Wednesday, November 7, 2012

OA no 49 of 2011 on ???? -2011



TODAY, THIS THE ......... DAY OF ..............., 201


HON'BLE SHRI V. AJAY KUMAR             ...         MEMBER (J)

Sri Thomas C.C.
S/o Late Sri Chakkoru. C.T,
R/at Flat No.007, Silver Oak
Apartments (Phase II), Ambedkar Layout,
Kaval Byrasandra,
P.O: R.T. Nagar, Bangalore – 560 032.                 ...                     Applicant's

(In person)

1. Union of India,
   Represented by Secretary,
   to Ministry of Railways,
   Railway Board, New Delhi – 110 001.

2. The General Manager,
   South Western Railway,
   Club Road, Keshwapur  ,
   P.O. Hubli – 580 020, Karnataka.

3. The Chief Personnel Officer,
   O/o the General Manager,
   South Western Railway,
   Gadag Road, Hubli – 580 020.                           ...                     Respondents

(By Advocate Shri N. Amares, Standing Counsel for Railways)


Hon'ble Smt. Leena Mehendale, Member (A) :

            This OA if filed on 10.1.2011 under Section 19 of the Administrative Tribunals Act, 1985 with the prayer that the applican's designation and pay scale prior to his retirement should be corrected as per the Rules and he should be given the appropriate pension fixation on the basis of such correction. 

2.         The applicant submits that he joined the Railways on 19.3.1973 as Station Master.  He belonged to the erstwhile Southern Railways, its Headquarters at Chennai.  From this zone a new zone as South Western Railway (SWR for short) was carved w.e.f 1.4.2003 with Hubli as the Headquarters. Thus, from 1.4.2003 he became an employee of new SWR zone. Prior to that in 1995 the erstwhile Southern Railway had conducted a selection for the post of Law Assistant and finding him suitable in view of his degree in law and other aspects, appointed him as Law Assistant against open category post.  He joined on 24.5.1996 as Law Assistant under Southern Railway.  Since the post of Station Master and post of Law Assistant both carried the same pay scale, his posting as Law Assistant was not treated as promotional post.

3.         However, w.e.f. 27.3.1998 he was promoted as Chief Law Assistant in the pay scale of Rs.7450-11500  and posted at Bangalore, where he joined new duties on 26.6.1999.  Here he continued as Chief Law Assistant even after the fomation of SWR on 1.4.2003.

4.            With the formation of new zone, the Head office felt the need of creating a new post of Assistant Law Officer (ALO) in Group 'B' in the scale of pay of Rs.7500-12000.  Therefore, the post of CLO was upgraded to ALO w.e.f. 29.3.2004 (Annexure A1).  In the process of such a creation of the new post of ALO, the erstwhile post of CLO got discontinued.  The order was only a general order notifying the upgradation of post but did not specifically give any upgradation to the applicant.

5.         The applicant continued to work discharging all the duties and responsibilities of his desk, however, without any formal order of promotion and without the enhanced pay-scale of Rs.7500-12000/-.  This situation continued from 29.3.2004 till 27.12.2005 by which date, the due process of selection for ALO on regular basis was completed and the applicant now was given a formal order to work against the regularly available upgraded post of ALO (Annexure-A/2).  Prior to 27.12.2005, he received no formal order as ALO, nor any financial benefit, nor did he agitate for the same.  It is pertinent to note that as per the Recruitment Rules, 1992 available with the erstwhile Southern Railway the post of ALO is to be filled by promotion through a selection process consisting of written test and viva voce from amongst the CLOs who have completed 3 years of regular service as CLO.  The SWR authorities, following the same rules, conducted the selection process for ALO in November, 2005 to which the applicant was the lone candidate and was also successful in his written test and viva voce.  Thus, even if he discharged the tasks of ALO from 29.3.2004, his formal joining of the said post was only from 27.12.2005.  Annexure A2 dated 21.11.2005 is the posting order which clearly states as below:
            “(i)       Shri C.C.Thomas, CLA/CN/BNC who has been empannelled for promotion to Gr.B post of Assistant Law Officer in scale of Rs.7500-12000 in terms of CPO/SWR's Panel No.10 issued letter no.SWR(HQ)P.607/ALO DATED 08-11-2005 is promoted to Gr.B and posted as Assist Law Officer at H.Qrs Office/UBL.

            The above officers shall advice the date of relinquishing/ assumption of charge to all concerned.”

6.         As the new zonal office of SWR was formed only on 2003 and did not have fully developed set of rules for officers, they did not still have the post of Law Officer. As per  the Rules prevailing in the erstwhile southern zone and also prevailing elsewhere in the Railways, only the  Law Officer had the proper authority and mandate to give legal opinion and to vet legal documents and nominate Advocates and sanction the Advocate's fees up to Rs.5000/- and certify  the Advocate's fees to the superior officers if the fees exceeded Rs.5000/-. 

