Dismissed

Union of India v. Hira Behera

Orissa HC19 Jul 2017WP(C)/12445/2017

Case brief

AI extract

What is this about?

This Court dismissed a writ petition filed by Railways authorities challenging a Central Administrative Tribunal order that directed Railways to grant the first financial upgradation under the Assured Career Progression (ACP) scheme to the late husband of a petitioner, equating his entitlement with that of a junior employee, Shri Tipa, already granted the benefit.

What did the court decide?

Writ petition dismissed; Tribunal order upheld.

The authorities of the railways being the petitioners, have come up before thi s Court challenging the order dated 31.01.2017 passed by the Central Administrative Tribunal, Cuttack Bench in O.A. No. 206/00638/2014, wherein the Tribunal directed the present petitioner s to grant 1st financial up gradation under ACP scheme in favour of the husband of the opposit e party on the same lines as granted to one Shri Tipa.

The present opposite party, who is the widow of one Chakara, a Retd. Technica l Grade-III under Railways had approached the Tribunal in the aforesaid Original Application c hallenging the order dated 28.07.2014 wherein the prayer of her for grant of 1st Financial up- gradation under ACP scheme in favour of her late husband with effect from 01.10.1999 was rejec ted by the present petitioner no.2. The facts as narrated by her before the Tribunal, tends to reveal that her husband was granted as temporary status with effect from 01.01.1981 as a Tech nicial Gr-III under the Railways. While working as such, his services were regularized for the first time vide order dated 16.07.1992 with effect from 01.04.1988 and thereafter his service s were again regularized vide order dated 07.06.1999 with effect from 01.03.1998. While he was so continuing, 5th Central Pay Commission was introduced providing Assured Career Progression to the employees, wherein it was indicated that 1st Financial upgradation under the ACP schem e shall be

allowed after 12 years and 2nd upgradation after 12 years of regular service from the date of first financial up gradation. Accordingly, for the employees of Railway a Screening Committee was conducted on 15.09.2003. The said committee found the other similarly placed persons of th e order dated 07.06.1999 to be suitable for grant of 1st financial upgradation with effect fr om 01.04.2000 and accordingly the Chief Engineer (Con.) also approved such recommendation of t he Screening Committee. However, the present petitioner No.2 vide order dated 22.06.2005 cance lled such grant of 1st financial upgradation on the ground that such employees have not comple ted 24 years of regular service from the date of their initial regularization. Challenging suc h order of cancellation, numbers of Original Applications were filed before the Tribunal. The Tribunal quashed such order of cancellation dated 22.06.2005 by directing the present petition ers to restore 1st financial upgradation under the Scheme. One of such employees, namely Sri T ipa, who is admittedly junior to the husband of the opposite party had approached the Tribunal in O.A. No. 858 of 2005 praying for grant of 1st financial upgradation in his favour under th e ACP Scheme with effect from 01.10.1999. The Tribunal vide order dated 05.03.2008 allowed suc h prayer in favour of Shri Tipa. Challenging such order, the present petitioners had approache d this Court in W.P.(C) No.13046 of 2008, which was dismissed by this Court on 27.01.2009. The husband of the opposite party while continuing as such, retired from the Government service o n 31.05.2007, but however he was not extended with the benefit

extended with such benefit. After the death of the husband of the opposite party on 05.02.2012 , the present opposite party made a representation on 4.3.2014 and a reminder on 07.07.2014 to the petitioners to grant 1st financial upgradation in favour of her late husband with effect from 01.10.1999. According to her since such benefit was extended to Shri Tipa with effect fro

m 01.10.1999 in view of the judicial orders passed by the Tribunal and also by the High Court, her husband is also entitled for such benefit. Such representation of the opposite party was however rejected by present petitioner No.2 vide order dated 28.07.2014 on the ground that he r husband was treated on regular measure in direct entry grade of PCR Gr. D post with effect f rom 01.04.1988 and since within 12 years of such continuance he availed one regular promotion as Serang Gr.III and also retired before completion of 24 years regular service, her husband i s not entitled for financial upgradation.

