ORDER
Shanker Raju, Member (J)
1. Applicants who retired as Loco Inspector, seek through this OA extension of benefit of the decision of the Tribunal in Kishan Lal v. Union of India and Ors. (OA-229 of 2000) decided on 16.10.2001 with re-fixation of pensionary benefits and retiral dues by addition on element of 55% of the basic pay as granted to loco running staff from the date of retirement.
2. At the outset, Learned Counsel of applicants, Shri Patel would content that the applicants are entitled for the benefits at par with other loco supervisors in the same group of running staff are also entitled to the pay element, denial of it to applicants is invidious discrimination violative of Articles 14 and 16 of the Constitution of India.
3. Learned Counsel would contend that decision of the High Court in WP(C) 960/2002 decided on 22.9.2003 had accorded the benefit of the decision of Apex Court in G.C. Ghosh and Ors.V. Union of India and Ors. 1991 Supp.(2) SCC 497 which when upheld by the Apex Court, applicants being similarly circumstanced loco running staff, cannot be denied the benefit. It is also stated that posts of loco inspectors are to be filled exclusively from loco running side with experience of foot-plate. Loco running supervisor being a stationary post, applicants belong to running staff performing running duties and hence give kilo mage allowance. As such, the seniority of driver as well as ALF and LF for grade ‘B’ driver belong to running categories, a discriminatory treatment is not valid in law.
4. Learned Counsel relies upon plethora of decisions to substantiate his plea including decisions of the Tribunal in Yoginder and Ors. v. Union of India and Anr. (OA 1271/2005) decided on 16.11.2006, Vinod Kumar Saxena v. Union of India and Ors. (OA-118/2006) decided on 24.8.2006, Kishan Lal v. Union of India and Ors. (OA-1273/2005) decided on 2.1.2007 and by drawing my attention to RBE No. 198/1992 stated that para 3.2 specifies that loco inspector will require to perform duties directly connected with training and monitoring of loco running staff on foot-plate. The post of Assistant Loco foreman be filled from maintenance categories and as per para 5.1, the loco inspectors, irrespective of their grade, shall be credited with actual foot-plate duties and paid running allowances. It is also stated that as per the amendment of IREC Volume II, Rule 1514, running allowance to loco inspectors vide notification dated 25.11.1992 would apply in case of applicant.
5. On the other hand, Counsel for respondents vehemently opposed the contentions and stated that post of loco inspector will be exclusively filled from loco running staff. Running staff initially posted as power controller and shifted as loco inspector would get addition of element of 30 per cent of basic pay in running capacity only merged. It is stated that loco running supervisors have been stationary posts, running staff includes Driver, Shunter, foreman but not stationary staff like applicants.
6. I have carefully considered the rival contentions of the parties and perused the material on record.
7. In Yoginder Lall Sharma’s case (supra), applicants have been made entitled to be running allowance and in Vinod Kumar Saxena’s case (supra), loco running supervisor was made admissible the running allowance with the following observations:
4. As per Board’s letter dated 3.11.1987 in clause No. D of Item II and sub item II of Item No. 4 the artisans staff who had put in less number of years in running cadre are entitled for full benefit whereas the running cadre employees engaged from the inception of their appointments are denied the benefits. Being aggrieved by the aforesaid decision several Writ Petitions were filed before the Hon’ble High Court of Allahabad by running Supervisors praying for treating the running allowance as part of pay for all running staff on promotion to stationary posts. The High Court in Union of India v. Smt. Afsar Jahan Begum CWP No. 9 of 1975 decided on 12.3.1979 treating the running allowance as part of the pay, salary of petitioners was re-fixed as per Board’s letters of 1961 and 1963. The Apex Court in G.C. Ghosh and Ors.v. Union of India and Ors. 1991 Supp. (2) SCC 497 held that pension scheme or any benefit added to the pension is uniformly applicable to all the Railways. Calcutta Bench of this Tribunal in Janranjan Basu and Ors.v. Union of India and Ors. OA No. 1007 of 1993 decided on 19.5.2000, directed re-fixation of pay.
