High Court
Case Details
WP(C) 3546/2009 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE MR. JUSTICE P.K. MUSAHARY How to compute pension of an employee of the Railways, who retires, on superannu ation, on having received promotion on ad hoc basis on two occasions if his ad h oc promotions were not regularized preceding his retirement is the question, whi ch this writ petition, made under Article 226 of the Constitution of India, has raised for adjudication, the writ petition having arisen out of the order, dated 30.05.2008, passed, in Original Application No.198/2007, (in short, ’the OA’) b y the learned Central Administrative Tribunal, Guwahati Bench, dismissing the pe titioner’s OA petition and denying thereby to the petitioner pensionary benefits on the basis of second ad hoc promotion to the post of Head Clerk in the Railwa ys. 2. We have heard Mr. S. Sharma, learned counsel, for the petitioner, and Ms . U. Chakraborty, learned counsel, for the respondents. We have also heard Mr. U .K. Nair, learned counsel, as amicus curiae. 3. In order to correctly apprehend the core issue, involved in this writ pe tition, it is apposite to take note of the material facts, which have given rise to this writ petition.
Decision
The petitioner herein came to be promoted, as a Junior Clerk, in the Rai 4. lways, on 16.08.1977. The petitioner, thereafter, received, on 01.01.1981, ad ho c promotion to the post of Senior Clerk and, while he had been so serving, in th e post of Senior Clerk, on ad hoc basis, he was further given ad hoc promotion, on 24.10.89, to the post of Head Clerk. In course of time, the petitioner, on re aching the age of superannuation, retired, on 31.07.2002. Though the petitioner had been, initially, paid pension by computing his basic pay of the post of Head Clerk, the petitioner was sought to be denied by the respondents pension of the basic pay of the post of Head Clerk on the ground that computing of pension on the basis of second ad hoc promotion to the post of Head Clerk was contrary to t he conditions of service. Action was, therefore, initiated by the Railways to re cover the pension, which the petitioner had already received, by reducing his pe nsion to the basic pay meant for the post of Senior Clerk in the Railways. Impug ning the action of the respondents to reduce the scale of pension, as indicated hereinbefore, and also the process of recovery from the pensionary benefits alre ady received by the petitioner, the petitioner went to the Central Administrativ e Tribunal, Guwahati Bench, by way of Original Application No.299/2006 (in short , ’the OA’), which was disposed of by order, dated 08.12.2006, whereby the respo ndent No.4 herein was directed to dispose of the present petitioner’s representa tion, dated 18.05.2005, after affording him the opportunity of personal hearing and not to make any further recovery from his penisonary benefits until the grie vances of the petitioner were finally decided by the Railways. 5. Pursuant to the order, dated 08.12.2006, passed, in OA No.299/2006, the Railways upheld its stand that the second ad hoc promotion, granted to the petit ioner herein to the post of Head Clerk, was illegal, the same being contrary to the conditions regulating the service of an employee of the Railways and, hence, his pension shall be computed on the basis of the basic pay of the post of Seni or Clerk. 6. Aggrieved by the above decision of the respondents, the petitioner herei n filed another Original Application, which gave rise to Original Application No .198/2007 (in short, ’the OA’), seeking following reliefs: (cid:28)81. To set aside and quash the impugned orders dated 10.12.04 and 26.6.2007. To set aside and quash the revised PPO dated 9.3.2004 and direct the Res 8.2. pondents to pay his pension as per the PPO dated 31.7.2002, and to pay him the a rrears on the differences accumulated therein and to pay him interest @ 21% p.a. on the said arrears. 8.3. To direct the respondents to refund the amount of Rs.15,407/- which has already been recovered from the applicant with an interest of 21% on such amount . 