IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2009
Coram
The Honourable Mr.Justice ELIPE DHARMA RAO
and
The Honourable Mr.Justice T.S.SIVAGNANAM
W.P. No.682 of 2004 &
W.P.M.P.No.705 of 2004
1.Union of India rep. by the Divisional
Railway Manager, Madurai Division,
Southern Railway, Madurai 625 016.
2.General Manager, Southern Railway
Headquarters Office, Park Town
Chennai 600 003. .. Petitioners
vs.
1. The Registrar
Central Administrative Tribunal,
Madras bench, Chennai 600 104.
2. R.Pitchai Pillai .. Respondents
Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorari to call for the records of the first respondent in OA.No.81/03 including the order dt 18.8.2003 and quash the same.
For petitioner : Mr.V.G.Suresh Kumar
For Respondents : Mr.Karthik Rajan - R2
1st Respondent : Tribunal
*****
O R D E R
T.S.SIVAGNANAM J.
This Writ Petition has been filed challenging the order passed by the Tribunal in O.A.No.81 of 2003 dated 18.3.2003. The applicant/ 2nd respondent herein filed the Original Application to set aside the order passed by the Railway Administration dated 23.10.2002 and for a direction to extend the benefits of the earlier order of the Tribunal made in O.A.Nos.147 of 1998 etc. batch claiming that the applicant is a similarly placed person to those applicants in the said Original Applications and consequently taking into account the special pay of Rs.35/- per month drawn by the applicant for the purpose of fixation of pay upon promotion to the grade of Rs.425-700 and for payment of arrears upon such fixation from the date of promotion and also to refix his pension and to pay all arrears and other consequential benefits.
2. The Tribunal allowed the Original Application by the impugned order dated 18.8.2003 and directed the Railway Administration to refix the pay of the applicant for taking into account the special pay of Rs.35/- per month drawn by him on his promotion to the higher grade namely Rs.425-700 and grant of consequential benefits arising out of such pay.
3. The case of the applicant before the Tribunal is that he entered the Railway service on 7.8.1945 and while he was working as UDC in scale of Rs.330-560, he was granted a special pay of Rs.35/- per month, subsequently he was promoted on 26.10.1979 to the post of Head Clerk in the scale of Rs.425-700 and the special pay of Rs.35/- was not taken into account for fixation of pay benefits on promotion. The applicant retired from service on 31.1.1983 as Chief Clerk in the scale of Rs.550-750. Since all the Departments of the Railways, the special pay was not taken into account, the matter was taken up at the level of Joint Consultative Machinery and a disagreement was recorded. Consequent upon such dispute, the matter was referred to a Board of for Arbitration and the terms of reference being “Rs.35/- paid to U.D.Cs as Special Pay in lieu of arduous nature of duties and responsibilities should be taken into account if fixation of pay on promotion.”
4. The Board of Arbitration by Award dated 28.4.1987, stated that Rs.35/- paid to UDCs as special pay under Ministry of Finance Memorandum dated 5.5.1979 shall be taken into account for fixation of pay on promotion subject to the condition (a) that the incumbent is a substantive holder of the post to which the special pay is attached or (b) that the incumbent on the date of his appointment to higher post is officiating in the lower post to which the special pay is attached continuously for a period of not less than three years. The award was implemented with effect from 1.9.1985.
5. The applicant further contended that the Award of the Board of Arbitration was accepted by the Railways and orders were implemented and in some cases arrears were also drawn and such implementation was subject to clarification to be received from the Railway Board. Subsequently, the Railway Board refused to take into consideration the special pay upon the promotion to the higher grade. Aggrieved persons moved the Tribunal seeking for the relief that special pay of Rs.35/- is to be taken into consideration.
6. The Tribunal by order dated 6.9.1991 in O.A.No.717 of 1990 held that the special pay drawn in the lower post is to be taken into account while fixing the pay in the higher post. An appeal was preferred before the Hon’ble Supreme Court and by order dated 19.1.1995, in C.A.No. 1208 of 1992, the Hon’ble Supreme Court confirmed the order of the Tribunal. The Railway Administration implemented the order of the Tribunal in respect of those employees who were parties to the litigation and the order was not extended to other persons. Therefore, several other persons filed Original Applications before the Tribunal for extending the benefits of the Judgment of the Hon’ble Supreme Court. The applicant claiming himself to be an identically placed person, submitted a representation on 6.8.2002 and having not favoured with any reply, approached the Tribunal and filed O.A.No.822 of 2002. The Tribunal by order dated 9.9.202, disposed of the Application directing the Railway Administration to pass orders within a period of five months on the representation. Subsequently, by order dated 23.10.2002, the Divisional Railway Manager, Madurai Division, rejected the request. Aggrieved by the same, O.A.No.81 of 2003 came to be filed and this Writ Petition has been filed against the order passed in the said Original Application.