5. Applicant, who had been working on 31.1.1993 when no benefit of kilometer-age was accorded and retired, on pro rata basis running allowance was paid and on 31.1.1993 it was 30%, sought enhancement of pension and other retiral benefits by adding on 55% or 75% of the basic pay element in running allowance at par with loco running staff with re-fixation of pay as on 1.1.1986 as per Rule 1326 of IREM Vol. 1, when not responded to, gives rise to the present OA.
6. Shri K.K. Patel, Learned Counsel appearing for applicant relied upon a decision of the single Bench of the Allahabad Bench of this Tribunal in OA-479 of 2002 in A. Amrol and Ors.v. Union of India and Ors. decided on 16.05.2006, to buttress his plea. Learned Counsel has also relied upon a decision of the Tribunal in OA-1545 of 2002 in Prem Shanker Gupta v. Union of India and Ors. decided on 15.07.2005, wherein fixation of pay as a claim w.e.f. 1.1.1986 and increase in the pension and retiral benefits by 55% or 75% of the basic pay, direction issued has been complied with.
7. Learned Counsel while referring to the reply filed in Prem Shanker Gupta (supra) contended that respondents in paragraph-5 had admitted that the pay element for the purpose of computation of retiral benefits of running staff, it has been decided to take into consideration the additional component of 55% of pay w.e.f. 1.4.1979, which would have applied to those who retired as Loco Inspectors w.e.f. 1.1.1993 only for purpose of duty of training and monitoring of Drivers on footplates.
8. Learned Counsel has also placed reliance on OA-229 of 2000 in Kishan Lal v. Union of India and Ors. decided on 16.10.200, wherein direction issued to add on 55% running allowance as basic pay with all consequential benefits when once assailed before the High Court of Delhi in CWP No. 960 of 2002 was dismissed on 29.2.2003, upholding the direction of recalculation of pensionary benefits by adding 55% of the basic pay. The aforesaid decision has attained finality by rejection of SLP in CC No. 4355 of 2004 on 6.7.2004 by the Apex Court.
9. Learned Counsel states that on all fours the case of applicant is squarely covered by the aforesaid decisions and hence he is legally entitled to be accorded the identical benefits.
10. On the other hand, Shri R.L. Dhawan, Learned Counsel appearing for respondents has vehemently opposed the contentions. Shri Dhawn has raised an objection as to jurisdiction by contending that applicant had retired from Bhopal and for want of TA this Court has no jurisdiction to entertain the OA. It is also stated that though applicant retired on 31.8.1999 the claim now made is barred by limitation.
11. On merits, it is stated that while fixing retiral dues of applicant as well as pay on stationary post 30% add on running allowance element was taken into consideration as per the instructions dated 25.11.1992. As applicant was posted against a stationary post and was not in the category of running staff as per Rule 49 of the Railway Services (Pension) Rules, 1993, it is only in case of running staff that 55% of the add on benefit for pensionary benefits as pay element has to be reckoned with. As applicant was not included in the category of loco running staff as per paragraph-140 of IREM Vol. 1, the running staff being granted running allowance as per rules, his claim is liable to be dismissed. Reliance has been placed on a decision of the Division Bench of this Tribunal in OA-116 of 2004 in Satya Pal Wadehra and Ors.v. Union of India and Ors. decided on 02.05.2006, wherein rejection of request to add on 30% running allowance to those who retired before 1.1.1993 the claim having been dismissed, it is stated that claim of applicant is to be rejected accordingly.
12. I have carefully considered the rival contentions of the parties and perused the material on record.
13. Insofar as objection as to jurisdiction is concerned, as applicant has been residing in Delhi post retirement as per Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987, the grievance raised by applicant is well within the territorial jurisdiction of Principal Bench, the objection stands overruled.
14. As far as objection as to limitation is concerned, though applicant retired in 1999 but non-counting for pay fixation and determination of retiral benefits add on element of running allowance as a component to the tune of 55% or 75% would, if so added, raise the pensionary benefits which are in the form of pay and allowances. Being a continuing and recurring cause of action no limitation is attracted and accordingly the second objection as to limitation also stands overruled.
