ORDER
M. Jayaraman, Member (A)
1. Sri S. Ramakrishna Rao, learned Counsel for the applicant appeared for the applicant and Sri N.R. Devaraj, learned standing counsel for the Railways appeared for the Respondents.
2. The subject OA has been filed by the applicant with a prayer-
(a) to call for the records relating to the applicant’s service in temporary status capacity prior to his absorption as Accountant on regular basis, with effect from 22.10.1980 and declare the inaction on the part of the Respondents to reckon the 50% of temporary service for the purpose of granting financial upgradation under ACP Scheme and also grant first and second ACP;
(b) to direct the respondents to consider his case for reckoning the 50% of temporary status rendered prior to regularization as Accountant w.e.f. 22.10.1980 and to grant 1st and 2nd financial upgradations at a time directly without subjecting him for test/selection, duly pre-poning the dates of financial upgradations with all consequential benefits.
3. The brief facts here are that the applicant was working in Railway Canteen from 19.12. 1975. In pursuance of the judgment of the Hon’ble Apex Court dated 22.10.1980 in the case of Railway Canteen Karmacshari Association in CA No. 368/78, the Ministry of Railways issued letter dated 8.6.1981 directing that the employees of all Statutory Canteens of Railways irrespective of the type and management of the canteen should be deemed to be the Railway servants with effect from 22.10.1980. In the light of the above, the applicant was treated as Railway Servant for all purposes and was given the scale of pay in the year 1982 with effect from 22.10.1980 initially in the scale of Rs. 260-430 which was revised to Rs. 975-1540 with effect from 1.1.1986, after the Four Pay Commission recommendations. The applicant states that there is only one post of Accountant in the entire South Central Railway at the canteen attached to the Loco and Carriage Workshops, SC Rlys, Lallaguda and that there is no post of Accountant in other Statutory Canteens in SC Rlys. The applicant further states that under the revised scale of pay circulated by Railway Board in its letter dated 11.3.1982, the pay of the applicant in the post of Accountant was fixed in the scale of Rs. 260-430 whereas the pay of his counter parts in the Central and Eastern Railways was fixed in Rs. 330-480 which was revised to the scale of Rs. 1200-1800 w.e.f. 1.1.1986. The applicant therefore submitted representations for fixing his pay in the scale of Rs. 1200-1800 w.e.f. 1.1.1986 on par with his counter parts in other Railways which was rejected by the authorities on 22.10.1988 and 21.1.1999. Accordingly he filed OA 220/99. This was allowed by Hon’ble Tribunal vide 3 order dt.27.6.2000 declaring that the applicant would be entitled to the scale of Rs. 1200-1800 w.e.f. 1.1.1986 and that it should be converted to the equivalent pay scale from that date with consequential and attendant benefits including arrears of pay. In pursuance of the order of this Tribunal in OA 220/99, Respondent No. 2 has issued order on 18.10.2000 sanctioning the scale of Rs. 4000-6000 w.e.f. 1.1.1996 and re-designated the post of Accountant as Manager Grade-I. Since then the applicant has not obtained any promotions. According to the circular dt. 1.10.1999 issued by Railway Board addressed to all the General Managers of All Indian Railways, it is decided to grant the first financial upgradation to Group B, C & D employees on completion of 12 years of regular service and the second financial upgradation to be allowed after 12 years of regular service from the date of 1st financial upgradation subject to fulfillment of other conditions. As per condition No. 7 of the scheme, the financial upgradation under the scheme shall be given to the next higher grade in accordance with existing hierarchy in a cadre/category of posts without creating new posts for the purpose and as per the condition No. 15 of the scheme which lays down that in cases where the employees have already completed 24 years of regular service with or without promotion, the second financial upgradation under the scheme shall be granted directly. By letter dated 31.3.2004, Railway Board directed that 