Dismissed

General Manager East Coast Railway v. Surendra Jal

Orissa HC19 Aug 2020WP(C)/18974/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by the railway administration to quash a Central Administrative Tribunal order. The Tribunal had directed the railway to consider antedating the promotion date of token porters promoted as goods guards to avoid pay disparity under the 2016 Revised Pay Rules. The Court held the Tribunal acted within jurisdiction and did not interfere with the reconside

What did the court decide?

Writ petition dismissed; No order as to costs.

General Manager East Coast Railway Vs… — Pension and Retirement Benefits | Orissa HC (2020)

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IN THE HIGH COURT OF JUDICATURE FOR ORISSA

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AT CUTTACK

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D.B. Writ Petition (Civil) No.18974 of 2020

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AFR

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General Manager, East Coast Railway and others	..…Petitioners
-Versus -
Surendra Jal and others	…..Opp. Parties

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Advocate(s) who appeared in this case:-

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For Petitioners	:	M/s. Subrat	Mishra, S. Mohapatra
		and B.	Swarnakar, Advocates.
For Opp. Parties	:	None

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HONOURABLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ

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AND

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HONOURABLE DR. JUSTICE B.R. SARANGI

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J U D G M E N T

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19.08.2020

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Per: Dr. B.R. Sarangi, J.

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The petitioners, who are the authorities of railway administration, have filed this writ petition to quash the order dated 27.08.2019 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.

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260/16/2018, by which the tribunal has directed to consider the case of the opposite parties no 1 to 8 for promotion to the post of Goods Guard with effect from a date prior to 28.07.2016 but after the date of completion of their training i.e., 15.07.2016, so as to avoid disparity in their pay fixation under the Railway Services (Revised Pay) Rules, 2016.

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The factual matrix of the case, in hand, is that the petitioners were the respondents and opposite parties no. 1 to 8 were the applicants before the Central Administrative Tribunal. The opposite parties no.1 to 8, who were working as Token Porters under the petitioners, had participated in the Departmental Examination for promotion to the post of Goods Guards in PB-1 Rs.5200-20200/- with GP 2800/against 60% departmental promotion quota and they were included in the provisional panel for such promotion vide panel dated 15.01.2016. The opposite parties no. 1 to 8, along with other selected candidates, were released for training, vide order dated 04.03.2016, as such training was required for promotion to the post of Goods Guard and after

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successful completion of the training, the opposite parties no.1 to 8 were posted as Goods Guard, vide order dated 11.08.2016, and they joined as such under the Sambalpur Division.

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2.1 The railway authorities revised the salary structure of their employees on the basis of the recommendation of the 7^th CPC by notifying the Railway Services (Revised Pay) Rules, 2016 (hereinafter referred to as “Rules, 2016”), vide notification dated 28.07.2016, giving effect from 01.01.2016. The opposite parties no. 1 to 8 are aggrieved by the manner in which the petitioners fixed their revised pay as per the Rules, 2016 w.e.f. 01.01.2016 when they were continuing as Token Porter, i.e., in the lower posts because of which their pay on promotion to the cadre of Goods Guard was fixed at a lower level. The opposite parties no. 1 to 8 exercised their option under Rule-5 of the Rules, 2016 to continue to draw pre-revised pay scale till the date of their promotion, i.e. 11.08.2016, but exercise of such option was rejected by the petitioners, vide order dated 02.08.2017.

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2.2 Being aggrieved, the opposite parties no. 1 to 8

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approached the Central Administrative Tribunal, Cuttack Bench, Cuttack to quash the order dated 02.08.2017 and sought direction to revise their scale of pay on the basis of option exercised by them in terms of Rules-5 and 6 of the Rules, 2016, i.e., from the date they got promotion to the post of Goods Guard and extend all consequential service benefits as due and admissible to them within a reasonable time. After due adjudication, the Central Administrative Tribunal, Cuttack Bench, Cuttack directed the railway authorities to consider the case of the opposite parties no 1 to 8 for promotion to the post of Goods Guard with effect from a date prior to 28.07.2016 but after the date of completion of their training i.e., 15.07.2016, so as to avoid the disparity in their pay fixation under the Rules, 2016, as other employees, who had been selected for promotion on the basis of same examination along with opposite parties no. 1 to 8, but promoted on 09.05.2016 due to earlier completion of their training. Essentially, the opposite parties no. 1 to 8 seek the benefit of revised scale of pay antedating

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the date of promotion from 11.08.2016 to any date prior to 28.07.2016 as per the provisions of law. Instead of considering their case on the basis of direction issued by the Central Administrative Tribunal for antedating the date of promotion of the opposite parties no. 1 to 8 prior to 28.07.2016, the petitioners have approached this Court by filing this application.