15. As regards decision cited by respondents, a ratio decidendi of a decision is to be inferred from what actually has been decided but not what is to be discerned or gathered from the judgment. An issue in its context of being adjudicated is the ratio decidendi. The facts of the case in Satya Pal Wadehra (supra) where pre-retirees of 1.1.1993 for add on 30% running allowance the claim was turned down on the ground of non-retrospectivity of Board’s letter dated 25.11.1992 though a decision which is per incuriam of the decision of the Apex Court in G.C. Ghosh (supra) and the decision of the Tribunal in Krishan Lal (supra), as affirmed by the High Court would not to be construed as a binding precedent, I find from the reasoning assigned by the Division Bench that non-consideration of a particular judgment not cited before the Full Bench when remained unconsidered would not make such an order per incuriam, without commenting upon the precedent value of the decision, yet in the facts and circumstances when it has no applicability to the present facts in the OA, the reliance on the same by Shri R.L. Dhawan is misconceived.
16. A decision of the High Court in the doctrine of precedent is a binding precedent on me, especially when it has followed a decision of the Apex Court. Accordingly, in Krishan Lal’s case (supra) the Tribunal to the Assistant Loading Foreman as regards 55% addition of add on running allowance directed grant of pensionary benefits on re-working, adding 55% of the basic pay as an add on allowance. When it was challenged before the High Court of Delhi in CWP No. 960 of 2002, the following order has been passed:
No one appears for the petitioners though the matter has been on the Regular Board for quite some time. Accordingly, we have heard Learned Counsel for respondent No. 1.
While supporting the order passed by the Tribunal, Mr. Patel, Learned Counsel for the respondent, has placed reliance on the decision of the Allahabad High Court in Special Appeal No. 9/1975 (Union of India and Ors. v. Smt. Afsar Jahan Begum and Ors.) and other connected writ petitions. Learned Counsel points out the said decision of the Allahabd High Court has attained finality in view of the decision of the Apex Court in G.C. Ghosh and Ors. v. U.O.I. and Ors. 1991 Suppl. (2) SCC 497. In the said decision, the Supreme Court has observed that the decision of the Allahabd High Court in Smt. Afsar Begum and Ors. has been accepted by the authorities in as much as relief in terms of the said judgment has been granted to employees of Northern Railway.
In view of the afore-noted decisions, no fault can be found with the impugned order of the Tribunal, whereby it has directed the petitioners to re-work the pensionary benefits of the respondents herein by adding 55 per cent of the basic pay.
The writ petition and the application for interim relief are, accordingly dismissed with no orders as to costs.
If one has regard to the above, the decision of the High Court in Afsar Begum(supra) and the decision of the Apex Court in G.C. Ghosh (supra) were taken into consideration. A Single Bench of this Tribunal at Allahabad in A. Amrol’s case (supra) on meticulously discussing all the provisions for adding on to the basic pay the component of running allowance and decision of the Apex Court in G.C. Ghosh (supra) and in the light of the constitutional Bench decision of the Apex Court in D.S. Nakara v. Union of India 1983 SCC (L&S) 145 discerned the following points:
25. Keeping in view the aforesaid and certain other decisions of the Apex Court, if law relating to pension is discerned, the same would be as under:
(a) pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant. (Constitution Bench Judgment in Deokinandan Prasad v. State of Bihar .
(b) the basis of calculation has to be the average of the last ten months’ emoluments. This principle of adopting last ten months’ emoluments as the basis for calculation of pension must be uniformly applied to all persons drawing pension from the Central Government. (K.L. Rathee v. Union of India . Also see State of W.B. v. W.B. Govt. Pensioners’ Assns. .
(c) The emoluments have to be calculated according to the government rules in force at the time of retirement of the employees (ibid).
(d) In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates in adjustment of the pension amount. All India Reserve Bank Retired Officers Assn. v. Union of India 1992 Supp (1) SCC 664. (e) person eligible for pension, if survives till the time of subsequent amendment of the relevant pension scheme, would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation, the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. (V. Kasturi v. Managing Direcgtor, State Bank of India (1998) 8 SCC 30).
18. Further, the following observations have been made:
29. Arguments were heard and the documents perused. It is advisable, though perhaps at the cost of repetition, to give a bulletin of the decisions relied upon by the parties.
(a) Union of India v. Afsar Jahan Begum (Spl Appeal No. 9 of 1975 of the Allahabad High Court) held ‘The running allowance being part of the pay, the pay of the writ petitioners should be re-fixed.’
