{"id":176219,"date":"2002-04-23T00:00:00","date_gmt":"2002-04-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-chairman-vs-the-registrar-on-23-april-2002"},"modified":"2017-04-18T02:44:56","modified_gmt":"2017-04-17T21:14:56","slug":"the-chairman-vs-the-registrar-on-23-april-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-chairman-vs-the-registrar-on-23-april-2002","title":{"rendered":"The Chairman vs The Registrar on 23 April, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
The Chairman vs The Registrar on 23 April, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 23\/04\/2002\n\nCoram\n\nTHE HONOURABLE MR. JUSTICE P. SHANMUGAM\n\nand\n\nTHE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA\n\nWrit Petition No.4956 of 1999 and WP.No. 12839 of 2001\nand W.P.No. 12843 and 13717 of 2001\nand connected W.M.Ps.\n\nW.P. No.4956 of 1999\n\n1.  The Chairman,\n    Railway Board,\n    Rail Bhavan,\n    New Delhi.\n\n2.  Union of India owning\n    Southern Railway, rep.\n    by the General Manager,\n    Southern Railway,\n    Park, Madras-3.                             ..  Petitioners\n\n                        vs.\n\n1.  The Registrar,\n    Central Administrative Tribunal,\n    Chennai Bench, Chennai-104.\n\n2.  D. Satyanarayana Sharma\n3.  S. Shanmugasundaram\n4.  K.S. Gopalakrishnan\n5.  V.L. Kandasamy\n6.  C.G. Shankar\n7.  V. Jothilangam\n8.  K. Mayachandran\n9.  M. Jayaseelan\n10. Jaganwadham Babu\n11. A. Dhilshad Khan\n12. M. Kannappan\n13. T.R. Hembrom\n14. S. Govindarajan\n15. P. Ramaswamy\n16. K. Gnanasekaran\n17. A. William Anburaj\n18. A. Aloysius\n19. P. Gnanasekaran\n20. A. Rasheed\n21. S. Subbaroyan\n22. T.G. Balasubramanian\n23. A. Periyanayaga Doss\n24. M. Selvaraju\n25. V. Rajendran\n26. E. Venkataramani\n27. G. Arumugam\n28. P. Thirupathi\n29. S. Sekar\n30. A. Albert Thangaraj\n31. K. Balaraman\n32. C. Babu\n33. M.J. James\n34. D. Sarat Chandar\n35. R. Dhanapal\n36. M. Gangadharan\n37. D. Vallinayagan\n38. P. Durairaj\n39. M. Ramalingam\n40. S. Md. Nazeer Sheriff\n41. K. Veeramani\n42. S. Banuprakash\n43. V. Nagarajan\n44. R. Thiagarajan\n45. V. Santhanam\n46. Md. Sulaiman\n47. N. Chandrasekaran\n48. P. Muthusamy\n49. S. Idayathullah\n50. J. Madhusudanan\n51. S. Raja\n52. S. Palani\n53. S. Nasarudeen\n54. J.C. Rice\n55. S. Narayanamurthi\n56. K.S. Murugaiyan\n57. S. Ilangovan\n58. T. Ashok Kumar,\n\n  All Working as Stock Verifiers\n  at the Office of FA & CAO\/WST\/\n  PER, Chennai.                                 ..  Respondents\n\n\nPRAYER :  Petitions under Article 226 of the Constitution of India praying  to\nissue a Writ of Certiorari as stated therein.\n\n        ORDER   These Writ Petitions coming on for hearing, upon perusing the\npetitions  and  the  affidavits  filed  in support thereof, the order impugned\nherein, counter  and  reply  affidavits  filed,  after  perusing  the  related\nrecords, and upon  hearing  the  argu  ments  of  Mr.  R.  Thiagarajan, Senior\nCounsel on behalf of M\/s.  V.R.  Gopalan, Advocate for  the  petitioners,  Ms.\nG.  Mirula Roshini, Advocate for petitioner in W.M.P.  No.30373 of 2000 and of\nMr.  K.  Chandru,  Senior  Counsel on behalf of Mr.  T.  Dhanya Kumar fo r the\nrespondent-employees, the Court passed the following order:-\n\n:O R D E R\n<\/pre>\n
P.  SHANMUGAM, J.\n<\/p>\n
        The  respondents  before  the  Central   Administrative   Tribunal   (
\nhereinafter referred to as the Tribunal) are the petitioners herein.\n<\/p>\n
        2.    Original   Application   No.776   of   1996  was  filed  by  the
\nrespondentemployees of the Southern Railway to call for  the  records  of  the
\nRailway  Board  relating  to  Proceedings  No.PCIV\/87\/Imp.\/7  New  Delhi dated
\n8.5.1996 and to quash  the  same  on  the  main  plea  t  hat  the  additional
\nincrements  granted to them form part of their basic pay and consequently, the
\nsame must also be taken into account for the purpose of  calculating  Dearness
\nAllowance, House  Rent  Allowance, etc.  and that the disallowance is illegal.