7. The Railway Administration on the other hand contend that the applicant cannot compare himself with the Clerks of the Accounts Department, who were the parties before the earlier round of litigation, since the service conditions, cadre promotions are different from that of the applicant, that the applicant is not a similarly placed person and there cannot be a equality among unequals. The orders passed by the Central Administrative Tribunal in O.A.No.147/98 pertains to Accounts Department and not applicable to other Departments. The category of Accounts Assistant is quite distinct from other Office Clerks of other Branches of Railway Departments and the applicant does not have identical footing to the applicants in the other Original Applications which he has mentioned in his Application. It was further submitted that the Ministry of Railways has several Branches/Departments and recruitment of Ministerial Staff of all other Branches except Accounts are common, whereas Ministerial staff of Accounts are recruited separately by Railway Recruitment Board. The scheme of sanctioning of special pay of Rs.35/- was discontinued with effect from 1.1.1983 in the Accounts Department, whereas on the implementation of Fifth Central Pay Commission from 1.1.1996, the scheme of sanctioning of Special pay of 35% for 10% of identified post in the cadre of Senior Clerk has been abolished in other Departments, and prayed for rejection of the Original Application. The Tribunal by the impugned order allowed the Original Application, as against which, the present Writ Petition has been filed.
8. We have heard the submissions made on either side and also perused the materials available on record as well as the orders produced by both the parties.
9. The facts which are not in dispute are that Rs.35/- was granted as special pay per month and the Railway Administration refused to take into consideration the special pay for fixation of pay upon promotion. The said issue stood concluded by an Arbitration Award dated 28.4.1987, which was to take effect on and from 1.9.1985. The applicant’s primary contention is that he is similarly placed person to that of the applicants in O.A.No.717 of 1990 dated 6.9.1991. It is his further case that the Hon’ble Supreme Court by order dated 19.1.1995, dismissed the Appeal filed by the Department and directed that the ‘qualification pay’ will be treated as part of pay for the purpose of fixation of pay when promoted to the higher post. The applicant would also rely upon the other orders passed by the Tribunal in O.A.No.147/1998 dated 19.3.2002 and would contend that the impugned order in the present Writ Petition calls for no interference and prays for dismissing the Writ Petition.
10. On the other hand, the learned counsel for the Railway Administration appearing for the Writ Petitioner, has vehemently contended that the issue which was the subject matter in the earlier orders of the Tribunal relied on by the applicant pertain to the Accounts Department and the applicant is not a similarly placed person and therefore, he cannot place reliance on the said Judgment. The learned counsel would further submit that the Hon’ble Supreme Court by order dated 31.10.1995, in C.A.No.1423 of 1995, dismissed the Appeal filed by the persons who are similarly placed to that of the applicant and held that since the appellants therein were not in service as on 1.9.1985, the date on which notional pay was given effect to the scale of pay cannot be stepped up.
11. The learned counsel would further contend that eventhough certain orders passed by the Tribunal were complied with by the Railway Administration, by taking into consideration the special pay of Rs.35/- for the purpose of fixation of pay on promotion, the same cannot be cited as a precedent as the orders passed by the Tribunal were made without taking into consideration the order of the Hon’ble Supreme Court dated 31.10.1995, in C.A.No.1423 of 1995.
12. We have carefully considered the matter and we find that the Railway Administration had not placed the order of the Hon’ble Supreme Court dated 31.10.1995 before the Tribunal when the earlier Original Applications were disposed of nor when the present impugned order was passed by the Tribunal. Therefore, the said orders of the Tribunal cannot be held to be binding on the Administration so as to extend the benefit of the special pay to the applicant.
13. It is relevant to note that a batch of cases were filed before the Tribunal in O.A.No.187 of 2003 etc., which were dismissed by an order dated 18.9.2003 by relying upon the Judgment of the Hon’ble Supreme Court dated 31.10.1995. It is a settled legal principle that when a decision is rendered by a Court or a Tribunal in which a Statute or Rule having statutory effect, has not been brought to the notice of the Court or a decision is given in ignorance of an earlier decision which is binding on the Court, has been held to be per incurium. Therefore, the applicant cannot place reliance on the earlier orders of the Tribunal though it is contended that some of those orders were implemented.
14. The learned counsel for the applicant placed reliance upon the decision of the Supreme Court in (2008) 9 SCC page 24 (MAHARAJ KRISHNAN BHATT AND ANOTHER vs STATE OF JAMMU AND KASHMIR) and contended that the benefit extended to similarly situated persons is bound to be extended to the applicants also. A perusal of the Judgment of the Hon’be Supreme Court in fact supports the case of the Railway Administration. The Hon’ble Supreme Court considering the facts and circumstances held that the Government ought to have accepted and respected the decision of the learned Single Judge without filing intra-court appeal, as no justifying feature has been brought to the notice of the Division Bench. Therefore, the said decision was rendered on the facts of the particular case and therefore lends no support to the argument of the learned counsel for the Applicant. When admittedly, the earlier orders of the Tribunal were passed in ignorance of the earlier Judgment of the Hon’ble Supreme Court and mere implementation of such orders cannot clothe any right on the applicant to plead for extending a similar relief.
15. In view of the foregoing discussion, the order of the Tribunal is liable to be set aside and accordingly set aside. The Writ Petition is allowed. However, there will be no order as to costs. Consequently connected Miscellaneous Petition is closed.
rpa
To
1. The Registrar
Central Administrative Tribunal,
Madras bench,
Chennai 600 104