50% of casual labour service on absorption in regular employment may be taken into account towards minimum service of 12/24 years for the grant of benefit under the ACP Scheme on the analogy that the same is also reckoned as qualified service for pension. Since the applicant was appointed in the year 1975 and was absorbed on regular basis on 22.10.1980, the service rendered as Temporary Status official is eligible to be counted at the rate of 50% of service for counting the service for the purpose of ACP Scheme. The applicant’s request for granting him first ACP on 2.10.1989 and the 2nd ACP on 2.10.2001 was rejected by Respondent No. 2 by his letter dt. 10.1.2001. Aggrieved by the said rejection letter, the applicant filed OA 166/2001 wherein the Hon’ble Tribunal allowed the OA partly setting aside the order dt. 10.1.2001 with a direction to the respondents to extend the benefit of first ACP fixing the pay of the applicant in the scale of Rs. 1200-1800 which is revised to Rs. 4000-6000 with effect from 22.10.1992 restricting the monetary benefits payable only w.e.f. 1.10.1999 under the ACP Scheme notified by the Railway Board subject to revision and refixation of the same on the basis of final orders that may be passed by the Hon’ble High Court of AP in WP 20731/2001. Subsequently the applicant represented to the respondents to implement the judgment but there was no response. So he filed CP No. 59/03. However, the same was ordered to be closed since the respondents complied with the direction to fix the pay of the applicant in the scale of Rs. 1200-1800 revised to Rs. 4000-6000 w.e.f. 1.10.1999. The applicant therefore filed a review application seeking clarification on the same. However, since there was delay in filing the Review Application, the same was rejected by the Hon’ble Tribunal as the Hon’ble Tribunal has no power to condone any delay in filing the review application. Hence the present OA is filed seeking redressal of the grievances as above.
4. The main ground on which the OA is filed is that as per Railway Board orders dt. 1.10.99, an employee is entitled to two financial upgradations, the Ist after completion of 12 years and IInd after completion of 24 years. In terms of order dated 31.3.04, 50% of temporary status service is to be taken into account; since he was originally appointed on 19.2.1975 and was regularized on 22.10.1980, he is entitled to two financial upgradations having completed 24 years of service. According to the applicant, the first ACP was to be issued on 2.10.1989 and the second would be due on 2.10.2001.
5. The pleadings of the applicant have been vehemently opposed by the Respondents who has taken the preliminary objection on maintainability of the OA as the OA is hit by principle of res-judicata for the reason that the issues involved in this OA is substantially the same as was in OA 166/01 earlier filed by the applicant before this Tribunal in which the applicant sought for directions to the respondents for financial upgradation to the scale of Rs. 1320-2040 w.e.f. 19.2.1987 and to the scale of pay of Rs. 5000-8000 w.e.f. 9.10.1997 under the ACP scheme. However the Hon’ble Tribunal vide its order 13.1.2003 rejected the claim of the applicant and held that the service is to be counted from 22.10.1980 i.e. From the date of his absorption for the purpose of extending the benefit of ACP Scheme. Therefore counting of applicant’s service prior to his regularization had attained finality by virtue of Tribunal’s orders dated 13.1.2003 which has not been challenged by the applicant. The respondents therefore submit that on this ground alone the OA is liable to be rejected.
6. Further, coming to the merits of the case, the respondents state that the applicant’s appointment was by private management in Electric Loco Shed Canteen on 9.12.1975, in which the respondents have no role to play at all. However, pursuant to the proceedings of the Railway Board vide its letter dated 1.10.1999 following the Hon’ble Apex Court’s judgment, the applicant was treated as Railway Servant and was absorbed into Railway service as Accountant, later redesignated as Manager w.e.f. 22.10.1980 in grade Rs. 260-400(RS) revised as Rs. 975-1540 in IV Pay commission.
