ORDER
Mukesh Kumar Gupta, Member (J)
1. By the present OA, applicant seeks quashing of impugned communication dated 30.9.2004 (Annexure A-1) vide which applicants request to re-fix his pay in pay scale of Rs. 1200-2040/-, revised to Rs. 4000-6000/- w.e.f. 22.11.1996 has been rejected. He also seeks direction to respondents to re-fix his pay with all consequential benefits and difference of pay & allowances. In alternate, a direction is sought to respondents to grant him second financial upgradation under ACP Scheme from the date he completed twenty-four years of service with all consequential benefits.
2. The facts as stated in OA are that applicant was initially appointed on 31.12.1968 as Pointsman. He was promoted as Cabinman on 01.8.1982 in grade of Rs. 260-400/- and further as Switchman in grade of Rs. 1200-2040/- some time in the year 1988. While working as Switchman he was declared medically unfit by the Chief Medical Superintendent, Allahabad vide order dated 01.3.1996 observing that:
The Board is of the opinion that Shri Masroor Ali Khan, SMN, SS/TDL is a patient of Type II Diabetes Mellitus (SIDDN) taking oral hypoglycemic drugs and has history of transits epidodes of fainting attacks. In the interest of the safety of train running, working on open line, moving machinery, fire, bridges deepwater etc. are not involved.
Therefore, he was provided an alternative appointment in the cadre of Clerk in grade of Rs. 950-1500/- vide order dated 22.11.1996.
3. His grievance is that though as Switchman he was in pay scale of Rs. 1200-2040/- but he has been appointed as Clerk, which carries lower pay scale. Similarly situated officials namely Sh. Suresh Singh Chauhan and Sh. S.C. Gupta, both Asstt. Drivers, who were earlier in pay scale of Rs. 950-1500/- have been given alternative post in pay scale of Rs. 1200-2040/-. Such a treatment has not been accorded to him and hence it is discriminatory and violative of Article 14 of Constitution of India. He had submitted representation to concerned authority to grant him correct pay scale on 13.12.1996 followed by further representations on 30.12.1997, 02.7.1998 and also on 21.1.1998 through Union. On every occasion, he was assured that his case was under consideration. In the year 2004 when Union raised the issue as well as he took up the matter by making representation, respondents for the first time passed order dated 30.9.2004 and rejected his claim on vague and baseless grounds. Though he had completed twenty-four years of service in the year 1992 itself and was eligible for grant of second financial upgradation under Assured Career Progression Scheme yet the respondents did not consider and grant him such benefit. As such, finding no alternative he approached this Tribunal vide present OA.
4. Shri Yogesh Sharma, learned Counsel for applicant placing reliance on G. Prabhakara Rao v. Union of India and Ors. 2004 (1) ATJ 32 and Kunal Singh v. Union of India that applicant is entitled to relief prayed for as respondents were duly bound to provide him alternative job in same pay scale with protection of basic pay and seniority with all consequential benefits. In any case, he is entitled to similar benefits, which were granted to Sh. Suresh Singh Chauhan and Sh. S.C. Gupta, Asstt. Drivers.
5. Applicant has also filed MA 2348/2005 seeking condonation of delay in approaching this Tribunal stating that applicant had made representations, which remained unattended for long time and final orders were passed only on 30.9.2004. Since he is seeking benefit of revision of pay scale which is a recurring cause of action in terms of law laid down by Hon’ble Supreme Court in M.R. Gupta v. Union of India and Ors. . Moreover, it is well settled that technicalities of law cannot be a ground to ignore substantive justice and undo illegalities, as observed in State of Bihar v. Kameshwar Pd. 2000 (2) ATJ 614, delay may be condoned.