\nTh e application was allowed.  The writ petitions are against this order.\n<\/p>\n
        3.  The brief facts of the case are stated hereunder :\n<\/p>\n
        The post of Stock Verifiers in the Railways  is  filled  by  selection
\nfrom  the  categories of Clerks-Grade I, Selection Grade Clerks and Sub-heads.
\nAppendix-4 dealing with “Promotion to and confirmation to the  rank  of  Stock
\nVerifiers” states as follows :\n<\/p>\n
        “(1) Promotion of persons holding substantively posts of Clerks in the
\noffices  of  the  Financial Adviser and Chief Accounts Officers to the rank of
\nStock Verifiers will be on considerations of  seniority  and  merit  including
\nfitness for  outdoor  work.   In t he case of Accounts Clerks promotion to the
\nrank of Stock  Verifiers  will  not  be  made  unless  they  have  passed  the
\nexamination prescribed   in   Appendix  2.    The  condition  of  passing  the
\nexamination prescribed in Appendix 2 by Accounts Clerks before they  can  b  e
\npromoted  to  the  rank  of Stock Verifiers, may be relaxed, in special cases,
\nunder the sanction of the General Manager.\n<\/p>\n
        …..\n<\/p>\n
        (6) No increments will be allowed to a Stock  Verifier  until  he  has
\npassed  the qualifying examination and failure at two consecutive examinations
\nwill entail reversion to his substantive post.” (emphasis added)<\/p>\n
        4.  The Fifth Pay Commission, in reference to Stock Verifiers in  para
\n83:243, has recommended as follows :\n<\/p>\n
        ” …..    It  may  not be possible to recommend pay scale higher than
\nthat of Accounts Assistants (i.e.  Rs.1600-2660) for  Stock  Verifiers.    The
\nselection  grade  for  Stock  Verifiers which was available prior to IV C.P.C.
\nmay be reviewed as a second grade for Stock Verifiers.    This  pay  scale  is
\nproposed to  be  Rs.1640-2900  in the present terms.  This will motivate Stock
\nVerifiers to continue in  their  line  and  not  tempted  to  Accounts\/Section
\nOfficers stream.”\n<\/p>\n
In the course of the recommendation, the Fifth Pay Commission took note of the
\ndemand made by the Stock Verifiers for higher pay scales than that of Accounts
\nAssistants and  an  incentive  on  acquiring graduate diploma.  The Commission
\nalso noted the fact t hat Stock Verifiers selected were given the  benefit  of
\npay fixation  under  F.R.  22(C) and two additional increments for passing the
\nqualifying Appendix  4  IREM  examination.    After   the   Pay   Commission’s
\nrecommendation,  the  pay  scales  of  the  erstwhile sub-hea ds (now Accounts
\nAssistants) and Stock Verifiers became identical as Rs.1400-2600.  It was also
\nnoted that despite the  incentives  of  three  advance  increments  for  Stock
\nVerifiers,  Zonal  Railways  are facing difficulties in filling up these posts
\nand the Mi nistry had supported the demand for higher  pay  scales  for  Stock
\nVerifiers.\n<\/p>\n
        5.   The Stock Verifiers were given incentives on passing the Appendix
\n4  examination  for  the  first  time  by  the  Railway  Board  as  per  their
\ncommunication dated 3.3.1989.  The communication reads as follows :\n<\/p>\n
        “Subject  – Grant of incentives to Accounts Stock Verifiers on passing
\nAppendix 4 Examination.\n<\/p>\n
                The matter regarding grant of incentive to Stock Verifiers  on
\npassing  Appendix  4  examination  was  under examination and pending issue of
\nfinal orders, instructions were issued vide this  Ministry’s  letter  of  even
\nnumber  dated  26.11.1987  for  not  passing  a  ny amount as incentive in the
\nrevised pay scales of 1986.\n<\/p>\n
                2.  It has now been decided with the sanction of the President
\nthat Stock Verifiers in the grade Rs.1400-2600 shall be  given  three  advance
\nincrements after their passing Appendix 4 examination.  This will be effective
\nfrom  1.1.1986  or  the date from whic h the employee opts for the revised pay
\nscales.  (emphasis added)\n<\/p>\n
                3.  …..”\n<\/p>\n
The Railway board, in their communication dated  25.7.1995,  has  specifically
\nordered  that  the  three advance increments granted as per the Board’s letter
\ndated 3.3.1989 to Stock Verifiers in the grade of Rs.14  00-2600  for  passing
\nAppendix  4-A  examination  m  ay be treated as additional increment not to be
\nabsorbed in future increments.  In this background, the impugned communication
\ndated 8.5.1 996 came to be issued wherein it was ordered that  the  additional
\nincrements will not be treated as part of basic pay and not to be reckoned for
\ncalculating D.A.  etc.    It is against this communication the O.A.  was filed
\nby the respondent-employees, which was allowed by the Tribunal.\n<\/p>\n
        6.  The learned senior counsel Mr.  R.  Thiagarajan argued in  extenso
\nin  reference  to  the  relevant rules submitted that the definition of ‘ pay’
\nreadwith Appendix 4 shall not take in the  additional  increments  which  were