7. The respondents have further submitted that the applicant was granted pay scale of Rs. 1200-1800 pursuant to interim order of Hon’ble High Court in WPMP No. 46/2002 dt. 7.3.2002 in WP No. 26138/01 filed by the Railways (as petitioners) challenging the order of the Hon’ble Tribunal in OA 220/99 and further order in MA 584/2000 declaring that the applicant is entitled for pay scale of Rs. 1200-1800 w.e.f. 1.1.1986. Thus, the entire matter as to which pay scale the applicant is entitled on his absorption is the subject matter of WP 26138/2001 which is pending disposal and subjudice before the Hon’ble High Court of AP. Therefore the applicant’s entitlement to higher grade under the ACP can only be determined depending on the outcome of WP.
8. The respondents have further explained that the ACP scheme is formulated by the Railway Board as per the recommendations of Fifth Pay Commission in their proceedings dt. 1.10.1999 which stipulates that the first financial upgradation under the ACP scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed condition mentioned therein. The regular service for the purpose of ACP shall be interpreted to mean eligibility service counted in terms of rules relevant to recruitment/promotions. The applicant’s service prior to his regularization cannot be counted for regular promotion in terms of rules and therefore his service from 19.12.1975 to 22.10.1980 cannot be construed to be the regular service for the purpose of giving the benefit under ACP.
9. It is further submitted by the Respondents that one of the prescribed conditions for grant of benefit under ACP is the fulfillment of normal promotional norms i.e. Qualifying in the departmental examination and the screening conducted for that purpose. Thus, the benefits under ACP cannot be claimed as a matter of right but subject to fulfillment of conditions contained in the ACP Scheme vide Annexure R1 to the reply. It is submitted that Railway Board in proceedings dated 31.3.2004 decided that 50% of temporary status casual labour service on absorption in regular employment may be taken into account towards the minimum service of 12/24 years for grant of benefits under the ACP Scheme on the analogy that the same is also reckoned as qualifying service. As the applicant was never appointed as Casual labour by the Railways any time prior to his regularization and his appointment was purely by private management of Electric Loco Shed canteen, the question of counting 50% of his private service prior to regularization does not arise and as such the benefit is confined to casual labour alone under the scheme governing grant of upgradation under ACP scheme.
10. It is further submitted by the Respondents that while adjudicating OA 166/2001, the Hon’ble Tribunal was categorical in its observation in the order dt. 13.1.2003 to the effect that ‘under the ACP scheme introduced by the Railway Board with effect from 1.10.99, it is nowhere provided that service rendered by the employees of the canteens prior to 22.10.1980 i.e. Prior to the date on which they became railway employees is also to be taken into consideration for counting the period of 12 and 24 years for the purpose extending the benefits of financial upgradation. In the absence of the said provision in the scheme we are unable to accept the above contention of the learned Counsel for the applicant and we find that the said period is to be counted only with effect from 22.10.1980 for the purpose extending the benefits of financial upgradation under the ACP scheme introduced with effect from 1.10.1999’. Accordingly the Hon’ble Tribunal held that the applicant became entitled to first financial upgradation on completion of 12 years of service i.e. By 22.10.1992.
11. The respondents have submitted that pursuant to the above orders, the applicant was called for written test on several occasions i.e. On 6.2.2004, 26.9.2005, 4.10.2005 and 4.12.2005. On all these occasions the applicant did not attend the written examination despite postponement for several times. Since the applicant did not subject himself to the selection process, he has in fact waived his right to be considered under ACP scheme. In view of this, respondents have prayed for dismissal of the OA.
12. The applicant has filed a detailed rejoinder refuting the submissions made by the respondents as above mainly saying that in terms of Railway Board clarification dated 13.3.2004, a fresh cause of action arises and according to the applicant, the OA is maintainable. It is further stated by the applicant that there is no recruitment rule prescribed for the post of Manager in the absence of which the respondents cannot insist for his not attending to the tests/selection process after a passage of 12/24 years of service.
