Quashed

Union of India v. Chander Mohan etc.

Punjab & Haryana HC19 Feb 2014CWP/2345/2004

Case brief

AI extract

What is this about?

Petitioners challenged an AC report rejecting their delay-based equal pay claim post-redployment. The High Court held that the delay precluded relief and relied on superseded orders, setting aside the impugned order and making the rule absolute.

What did the court decide?

The impugned order of the Central Administrative Tribunal dated 31.10.2003 is set aside. The rule is made absolute. Costs borne by parties.

Union of India Vs Chander Mohan etc. — Pension and Retirement Benefits | Punjab & Haryana HC (2014)

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C. W. P. No. 2345-CAT of 2004 1

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Sr. No. 390

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Case No. : C. W. P. No. 2345-CAT of 2004

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Date of Decision : February 19, 2014

Union of India

.... Petitioner

Vs.

Chander Mohan and others .... Respondents

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CORAM : HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE. HON'BLE MR. JUSTICE ARUN PALLI.

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Present : Mr. Puneet Jindal, Advocate for the petitioner.

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Mr. D. R. Sharma, Advocate for the respondents.

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SANJAY KISHAN KAUL, C. J. (Oral) :

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The two private respondents before us joined the service with the Railways in the different categories as Apprentice Boiler Attendant and Apprentice Fitter in the year 1986 and 1984 respectively and were promoted as Grade II in pay scale of Rs.1200-1800, which subsequently stood revised to Rs.4000-6000. The Loco Steam Shed in the Railways was closed and consequently, the said two respondents, amongst other employees, were declared surplus. In order to rehabilitate and re-deploy them, options were

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Monika 2014.02.20 16:40 I attest to the accuracy and integrity of this document High Court Chandigarh

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C. W. P. No. 2345-CAT of 2004 2

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called from the employees, who had been declared surplus. The two private respondents gave identical option for Commercial Clerk. Not only that, they expressed their willingness to join in the scale of Rs.1200-2040 (which was a higher grade in which they were at that time) in Grade I, while simultaneously expressing their willingness to join in the earlier pay scale of Rs.975-1540 in Grade II. In pursuance to the option, they were redeployed as Train Clerks in pay scale of Rs.950-1500 on 16.05.1997. They earned their promotions as Senior Train Clerks in August 1999.

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However, it was for the first time in November 2001 that the two private respondents sought to raise grievance qua their deployment, by filing OA No. 1135/PB/2001 dated 01.11.2001, which was disposed of with direction to the Department to take a decision on their grievance in terms of order dated 01.11.2001. The request of the two private respondents was rejected on 22.07.2002, which gave rise to OA No. 1303/PB/2002 . This OA was allowed by the impugned order dated 31.10.2003, which is assailed in the present writ petition under Article 226 of the Constitution of India.

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The case sought to be set up by the two private respondents is that there were vacancies existing in the pay scale of Rs.1200-1800, but despite that, they were re-deployed as Train Clerks in the pay scale of Rs.950-1500. It is also their grievance that their seniority has been effected on account of the fact that the employees, who were originally working in

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C. W. P. No. 2345-CAT of 2004 3

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the pay scale of Rs.950-1500 and were re-deployed in the same pay scale in March 1996, were promoted as Senior Train Clerks in April 1996, which in turn, had caused to the loss of seniority to the two private respondents.

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In the OA filed, the specific example given of deployment in

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the higher pay scale is of one Shri Uma Shankar, who is stated to have given option like the private respondents and was placed in the pay scale of Rs.1200-2040, even though his original pay scale was Rs.1200-1800 prior to the deployment. The second example given is of Shri Bhagwant Singh, who was stated to be working in the scale of Rs.1320-2040 as Turner Grade I, prior to being declared as surplus and was re-deployed in a lower pay scale of Rs.1200-1800, which stood revised to Rs.4000-6000 w.e.f. 01.01.1996. His case was reviewed and he was re-deployed in the pay scale of Rs.4500-7000 under the recommendations of Fifth Pay Commission. The private respondents thus pleaded discrimination.

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The third aspect referred to in the OA is that in terms of the DO letter dated 22.05.2002, the re-deployment has to be made in the equivalent pay scale.

