D D R A
F T (as recd from Prema's comp)
Dr.KBS(MJ)/LM(MA)
09.09.2011
O.A.NO.85/07
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withdrawn, his pay was re-fixed and that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:-
..2..
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Present Applicant The Junior Applicant in 350/01 Shri Madi
Sh Sathya Sh S.N.
-narayana Sakri
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(1) (2)
(3)
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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.
12.11.1993
6.Pay on 12.11.1993 Rs.1560/- Rs.1560/-
Rs.1640/-
01.04.1994 Rs.1640/- Rs.1640/- Rs.1700/-
7.Representation
submitted 15.09.1997 07.11.1997 nil
04.03.1998
8.Effect Representation Representation
allowed.
Pay rejected by
stepped up order dt.20.03.00
at par with Sh
Madi by order
dt.19.01.1999
Thus pay fixed
on 01.01.1996
Rs.6700/- at
par with Sh Madi
..3..
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11.Further action withdrawn the nil nil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
dt.07.02.2005
Rejected
representations
dt.26.02.2007
-------------------------------------------------------------------------------------------------------
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.
..4..
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.
..5..
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
..6..
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
..7..
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.
..8..
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
..9..
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
..10..
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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