(b) As per G.C. Ghosh v. Union of India 1991 Supp (2) SCC 497 the pension scheme or any benefit added to the pension in one Railway, has universal application, and as such, employees of other Railways cannot be denied the same.
(c) V. Kasturi v. Managing Director, State Bank of India holds that change in pension scheme at a later date shall have corresponding impact upon the pension payable to earlier retirees as well.
(d) Janakanjan Basu v. Union of India and Ors. (OA 1007/93 of the Calcutta Bench)held that since at the time of fixation of pay on promotion to stationary posts, the element of running allowance was not included, whereas as per Afsar Jahan Begum case and C.R. Rangadhamiah’s case, such allowance forms part of ’emoluments’, the same should be added @ 55% of pay and corresponding pension should be paid to the retired employees. Krishan Lal vs Union of India and Ors. (OA 229 of 2000, decided on 16-10-2001) held that the applicant whose pay was fixed at the time of his switching over from running category to stationary category, by ‘including 30% increase in lieu of running allowance’ is entitled to ‘fixation of pension with addition of 55% of basic pay’. This order has, initially stayed by the Hon’ble High Court, vide order dated 08-02-2002 in CWP No. 960/2002. However, the Civil Writ Petition was dismissed vide order dated 23-09-2003 and SLP filed against the same too was dismissed. Thus, the order of the CAT attained finality.
The Full Bench decision of the Jabalpur Bench held that the scheme of additional pensionary benefits of 30% add on for Loco Supervisors drawn from Running Cadre on their retirement introduced vide para 5.5 of Railway Board’s circular dated 25-11-1992 is applicable to persons retired on or after 01-01-1993 only.
30. In so far as the decision of Full Bench (Jabalpur), which is heavily relied upon by the respondents, the same is not applicable to the facts of this case as the applicants do not claim the 30% add on, on the basis of the Railway Board circular dated 25-11-1992. As such, the same is not to be considered. With due respect to the Full Bench Judgment, the said judgment does not seems to have taken into account the decision of the Apex Court in the case of R.L. Marwaha v. Union of India , in which point for consideration was whether a scheme introduced in a pension scheme subsequent to the retirement of a person, could be applied to such retirees as well and in that case whether the extension of the scheme to such already retired persons would amount to giving retrospective effect to the new scheme introduced. In that case the facts in brief are that the petitioner served the Central Government from October 4, 1950 to November 23, 1953 and on the same day i.e. November 23, 1953, he joined the services of ICAR, an autonomous body. The posts held by him under the Central Government and thereafter under the ICAR were pensionable. He retired from the service of the ICAR on September 30, 1980. On retirement he demanded that his pensionary benefits be computed by counting the period of service put in by him in the Central Government department as part of his qualifying service in view of para 3(A) (i) of OM No. 28/10/84-Pension Unit dated August 20, 1984. This was denied and he was accorded pensionary benefits by reckoning his qualifying service from November 23, 1953 to September 30, 1953 only on the ground that as he retired before issue of the OM he was not entitled to the benefit of para 3(A) (i) in view of the prospective effect given to the OM by para 7 thereof. The petitioner contended that it was not open to the government to deny the benefit of the order to those employees who had retired prior to the date of the order as it would bring into existence two classes of pensioners. Allowing the writ petition, the Apex Court has held as under:
9. We do not also find much substance in the plea that this concession being a new one it can only be prospective in operation and cannot be extended to employees who have already retired. It is true that it is prospective in operation in the sense that the extra benefit can be claimed only after August 29, 1984 that is the date of issue of the Government Order. But it certainly looks backward and takes into consideration the past event that is the period of service under the Central Government for purposes of computing qualifying service because such additional service can only be the service rendered prior to the date of issue of the Government Order. By doing so the Government Order will not become an order having retrospective effect. It still continues to be prospective in operation. Whoever has rendered service during any past period would be entitled to claim the additional financial benefit of that service if he is alive on August 29, 1984 under the Government Order but with effect from August 29, 1984.
