Tuesday, January 8, 2013

OA NO. 85/2007 -- draft ?????

                                                                                                                                          D D R A  F T   (as recd from Prema's comp)




        This O.A. is filed under Section 19 of the Administrative Tribunals Act, 1985  on  23.03.2007
        The applicant has re sought namely that his pay was stepped up to bring it on par with his junior in 1988 but in 2005 it was ordered by Respondent No.-1 that the stepping up was irregular, hence withdrawn,  his pay was re-fixed and that paid pay and allowances were to be recovered.  Apart from stating his case the applicant would also like to refer to another OA namely 350/01 which has arisen in the same office for the same reason and against the same junior person namely Shri  T.N.Madi hence the following operation parity  is of much use:-

                                          Present            Applicant                   The Junior                                                     Applicant          in 350/01                    Shri Madi
                                 Sh Sathya         Sh S.N. 
                                 -narayana         Sakri
                                          (1)                (2)                              (3)
1.Date of appointment  16.04.1975       15.01.1974                   03.11.1979
   as Sorting Assistant

2.Promotion as IRM      28.04.1988       01.05.1988          13.01.1989

3.Ad-hoc promotion as
   ASRM                         09.02.1994        05.01.1994          09.02.1994

4.Regular appointment
    as ASRM                  31.07.1995         09.08.1995         26.11.1996

5.Anomaly                     was allowed
                                      to work continu-
                                      -osly against             nil                        nil
                                      regular vacancy
                                      ASRM w.e.f.

6.Pay on 12.11.1993      Rs.1560/-            Rs.1560/-         Rs.1640/-
                 01.04.1994     Rs.1640/-             Rs.1640/-         Rs.1700/-

   submitted                   15.09.1997          07.11.1997            nil

8.Effect                      Representation    Representation
                                    allowed.  Pay        rejected  by
                                    stepped up           order dt.20.03.00
                                    at par with Sh
                                    Madi by order
                                    Thus pay fixed
                                    on 01.01.1996
                                    Rs.6700/- at
                                    par with Sh Madi


 9.O.A.in Tribunal            nil                      350/01                nil
10.Effect of OA                nil               O.A.allowed             nil
                                                              with directions         
                                                              to step up pay
                                                              at par with
                                                               Sh Madi.Annexyre

11.Further action     withdrawn the                       nil                   nil
     of the depart-      stepping up by
     -ment                   impugned order

        Hence the O.A.85/07
        The details of the above are brought out in the following paras as below:
        That arose in November, 1993.  The respondents have similarly relied on the fact that as stated in Annexure – A11.  The case of stepping up of applicant’s pay was re-examined in consultation with IFA.  The revision of pay fixation as per DoP&T order dated 04.11.1983 and the Hon’ble Supreme Court  judgement in Civil Appeal No.8687/96 held the stepping up in such cases is irregular.
        The said judgement of the Apex Court is annexed at R-1.  We have gone through it and we find that the question therein was about fixation of pay on promotion were governed by fundamental Rule 22(1)(a)(1) and how to do it?
        It does not apply to the present case where a junior person has been given promotion though on ad-hoc basis but against a regular post in such a way that the benefit of the ad-hoc appointment carried further at the cost of denying the same to his seniors.  Perhaps it is for this reason that the order of this Tribunal in  O.A.350/01 was not challenged and is final.  It appears a case out of sight out of mind and we would like to impugned any dishonest imposed on the seniors, who gave ad-hoc promotions to the juniors Shri Madi without taking course to ensure that the first claim on regular vacancy should have gone to the applicant, having thus given an advantage to the said junior, the authorities are down to follow the principle of natural justice and fair treatment.