\ngranted as  an incentive.  According t o him, the increments were granted only
\nafter passing the  examination  and  on  their  failure  to  pass  within  the
\nprescribed attempts,  they were reverted.  Hence, it cannot be stated that the
\nincrements can be reckoned as forming part of the scale of pay fo r  the  said
\npost.   The  granting of increment was initially thought of as an incentive to
\nattract personnel from lower  categories  to  the  post  of  Stock  Verifiers.
\nAccording  to  him, the interpretation and the view of the Tribunal is clearly
\nillegal.\n<\/p>\n
        7.  Mr.  K.  Chandru, learned senior counsel appearing  on  behalf  of
\nthe respondent-employees submitted that increment is always treated as part of
\npay, whether  it  is  advance increment or not.  Dearness Allowance is paid to
\noffset the erosion in the purchas ing power of the salary paid.  He  submitted
\nthat the post of Stock Verifiers requires a qualification and the increment is
\ngranted to  the  post.  He assailed the decision of the Railways taken without
\nnotice to the respondent-employees.  According to him, the Board cannot  treat
\npersons  who have already drawn the salary by including the increment in their
\npay scale and the respondentemployees,  who  are  yet  to  get  the  benefits,
\ndifferently.  Any such treatment will be arbitrary and violative of Article 14
\nof the Constitution of India.\n<\/p>\n
        8.   We  have  heard  the counsel in extenso and considered the matter
\ncarefully.\n<\/p>\n
        9.  The Stock Verifiers were drawn from  the  category  of  Clerks  on
\npromotion by  selection.  As there was a dearth of Stock Verifiers opting from
\nthe lower  category,  the  Board  offered  to  grant  incentive.    In   their
\ncommunication  dated  3.3.1989,  it has been clearly stated that they shall be
\ngiven three advance increments after their passing the Appendix 4 examination.
\nThe communication further says that this was thought of as  an  incentive  for
\nthem.   It  was  made  clear  that  the  increments,  which  are granted as an
\nincentive, shall be given only after their passing the examination.\n<\/p>\n
        10.  The point that arises for  consideration  here  is  whether  this
\nincrement  can  be  treated  as  pay  for  the purpose of calculating Dearness
\nAllowance, etc.  ‘Pay’ has been defined under  Fundamental  Rule  9  and  also
\nunder Clause 1303 of the Indian Railways Establishment Code.  The said rule is
\nextracted below :\n<\/p>\n
        “1303.  (F.R.9)(21)(a) – Pay – Pay means the amount drawn monthly by a
\nGovernment servant as:-\n<\/p>\n
        (i)  the  pay  other  than  special  pay or pay granted in view of his
\npersonal qualifications, which has been sanctioned for  a  post  held  by  him
\nsubstantively  or  in  an  officiating  capacity or to which he is entitled by
\nreason of his position in a cadre; and\n<\/p>\n
        (ii) overseas pay, special pay and personal pay; and\n<\/p>\n
        (iii) any other emoluments which may be specifically classified as pay
\nby the President.”\n<\/p>\n
As per the above definition, the pay granted in view of a Government servant’s
\npersonal qualification does not  form  part  of  his  basic  pay.    From  the
\ncommunications  of  the  Board  referred  to  earlier,  it  is  clear that the
\nadditional increment was granted to the Stock Verifiers on their acquiring  or
\npassing the examination prescribed.  Therefore, there is no scope for treating
\nthis  increment  as  forming  part  of  their  pay which has been specifically
\nexcluded from  the  definition  ‘pay’.    The  Board,  in   their   fur   ther
\ncommunication  made in the year 1995 dated 25.7.1995, has categorically stated
\nthat the advance increment  is  not  to  be  absorbed  in  future  increments,
\nfollowed by the impugned communication that the increment cannot be treated as
\npart of  basic  pay  for  the  purpose  of calculating the D.A.  The Fifth Pay
\nCommission has also taken note of this fact that the staff have to qualify  in
\nthe  Appendix  4  examination in order to become Stock Verifiers and as it may
\nnot be possible to  recommend  pay  scales  higher  t  han  that  of  Accounts
\nAssistants  for  Stock Verifiers, they have proposed selection grade for Stock
\nVerifiers, which was available prior to the IV C.P.C., reviving  as  a  second
\ngrade for Stock Verifiers and proposing a scale of Rs.1640-2900.\n<\/p>\n
        11.  Though in ordinary understanding of the term ‘increment’ which is
\nearned by a Government servant is a part of pay and his D.A.  is calculated by
\nincluding  that pay, considering the background in this case, we find that the
\nthree advance increments w ere granted as an incentive to attract lower  grade
\nstaff  to  the  post of Stock Verifiers and that these advance increments were
\ngranted on their passing the examination.  Therefore, the grant  of  increment
\nis not automatic, but is conditional on their acqu isition of a qualification.
