Allowed

Union of India v. Prakash Sam

Kerala HC16 Dec 2019OP (CAT)/3196/2012

Case brief

AI extract

What is this about?

The High Court allowed the petition, holding that the respondent is entitled to pensionary benefits calculated on his proforma promotion pay scale. The Court found that the 2010 Railway Board instruction (Annexure A11) did not apply retroactively to negate earlier orders granting pension rights derived from proforma promotion, especially since the resignation was accepted before the new instructio

What did the court decide?

The original petition is allowed. No order as to costs.

Union of India Vs Prakash Sam — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941

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OP (CAT).No.3196 OF 2012(Z)

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AGAINST THE ORDER/JUDGMENT IN OA 790/2011 DATED 16-02-2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONER/S:

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1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, PARK TOWN P.O, CHENNAI 3.

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2 THE CHIEF PERSONNEL OFFICER SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O, CHENNAI 3.

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3 THE SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM 695 014.

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4 THE RAILWAY BOARD RAIL BHAVAN, NEW DELHI, REPRESENTED BY ITS SECRETARY.

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BY ADV. SRI.JAMES KURIAN, SENIOR PANEL, RAILWAYS

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RESPONDENT/S:

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PRAKASH SAM S/O.A.C.SAMUEL, RETIRED SECTION ENGINEER, (TELE COMMUNICATION), SOUTHERN RAILWAY, TRIVANDRUM DIVISION, RESIDING AT NO.B2, HIGHWAY GARDENS APARTMENTS, P.C ROAD, PONNURUNNI P.O, VYTTILA, ERNAKULAM 682 019.

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R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SRI.G.SHYAM RAJ

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 16.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(CAT).3196/12

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K.VINOD CHANDRAN &

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V.G.ARUN, JJ.

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O.P(CAT).No.3196 of 2012

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----------------------------------------------Dated this the 16^th day of December, 2019

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JUDGMENT

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Vinod Chandran, J.

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The issue raised in the original petition is as to which pay scale is the reference point to determine the pensionary benefits applicable to the applicant before the Tribunal. Whether it is the pay scale of a Junior Engineer in which the applicant drew his salary in the Railways prior to his deputation or the pay scale in accordance with the proforma promotion claimed by him for the purpose of pay fixation in the higher post which would have been due to him if he had reverted to the parent cadre; when actually he continued on deputation without reverting to the parent post.

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On facts, it is to be noticed that the applicant was continuing as a Junior Engineer-I (Telecommunication) in the Railways when he went on deputation to the Rail Tel Corporation of India Limited ('RCIL', for short). While he was continuing on deputation he was considered for promotion to the post of Section Engineer (Telecommunication) in the scale of pay of

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OP(CAT).3196/12

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Rs.6500-10500 which corresponds to Pay Band 9300-34800 plus Grade Pay of Rs.4,600/-, as per the 6^th Central Pay Commission. The applicant was also specifically issued with a communication regarding his eligibility for promotion, but however making it clear that the promotion would not be given effect to. Nor was the pay fixed in the higher scale since it was a condition stipulated that to avail the said benefit, he would have to revert to the parent department.

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The applicant later on noticed that one of his juniors, similarly placed, was granted proforma promotion by Annexure A3 order dated 29.1.2009. The applicant approached the Railways seeking proforma promotion and fixation in the Pay Band applicable to a Section Engineer which was allowed by Annexure A9 dated 10.12.2009. In fact, at that point of time, the clarification with respect to the pensionary benefits issued by the Government of India, Ministry of Railways was as per Annexure A15 dated 29.12.2006 was in vague. Annexure A15 stated that “it is clarified that a Railway servant who has been given proforma promoton undr NBR in his cadre while on foreign serice and retires without returning to his cadre, shall be entitled to have his pensionary benefits, calculated on the basis of the emoluments admissible under NBR”. This clarification was issued specifically with respect to Railway servants on foreign

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OP(CAT).3196/12

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service who have been given proforma promotion under Next Below Rule (NBR) who continues on deputation without returning to his parent cadre. Hence by Annexure A15, he was entitled to the pensionary benefits reckoning his proforma pay fixation in the higher grade.