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Mr. S. Mishra, learned counsel appearing for the petitioners contended that the tribunal has committed grave error of fact and law, inasmuch as although it has observed in paragraph-9 of the order impugned that the point of consideration was whether under the first proviso to Rule-5 the opposite parties no. 1 to 8 are entitled to exercise their option to continue in the existing pre-revised scale till the date of their promotion, i.e. 11.08.2016, as claimed by them, but in paragraph-10, the tribunal has held that the petitioners have rightly applied the second proviso to Rule-5 while refusing the benefit of exercising the option under Rule-5, since the date of promotion of opposite parties no.1 to 8 was after the date of issuance of the notification of

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Rules, 2016 on 28.07.2016. Therefore, the tribunal, while agreeing with facts and law pleaded by the petitioners, rejected the plea of the opposite parties no. 1 to 8 to quash the order dated 02.08.2017, but directed the petitioners to revise the scale of pay of opposite parties no. 1 to 8 on the basis of the option exercised by them in terms of Rules 5 and 6 of the Rules, 2016 i.e., from the date the opposite parties no. 1 to 8 completed training on 15.07.2016 and entitled to get promotion to the post of Goods Guard and extend all consequential service benefits as due and admissible to them. It is further contended that opposite parties no. 1 to 8 were promoted on 11.08.2016 after 28.07.2016, therefore, they are not eligible to switch over to the revised pay structure, thereby, their option was not considered as per Rules, 2016.

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It is further contended that the opposite parties no. 1 to 8, along with other employees who had taken part in the selection process and also appeared and passed the same examination, but they had to undergo training as per rules and at the first chance orders of promotion were

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issued on 09.05.2016 and 15.06.2016 in respect of those who had cleared up the training at first instance and allowed to enjoy the benefit under Rule-5 of the Rules, 2016, but the opposite parties no.1 to 8 were declared fail in the training in the first chance and directed to go for repeat training and were declared pass, except Prafulla Nayak, on 15.07.2016, which order was received on 21.07.2016. Thereafter, the department processed the posting of seven opposite parties, which was approved on 11.08.2016, but Prafulla Nayak was sent for repeat training again and he could pass as per letter dated 08.09.2016, which was received on 22.09.2016, and accordingly he was posted in promotional post. Therefore, it is contended that the tribunal has committed grave error, apparent on the face of record, by issuing such direction to consider the case of the opposite parties no. 1 to 8 for promotion to the post of Goods Guard with effect from the date prior to 28.07.2016, but after completion of their training i.e. 15.07.2016 so as to avoid disparity of pay fixation of the opposite parties no. 1 to 8 under Rules, 2016.

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At the stage of admission, without issuing notice

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to opposite parties no. 1 to 8, after hearing the learned counsel for the petitioners Mr. S. Mishra and on perusal of the records this Court examined the same and found that admittedly a departmental examination for promotion to the post of Goods Guard against 60% quota was held on 15.01.2016. The opposite parties no. 1 to 8, along with other selected candidates, were released for training, vide order dated 11.03.2016, as the training was required for promotion to the post of Goods Guard, and after successful completion of the training, the opposite parties no. 1 to 8 were posted as Goods Guard, vide order dated 11.08.2016, pursuant to which they joined under the Sambalpur Division. Some of the employees, who had been selected for promotion on the basis of the said examination, on successful completion of their training, were promoted on 09.05.2016, but the opposite parties no. 1 to 8, having not come out successful, gone for repeat training and become successful on 15.07.2016. But, in the meantime, the Rules, 2016 came into force, which was published on official

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gazette on 28.07.2016, and subsequently the opposite parties no. 1 to 8, except Prafulla Nayak, were promoted to Goods Guard w.e.f 11.08.2016, though the opposite parties no. 1 to 8, except Prafulla Nayak, were eligible for promotion on passing the training examination on 15.07.2016. Had that notification been given effect to immediately, they would have got the benefit of the Rules, 2016, but the petitioners promoted the opposite parties no. 1 to 8, except Prafulla Nayak, on 11.08.2016, which was subsequent to the cutoff date, i.e., 28.07.2016. Thereby, opposite parties no. 1 to 8 were deprived of the benefits of revised scale of pay admissible to them, even though they had exercised the option required under Rule-5 of the Rules, 2016.