6. The respondents contested the OA stating that on being medically de-categorized from the post of Switchman in grade of Rs. 1200-2040/-, revised to Rs. 4000-6000/- w.e.f. 01.1.1996, applicant was screened by the Screening Committee and was found suitable to offer alternative post of Clerk in grade of Rs. 950-1500/- (revised to Rs. 3050-4590/-). With the approval of Competent Authority vide order dated 09.10.1996, he was offered such appointment and on accepting terms and conditions, he was posted as Clerk under SS/Tundla in Operative Department on 22.11.1996. While existing grade of Switchman of Rs. 1200-2040/- was revised to Rs. 4000-6000/- from retrospective effect i.e. 01.1.1996 as a result of implementation of Fifth Central Pay Commission recommendations, existing grade of Senior Clerk i.e. 1200-2040/- was revised to Rs. 4500-7000/-. In this way, the post of Switchman became lower in grade than that of Senior Clerk w.e.f. 01.1.1996. As such applicant was correctly absorbed as Clerk grade vide order dated 22.11.1996. Pay scales were revised retrospectively in September, 1997 on implementation of Fifth Central Pay Commission recommendations. Applicants representation dated 16.8.1997 had been replied on 05.11.1997. In view of above, applicant was not entitled to be re-absorbed in higher grade of Rs. 4500-7000/-. Such anomaly arose because of upgraded pay scale granted to Senior Clerk i.e. Rs. 4500-7000/-, though prior to 01.1.1996, Senior Clerk as well as Switchman both were in same pay scale of Rs. 1200-2040/-.
As far as applicants claim for grant of second financial upgradation is concerned, since applicant while working as Khallasi in grade of Rs. 196-232/- was allowed promotion as Shuntman in grade of Rs. 200-250/- w.e.f. 04.4.1975, further promotion as Shuntman in the same grade, Leverman Grade-I in pay scale of Rs. 210-270/- w.e.f. 12.1.1980 and further promotion as Cabinman in grade of Rs. 260-400/- w.e.f. 08.10.1983, he is not entitled to financial upgradation under ACP Scheme. Since applicant was granted three promotions, extension of benefit under ACP Scheme is not available to him.
7. By filing short rejoinder, applicant reiterated the contentions raised vide his OA and submitted that as on 09.10.1996, pay scale for Senior Clerk was Rs. 1200-2040/-, which was equivalent to that of the post of Switchman grade i.e. 1200-2040/-. Pay scale of Senior Clerk was revised subsequently and, therefore, the whole action of respondents is illegal in the eyes of law.
8. We heard learned Counsel for parties and perused the pleadings.
9. Since there had been no serious objection raised to MA for condonation of delay and finding that the applicant has made out a prima facie case and there are sufficient reasons to condone the delay, MA is allowed and delay in approaching this Tribunal is condoned.
The impugned order rejecting applicants request for grant of pay scale of Rs. 4000-6000/- (pre-revised Rs. 1200-2040/-) was issued on 30.9.2004 while the OA was filed on 28.9.2005. At the outset, we may note that the applicant had not denied the fact that his representation dated 16.8.1997 has been replied to vide letter No. 729-E/ET-03/Med.decategorised/Switchman dated 05.11.1997 as stated under reply para-7, which answered the contentions raised vide para-4.7 of OA. In other words, applicants earlier request for grant of same pay scale as prayed now had already been rejected, which remained unchallenged. Even we examine the case on merits, we observed that applicant was appointed as Clerk in pay scale of Rs. 950-1500/- (pre-revised) vide order dated 09.10.1996 and was posted vide order dated 22.11.1996. Said orders had not been challenged before any court of law. It is undisputed fact that applicant was medically decategorized as Switchman and was offered alternative post as Clerk. It is not the case of the applicant that his basic pay as Switchman has not been protected, while granting alternative appointment as Clerk. It seems that applicant is basically aggrieved merely for the reasons that Shri Suresh Singh Chauhan and Sh. S.C. Gupta, both Asstt. Drivers, who were earlier in grade of Rs. 950-1500/-, were given alternative appointment in grade of Rs. 1200-2040/-. Though respondents have not furnished any reason for such treatment, but this cannot be a ground to issue a direction to respondents to perpetuate the illegality committed earlier. It is well settled that court cannot issue any direction to respondents to perpetuate the illegality committed earlier. Moreover, said officials being Asstt. Drivers are not comparable with the applicant, who had been a Switchman. Neither their date of such alternative appointment is given nor other particulars are mentioned in the pleadings. As held by the Honble Supreme Court in [Chandigarh Administration and Anr. v. Jagjit Singh and Anr.], merely for the reason that Sh. Suresh Singh Chauhan and Sh. S.C. Gupta were given alternative post in higher pay scale, applicant cannot be allowed similar treatment. The applicant is due to retire on attaining the age of superannuation on 31.8.2007 i.e. almost after a year from now, the impugned action pertains to the year 1996 i.e. almost a decade old. It is well settled that settled service position cannot be un-settled after a lapse of time.
10. In view of the above, we find no merits in the claim laid and accordingly, OA is dismissed. No costs.