7.         As per the applicant all these legal requirements created a problem for the newly formed SWR where, out of the entire hierarchical set-up of legal personnel, only one ALO i.e., the applicant  was holding a proper post.    The Railway Board issued a circular No.2003(GC)12014 Pt(06) dated 9.3.2006 to the General Managers  of all newly formed Zones by which a proper legal hierarchy  for the zone would be set up.  This letter makes it clear that for all the newly formed zones, 11 posts of CLAs were surrendered by upgrading them to Group 'B' in the pay scale of Rs.7500-12000/- (ALO pay scale).  It is pertinent to note that the designation attached to this Group 'B' post in the pay scale of Rs.7500-12000 was decided based on whether the incumbent worked at Headquarters level or at Divisional level.  At Headquarters level (i.e., at Hubli), the zonal Railways were allowed to  have a Senior Law Officer (Scale not specified), one Law Officer, (Group 'B') Rs.7500-12000/-, one ALO  Rs.7500-11500/- and one Law Assistant Rs.6500-10500/-.  At Divisional level (i.e., Bangalore), only 2 personnel were to be retained namely, Law Officer in Group-'B' Rs.7500-12000/- and Law Assistant Rs.6500-10500/-.  The duty list of all these officials was also prescribed alongwith the said order  dated 9.3.2006 (Annexure A3).  Since, the applicant was working at Bangalore which is not a Headquarters office but only a Divisional Head Office,  his designation and pay scale could be shown as Law Officer in the scale of Rs.7500-12000/-, whereas he was already working in the said scale with effect from 27.12.2005 but with the designation of ALO. 

8.         The applicant emphasises that neither at the Divisional level nor at the Headquarters level was there any actually filled post of Assistant Law Officer (ALO).  He would also emphasize that he was performing all the tasks for which mandate was available only to a Law Officer  but not to ALO.  This is further supported by the letter dated 4.12.2006 from the Railway authorities which says that in view of the letter at Annexure A3, the Group 'B' post of ALO in the scale of Rs.7500-12000/- is designated as Law Officer Group 'B' in the pay scale of Rs.7500-12000/-.

9.         At this stage the applicant would fall back on the Recruitment Rules of 1992 at Annexure A5 that were applicable to erstwhile zones where the post of ALO was considered as Group 'B' post with a pay scale of Rs.7500-12000/- (V CPC), but the post of Law Officer under those zones was a Group 'A' post carrying a higher pay scale of Rs.10,000-15,200/-.  He, therefore, made a representation on 29.9.2006 for ad-hoc promotion to the post of Sr. Law Officer, which was recommended, but, did not fructify (Annexure-A/8).  He made another representation on 11.12.2006 (Annexure-A/9) claiming that since he was discharging the duties and responsibilities of Law Officer, which, as per the Railway Recruitment Rules, is a Group-'A' post in the pay-scale of Rs.10,000 – 15,200/-, therefore, he should be given that post of Law Officer Gr.'A', with effect from 4.12.2006, which is the date of order re-designating him as Law Officer.   This was followed up with reminders dated 14.1.2008, 23.6.08 and 4.10.2010, but, was rejected on 25.11.2010 (Annexure-A/13) on the ground that the Railway Board order dated 9.3.2006, i.e., Annexure-a/3 has been issued for streamlinig the legal set-up of Zonal Railways, under which, the ALO was redesignated as Law Officer Gr.'B' and he was in no way entitled for Law Officer's pay scale in Group 'A' which requires a minimum of 8 years of regular service in Group 'B'.  The plea of the applicant that he was promoted as Chief Law Assistant on 27.3.1998, which post was surrendered to create the post of ALO, which was further redesignated as Law Officer, thus, his continuous service from 27.3.1998 should be taken into account for calculating the 8 years minimum required incumbency was rejected.  Prior to this, a similar reply was also given to him on 26.4.2007 (copy enclosed with Annexure-A/13). 

10.       The learned counsel for respondents has argued that the OA should be dismissed.  The Law department of the new zone is a small department and there is no provision for recruiting Group 'A' officers directly, they have to be filled up only from Group 'B' cadre on promotion.  For regular promotion in small departments such as Law, a minimum service of 8 years as ALO or redesignated as LO in Group 'B', is required for promotion. Even for the purpose of ad-hoc promotion to Sr. Scale 3 years incumbency is needed.  The applicant can be said to have joined the Group 'B' post only on 27.12.2005, when a formal order promoting him to the Scale of Rs.7500-12000/- was issued.  Thus, he would have fulfilled the minimum requirement only in December, 2009, whereas, he had already superannuated on 30.4.2008. Thus, in no way, his claim for promotion can be sustained.  They have quoted the judgment of Ernakulam Bench of this Tribunal in OA No.259/2008 with the following observations:
"The Courts/Tribunal cannot compel the employer to make appointment to a post, that too, on adhoc basis.  It is for the department to decide whether any appointment is to be made or not, in the interest of the organization.  The applicant has no legal ground to claim any adhoc promotion."

11.       The main plea of the applicant is that the classification of pay scale attached to Law Officer by Railway Board's letter dated 9.3.2006 (Annexure-A/3) is in violation of the Recruitment Rules, 1992, under which, the Law Officer's post belongs to Group 'A'. 

12.         To this plea, the respondents have not replied specifically.  However, their claim is that since the Railway Board has only re-designagted the earlier posts of ALO by surrendering that post in favour of LO (Group 'B'), the applicant is not entitled to the higher pay scale of Group 'A'.

13.         We have considered all aspects of this case.  It is a known administrative practice that when new zones are carved out in any department, they do not necessarily require the entire administrative hierarchy as was existing in the undivided zone and the Government is entitled to specify what post, designation and pay scales will be available to the new zones.  The impugned order Annexure-A/3 is not specific to South Western Zone alone, but, it is applicable to all the new zones that were created.  The plea of the applicant that Annexure-A/3 is ultravires to the Railway Recruitment Rules cannot be accepted.  We, therefore, see no merit in the OA.

14.         Accordingly, the OA is dismissed.  No order as to costs.

                  (V.AJAY KUMAR)                                              (LEENA MEHENDALE)
                        MEMBER (J)                                                       MEMBER (A)

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