Union of India v. The Registrar Central Administrative Tribunal, Madras bench, Chennai 600 104. & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :02.07.2009 CoramThe Honourable Mr.Justice ELIPE DHARMA RAOandThe Honourable Mr.Justice T.S.SIVAGNANAMW.P. No.682 of 2004 &W.P.M.P.No.705 of 20041.Union of India rep. by the Divisional Railway Manager, Madurai Division, Southern Railway, Madurai 625 016.2.General Manager, Southern Railway Headquarters Office, Park Town Chennai 600 003... Petitionersvs.1. The Registrar Central Administrative Tribunal, Madras bench, Chennai 600 104.2. R.Pitchai Pillai.. RespondentsPetition filed under Article 226 of the Constitution of India,praying for the issuance of a writ of certiorari to call for therecords of the first respondent in OA.No.81/03 including the order dt18.8.2003 and quash the same.For petitioner : Mr.V.G.Suresh Kumar For Respondents : Mr.Karthik Rajan - R21st Respondent : Tribunal O R D E RT.S.SIVAGNANAM J.This Writ Petition has been filed challenging the order passedby the Tribunal in O.A.No.81 of 2003 dated 18.3.2003. The applicant/2nd respondent herein filed the Original Application to set aside theorder passed by the Railway Administration dated 23.10.2002 and for adirection to extend the benefits of the earlier order of the Tribunal https://hcservices.ecourts.gov.in/hcservices/ made in O.A.Nos.147 of 1998 etc. batch claiming that the applicantis a similarly placed person to those applicants in the said OriginalApplications and consequently taking into account the special pay ofRs.35/- per month drawn by the applicant for the purpose of fixationof pay upon promotion to the grade of Rs.425-700 and for payment ofarrears upon such fixation from the date of promotion and also torefix his pension and to pay all arrears and other consequentialbenefits.2.The Tribunal allowed the Original Application by theimpugned order dated 18.8.2003 and directed the RailwayAdministration to refix the pay of the applicant for taking intoaccount the special pay of Rs.35/- per month drawn by him on hispromotion to the higher grade namely Rs.425-700 and grant ofconsequential benefits arising out of such pay.3.The case of the applicant before the Tribunal is that heentered the Railway service on 7.8.1945 and while he was working asUDC in scale of Rs.330-560, he was granted a special pay of Rs.35/-per month, subsequently he was promoted on 26.10.1979 to the post ofHead Clerk in the scale of Rs.425-700 and the special pay of Rs.35/-was not taken into account for fixation of pay benefits on promotion.The applicant retired from service on 31.1.1983 as Chief Clerk in thescale of Rs.550-750. Since all the Departments of the Railways, thespecial pay was not taken into account, the matter was taken up atthe level of Joint Consultative Machinery and a disagreement wasrecorded. Consequent upon such dispute, the matter was referred to aBoard of for Arbitration and the terms of reference being "Rs.35/-paid to U.D.Cs as Special Pay in lieu of arduous nature of duties andresponsibilities should be taken into account if fixation of pay onpromotion."4.The Board of Arbitration by Award dated 28.4.1987, statedthat Rs.35/- paid to UDCs as special pay under Ministry of FinanceMemorandum dated 5.5.1979 shall be taken into account for fixation ofpay on promotion subject to the condition (a) that the incumbent is asubstantive holder of the post to which the special pay is attachedor (b) that the incumbent on the date of his appointment to higherpost is officiating in the lower post to which the special pay isattached continuously for a period of not less than three years. Theaward was implemented with effect from 1.9.1985.5.The applicant further contended that the Award of the Boardof Arbitration was accepted by the Railways and orders wereimplemented and in some cases arrears were also drawn and suchimplementation was subject to clarification to be received from theRailway Board. Subsequently, the Railway Board refused to take intoconsideration the special pay upon the promotion to the higher grade.Aggrieved persons moved the Tribunal seeking for the relief thatspecial pay of Rs.35/- is to be taken into consideration. https://hcservices.ecourts.gov.in/hcservices/

6.The Tribunal by order dated 6.9.1991 in O.A.No.717 of 1990held that the special pay drawn in the lower post is to be taken intoaccount while fixing the pay in the higher post. An appeal waspreferred before the Hon'ble Supreme Court and by order dated19.1.1995, in C.A.No. 1208 of 1992, the Hon'ble Supreme Courtconfirmed the order of the Tribunal. The Railway Administrationimplemented the order of the Tribunal in respect of those employeeswho were parties to the litigation and the order was not extended toother persons. Therefore, several other persons filed OriginalApplications before the Tribunal for extending the benefits of theJudgment of the Hon'ble Supreme Court. The applicant claiminghimself to be an identically placed person, submitted arepresentation on 6.8.2002 and having not favoured with any reply,approached the Tribunal and filed O.A.No.822 of 2002. The Tribunalby order dated 9.9.202, disposed of the Application directing theRailway Administration to pass orders within a period of five monthson the representation. Subsequently, by order dated 23.10.2002, theDivisional Railway Manager, Madurai Division, rejected the request.Aggrieved by the same, O.A.No.81 of 2003 came to be filed and thisWrit Petition has been filed against the order passed in the saidOriginal Application.7.The Railway Administration on the other hand contend thatthe applicant cannot compare himself with the Clerks of the AccountsDepartment, who were the parties before the earlier round oflitigation, since the service conditions, cadre promotions aredifferent from that of the applicant, that the applicant is not asimilarly placed person and there cannot be a equality amongunequals. The orders passed by the Central Administrative Tribunalin O.A.No.147/98 pertains to Accounts Department and not applicableto other Departments. The category of Accounts Assistant is quitedistinct from other Office Clerks of other Branches of RailwayDepartments and the applicant does not have identical footing to theapplicants in the other Original Applications which he has mentionedin his Application. It was further submitted that the Ministry ofRailways has several Branches/Departments and recruitment ofMinisterial Staff of all other Branches except Accounts are common,whereas Ministerial staff of Accounts are recruited separately byRailway Recruitment Board. The scheme of sanctioning of special payof Rs.35/- was discontinued with effect from 1.1.1983 in the AccountsDepartment, whereas on the implementation of Fifth Central PayCommission from 1.1.1996, the scheme of sanctioning of Special pay of35% for 10% of identified post in the cadre of Senior Clerk has beenabolished in other Departments, and prayed for rejection of theOriginal Application. The Tribunal by the impugned order allowed theOriginal Application, as against which, the present Writ Petition hasbeen filed. https://hcservices.ecourts.gov.in/hcservices/