31. If the above is read with the decision in the case of All India Reserve Bank Retired Officers’ Association (supra), it would reveal that the above order was only deemed to have been an extension of an already existing scheme. In that case the Apex court has held, ‘It is not a new retrial benefit. It is an upward revision of an existing benefit.’ In any event, the applicants in the instant case do not claim the benefit of the circular of 25-11-1992. Thus, Full Bench judgment is not applicable to the facts of this case.
32. So far as Krishnan Lal case is concerned, the same is fully applicable as in that case also the applicants were initially were in ‘running posts’ and later on brought to ‘stationary post’; At the time of such shifting, the element of 30% of pay in lieu of their running allowance was included in their pay and as they were denied the increase by 55% they moved the matter before the Tribunal, which had allowed the OA against which civil writ petition (960/02) filed was dismissed vide order dated 23-09-2003 and later on even SLP filed against the dismissal of writ petition was also dismissed vide order dated 06-07-2004 in CC 4533/2004. Thus the order of the Tribunal has attained finality and the case of the applicants is fully covered inasmuch as the applicants were all initially in the ‘running post’ and later on came to stationary post and at that time their pay was incremented with an addition of 30% in lieu of running allowance and these were also denied the 55% of pay for the purpose of working out the pensionary benefits.
33. Thus, while the full Bench decision of the Jabalpur Bench is not applicable what is to be seen is whether the applicant’s case is covered by the decision of Calcutta Bench of the Tribunal. The contention of the applicants is that the same is fully applicable, while the respondents contend as not applicable. The respondents’ contention is on the basis of the fact that in the Calcutta Bench case, the applicants did not derive the benefit of 30% of the pay in lieu of running allowance at the time they switched over to stationary posts. And it was on account of the same the Tribunal directed that they be afforded the benefit of 55% of the pay in lieu of running allowance, while in the case of the applicants; they had derived the benefit of 30% of pay in lieu of running allowance at the time they were promoted to stationary posts. The question is, whether this distinction would be adequate to deny the benefit of 55% of the pay in lieu of running allowance to the applicants (for the purpose of working out the pensionary benefits). The answer has to be an emphatic ‘NO’. For, what the applicants were paid at the time of their posting at the Stationary Posts is in terms of para 1(3) of order dated 22-03-1976 while the benefit of 55% of the pay for pensionary purposes is in accordance with the provisions of order dated 17-08-1981 which inter alia reads as under:
3.23. Reckoning of running allowance as pay.-(i) For the specified purposes for which running allowance is reckoned as pay at present, 30% of the basic pay of the running staff concerned will be reckoned except as below:
(a) for the purpose of retirement benefits, 55% of basic pay will be taken into account. This provision will be made applicable retrospectively from 1-4-1979 so that that running staffs who have already retired with effect from that date or afterwards will also have their retirement benefits recalculated and resettled.
34. The above benefit is available to all irrespective of whether th individuals were earlier paid 30% of pay in lieu of running allowance at the stationary posts or not. Those who were not the beneficiaries of 30% would be getting a full benefit of 55% of pay to be taken into account while those who were the beneficiaries would be getting the difference between 55% and 30%. Since this rule that 55% of the pay should be added for pensionary purposes is available right from 22.03.1976 and even earlier as per the order which takes retrospective effect, the applicant having retired posterior to the coming into existence of the above rule, the said rule and the benefit flowing there-from is fully available to the applicants. Nothing less; nothing else. It is not the case of the applicants that the claim for 55% of pay would be in addition to the earlier benefit of 30% of pay already made available to them.
35. In view of the above, the OA succeeds. It is declared that the applicants are entitled to the benefit of order dated 17-08-1981 and the respondents are directed to work out 55% of the pay and add the same to the pay of the applicants for working out the ten months average pay for the purpose of pension. Since their last pay as earlier calculated included 30% of the pay, the increment shall be worked out as under:
Last average 10 months’ pay X 155/130.
It is on the above pay that pension and other terminal benefits should be calculated.
Once the revised terminal benefits are worked out the difference between the amount payable and paid shall be worked out and the same should be paid to the applicants. There shall, however, be no change in the commuted value of pension already paid to the applicants. The difference in the pension should be paid within a period of six months from the date of communication of this order.