8.4. To direct the respondents to pay compensation of Rs.50,000,00 consolidat ed for the unnecessary harassment that has been caused to the applicant on no fa ult to him. (cid:29) The order, passed by the respondents, read as under: 7. (cid:28)The Respondents have passed the impugned order dated 26.7.2007 with the followi ng facts:- 2. er relevant records, following aspects are found. On careful scrutiny of service records of Shri S. N. Chakraborty and oth a) b) c) d) e) f) Date of appointment 13.11.1961 (Gangman) 30.9.1964 Date of posting in Construction 3.2.1977 Date of promotion to Jr. Clerk 16.08.1977 Date of promotion to Sr. Clerk (Ad hoc) 01.01.81 Date of promotion to Hd. Clerk (Ad-hoc) 24.10.89 Date of retirement on superannuation 31.07.2002. It has been stated that the claim of the Applicant that his promotion were not r egular is factually correct. The Railway Board vide order dated 13.12.1999 ’has decided that second ad-hoc promotion is not allowed in any case. (cid:29) Therefore, th e Applicant seeking second ad-hoc promotion of Head Clerk was irregular and the earlier pension was fixed erroneously vide order dated 9.3.2004. In the written statement it has been stated that earlier PPO dated 31.7.2002 has to be cancelle d subsequently. Retiral benefits were calculated erroneously and the excess amou nt had to be recovered from the Applicant. Therefore the revised PPO was issued according to his pay as Sr. Clerk. The applicant was promoted as Sr. Clerk on ad -hoc basis on 01.01.1981 and again as Head Clerk on 24.08.1989. Therefore, the s econd ad hoc promotion as Head Clerk while he was holding first post of Sr. Cler k as ad hoc basis was irregular. (cid:29) 8. Having taken note of the Railway Board’s Circular, dated 07.06.2000, the learned Tribunal took the view that ad hoc promotion cannot be granted in perpe tuity and the second ad hoc promotion is contrary to the Rules and while the pet itioner herein was promoted from the post of Junior Clerk to Senior Clerk on ad hoc basis, his further promotion, on ad hoc basis, to the post of Head Clerk, wa s void ab initio and that the retiral benefits of the applicant, i.e., the peti tioner herein, calculated on that basis, is not sustainable. 9. Treating, therefore, the second ad hoc promotion of the applicant, i.e., the petitioner herein, as a mistake of the present respondents, the learned Tri bunal directed that the payment, which had already been made to the petitioner h erein, need not be recovered from him, but the decision to grant pension, on the basis of basic pay of the post of Senior Clerk, is wholly justified. With the conclusion, so reached, the learned Tribunal, as indicated abov 10. e, has dismissed the OA No.198/2007. Aggrieved by the dismissal of his OA, the p etitioner is, now, before this Court with the present application seeking to get set aside not only the order, dated 30.05.2008, which the learned Tribunal has passed dismissing the OA, but also seeking issuance of appropriate writ(s) comma nding the respondents to pay to the petitioner pension by computing his basic pa y of the post of Head Clerk. 11. The respondents have resisted the writ petition by filing their affidavi t-in-opposition, wherein they have referred to the Railway Board’s Circular, dat ed 07.06.2000, which the learned Tribunal relied upon and which, we notice, read s as under: (cid:28)In terms of para 216-A(1) of Indian Railway Establishment Manual, Vol. 1 (1989 Edition), as modified vide Advance Correction slip No.65 and 72 issued under thi s Ministry’s letter No.E(NG) 1/94, PMI/10 dated 9.12.98 and 19.2.1999. Selection s/suitability test/trade tests should be conducted timely, so as to obviate the need for major ad hoc promotions both in selection and non-selection posts. When ever ad hoc promotions are found inescapable in the exigency of services, the sa me are to be ordered only for short duration up to 4 months from amongst the sen ior most eligible staff strictly in accordance with the existing guidelines. In no case second ad hoc promotion is to be allowed under any circumstances. 2. It has come to the notice of the Ministry of Railways that, despite the above provisions in the IREM, the cases of double ad hoc promotions still exist in violation of these provisions. 3. The Ministry of Railways desire that the controlling officers must ensur e that ad hoc promotions are restored to only for short durations strictly in ac cordance with the provisions are 216-A of the Manual and the second ad hoc promo tion is not allowed in any case (cid:29). 