ORDER
L.K. Joshi, Vice Chairman (A)
1. The Applicants in this case are seeking the relief that their pay should be fixed on promotion from Master Crafts Men (MCM) also called Senior Technician to Junior Engineer II (JE-II), which are in identical scale, though the promotion post enjoins higher responsibility, by application of Rule 1313 of Indian Railway Establishment Code (IREC) which is same as Fundamental Rule FR 22(I)(a)(1). Fundamental Rule FR 22(I)(a)(1) is as follows:
F.R. 22(I) The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows:
(a)(1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or [rupees one hundred only], whichever is more.
[Save in cases of appointment on deputation to an ex cadre post, or to a post on ad hoc basis or on direct recruitment basis], the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an ad hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment:
Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post or [rupees one hundred], whichever is more.
2. The Applicants aver that they have made several representations from 15.07.2005 onwards to the concerned authorities in this regard but there has been no response. The present OA has been filed because there has been no consideration of the request of the Applicants.
3. The learned Counsel for the Applicants has argued that the Railway Board, by its OM No. E(NG) 1/99/PM7/3 dated 22.02.2005 has, inter alia, decided as follows:
(iv) Sr. Technicians on their promotion as JE (II), though in the identical scale of pay may be allowed the benefit of fixation of under Rule 1313 FR 22 (I)(a)(1) R-II (erstwhile FR 22C).
It has been contended that the Applicants are entitled to the same retrospectively from the date each one of them got promoted to JE (II) from MCM/Senior Technicians, instead of making these applicable from the date of issue. The Applicants have been promoted between 1988 to 1997. Applicant No. 1 has been promoted on 31.01.1995.
4. It has further been argued that the Railway Board by its Order No. PC-IV/99/07/101/50, RBF 119/99 dated 24.05.1999 decided that for eleven categories, in which the post from which promoted carried identical scale to the post to which promoted, pay fixation would be done under FR 22 (I)(a)(1). These categories did not include the categories of MCM/Sr. Technician and JE-II. In paragraph 4 of the order, however, it was mentioned that if any other categories fulfilling the criteria mentioned in paragraph 1 came to the notice of the “individual Railway Administrations”, specific proposals containing the relevant details might be sent to the Railway Board for examination. In fact such suggestion for MCM’s promotion to JE (II) was sent by the Northern Railway to the Railway Board by letter No. 561-E/V-CPC/97(91) dated 11.8.2000.
5. The learned Counsel for the Respondents has, on the other hand, argued that the basis for fixing the cut off date 22.02.2005 is that Master Crafts Man promoted after 22.02.2005 have been given additional duties and responsibilities, which are higher than those of existing MCMs. Earlier, it was averred, the responsibilities of MCM and JE-II were the same.
6. The learned Counsel for the Respondents has raised certain technical objections also:
(i) the OA has been filed by 15 persons, but has been signed and verified by only one Applicant;
(ii) the Applicants have not given their service particulars in the OA;
(iii) there is both mis-joinder and non-joinder of parties. The Union of India has not been impleaded in the array of respondents in the OA. The General Managers and Divisional Railway Managers, under whom the Applicants were working before their superannuation have not been impleaded; and
(iv) the Applicants have wrongly impleaded by name the Chairman, Railway Board, Member (Staff) and Member (Electrical) of the Railway Board.
7. It has also been contended that the OA is barred by limitation. The applicants should have represented at the time of their promotion and not later.
8. Mr. R.L. Dhawan has also cited a Judgment of Hon’ble High Court of Madras in Union of India v. Registrar, Central Administrative Tribunal, Chennai, Writ Petition No. 18273 of 1999, WMP No. 26629 of 1999. In this case a writ petition was filed against the order of the Central Administrative Tribunal in OA No. 863/96 in M. Williams v. UOI and Ors. In this case the Applicant was promoted from Master Craftsman to Signal Inspector Gr. III, in identical scale of pay. In this case one Mr. Indiran, a person similarly situated as the Applicant in the above OA, had been given the benefit of pay fixation under Rule 1313 of IREC. Later it was claimed by the Respondents Railways that pay fixation of Indiran had been wrongly done. The Tribunal held that the case of Indiran was being reviewed six years after fixation of pay under Rule 1313 only to defeat the claim of the Applicant. The Tribunal upheld the claim of the Applicant for fixation of his pay under the above mentioned rule. In this case, as seen from the judgment of the Hon’ble High Court of Madras, there was also a post of Electrical Signal Maintainer Grade-I who could, on passing a suitability test, be posted as MCM in slightly higher scale than ESM-I. For the post of Signal Inspector-III, both MCM and ESM-I were feeder cadres. The High Court held that different pay cannot be fixed for persons promoted as Signal Inspector III from MCM and ESM-I.
9. In so far as the judgment of the Madras High Court is concerned it has been passed on 17.12.2003, before the order dated 22.02.2005 was issued. It is also clear that the Railway Board’s order dated 24.05.1999 (op cit) has also not been brought to the notice of the Hon’ble Court. Moreover, the facts in the instant case are different from the facts in the case before the High court. Therefore, in our view this judgment would not apply to this case.
10. The argument that the responsibilities of the MCM and JE II were the same before 22.02.2005 and there was accretion in the responsibilities of JE-II after 22.02.2005 and, therefore, fixation of pay under Rule 1313 of IREC is justified post the above date is difficult to accept. It is undisputed that JE-II’s post is a promotion post for MCM. It is inconceivable that a promotion post should carry the same responsibility and workload as the feeder post. The argument about increase in duties and responsibilities after 22.02.2005 seems to be an afterthought, because the application of the Rule 1313 of IREC was permitted for several similarly situated posts was made by order dated 24.05.1999 (op cit). The argument of increased responsibilities post 22.02.2005 to justify the decision by the order of that date (op cit) does not wash. No material has also been produced before us to show that there has been any accretion in duties and responsibilities post 22.02.2005.
11. In so far as the argument regarding limitation is concerned, we feel that it is a matter involving financial deprivation to the Applicants and hence cause of action remains. The Applicants have been making continuous representations, which met with total silence from the Respondents. The issue is, therefore, not time barred.
12. The technical objections have been met by the Applicants through appropriate amendments in the O.A. permitted by order dated 26.02.2007.
13. In the result the O.A. succeeds. The Respondents are directed to grant to the Applicants the benefit of pay fixation under Rule 1313 of IREC [FR 22 (1)(a)(1)] on their respective promotions from MCM to JE (II) with consequential benefits. This will be done within three months of receipt of certified copy of this order. No costs.