        Hence we come to the conclusion that this is a fit case for allowing the OA.  Accordingly the OA is allowed, the impugned order at Annexure-A11 and A-14 are quashed.  We must adversely comment on the attitude of the department especially R-1 who has neither bothered to take cognisance of the judgement in 350/01 nor examining the different issues involved in the instant matter and the judgement of the Apex Court at Annexure –R1.
        This application is filed on 23.03.2007.
        The brief case of the applicant is that the applicant who joined the Railways as Sorting Assistant on 16.04.1975 was then promoted as Inspector of Railways Mail Service (RMS) on 28.04.1988.  He would like to compare his seniority and pay scale with another colleague Shri T.N.Madi who joined as Sorting Assistant on 03.11.1979 and as Inspector Railway Mail Service on 13.01.1989.  Thus the applicant is senior to Shri Madi in both the cadres namely Sorting   Assistant    and   Inspector   Railway     Mail
Service.  The gradation list at Annexure-A1 issued by Railways dated 02.03.1994 also confirms this.
        Then both were promoted on ad-hoc basis as Assistant Superintendent of Railway Mail Service on 09.02.1994.  The applicant got his regular promotion as Superintendent of Mail Service on 07.01.1995 while Shri Madi was promoted on regular basis as ASRM III on 26.11.1996.
        The applicant claims that later he came to know that Shri Madi was officiating as ASRM not from the order dated 09.02.1994 but had been working as ad-hoc ASRM ever since 12.11.1993.  As a result of which from 12.11.1993 itself he started drawing his basic salary of Rs.1640/- while the applicant was drawing only Rs.1560/-.  This anomaly continued despite the fact that Shri Madi was junior. Still late he learnt that Shri Madi had been officiating as ASRM then a leave vacancy,  ever since 1990 for a short period such as 21 days, 30 days etc. and thus officiating days he would have got salary at the rate of Rs.1640/-.  However, in 1993 the post remained
vacant for more than 6 months at Bangalore for which no option was called for from him.  Thus giving chance for Madi who was readily available at Bangalore.
        Thus the short claim of the applicant is that Madi being posted in the same office where the vacancy of ASRM had arisen got an advantage of being given ad-hoc posting further entitling him to higher pay scale while the applicant who was in another office will not asked his option and thus denied the opportunity from an earlier date.
        The representation of the applicant dated 15.9.1997 and 4.3.1998 which clearly brings out anomaly of posting the applicant as ASRM against a leave vacancy while posting Shri Madi against a regular vacancy though on ad-hoc basis as resulting in his reversion to the lower cadre leave vacancy which was no longer available. But the junior Shri Madi continued against the clear vacancy. We find from Annexure-A9 that in his representation dated 4.3.1998    the   applicant  has  given elaborately his grievance.        
The respondent department considered his representation and stepped up his pay on par with Shri Madi.  Annexure A-10 shows that in these exercises his pre revised pay from January 1995 and the revised pay from 1.1.1996 were fixed on par with that of Shri Madi. Thus his pay became Rs 1760/- on 1.1.1995 and Rs 6700/- on 1.1.1996 (effect of vth pay commission). This order was passed on 19.1.1998 thereafter nearly 7 years later the respondents issued the impugned order on 7.2.2005 declaring that such a stepping up which was granted to the applicant in 1998 was irregular and hence withdrawn and that the pay was to be re-fixed and the over paid pay and allowances were to be recovered. The over payment comes to Rs10,500/- but  also with consequential loss of seniority viz. Shri Madi. The applicant given a detailed representation on 1.2.2007 at Annexure A-13.
        The applicant was given the calculation of proposed recovery on 22.1.2007 and directed to represent if there was any discrepancy in calculation   to   which   he   has submitted a detailed
representation at  Annexure A-3 giving all the details of how he was accommodated against a temporary leave vacancy only while the regular vacancy was given to his junior. This being a mistake committed by the department, he claimed that the earlier order putting him on par with Shri Madi be restored. To this, he simply received a reply saying that his pay and allowances should be regularised as per the observations of the IFA , which amounts to confirming the earlier order at Annexure A-11 and rejecting the representation.
The short arguments of the applicant is that even if he would have refused the ad-hoc promotion against a small leave vacancy, but when a regular vacancy arose in the Bangalore office his earlier refusal to accept was due to ad-hoc promotion cannot stand in his way and hence the regular promotion should have been offered to him before giving it to Shri Madi. In the reply the respondents have stated that the applicant declined the ad-hoc promotion on 19.8.1993.   However,    they   have   not    shown/ submitted     any
supporting documents. Although they mentioned that they have produced at Annexure R-3, however we see that the respondents have produced R-2 only and this also pointed out in the first para of the rejoinder.
        We therefore have to trust the claim of the applicant where he mentions that he was also offered leave vacancy of less than 45 days but he was never offered the regular vacancy
        At first while responding to the applicant of the present application dated 15.9.97 and the application of another employee Shri Sakri dated 7.11.97 the respondents have allowed the case of present applicant and stepped up his pay but rejected the claim of the another applicant Mr Sakri  now despite the judgement of this Tribunal in case of Mr Sakri they have issued the impugned order at Annexure A-11 after  the action reflect the failure to look at the problem in holistic and justifiable manner.
        With the above observations the OA is allowed.  No order as to costs.

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