12. Appearing on behalf of the petitioner, Mr. S. Sharma, learned counsel, h as drawn the attention of this Court to Rule 49 of the Railway Service (Pension) Rules, 1993, (in short, ’the Pension Rules, 1993) to show that pension has to b e computed on the basis of basic pay, which a Railway servant was receiving imme diately before his retirement or on the date of his death. Mr. Sharma has also r eferred to Sub-Rule (2) of Rule 3 of the Pension Rules, 1993, to show that quali fying service means service rendered, while on duty or otherwise, which shall be taken into account for the purpose of pension and gratuity admissible under the Rules. Mr. Sharma has further drawn our attention to Rule 14 of the Pension Rul 13. es, 1993, which prescribes the periods, which shall not be treated as service fo r penisonary benefits and points out that Rule 14 of the Pension Rules, 1993, do es not include, within its fold, a Railway employee, who receives second ad hoc promotion, before he retires or dies. 14. Referring to the definition of qualifying service, as indicated hereinbe fore, and Rule 14 of the Pension Rules, 1993, as regard the periods, which have to be excluded from being considered for penisonary benefits, Mr. Sharma has sub mitted that qualifying service, for the purpose of earning pension, shall be the service, which a Railway employee has rendered, while on duty or otherwise and the qualifying service would include, in the light of Rule 14 of the Pension Rul es, 1993, contends Mr. Sharma, the period, which a Railway employee serves the R ailways on receiving a second promotion, though may be ad hoc. Mr. Sharma has fu rther contended, relying upon Rule 49 of the Pension Rules, 1993, that emolumen t, for the purpose of calculating various retirement and death benefits, means b asic pay as defined in Clause (1) of Rule 303 of the Code, which a Railway serva nt is receiving before his retirement. In the present case, points out Mr. Sharma, since the petitioner had bee 15. n serving on the date of his retirement, on superannuation, in the post of Head Clerk, though on ad hoc basis, his qualifying service, for the purpose of pensio n, shall be treated to be the service rendered to the post, which he was holding immediately preceding his retirement, and it is, as a corollary, the basic pay of the said post, i.e., post of Head Clerk, which ought to have been taken into account, in the present case, for the purpose of computing the petitioner’s pens ion. It is also submitted by Mr. Sharma that the respondents have relied on t 16. he Railway Board’s Circular, dated 07.06.2000, whereas the petitioner had receiv ed his ad hoc promotion to the post of Head Clerk on 26.10.89, i.e., before the Railway Board’s said Circular came into force and, hence, the Railway Board’s su bsequent Circular, dated 07.06.2000, could not have been made basis for denying to the petitioner pension by treating his basic pay as the basic pay of that of the post of Head Clerk. 17. Ms. U. Chakraborty, learned counsel for the respondents, has, while resi sting the writ petition, drawn our attention to the Railway Board’s Circular, da ted 23.08.85, which also bars second ad hoc promotion, and contends that even in the year 1989, when the petitioner was promoted, on ad hoc basis, to the post o f Head Clerk, it was the petitioner’s second ad hoc promotion and such an ad hoc promotion could not have been given to the petitioner contrary to the condition s of service. The relevant portion of the Circular, dated 23.08.85, reads as und er: (cid:28)Sub : Promotion on ad hoc basis of non-gazetted railway staff- instructions reg arding. As the Railway Administrations are aware, instructions have been issued from tim e to time discouraging promotions being ordered on ad hoc basis in the exigencie s of service. These instructions inter alia enjoin the following: *** *** (i) (ii) (iii) *** (iv) (v) *** ad hoc promotions should not be allowed for unduly long periods say beyond three to four months. (cid:29) 18. As an amicus curiae, Mr. U.K. Nair, learned counsel, has referred to the case of N.D.P. Nambodripad (Dead) by LRS Vs. Union of India and others, reporte d in (2007) 4 SCC 502, and pointed out that when emolument has been defined by t he Pension Rules, 1993, and the same also defines qualifying service for receivi ng pension, it is the definition, so given under the Pension Rules, 1993, which needs to be taken into account for the purpose of computing pension. 