13. We have given our careful consideration to all the submissions made by the rival sides. We have also perused the records. The only point that falls for consideration in this OA is whether in terms of Railway Board circular dated 31.3.2004, the applicant is entitled to be granted the benefits of the first and second financial up gradation under the ACP scheme after counting 50% of his service rendered prior to his becoming a Railway servant i.e., from 19.12.1975, (when he joined the Railway canteen), to 22.10.1980, when he actually became the Railway servant.
14. At the outset, we may refer to the decisions of this Hon’ble Tribunal in the earlier OA 166/2001 filed by the applicant vide order dated 13.1.2003. The very first paragraph of the Order reads as follows:
This application is filed by the applicant seeking for a direction to the respondents to forthwith give financial up gradation to the scale of pay of Rs. 1320-2040 with effect from 19.2.87 and to the scale of pay of Rs. 5000-8000 with effect from 9.10.99 under Assured Career Progression Scheme notified by the Railway Board on 1.10.99, with all attendant benefits including arrears of pay and to set aside the impugned order dated 10.1.2001 passed by the 2nd respondent rejecting the said claim.
15. After considering all the aspects and after hearing both the sides, the Hon’ble Tribunal observed as follows:
But under the ACP scheme introduced by the Railway Board with effect from 1.10.99, it is nowhere provided that service rendered by the employees of the canteens prior to 22.10.80 i.e., prior to the date on which they became Railway employees is also to be taken into consideration for counting the periods of 12 and 24 years for the purpose of extending the benefits of financial up gradation. In the absence of the said provision in the scheme, we are unable to accept the above contention of the learned Counsel for the applicant and we find that the said period is to be counted only with effect from 22.10.80 for the purpose of extending the benefits of financial up gradation under the ACP scheme introduced with effect from 1.10.99. We have therefore no hesitation to hold that the applicant became entitled to first financial up gradation on completion of 12 years of service i.e., by 22.10.1992.
16. Finally, in para 7, the Hon’ble Tribunal held as follows:
In the result, this application is partly allowed setting aside the impugned order dated 10.1.2001 passed by the 2nd respondent and directing the respondents to extend to the applicant the benefit of the first financial up gradation fixing the pay in the scale of Rs. 1200-1800 which is revised to Rs. 4000-6000 in the 5th Pay Commission scale of pay with effect from 22.10.1992 restricting the monetary benefits payable only with effect from 1.10.1999 under the ACP scheme notified by the Railway Board, subject to revision and re fixation of the same on the basis of final orders that may be passed by the High Court of Andhra Pradesh in W.P. No. 20731/2001. In the circumstances, we direct the parties to bear their respective costs.
17. Since in the present OA also the applicant has prayed for similar relief i.e., to take 50% of the service rendered prior to 22.10.1980, we find that the principle of res judicata will apply and so he is prevented from making such a plea before this Hon’ble Tribunal, again.
18. Be that as it may, the main ground on which the applicant has raked up the issue of service rendered prior to 22.10.1980 is due to the Railway Board’s circular dated 31.3.2004 which deals with the financial up gradation under ACP scheme wherein some clarifications were issued. For proper understanding of the same, the said letter dated 31.3.2004 of the Railway Board is reproduced below:
Government of India
Ministry of Railways
(Railway Board)
S. No. PC-V/404 RBE No. 69/2004
No. PC-V/2004/ACP/1 Dated : 31.03.2004
The General Managers/CAO(R),
All Indian Railways & Pus
(As per mailing list)Sub : Financial Up gradation under the ACP Scheme-Clarification regarding.
—
Please refer to Board’s letter of even number dated 1.10.99 regarding the Assured Career Progression Scheme (ACPS) and subsequent amendments/clarifications that have been issued from time to time.
The matter regarding extension of the scope of the ACP scheme so as to count 50% of temporary status casual labour service on absorption in regular employment for the purpose of grant of benefit under the ACPS was raised by staff side in the forum of DC/JCM.
