CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH : BANGALORE
ORIGINAL
APPLICATION No. 49/2011
TODAY,
THIS THE ......... DAY OF ..............., 201
HON'BLE
SMT. LEENA MEHENDALE ... MEMBER (A)
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)
Vs.
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)
O R D E R
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)
psp.
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