19. Mr. Nair submits that in the case at hand, since emolument, within the m eaning of Rule 49, means basic pay, which a Railway servant was receiving immedi ately before his retirement or on the date of his death, there can be no escape from the conclusion that since the petitioner had been functioning as a Head Cle rk on having received ad hoc promotion, though for second time, his basic pay ou ght to be treated as basic pay of the post of Head Clerk; or else, he cannot eve n be granted pension on the basis of the basic pay of the post of Senior Clerk i nasmuch as he had promoted to the post of Senior Clerk on ad hoc basis and the p etitioner’s such ad hoc promotion having not been regularized, his services, ren dered in the post of Senior Clerk, on the basis of ad hoc promotion, could not h ave been computed for the purpose of giving him pension and if the contention of the respondents is acceded to, the result would be that the petitioner would re ceive pension on the basis of the basic pay of the post of Junior Clerk, which w as a substantive post at the time of his retirement, the post of Senior Clerk an d the post of Head Clerk having been held by the petitioner on ad hoc promotion and not on the basis of regular promotion. This denial of computation of pension , on the basis of second ad hoc promotion, would, points out Mr. Nair, amount to ignoring the fact that the petitioner served, though on ad hoc basis, in the po st of Senior Clerk, almost for eight years; whereas the Railway Board’s Circular permits ad hoc promotion for a short duration of three to four months and the p etitioner served, in the post of Head Clerk, though on ad hoc basis, for almost 13 years. Considered thus, according to Mr. Nair, the petitioner ought to be eit her paid pension by treating his basic pay as the basic pay of the post of Head Clerk or by treating his basic pay as the basic pay of the post of Junior Clerk, which was the substantive post, which the petitioner had been holding at the ti me of his retirement. 20. In support of his above submissions, Mr. Nair has also referred to Funda mental Rule 9 [Rule 21(a)], which states that pay means the amount drawn monthly by a Government servant as (i) the pay, other than special pay or pay granted i n view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre, (ii) overseas pay, special pay and persona l pay, and (iii) any other emoluments, which may be specifically classified as p ay by the President . 21. In the case at hand, contends Mr. Nair, since th e petitioner had been allowed to function, on promotion, on ad hoc basis, in the post of Head Clerk, for nearly 13 years, his basic pay, on the date of his reti rement, ought to be treated as the basic pay of the post of Head Clerk. 22. Before entering into the question as to what shall be the correct basic pay of a Railway employee, situated as the petitioner is, we deem it necessary t The question, therefore, remains as to what shall be treated as the basi o point out that this Court, on 26.08.2009, directed the respondents to pay to t he petitioner pension on the basis of his basic pay of the post of Head Clerk on the ground that the Railway Board’s Circular came into force in the year 2000; whereas, the petitioner had already been accorded promotion, though on ad hoc b asis, as Head Clerk, on 24.10.89. In other words, the said interim direction of the Court was passed on the basis of the fact that the Railway Board’s Circular barred the second ad hoc promotion in the year 2000; whereas, the petitioner was given promotion, on ad hoc basis, to the post of Head Clerk, in the year 1989. 23. What, now, transpires, on the basis of the materials placed before us, i s that the Railway Board’s Circular, dated 07.06.2000, is merely a reminder of w hat was required to be done by the Railways in the past as well and the second a d hoc promotion has not been barred by virtue of the Railway Board’s Circular, d ated 07.06.2000, by its Circular, dated 23.08.1985. The resultant effect is that if the petitioner’s second ad hoc promotion to the post of Head Clerk was imper missible and the same shall lead to denial of pension to him by treating his bas ic pay as the basic pay of the post of Head Clerk, then, the petitioner was not entitled to receive pension by treating the basic pay of the post of Head Clerk as his basic pay merely because a reminder, in tune with the Circular, dated 23. 08.85, aforementioned, has been issued on 07.06.2000. 24. c pay of the present petitioner for the purpose of computing his pension. 