The matter has been examined and it has been decided that 50% of temporary status casual labour service on absorption in regular employment may be taken into account toward the minimum service of 12/24 years for the grant of benefit under the ACP Scheme on the analogy that the same is also reckoned as qualifying service for pension.
Hindi version is enclosed.
Sd/-
(P.K. GOEL)
Director, Pay Commission
Railway Board
19. It may be seen from the above that the entire matter revolves around the extension of the scope of ACP in respect of casual labour who have since been absorbed on regular employment wherein the Railway Board has decided that 50% of the temporary status casual labour service on absorption on regular employment would be taken into account towards the minimum period of service of 12/24 years for grant of ACP scheme (on the analogy of qualifying service for pension). In other words, the above clarification which has been relied upon by the learned Counsel for the applicant refers to only those casual labour who were given temporary status initially and who were later absorbed regularly into the Railway service. As pointed out by the respondents vide para 9 above that the applicant was never taken by the Railways as casual labour initially nor was he granted any temporary status nor he was regularized thereafter in the Railways. Admittedly, the applicant was appointed initially by the private management of Electrical Loco Shed Canteen on 19.2.1975 and for the first time he became the Railway servant on 22.10.80, as decided by this Bench in the order dated 13.1.2003 in OA 166/01 filed by the present applicant himself. Therefore, we are unable to see any validity in the argument of the learned Counsel for the applicant that the aforesaid circular would apply to him.
20. During the hearing, the learned Counsel for the applicant further argued that as per paragraph No. 3 of the Railway Board’s letter dated 31.3.2004, the analogy is that similar service is reckoned as qualifying service for pension and he submitted a copy of the letter dated 3.5.2006 to show that his past service with effect from 19.2.75 has been taken into account by the Railways. However, we see from the copy of the aforesaid letter dated 3.5.2006 furnished by the learned Counsel for the applicant that the same deals with the counting of past service of non statutory canteen employees only for the purpose of pensionery benefits and post retirement complimentry passes although the applicant’s name figures at Sl. No. 1 thereof and his past service would be counted for pensionary/post retirement complimentary pass. This letter cannot therefore be taken to mean that 50% of the service earlier to 22.10.1980 is to be reckoned for grant of ACP benefit. That provision is contained in the Railway Board’s letter dated 31.3.2004 which again refers to counting of 50% of temporary service of only the casual labour after regularization, which certainly does not apply to the applicant, as pointed out by the respondents. In any case, in the absence of any specific provision/decision/order issued by the Railway Board or the competent authority that private service rendered by non statutory canteen employees prior to the date on which such employees became railway servants with effect from 22.10.1980 should be reckoned/taken into consideration for the purpose of grant of benefits of ACP scheme, the same cannot be claimed or granted to the applicant.
22. Apart from the above, as pointed out by the respondents, the applicant has to fulfill the normal promotion norms for grant of ACP benefit as per the Railway Board’s letter dated 27.10.1999 [Annexure R-1 to the counter reply], vide para 6 which is extracted below:
6. The following shall be ensured while granting benefits under the ACP scheme:
(a) Fulfillment of normal promotion norms prescribed, such as bench mark, trade test, Departmental examination, seniority-cum-fitness (in case of Group ‘D’ employees) etc. for grant of financial upgradations;
(b) Performance, of such duties as are entrusted to the employees together with retention of old designations;
(c) Financial up gradations as personal to the incumbents for the stated purposes and restriction of he ACP scheme for financial and certain other benefits such as sanction of advances including House Building Advance, allotment of Government accommodation, issue of privilege and other passes etc. only, without conferring any privileges related to higher status (e.g. Invitation to ceremonial functions, deputation to higher posts etc).
23. As pointed out by the respondents vide para 11 above, the applicant never appeared for the written test called for by the respondents. Therefore, the benefit of ACP scheme has been rightly denied by the respondents.
24. Thus, looked at any way, there is no merit in this OA which is liable to be dismissed.
25. In the light of the above discussions, the OA is dismissed with no order as to costs.