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For just and proper adjudication of the case, Rule

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5 of the Rules, 2016 is extracted hereunder:-

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“5. Drawal of pay in the revised pay structure.– Save as otherwise provided in these rules, a Government servant shall draw pay in the Level in the revised pay structure applicable to the post to which he is appointed:

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Provided that a Government servant may elect to continue to draw pay in the existing pay structure until the date on which he earns his next or any subsequent increment in the existing pay structure or

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until he vacates his post or ceases to draw pay in the existing pay structure:

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Provided further that in cases where a Government servant has been placed in a higher grade pay or scale between 1st day of January, 2016 and the date of notification of these rules on account of promotion or upgradation, the Government servant may elect to switch over to the revised pay structure from the date of such promotion or upgradation, as the case may be.”

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On perusal of the aforementioned rule, it is clear that first proviso to Rule 5 is not applicable when an employee moved for one post to another for promotion or on up-gradation, for which second proviso is applicable. Therefore, on the basis of the second proviso to Rule 5, even though opposite parties no.1 to 8, except Prafulla Nayak, exercised their option, the same was refused on the ground that promotion was after the date of issue of notification of the Rules, 2016, i.e., 28.07.2016.

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On careful perusal of the records, this Courts finds that there is disparity in the method of pay fixation as per Rules, 2016 between the two groups of employees, who were selected for promotion to the post of Goods Guard by virtue of the same examination. One group of employees,

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whose training was completed earlier, was promoted on 09.05.2016, i.e. prior to 28.07.2016. Consequently, they exercised the option under second proviso to Rule 5 and got the revised pay scale benefit. Whereas, the opposite parties no. 1 to 8, except Prafulla Nayak, although completed their training subsequently, i.e. on 15.07.2016, but they were promoted on 11.08.2016, after the cutoff date i.e. 28.07.2016, for which they were not allowed the benefit of exercising the option under Rule 5. Admittedly, the opposite parties no. 1 to 8, except Prafulla Nayak, had undergone first repeat training and passed the examination after the training was over on 15.07.2016. Being eligible for promotion, if they would have been promoted immediately and given posting after 15.07.2016, i.e., prior to 28.07.2016, then they would have been entitled to exercising option under Rule 5, but admittedly there was delay on the part of the railway administration in giving them promotion on 11.08.2016, which was after the cutoff date, i.e. 28.07.2016. Thereby, they have been deprived of the benefit of revised scale of pay as per Rules, 2016 and that very action of the

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petitioners in not giving promotion to the opposite parties no. 1 to 8, except Prafulla Nayak, even though they had successfully completed the training on 15.07.2016 which was much before 28.07.2016, is arbitrary and unreasonable.

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It is of relevance to note that if the opposite parties no. 1 to 8, except Prafulla Nayak, had completed required training by 15.07.2016, the railway administration could have immediately issued them regular promotion order, before the cutoff date, i.e. 28.07.2016, and in such case the disparity, which has been caused, would have been meted out. For lapses on the part of the railway administration, the opposite parties no. 1 to 8, except Prafulla Nayak, should not have been allowed to suffer from getting the benefit of the provisions of Rules 5 and 6 of the Rules, 2016.

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So far as Prafulla Nayak is concerned, he could not come out successful even in the repeat training, pursuant to letter dated 15.07.2016. Therefore, he had to undergo further repeat training, which he qualified only on 08.09.2016, which is after the cutoff date, i.e., 28.07.2016.