\n‘Pay’  as defined under Clause 1303 really excludes the pay granted in view of
\npersonal qualification.  It cannot be stated that the increment is attached to
\nthe post and the scale of pay.  As seen from the subsequent decision s of  the
\nRailway  Board  dated  31.5.2001  wherein the Board has decided to replace the
\nscheme of granting three advance increments to Stock Verifiers in the scale of
\nRs.5000-8000 on their passing the Appendix 4 -A IREM examination, with a fixed
\nquantum of Rs .240\/- per month with effect from 1.6.1996.  They  have  further
\nstated  that  this  special  advance  will  not count for calculation of D.A.,
\nH.R.A., C.C.A.  and other relevant purposes.\n<\/p>\n
        12.  In ROSHAN LAL VS.  UNION OF INDIA (A.I.R.  1967 S.C.  1889),  the
\nConstitution Bench of the Supreme Court has held that the origin of Government
\nservant is  contractual.  But once appointed to a post, the Government servant
\nacquires a status and his righ ts and obligations are no longer determined  by
\nconsent  of  both  parties, but by the statute or statutory rules which may be
\nframed or altered  unilaterally  by  the  Government.    The  emolument  of  a
\nGovernment  servant and his terms of service are governed by t he terms of the
\nstatute or statutory rules which may be altered unilaterally by the Government
\nwithout the consent of the employee.   In  this  case,  we  do  not  find  any
\nalteration of  the  terms and conditions of the emoluments.  It was only on an
\nerroneous i nterpretation of the grant of increment in the form  of  incentive
\nas  forming  part  of  the pay that enabled the respondent-employees and other
\nsuch employees to get their  D.A.    fixed  including  the  emoluments.    The
\nauthorities  have  failed  to  see  that  the incr ements were attached to the
\nperson and subject to his acquiring the qualification and therefore, it  could
\nnot have  been  treated  as  pay.    As early as on 27.10.1989, it was clearly
\nspecified and clarified that these additional increments will not count as pay
\nfor the purpose of calculating the allowances and treated  as  emoluments  for
\nthe purpose  of  pension and gratuity.  The impugned communication of the year
\n1996 is nothing but a reiteration of the earlier stand of the Board which  was
\nin  consonance with the grant of incentive in the form of increment subject to
\nthe acquisition of the qualification prescribed.  This clarification, readwith
\nthe definition of ‘pay’ and on consideration of other  circumstances,  we  are
\nclear  in our mind that the increments ca nnot be treated as part of the basic
\npay, but only as a separate element which will not count for  the  purpose  of
\ncalculating the D.A., etc.<\/p>\n
        13.  Learned senior  counsel Mr.  K.  Chandru referred to the judgment
\nof a learned single Judge of the Andhra Pradesh High Court in GUNTUR  DISTRICT
\nCO-OPERATIVE CENTRAL  BANK  EMPLOYEES’  ASSOCIATION VS.  GENERAL MANAGER [1992
\n(1) S.L.R.  465], wherein it was held that increment  has  to  be  treated  as
\nbasic pay.    In  that  case,  the learned Judge found, by reading the various
\nGovernment Orders, that the intention  of  the  Government  is  to  treat  the
\nincrement  given  for  family planning as part of the basic pay and is part of
\nthe normal increment which may be given to an employee.  Whereas, in the  case
\non  hand,  right from the beginning,t he Railway Administration did not treat,
\nas is evidenced by their communications, these increments  as  part  of  basic
\npay.\n<\/p>\n
        14.  The judgment of the Supreme Court in BHAGWAN SHUKLA VS.  UNION OF
\nINDIA [1995  (2)  L.L.J.    726]  holding that reduction of pay and refixation
\nafter twenty years to undo the earlier  mistake  cannot  be  done  without  an
\nopportunity.   On  facts,  this  judgment  m  ay  not  be of assistance to the
\nrespondent-employees.  That was a case where, by a  specific  order,  the  pay<\/p>\n
scale   of   the  appellant  was  refixed  by  reducing  the  basic  pay  with
\nretrospective effect and in those circumstances, that was held by the  Supreme
\nCou rt as illegal.\n<\/p>\n
        15.   Learned  senior counsel for the respondent-employees referred to
\nanother judgment of the Constitution  Bench  of  the  Supreme  Court  in  D.S.