36. Under the circumstances, there shall be no orders as to cost.
19. If one has regard to the above, the claim of applicant is squarely covered by the decision in G.C. Ghosh (supra) and Krishan Lal (supra), which has attained finality on rejection of SLP, being binding on me, overrules any decision of the coordinate Bench as well as the Full Bench of the Tribunal.
20. In the matter of precedent, I do not offend the principles thereof, if pitted with decisions of binding nature of the High Court as well as of the Apex Court. Following them, ignoring in law the decisions of Full Bench and Division Bench would not constitute as an infraction to the doctrine of precedent.
21. Accordingly, for the foregoing reasons, applicant cannot be denied the add on component of running allowance to the tune of 55% or 75% with consequent fixation of pay and upward revision in the retiral benefits and payment thereof. Being similarly circumstanced with the petitioners before the Apex Court in G.C. Ghosh (supra), applicants before the Calcutta Bench in A. Amrol’s case (supra) as well as akin to Krishan Lal’s case (supra), applicant is also entitled to the same relief. Respondents are accordingly directed to refix the pay of applicant and enhance his pension and other retiral benefits by adding on 55% or 75% of the basic pay being pay element in running allowance as granted to loco running staff from the date of retirement with all arrears, within a period of three months from the date of receipt of a copy of this order. The O.A. is allowed accordingly. No costs.
8. Furthermore, recently the Division Bench in Krishan Lal Sharma ‘s case when similar allegations have been meted out with the following observations:
8. Shri Bhatia, Learned Counsel for respondents further stated that claim of the applicants being belated would hit by the limitation under Section 21 of the Administrative Tribunals Act, 1985. Referring to Vinod Kumar Saxena’s case (supra), it is stated that as the notification dated 25.11.1992 has not been assailed and its vires has not been challenged, it still remains in force. The same would not apply in the case of the applicants. Accordingly, he prays for dismissal of the present OA, as the earlier decisions, including that of Hon’ble High Court and Hon’ble Supreme Court (supra), have not taken care of any statutory rules, would not constitute a valid precedent under the doctrine of precedent.
9. We have carefully considered the rival contentions of the parties and perused the material placed on record.
10. In the matter of pay and allowances of retirees, equitable consideration is warranted in a judicial review. Executive actions, which are based on hyper-technical pleas, would not be in the interest of justice rather would do injustice to the applicants, who are entitled to the grant of the benefit.
11. Apart from it, limitation would not apply in a case where pay and allowances are withheld to the Government servant, despite his entitlement and in view of extension of the benefit of the decision to those who are similarly circumstanced who have already been accorded the same.
12. Moreover, this issue of limitation has been taken care of by the coordinate Single Bench of this Tribunal in Vinod Kumar Saxena’s case (supra) wherein it is ruled that the objection of limitation taken would not apply in the light of the fact that cause of action is a recurring cause of action unless, on re-fixation of pay on the basis of add on element of 55% and 75% respectively, the pension is brought to the entitled one and would also entail any consequential benefits of pay and allowances, and in such an event, it is legitimate, the objection to the limitation is not justifiable.
13. Moreover, in the justice delivery system, where a justified cause has been raised by a retiree and where his claim is to be adjudicated liberally, a broad base construction is necessary in the light of the decision of the Apex Court in the case of Ratan Singh v. Vijay Singh 2001 (1) SCC 469. wherein it is held that in the matter of limitation, if the delay does not smack of any malafide, Court must show utmost consideration to go into the pros and cons. Moreover, Hon’ble Supreme Court in the case of S.M. Munnawalli v. State of Karnataka , ruled that the claim of pension even after few years was not hit by limitation. In the light of the above, we overrule the objection of limitation by holding that the cause of action is recurring one and the limitation would not have any application.