8.We have heard the submissions made on either side and alsoperused the materials available on record as well as the ordersproduced by both the parties.9.The facts which are not in dispute are that Rs.35/- wasgranted as special pay per month and the Railway Administrationrefused to take into consideration the special pay for fixation ofpay upon promotion. The said issue stood concluded by an ArbitrationAward dated 28.4.1987, which was to take effect on and from 1.9.1985.The applicant's primary contention is that he is similarly placedperson to that of the applicants in O.A.No.717 of 1990 dated6.9.1991. It is his further case that the Hon'ble Supreme Court byorder dated 19.1.1995, dismissed the Appeal filed by the Departmentand directed that the 'qualification pay' will be treated as part ofpay for the purpose of fixation of pay when promoted to the higherpost. The applicant would also rely upon the other orders passed bythe Tribunal in O.A.No.147/1998 dated 19.3.2002 and would contendthat the impugned order in the present Writ Petition calls for nointerference and prays for dismissing the Writ Petition. 10.On the other hand, the learned counsel for the RailwayAdministration appearing for the Writ Petitioner, has vehementlycontended that the issue which was the subject matter in the earlierorders of the Tribunal relied on by the applicant pertain to theAccounts Department and the applicant is not a similarly placedperson and therefore, he cannot place reliance on the said Judgment.The learned counsel would further submit that the Hon'ble SupremeCourt by order dated 31.10.1995, in C.A.No.1423 of 1995, dismissedthe Appeal filed by the persons who are similarly placed to that ofthe applicant and held that since the appellants therein were not inservice as on 1.9.1985, the date on which notional pay was giveneffect to the scale of pay cannot be stepped up.11.The learned counsel would further contend that eventhoughcertain orders passed by the Tribunal were complied with by theRailway Administration, by taking into consideration the special payof Rs.35/- for the purpose of fixation of pay on promotion, the samecannot be cited as a precedent as the orders passed by the Tribunalwere made without taking into consideration the order of the Hon'bleSupreme Court dated 31.10.1995, in C.A.No.1423 of 1995.12.We have carefully considered the matter and we find thatthe Railway Administration had not placed the order of the Hon'bleSupreme Court dated 31.10.1995 before the Tribunal when the earlierOriginal Applications were disposed of nor when the present impugnedorder was passed by the Tribunal. Therefore, the said orders of theTribunal cannot be held to be binding on the Administration so as toextend the benefit of the special pay to the applicant. https://hcservices.ecourts.gov.in/hcservices/

13.It is relevant to note that a batch of cases were filedbefore the Tribunal in O.A.No.187 of 2003 etc., which were dismissedby an order dated 18.9.2003 by relying upon the Judgment of theHon'ble Supreme Court dated 31.10.1995. It is a settled legalprinciple that when a decision is rendered by a Court or a Tribunalin which a Statute or Rule having statutory effect, has not beenbrought to the notice of the Court or a decision is given inignorance of an earlier decision which is binding on the Court, hasbeen held to be per incurium. Therefore, the applicant cannot placereliance on the earlier orders of the Tribunal though it is contendedthat some of those orders were implemented.14.The learned counsel for the applicant placed reliance uponthe decision of the Supreme Court in (2008) 9 SCC page 24 (MAHARAJKRISHNAN BHATT AND ANOTHER vs STATE OF JAMMU AND KASHMIR) andcontended that the benefit extended to similarly situated persons isbound to be extended to the applicants also. A perusal of theJudgment of the Hon'be Supreme Court in fact supports the case of theRailway Administration. The Hon'ble Supreme Court considering thefacts and circumstances held that the Government ought to haveaccepted and respected the decision of the learned Single Judgewithout filing intra-court appeal, as no justifying feature hasbeen brought to the notice of the Division Bench. Therefore, thesaid decision was rendered on the facts of the particular case andtherefore lends no support to the argument of the learned counsel forthe Applicant. When admittedly, the earlier orders of the Tribunalwere passed in ignorance of the earlier Judgment of the Hon'bleSupreme Court and mere implementation of such orders cannot clotheany right on the applicant to plead for extending a similar relief.15.In view of the foregoing discussion, the order of theTribunal is liable to be set aside and accordingly set aside. TheWrit Petition is allowed. However, there will be no order as tocosts. Consequently connected Miscellaneous Petition is closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar rpaTo1. The Registrar Central Administrative Tribunal, Madras bench, Chennai 600 104.+ 1 cc to Mr.V.G.Suresh,Advocate,SR.27986W.P. No.682 of 2004BKM(CO)EM/15.7.09