25. While considering the above aspect of the case, it needs to be borne in mind, if we may reiterate, that the Railway Board’s Circular, dated 23.08.85, ba rs second ad hoc promotion and this bar on second ad hoc promotion has merely b een repeated by the Railway Board’s subsequent Circular, dated 07.06.2000. The s econd ad hoc promotion, therefore, of the petitioner to the post of Head Clerk, on 24.10.89, was, in the face of the Railway Board’s Circular, dated 23.08.85, i llegal and could not have been granted. What is, however, of immense importance to note, in this regard, is that there is no negative fallout of the violation o r contravention of the Railway Board’s Circulars, dated 23.08.85 and 07.06.2000. Situated thus, it would not be possible to deny to a person pension on the basi s of the basic pay of his second ad hoc promotion after the Railways have alread y realized his services on the basis of his second ad hoc promotion. 26. There can be no doubt that the Railway Board’s Circular permits one ad h oc promotion for a period of three to four months meaning thereby that the ad ho c promotion has to be either regularized or denied by holding an appropriate DPC . In the case at hand, the petitioner was given ad hoc promotion to the post of Senior Clerk on 01.01.1981 and he was, thereafter, promoted, again, on ad hoc ba sis, to the post of Head Clerk on 24.10.89 and right under the nose of the Railw ays, the petitioner had been allowed to function, on ad hoc basis, in the promot ional post of Head Clerk. Not a word has been used by the respondents to show as to what consequential action has been taken by the respondents as against perso n(s), who was or were responsible for giving second ad hoc promotion to the peti tioner. The respondents cannot adopt the policy of pick and choose. While not ta king any action against those, who were responsible for granting second ad hoc p romotion to the petitioner and allowing him thereby to continue for more than a decade on the promotional post on ad hoc basis, the respondents cannot deny the benefit of pension to the present petitioner by exhibiting or relying upon the R ailway Board’s Circular, dated 23.08.1985. The Circular, dated 23.08.85 or 07.06 .2000, is as much binding on the Railways as it is on its individual employees. For the wrong, which had been committed by the Railways, it cannot punish its em ployee by denying to him pension, which he would have, otherwise, been entitled to receive if his ad hoc promotion been regularized and this was possible only a nd only if the Railways had constituted a Departmental Promotion Committee (in s hort, ’DPC’) to consider and decide whether to regularize or not the ad hoc prom otions of the petitioner. It was, therefore, the duty of the Railways to constit ute a DPC for determination of the question as to whether the petitioner was ent itled to be regularized in the post of Senior Clerk and, later on, in the post o f Head Clerk. 27. We have no doubt in our mind that in the light of the Rule 49 of the Pen sion Rules, 1993, it is the basic pay received by a Railway servant immediately preceding his retirement or on the date of his death, which shall be made basis for computing his pension, unless the employee concerned, by adopting fraud, con tinues to remain in service. We are also of the view that if a person is granted second ad hoc promotion, such a promotion is illegal and, ordinarily, recipient of a second ad hoc promotion cannot be given pension by treating his basic pay as the basic pay of the post of second ad hoc promotion. 28. In the case at hand, however, taking into account the peculiarity of the facts and circumstances of the case and when we find that the petitioner has be en allowed to function, on ad hoc basis, in the post of Senior Clerk, for a peri od of more than nine years and, then, on ad hoc basis, in the post of Head Clerk for more than a decade, it would be inequitable and unjust to deny to him the b enefit of pension by treating his basic pay as the basic pay of the post of Head Clerk, when the petitioner had no control in regularizing his ad hoc promotions . For the lapse, on the part of the respondents, as we have already indicated ab ove, the petitioner cannot be made to suffer. The conclusion, we have so reached , is based on the peculiar facts of the present case and shall not be treated as precedent in future. 29. Because of what have been discussed and pointed out above, this writ pet ition succeeds. The impugned order is hereby set aside and the petitioner is dir ected to be paid pension by treating his basic pay of the post of Head Clerk as the basic pay for the purpose of computing his pension. 30. nd disposed of. 31. With the above observations and directions, this writ petition shall sta No order as to costs.