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The applicant applied for resignation from the post which enables his retirement by letter dated 29.6.2009. The Railways accepted it on 9.3.2010 by which the time there was some modifications with respect to the existing instruction on deputation or foreign service which was by Annexure A11 which has been fully extracted by the Tribunal in its order. On that basis, the applicant's resignation was accepted granting him pensionary benefits only reckoning his pay in the post of Junior Engineer; post in which he was continuing at the time of deputation. It is the specific contention of the Railways that by Annexure A11 dated 12.1.2010 which was brought in, prior to the applicant's retirement on 9.3.2010, any person continuing on deputation post who does not revert back at the time of promotion in his parent cadre will be disentitled from a proforma promotion or upgradation and he will continue to be drawing the pay he was drawing in a post at the time when he was sent for deputation.

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OP(CAT).3196/12

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We are unable to sustain the contention raised by the Railways which had been rejected by the Tribunal. We are however on slightly different ground than that found by the Tribunal. First of all, we notice that the application for technical resignation which enables a retirement with pensionary benefits was made by the applicant on 29.6.2009 about five months before Annexure A11 of 12.1.2010. The Railways accepted his technical resignation on 9.3.2010. There is hence administrative delay in the acceptance of the technical resignation and if the Railways had accepted it within a reasonable period from the date of his application, definitely the applicant would have retired with the pensionary benefits with the proforma promotion to the pay scale entitled to a Section Engineer be reckoned for pensionary benefits. The resignation accepted will have effect from the date of application. More significant is the fact that Annexure A10, by which the applicant's technical resignation was effected showed him as having resigned from the post of “SE/Tele/TVC in Pay Band of Rs.9300-34800 with Grade Pay of Rs.4600”.

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Even otherwise, we find from the orders that the pensionary benefits entitled to a person similarly situated as the applicant would not be affected by Annexure A11 of the year 2010. In this context, we have to notice as was noticed by the

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OP(CAT).3196/12

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Tribunal that the proforma promotion was granted to the Pay Band of a Section Engineer only by reason of the instructions on 29.12.2006 placed at Annexure A15. The applicant had requested for such fixation on the basis of an identical fixation granted to a junior who was also identically situated as the applicant. The same was granted as per Annexure A9 on 10.12.2009. Hence, the proforma promotion to the applicant was granted by the Railways as per Annexure A9. The question now is as to whether the 2010 order modified the Rule regarding pensionary benefits as evident from Annexure A15. Looking at Annexure A11, it is to be noticed that the provisions therein were “in modification to the existing instructions on deputation/foreign service will come into existence with immediate effect”. Hence, Annexure A11 only modified the existing instructions and if there is any instruction not in conflict with that issued in 2010 then that would survive. In this context we notice paragraph 5 of Annexure A11, which reads as follows:

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“(v) If during the period of deputation, on account of proforma promotion in the parent cadre under Next Below Rule or upgradation, the official concerned becomes entitled to a higher Pay Scale/Pay Band and Grade Pay in the parent cadre vis-a-vis that of the ex-cadre post he will have the option either to continue in the deputation post (without availing of proforma promotion/upgradation) for the rest of the term or revert to his parent cadre within a

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OP(CAT).3196/12

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period of six months. In case the official wishes to continue on deputation post, there shall be no pay fixation based on the proforma promotion/upgradation and he will continue to draw the pay being drawn by him.”

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We have to pertinently notice that this does not speak of

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pensionary benefits and only speaks of proforma promotion or upgradation being denied to a deputationist who continued on deputation even when he was entitled to be promoted in the parent cadre. As far as the applicant is concerned, his proforma promotion/upgradation was fixed on the basis of the earlier orders prior to 2010, which cannot be disturbed by Annexure A11 which can only apply prospectively. Annexure A11 does not at all speak of pensionary benefits and since it only modified the earlier instructions, pensionary benefits due to the applicant as per the earlier instructions would survive.

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The original petition is allowed. No order as to costs.

