supervisors or Power Controllers, in that case their pay will also accordingly be fixed by adding 30% of the basic pay into pay drawn by them as drivers etc.

As regards the private respondent Nos. 1, 2 & 3 are concerned, they were not promoted from the category/cadre of running staff to the post of Loco running supervisors. The respondent Nos. 1, 2 & 3 herein belongs to Mechanical side and they have come from a separate stream altogether, therefore, they being from Mechanical side/cadre were not entitle to 30% add-on in their pay fixation. The counsel for the petitioner had strongly argued that impugned letter dated 16.09.1988 was in respect of inter se anomaly in respect of drivers coming from same stream i.e. running staff. Therefore, letter dated 16.09.1988, strictly, was applicable to running staff promoted as Loco supervisors. Subsequently, this issue was also clarified vide letter dated 08.09.1990 in respect of letter dated 16.09.1988. Accordingly, the aforesaid letters clarified that stepping up of pay could only be allowed to Running Staff appointed as Loco Running Supervisors, in whose cases 30% of the basic pay was taken as element in the running allowance and that the said stepping up of pay would not be admissible to non-running staff of Mechanical Department appointed as Loco Running Supervisors.

Further, learned Counsel for the petitioner pointed out that the Circular of Railway Board dated 16.09.1968 was interpreted by the Supreme Court in the case titled Union of India and others Vs. O.P. Saxena and Others, relevant portion of which is reproduced as under:

The pay of running staff on promotion to Loco Supervisor�s post is fixed under Rule 1316 of Indian Railway Establishment Code after fixation of an additional component of thirty per cent of basic pay last drawn in the running cadre, which represents the pay element in the running allowance. On introduction of the revised pay sales with effect from 1st January, 1986 this thirty per cent addition in the pay element of the running allowance increased which resulted in higher fixation of pay of running staff appointed as Loco Supervisors after 1st January 1986 than those appointed as Loco Supervisors before 1st January ,1986. Therefore, when Sh. Kareer was appointed as a Loco Supervisor, his pay as Loco Supervisor was fixed after taking into account the aforesaid thirty per cent addition which resulted in his getting higher pay than the respondents. It appears that in the pay of respondent- O.P. Saxena was stepped up but when the department discovered that the benefit had been wrongly given to him his pay was re-fixed and recoveries were made of the excess amount paid to him. Sh. O.P. Saxena challenged the aforesaid decision by filing OA No. 462 of 1994 before the Central Administrative Tribunal Jabalpur. OA Nos. 191/94 and 768/93 were filed by the other respondents seeking the benefit of stepping up.

In our opinion, the decision of the Tribunal directing stepping up of the pay of the respondent herein was not correct. It had been clarified by the Ministry of Railways in the letter dated 14th September, 1990 that the principle of stepping up referred to in its earlier letter of 16th August, 1988 was ''subject to codal conditions being fulfilled''. The principle of stepping up of pay is contained in Rule 1316 of Indian Railway Establishment Code Vol. II which also contains conditions which have to be followed while ordering stepping up. Two of the conditions contained therein are:

(a) Both the senior and junior officers should belong to the same cadre and the post in which they have been promoted on a regular basis should be identical in the same cadre;

(b) The scales of pay of the lower and higher posts in which they are entitled to draw should be identical.

As per the dicta of the Supreme Court, while considering the stepping up of pay of running staff by 30% had held that stepping up of pay by 30% was as per Codal condition of the Ministry of Railways. It was also held that the point of stepping up of pay is contained in Rule 1316 of the Indian Establishment Code. It was further held that an employee from Running category was entitled to 30% of stepping up of pay and the Loco Supervisors, who came from the other category from mechanical side was not entitle to stepping up of pay by 30%.

We have gone through all the pleadings and arguments advanced by both the parties. We of the considered view that the Tribunal has erroneously allowed this OA inspite of the fact that the same issue has already been decided by the Supreme Court in the case of UOI and Ors. v. O.P. Saxena etc. (supra). Since this case is squarely covered by the aforesaid judgment, therefore, we set aside the order passed by the Tribunal in OA No. 1882/1991 and allow the writ petition accordingly. However, there shall be no order as to costs.