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In view of such position, so far as opposite parties no.1 to 8, except Prafulla Nayak, are concerned, they having qualified the requisite training by 15.07.2016, because of non-giving of posting in promotional post due to laches on the part of the railway administration, they could not and should not have been denied the benefit of Rule 5 of the Rules, 2016. Therefore, the tribunal, while considering the case of the opposite parties no.1 to 8, observed in paragraphs 14 and 15 of order dated 27.08.2019 as follows:-

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“14. In view of the above discussions, although the decision of the respondents in rejecting the option exercised by the applicants cannot be faulted in the light of the provisions of the Rule-5 of RS(RP) Rules, 2016, there is a case for consideration of the case of the applicants who were eligible for promotion having completed the requisite training on 15.07.2016, but their promotion order could not be issued before 28.07.2016, for which the disparity in pay fixation between the group promoted on 9.5.2016 and the applicants have occurred.

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15. Hence, in the interest of justice, the Respondent NO.1 is directed to consider the case of the applicants for promotion to the post of Goods Guard with effect from a date prior to 28.07.2016 but after the date of completion of their training i.e. 15.07.2016, so as to avoid the disparity in pay fixation of the applicants under the RS(RP) Rules, 2016 and other employees, who had been selected fro promotion on the basis of same examination as the applicants, but promoted on 9.5.2016 due to earlier completion of their training than the applicants. In other words, the possibility of antedating the date of promotion of the applicants

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from 11.8.2016 to any date prior to 28.7.2016 will be considered as per provisions of law. A decision be taken after such reconsideration preferably, within four months from the date of receipt of a copy of this order.”

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On perusal of the above, it would be evident that the tribunal has directed to consider the case of opposite parties no.1 to 8 for promotion to the post of Goods Guard with effect from a date prior to 28.07.2016, but after the date of completion of training, i.e., 15.07.2016 in order to avoid disparity in pay fixation under Rules, 2016, as other employees who had been selected for promotion on the basis of the same examination as that of opposite parties no.1 to 8 have already received benefits of getting promotion on 09.05.2016 due to their earlier completion of training and thereby, suggested for possibility of antedating the date of promotion of the opposite parties no.1 to 8 from 11.08.2016 to any date prior to 28.07.2016 as per the provisions of law.

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Halsbury’s Laws of England , (Fourth Edition) (2001 Re-issue) Vol.1(1) Para-123 have explained Certiorari (quashing order) is an order of the superior Court by which decisions of an inferior Court, tribunal, public authority or

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any other body of persons who are susceptible to judicial review may be quashed.

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The supervision of the superior Court exercised through writs or certiorari goes on two points. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of certiorari could be demanded.

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A Constitution Bench of seven learned judges in Hari Vishnu v. Ahmad Ishaque, AIR 1955 SC 223, laid down the following propositions as well settled and beyond dispute:

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“(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it.

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(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

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(3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review

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findings of fact reached by the inferior Court or tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well a right, and when the legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence, and substitute its own findings in certiorari.”

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11. In Nagendra Nath Bora v. Commr. of Hills

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Division, AIR 1958 SC 398, the apex Court held as follows:

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“The jurisdiction under Article 226 of the Constitution is limited to seeing that the judicial or quasi-judicial tribunals or administrative bodies exercising quasi judicial powers do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. In other words, its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even through of law, will not be sufficient to attract this extraordinary jurisdiction.

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The Constitution Bench of the apex Court, as

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mentioned above, have laid down the principles for exercising the jurisdiction under writ of certiorari and applying the same to the present context this Court is of the considered view that the tribunal has not committed any error, which is required to be corrected by exercising such

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jurisdiction or have acted in excess of its jurisdiction or failed to exercise it so as to cause interference by this Court. More particularly, when the tribunal has directed to consider the case of opposite parties no.1 to 8 in the light of the observation made in the said order dated 28.07.2019, this Court is not inclined to interfere with the same.

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In view of the foregoing discussions, the writ petition is devoid of any merit and the same is hereby dismissed. There shall be no order as to costs.

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As Lock-down period is continuing for COVID-19, learned counsel for the parties may utilize the soft copy of this judgment available in the High Court’s official website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587 dated 25.03.2020.

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(DR. B.R. SARANGI) (MOHAMMAD RAFIQ) JUDGE CHIEF JUSTICE

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G.D.Samal, APS/

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Ajaya Ku. Rana,Sr.Steno.

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General Manager East Coast Railway v. Surendra Jal

Case brief

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General Manager East Coast Railway v. Surendra Jal

Case brief

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