Sd/-

K.VINOD CHANDRAN

JUDGE

Sd/- V.G.ARUN

JUDGE

vgs

OP(CAT).3196/12

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF ORDER BEARING NO. (PS)/220/IX/DEPUTATION/TELE/VOL.II DATED 22.4.2010 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A2 A TRUE COPY OF OFFICE ORDER BEARING NO.SG 24/2007 DATED 15.3.2007 ISSUED FROM THE OFFICE OF THE SECOND RESPONDENT. ANNEXURE A3 TRUE COPY OF THE OFFICE ORDER BEARING NO.SG/03/2009 DATED 29.1.2009 FROM THE OFFICE OF THE SECOND RESPONDENT. ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 25.3.2009 ADDRESSED TO THE 2ND RESPONDENT. ANNEXURE A5 TRUE COPY OF LETTER BEARING NO.RCL/SR/SC/DEPUTATION/2009-10 DATED 13.4.2009 ISSUED BY THE GENERAL MANAGER, RCL, SOUTHERN REGION. ANNEXURE A6 TRUE COPY OF COMMUNICATION BEARING NO.RCIL/SR/SC/DEPUTATION/09-10 DATED 19.10.2009 ISSUED BY THE EXECUTIVE DIRECTOR OF THE SOUTHERN REGION RAILTEL CORPORATION OF INDIA LTD. ANNEXURE A7 TRUE COPY OF LETTER BEARING NO.P(S)220/9/DEPUTATION/TELE DATED 5.11.2009 ADDRESSED TO DIVISIONAL RAILWAY MANAGER (PERSONNEL), SALEM. ANNEXURE A8 TRUE COPY OF LETTER BEARING NO.RCIL/SR/SC/DEPUTATION/09-10 DATED 12.11.2009 ISSUED BY THE EXECUTIVE DIRECTOR OF THE RCIL ANNEXURE A9 TRUE COPY OF THE MEMORANDUM BEARING NO.V/P524/IX/6PC/FIXN OF PAY DATED 10.12.2009 ISSUED BY THE 3RD RESPONDENT FIXING THE APPLICANT'S PAY WITH EFFECT FROM 1.1.2005 IN THE REVISED PAY BAND/GRADE PAY. ANNEXURE A10 TRUE COPY OF OFFICE ORDER NO.SG/11/2010 DATED 9.3.2010 TRUE COPY OF WHICH ISSUED FROM THE OFFICE OF THE 2ND

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OP(CAT).3196/12 9

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RESPONDENT.

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ANNEXURE A11	A TRUE COPY OF THE RAILWAY BOARD LETTER BEARING NO.F.E.11/2009 DE DATED 12.1.2010 REFERRED TO IN ANNEXURE-A1.
ANNEXURE A12	TRUE COPY OF THE REPRESENTATION DATED 27.10.2010 ADDRESSED TO THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION.
ANNEXURE A13	A TRUE COPY OF PENSION PAYMENT ORDER BEARING REF.NO.0604208227 DATED 13.12.2010 ISSUED BY THE SENIOR DIVISIONAL FINANCE MANAGER SOUTHERN RAILWAY, TRIVANDRUM.
ANNEXURE A14	TRUE COPY OF THE LETTER BEARING NO.RCIL/SR/P/FILE/PS DATED 26.3.2011 SENT BY THE DEPUTY GENERAL MANAGER/FINANCE OF THE RCIL SOUTHERN REGION.
ANNEXURE A15	A TRUE COPY OF THE RAILWAY BOARD ORDER BEARING RBE NO.199/2006 DATED 29.12.2006.
ANNEXURE A16	A TRUE COPY OF THE RAILWAY BOARD ORDER BEARING RBE NO.106/2010 DATED 28.7.2010 ALONG WITH ITS ENCLOSURES.
ANNEXURE A17	A TRUE COPY OF THE ORDERS OF THE RAILWAY BOARD BEARING RBE NO.110 OF 1994 DATED 5.12.94.
ANNEXURE A18	TRUE COPY OF THE ORDERS OF THE RAILWAY BOARD RBE 51 OF 2008 DATED 4.4.2008.
EXHIBIT P1	TRUE COPY OF THE OA NO.790/2011 WITH ANNEXURES FILED BY THE RESPONDENT IN CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXHIBIT P2	TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN OA 790/2011 BEFORE CAT, ERNAKULAM.
EXHIBIT P3	TRUE COPY OF THE ORDER IN OA 790/2011 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 16.2.2012.

Union of India v. Prakash Sam

Case brief

What is this about?

What did the court decide?

Union of India v. Prakash Sam

Case brief

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