The Tribunal taken into consideration all the previous orders passed by it as well as the orders passed by this Court, wherein it has been held that the order dated 07.06.1 999 was not an order of promotion, but an order of regularization. The Railway authorities ha ve also admitted the extension of the benefit of 1st financial upgradation in favour other sim ilarly situated persons pursuant to the judicial orders passed by the Tribunal in series of ca ses filed by similarly placed persons bearing O.A. Nos. 660, 663, 740, 858 of 2005 and 185 of 2007, which was confirmed by this Court. In the

said Original Applications, it was held that, no where in the service record any endorsement m ade to the effect that the applicants have been promoted to higher posts and no rules have bee n produced by the respondents showing that the posts in which they were regularized are the pr omotional posts from Group-D. In all such Original Applications, the Tribunal in a common orde r dated 05.03.2008 came to a conclusion that as per ACP Scheme one can be denied the benefits of upgradation of scale of pay after completion of 12 years, if he/ she has been given regular promotion to next higher grade during the said 12 years. In the records, as no iota of eviden ce available that any of the applicants have ever been granted any promotion, denial of 1st up gradation under ACP Scheme after completion of 12 years of service cannot be held to be in acc ordance with the Rules. In view of the said settled principle, the entitlement of the husband of the opposite party for 1st financial upgradation after completion of 12 years from the date of the order of regularization was allowed by the Tribunal.

The issue next to be decided is whether when an employee or a group of employe es has been favoured with a relief under the orders of a Court, another employee will be entit led to receive the same benefit, even if he has not come before the Court. We have before us the decision of the Honble Apex Court in the case of State of UP and Ors. Vs. Arvind

The normal rule is that when a particular set of employees is given relief by the Cour t, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Const itution of India. This principle needs to be applied to service matters more emphatically as the service jurisprudence evolved by the Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merel y because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

The Tribunal taking note of all such facts into account observed that the appl icants prayer is based upon sound facts and reasoning and accordingly quashed the order dated 28.07.2014. The Tribunal, directed the respondents to grant 1st financial upgradation under AC P scheme in favour of the husband of the applicant on the same lines as granted to one Shri Ti pa, similarly placed person.

The admitted fact in this case is that Shri Tipa is identically placed person as that of the husband of the opposite party. The order dated 31.08.2005 under Annexure-A/3 passed by the petitioner No.2 in compliance of the order passed by the Tribunal reveals that T ipa was granted the temporary status with effect from 01.01.1981 as that of the husband of the opposite party. He was regularized with effect from 01.04.1988 in Group D in scale Rs.750-940 /- & as Serang Gr.III in scale of 3050-4590/-. The office order No. 03546 dated 07.06.1999 und er Anenxure-A/1 reveals that the position of

the husband of the opposite party was at Sl. No. 68, whereas the position of Shri Tipa was at Sl. No. 69. The issue that the order dated 07.06.1999 was not an order of promotion but an ord er of regularization was also no more res-integra in view of the series of orders passed by th is Court earlier, treating the same to be an order of regularization. As to the delay in approaching the Court, the Tribunal has rightly dealt with such an issue. When a group of employees have been favoured with the self same relief pursuant to the law settled by this Court, non grant of such benefit to similarly situated another emp loyee on the ground of non approaching the Tribunal is nothing but an act of discrimination to such an employee.

In view of the discussions made above, this Court is of the opinion that the Tribunal has passed a just and reasoned order and there is no error apparent on the face of th e record to be interfered with in exercising the jurisdiction under Article 227 of the Constit ution of India.

Union of India v. Hira Behera

Case brief

What is this about?

What did the court decide?

Union of India v. Hira Behera

Case brief

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What did the court decide?

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