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2011 DIGILAW 1515 (CAL)

Sujan Kumar Ukil v. UNION OF INDIA

2011-12-14

ASHIM KUMAR BANERJEE, SHUKLA KABIR SINHA

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JUDGMENT: 1. THE confusion arose in view of the lack of transparency in the process of issuance of circulars by the Railway. As per 1961 circular, the Clerk (Grade -I), who had passed Appendix II-A Examination would be entitled to three increments with a minimum of Rs.150/-. THE Railway Board issued a further circular in 1968 extending the benefit to the persons working as Clerk (Grade-II) by giving them three increments after passing of the said examination. However, that particular increment would be given in a scale of Rs. 110-180 as specifically mentioned in the circular. THE dispute arose when the Railway attempted to withdraw the benefit through circular dated October 30, 1981, that too, with retrospective effect from January 1, 1973 on the recommendation of Third Pay Commission. Pertinent to note, the Railway did not clarify the position that such increment was possibly taken note of by the Third Pay Commission while revising their pay. A batch of employees approached the Tribunal vide T.A. No. 148 of 1988 (C.R. 1867-W/75). THE Tribunal categorically held that such circular could not have any retrospective effect. THE Railway became unsuccessful before the Apex Court while challenging the order of the Tribunal. THE issue attained finality. 2. THE Railway issued a further circular on January 23, 1996, Clause 5(3) being relevant is quoted below:- "5(3) In the case of those who qualified in the App. HA examination, up to 31.5.1981 and were promoted on or after 1.6.81, three advance increments are to be given in the scale of Rs. 260-400 and these three advance increments are also to be reckoned while fixing the pay of such employees in the scale Rs. 330-560 under normal Rules when they are promoted to that scale. In this case the benefit of granting four increments in the higher scale (Rs. 330-560) is not admissible." 3. BEING aggrieved by the said circular dated January 23, 1996, the present petitioners approached the Tribunal. The petitioners contended before the Tribunal that they passed out the relevant examination in January 17,1981, they could have been considered for promotion in Clerk (Grade-I) contemporaneously. The authority, however, delayed the process of promotion. They got their promotion in June, 1981 onwards. Hence the cut off date could not be applied to them. The Tribunal did not find favour with the argument, advanced by the petitioners. The authority, however, delayed the process of promotion. They got their promotion in June, 1981 onwards. Hence the cut off date could not be applied to them. The Tribunal did not find favour with the argument, advanced by the petitioners. The Tribunal observed that the application was bereft of any merit and as such dismissed the same. The Tribunal while considering the issue observed, merely because the earlier application was allowed that reached finality before the Apex Court, would not and cannot mean that the applicants would be entitled to benefit of the said orders despite the fact that the Apex Court observed that benefit of such Scheme had been discontinued from 1981. 4. BEING aggrieved, the petitioners approached us by filing the instant application in 2005. The said application was kept pending for long for the reasons best known to the petitioners. The matter has now come up before us for being heard on merits. 5. WE have heard Mr. Partha Sarathi Bhattacharyya, learned Counsel for the petitioners and Mr. Partha Sarathi Bose, learned Senior Counsel appearing for the Railway being assisted by Mrs. Aparna Ghosh, learned Advocate. 6. MR. Bhattacharyya contends before us that once the Tribunal held earlier that the circular could not have any retrospective effect, the Railway could not have issued a further circular to nullify the Tribunal's decision that reached finality at the Apex Court level. MR. Bhattacharyya further contends that the petitioners passed out the relevant examination in January, 1981, admittedly before the cut off date. Hence there was no reason why they would ' be denied the benefit of four increments in the post of Clerk (Grade-I). 7. WE have carefully perused the pleadings, the earlier judgment and the judgment and order passed by the Tribunal impugned herein. WE have considered the circulars. WE feel, the Railway Board while issuing the subject circulars should have assigned reasons that would dispel the doubt in the mind of the petitioners. 8. THE Railway Board in their wisdom thought fit in 1961 to extend the incremental benefit to a particular group of employees (Clerk Grade-I) who could successfully pass out such departmental examination. THE Railway Board in their wisdom extended the identical benefit to the Clerk (Grade - II) as well in 1968. 8. THE Railway Board in their wisdom thought fit in 1961 to extend the incremental benefit to a particular group of employees (Clerk Grade-I) who could successfully pass out such departmental examination. THE Railway Board in their wisdom extended the identical benefit to the Clerk (Grade - II) as well in 1968. If one gives a close look to those two circulars, he would find that such incremental benefit was attached to a particular scale. THE pay of the employees got revised by recommendation of the Pay Commission. THE Railway Board thought it fit to withdraw the benefit, possibly in view of revision of pay. However, the Railway did not spell out any reason. THE Tribunal, in its earlier decision, rightly held that the circular could not have any retrospective effect. THE Tribunal did not consider the issue that is now raised before us in the present case. Hence the earlier judgment would be of no assistance to the petitioners in the present case. 9. IT is true that the petitioners passed out appropriate examination in January, 1981. We do not know if they would have considered for promotion prior to June 1, 1981, what would have been their pay, would it be at the old pay scale or the revised pay scale? IT is not clear to us. The Railway discontinued the Scheme. The Apex Court took note of the same. That, in our view, cannot come within the scope of judicial review unless it is alleged arbitrary and mala fide. Such case has not been made out by the petitioners. 10. BEFORE parting with, we would be failing in our duty if we do not direct the Railway to expedite the process of pay fixation. It is unfortunate, taking the plea of pendency of this petition, the Railway is yet to fix the pay of the petitioners in the scale of Clerk (Grade-I). Some of them have already retired. We are not sure whether they got their retiral benefit appropriately. The other would be retiring very soon. We would expect the Railway to act as expeditiously as possible and appropriately fix their pay, if not already done, and extend the benefit as per their entitlement in view of the observations made by us so that they could get their appropriate retiral benefit soon after superannuation. 11. The other would be retiring very soon. We would expect the Railway to act as expeditiously as possible and appropriately fix their pay, if not already done, and extend the benefit as per their entitlement in view of the observations made by us so that they could get their appropriate retiral benefit soon after superannuation. 11. WE would expect that the entire process would be completed within a period of three months in the case of the employees who have already retired and within a period of six months in the case of in-house candidates. 12. THE application stands disposed of accordingly without any order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis. Banerjee, J. , Kabir (Sinha), J. S. B.