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The stand of the Department, as reflected in the written statement, apart from preliminary objections, is that it is the private respondents, who were keen to join the Commercial Department, rather any other Department, even at a lower pay scale and exercised option

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C. W. P. No. 2345-CAT of 2004 4

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accordingly. The case of Uma Shankar – Welder is stated to be different as he was originally working in the pay scale of Rs.1320-2040 and was in fact, re-deployed in a lower pay scale of Rs. 1200-2040, and thus, the original pay scale of Uma Shankar has been stated incorrectly. Insofar as the case of Bhagwant Singh is concerned, it has been stated that he was working in the scale of Rs.1320-2040 and was re-deployed in the same scale as Shed Man Grade-B, which was later on revised to Rs.4500-7000. The pleas of delay and laches and estoppel have also been raised apart from non-impleadment of parties, against whom grievance qua seniority has been made.

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A perusal of the impugned order shows that the plea of bar of time has been rejected on the ground that the grievance really arose when seniority list was circulated post re-deployment in April 2001 and on grievance being made, the Tribunal itself had passed an order in the earlier OA directing the representation to be considered. The exercise of option forwarded through their union has been held not to come in the way of private respondents, when vacancies were available in the scale of Rs.12002040, on which similarly placed persons were re-deployed. There is nothing else said in the impugned order.

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We have heard learned counsel for the parties, who have taken us through the records.

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In our view, the first aspect, which is material, is the exercise of

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C. W. P. No. 2345-CAT of 2004 5

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option by the private respondents themselves through Annexures P-1 and P- 2, where they had categorically given their preferred option as the Commercial Clerks. The relevant portion, which is identical in both the options, is extracted as under :-

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“ Scale : 1200-1800

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Preferred Option : C. C.

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If the station of my choice is not available I may be posted anywhere in the Division.

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Station Preferred : Ferozepur.

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For Gr. I : I undertake that I am ready to join

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in Gr. 1200 - 2040 as E & RC and

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conditions of that post are acceptable

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to me.

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Grade-II : I undertake that I am ready to join

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in Lower grade scale Rs.975-1540 and whatever pay I shall get in that job acquiring to my service in the recent grade and service conditions of that post are acceptable to me.

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I further undertake that the above option is

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C. W. P. No. 2345-CAT of 2004 6

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irrevocable. ”

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The aforesaid shows that the private respondents, though working in the scale of Rs.1200-1800 in Grade-II, had given their option for scale of Rs.1200-2040 in Grade-I, but simultaneously, also gave their option in the lower pay scale of Rs.975-1540 in Grade-II. The undertaking given as per the option is stated to be irrevocable.

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It is in terms of the aforesaid option that the Department redeployed the private respondents in the lower pay scale of Rs.950-1500, which was their preferred option. The private respondents accepted the redeployment without making any grievance in this behalf and continued to serve from May 1997 to August 1999. They were promoted as Senior Train Clerks. Even at that stage, there has not been a whisper of protest and for a period of two years thereafter, till the earlier OA was filed making grievance in the year 2001.

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Not only the aforesaid, the grievance made is really predicated on a plea of inequality giving two specific examples and alleging that there were vacancies available in the corresponding grade. However, this very premise is not correct, in view of stand taken in the written statement, qua the two illustrations given of discrimination. Shri Uma Shankar was not working in the same grade as that of the private respondents, but in the scale of Rs.1320-2040 and was thus, re-deployed in the lower pay scale of

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C. W. P. No. 2345-CAT of 2004 7

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Rs.1200-2040. Similarly, Shri Bhagwant Singh was working in the pay scale of Rs.1320-2040 and was re-deployed in the same pay scale. These two illustrations, thus, not being on parity of pay scale with that of private respondents, there is no question of violation of principles of equality. Nowhere it has been established that anyone having the pay scale as that of the petitioner and similarly situated, was deployed in the Commercial Department, on the same pay scale against the existing vacancy. Learned counsel for private respondents in this behalf has referred to Annexure A-4 to contend that the options of Shri Uma Shankar as well as the two private respondents was forwarded together. Shri Uma Shankar was at Sr. No.1, while the two private respondents were at Sr. Nos. 3 and 4. Thus, even if a vacancy existed in the higher pay scale, it went to Shri Uma Shankar, who was having pay scale even higher to that and effectively lowering his pay scale.