14. As regards claim of add on element of 55% and 75% and the amendment regarding grant of add on elements passed by the President dated 25.11.1992, the coordinate Single Bench of this Tribunal in Vinod Kumar Saxena’s case (supra) has taken cognizance of the contentions raised by the respondents with regard to instructions issued on 25.11.1992 and the fact that the applicants therein had been posted against the stationary posts and were not in the category of running staff, which was being overruled on the ground that as in the case of Kishan Lal (supra) having decided the aforesaid plea and when it was upheld by the Hon’ble High Court of Delhi led to finality by the Apex Court in G.C. Ghosh v. Union of India 1991 Supp (2) SCC 497. In the decision of the Tribunal in the case of A. Amrol and Ors. v. Union of India and Ors. in OA 479/2002 decided on 16.5.2006, wherein it has been ruled that the add on element would still to be continued and it is to be disbursed to the post retirees of 1.1.1993. As in the matter of pensionary benefits, there cannot be any invidious discrimination in the light of the Constitutional Bench decision of the Apex Court in the case of D.S. Nakara v. Union of India 1983 SCC (L&S) 145. The decision in Vinod Kumar Saxena’s case (supra) has been considered by the Division Bench in OA No. 1271/2005 in the case of Shri Yoginder Lall Sharma and Ors. v. Union of India and Anr. concurring the decision in Vinod Kumar Saxena’s case (supra)wherein ruled in respect of post retirees from Railways from 1986-1991 that the decision of the Railways to deny add on element of 55% and 75% is not legally tenable. We have also perused the decision rendered by the Tribunal at Allahabad Bench in OA 479/2002 decided on 16.5.2006 meticulously having back drop of all the relevant instructions issued by the Railway Board and the decision of the Apex Court as well as Hon’ble High Court and the Tribunal, it is ruled that the objection as to applicants being in running posts initially and later on to the stationary posts would only entitle them the permissible limit of 30% add on element in view of their running allowance has been observed to be an invidious discrimination and in such an event, ordered to accord 55% and 75% respectively add on element of running allowance for re-fixation of pension to the applicants therein. The aforesaid decision has also attained finality. In the matter of doctrine of precedent, unless we are compelled or proceeded to disagree with the view, the decision would be binding on us. Being in the light of the doctrine of precedent, as we find that in Vinod Kumar Saxena’s case (supra), the aforesaid statutory rules have been taken into consideration and despite the existence on the ground of discrimination, add on element has been allowed to the retirees of 1.1.1993. We do not find any distinguishing feature to take a different view and in the light of the Constitutional Bench decision in G.C. Ghosh case (supra), applicants being similarly situated cannot be deprived of the same treatment and in such an event, the applicants are entitled to re-fixation of pay by taking into account add on element of 55% and 75% respectively with further revision of their pension and other consequential benefits. This is the only legal way to redress their grievances, the respondents having not followed the same and denied it on the ground of their statutory rules, which would not come in the way of decision of the Tribunal that holds the field.
15. At this stage, Learned Counsel for respondents has referred to the decision of the Apex Court in the case of Sumangala Naganath v. Union of India and Ors. 1999 SCC (L&S) 1318, to contend that it is not a wisdom of the Court to go into the correctness of the statutory rules. Learned Counsel would also relied upon the decision of the High Court in D.D. Producers Association v. Union of India , to contend that if there is no unreasonableness in policy, criteria is to be upheld.
16. In the light of the above, when the Wednesbury rules having been taken cognizance of and the action of respondents have not been found reasonable and when decision of the Tribunal has attained finality by the Hon’ble High Court as well as the Hon’ble Supreme Court, it would be an infraction of the doctrine of precedent, if we take a different view. We do not disagree with the decision of the coordinate Bench. In such view of the matter, the contentions raised by the respondents cannot be held to be valid in the eyes of law.
In the light of the above, OA is allowed. Respondents are directed to refix the pay of the applicants by taking into consideration add on element of 55% and 75% respectively. In such an event, as a consequential benefits, their pension would have to be revised and they would be entitled to all consequential benefits including pay and allowances, which shall be calculated and disbursed to them within three months from the date of receipt of a copy of this order. No costs.
9. In the light of above, the claim of applicant as per the instructions of Board of 1992 when they are feeder category for consideration in selection for promotion and running allowance has been made admissible, they cannot be discriminated and the dicta of aforesaid decisions is squarely covers the present issue and to be extended to the applicants as well.
10. In the result, for the foregoing reasons, OA is allowed. Respondents are directed to extend the benefits of judgments preferred to (supra) in the body of the order, including Krishan Lal Sharma and as a result thereof and on element of 50 per cent in the basic pay in running allowance be accorded to them, which would enhance pension and other retiral dues which shall be paid to the applicants from the date of retirement within a period of three months from the date of receipt of a copy of the order. No costs.