\nNAKARA & OTHERS  VS.   UNION OF INDIA [1983 (1) L.L.J.  104] in support of his
\nargument of discrimination.  The Sup reme  Court,  in  that  case,  held  that
\npensioners form a class and their computation cannot be on a different formula
\naffording unequal treatment solely on the ground that some retired earlier and
\nsome retired  later.    In  that case, all pensioners, whenever they required,
\nwere to be covered by a liberalised pension scheme which  would  be  operative
\nfrom a  specified  date.    This  judgment  also,  in  our  view, will have no
\napplication to the facts of the present case.\n<\/p>\n
        16.  Recoveries were sought to be made only against the  amount  which
\nwas  over-paid  prior to the communication dated 8.5.1996 which was questioned
\nbefore the Tribunal.  Though the Stock Verifiers are ineligible to  count  the
\nincrements  for  their  basic pay, right from its inception, the Railway Board
\nhas chosen to give effect to  it  strictly  from  8.5.1996.    Therefore,  the
\nerroneous  fixation,  if  any, made earlier and the amounts paid on that basis
\nwere not sought to be recovered.  Once we have found  that  the  communication
\ndated  8.5.1996  is legal and in accordance with law, the Board is entitled to
\nenforce the same.  The  respondent-employees  cannot  insist  that  the  wrong
\ninterpretation  and  the  erroneous  orders should be applied and continued in
\ntheir favour f or ever.\n<\/p>\n
        17.  For all these reasons, the order of the Tribunal is liable to  be
\nset aside  and is hereby set aside.  Writ Petition 4956 of 1999 is, therefore,
\nallowed.  However, there will be no order as  to  costs.    Consequently,  all
\nother connected  writ  petitions, n amely W.P.  Nos.12839 to 12843 of 2001 and
\nW.P.  No.13717 of 2001, challenging the order of  the  Tribunal  quashing  the
\nconsequential letters  and  orders of the Railway Board are also allowed.  All
\nthe connected W.M.Ps.  are closed.\n<\/p>\n
Index :  Yes                                    (P.S.M.J.) (F.M.I.K.J.)\nInternet :  Yes                                         23..04..2002\n\nab\nSd\/..\n\nAssistant Registrar\n\n\/\/ TRUE COPY \/\/\n\nSub Assistant Registrar (C.S.)\n\nTo\n\n1.  The Chairman,\nRailway Board,\nRail Bhavan,\nNew Delhi.\n\n2.  The General Manager,\nSouthern Railway,\nPark Town, Madras-3.\n\n3.  The Financial Adviser &\nChief Accounts Officer\/\nFurnishing ICF, Chennai-38.\n\n4.  The Senior Accounts Officer (WLS),\nSouthern Railway, Golden Rock,\nTiruchirappalli.\n\n5.  The Registrar,\nCentral Administrative Tribunal,\nChennai Bench, Chennai-104.\n\nP.  SHANMUGAM, J.\nand\nF.M.  IBRAHIM KALIFULLA, J.\n\n\nOrder in\nW.P.  Nos.4956 of 1999,\n12839 to 12843 and\n13717 of 2001.\n\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Chairman vs The Registrar on 23 April, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23\/04\/2002 Coram THE HONOURABLE MR. JUSTICE P. SHANMUGAM and THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA Writ Petition No.4956 of 1999 and WP.No. 12839 of 2001 and W.P.No. 12843 and 13717 of 2001 and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-176219","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Chairman vs The Registrar on 23 April, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-chairman-vs-the-registrar-on-23-april-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Chairman vs The Registrar on 23 April, 2002 - 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