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We also find force in the contention of the petitioner that the private respondents could not have raked up the issue after such a period of delay and laches of almost five years, having accepted the re-deployment and the scale and even promoted from that scale to a higher scale (Government of Andhra Pradesh and others vs. M. A. Kareem and others – reported as 1991 (3) SCC 183; Maloom Lawrence Cecil D'Souza vs. Union of India and others - reported as 1976 (1) S.C.C.

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C. W. P. No. 2345-CAT of 2004 8

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599) . Learned counsel for the petitioner is further right in contending that if the issue of seniority being effected was sought to be raised, then the effected persons ought to have been impleaded as party (Vidya Bhushan vs. State of Punjab – reported as 1992 (1) S.C.T. 122 (D.B.); Sat Pal Sharma vs. State of Haryana – reported as 2002 (1) S.C.T. 561 (D.B.)).

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To us, it appears that when the Fifth Pay Commission recommendations were implemented, the private respondents appears to have woken up qua the issue of the equalization of certain scales and that has been taken as the basis for entertaining the OA in the impugned order, a course of action impermissible, in our view, as the original cause arose when the re-deployment took place.

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Learned counsel for the petitioner has also pointed out that in the impugned order, and as per the counsel for the private respondents, reliance has been placed on superseded office orders and in this behalf, has referred to Annexure A-8 to contend that the portion relied upon is of the office orders issued earlier while the amended portion of the office order follows thereafter in paragraph 2 onwards. In this behalf, specific reference has been made to paragraph 5, which reads as under :-

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“5. Normally, the juniormost of the

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employees should be rendered surplus, in respective of the manner in which they had entered

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C. W. P. No. 2345-CAT of 2004 9

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the grade. However, where staff give their willingness to go on bottom seniority in recruitment grades to other departments, such volunteers should be given preference depending upon the availability of vacancies in the other cadre and their suitability, including medical fitness. ”

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The reference to the Special Supernumerary posts, which, according to the private respondents, were available to be created, forms a part of the earlier circular, as it stood prior to amendment on 21.04.1989 and read as under :-

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“(v) The `Special Supernumerary'

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posts shall be personal to each incumbent and are to be surrendered as soon as the incumbent is absorbed in some other duly sanctioned posts or retires or vacates it for any other

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reason. ”

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immediately absorbed after

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C. W. P. No. 2345-CAT of 2004 10

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retraining, where necessary, against other duly sanctioned posts should be allowed to continue against Special Supernumerary' posts in the same grade in which the incumbents were working and they will continue to have their lien in their old cadre posts, so as to keep their promotional prospects in tact. The Railways should set up suitable machinery to review the utilisation/re-deployment of staff being borne against Special Supernumerary' posts. ”

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Thus, the very rationale of a finding on the requirement of creating a Special Supernumerary post is misconceived, as it is based on a superseded circular and not on the relevant circular, as applicable on the date, when cause of action arose.

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In the end, we may note that the operation of the impugned order was stayed on 12.02.2004 itself, while issuing notice of motion and thus, the status quo position, is prevailing with the result that the private respondents have not been granted any benefit of the impugned order. A

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C. W. P. No. 2345-CAT of 2004 11

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contrary position would have deprived them of benefits enured after lapse of so many years bringing in equities in their favour.

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We are, thus, of the view that the impugned order of the Central Administrative Tribunal dated 31.10.2003 is not sustainable and is accordingly set aside, making the Rule absolute and leaving the parties to bear their own costs.

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( SANJAY KISHAN KAUL ) CHIEF JUSTICE

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February 19, 2014

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monika

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( ARUN PALLI ) JUDGE

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Monika 2014.02.20 16:40 I attest to the accuracy and integrity of this document High Court Chandigarh

Union of India v. Chander Mohan etc.

Case brief

What is this about?

What did the court decide?

Union of India v. Chander Mohan etc.

Case brief

What is this about?

What did the court decide?

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