Navneet Kumar, Member (J).
1. The present Original Applicant is filed under Section 19 of the AT Act with the following reliefs:-
a). to issue /pass an order or direction setting aside the impugned order dated 2.5.1991 (as contained in Annexure No.A-1) vide which the respondent No.3 reduced/ refixed the pay of the petitioner at the stage of Rs. 1350/- w.e.f. 1.1.1986 and ordered for making recovery and impugned order dated 9.8.2005 passed by respondent No. 2 (allegedly ) through the respondent No.3 rejecting the representation dated 31.3.2005 made for fixation of pay as directed by this Honble Tribunal vide judgment and order dated 5.1.2005 after summoning the original records.
b). to issue/pass an order or direction, directing the respondents to refix the pay of the applicant at the stage of Rs. 1720/- w.e.f. 1.1.1986 in pay scale of Rs. 1400-2300 and refund the recovered amount of Rs. 80,611/- as recovered from the pensionary benefits of the applicant and pay the arrears of salary w.e.f. April, 1991 to July 1993 and refix the pensionary benefits accordingly and pay the arrears of the same and amount of Gratuity and also award the interest on the above said amounts @ 12% per annum till the date of payment.
c). To pass an order or direction directing the respondent No. 2 to take necessary action against the respondent Nos. 4 and 5 for not supplying the certified copy of the service records and leave records of the applicant and for manipulating the service records of the applicant.
d).to pass order or direction to the respondent No. 2 to correct the leave account of the petitioner after due verification of the leave records of the applicant and pay the leave encashment accordingly along with interest of 12% per annum.
e). to issue /passing any other or direction which this Honble Tribunal deem fit in the present circumstances of the case.
f). allow this application with cost.
2. The brief facts of the case are that the applicant was initially appointed on the post of Porter and promoted as Shunting Porter in the year 1960. Subsequently in 1976, the applicant was promoted as Officiating Train Clerk and thereafter, he was promoted as Assistant Yard Supervisor (in short AYS) after passing the examination. In the year 1983, an instruction was issued for restructuring of Group C and D posts and accordingly, the applicant is proforma fixation was done w.e.f. 1.8.1982 and he was promoted to the post of Guard in the pay scale of Rs. 330-560 and in pursuance of the said promotion order, the applicant joined the duties w.e.f. 21.9.1984. Subsequently, after the implementation of Pay Commission, the pay scale was revised to Rs. 1400-2300 and the pay of the applicant was fixed at the stage of Rs. 1720/- w.e.f. 1.1.1986. The respondent issued a recovery order of excess amount paid to the applicant. The applicant filed an Original Application before the Tribunal wherein the Tribunal directed for disposal of representation of the applicant by the competent authority. In pursuance of the said direction, the respondents rejected the case of the applicant and passed the order on 9.8.2005, which is impugned in the present O.A.
3. The learned counsel appearing on behalf of the respondents filed reply and through reply, it is pointed out by the respondents that while applicant was officiating as Train Clerk in the grade pay of Rs. 260-400/- a local adhoc arrangement was made and he was subsequently qualified the required course and was temporarily promoted as AYS in the grade pay of Rs. 330-560/- w.e.f. 28.10.1980. Applicant himself made a request that he is willing to work as Guard and is ready to accept reversion from AYS to Shunting Jamadar and a declaration was given that he will not claim any benefit of the post of AYS and requested that he be promoted as Guard on the basis of his declaration. The said declaration was duly forwarded by the concerned authority to the higher authorities. His request was subsequently considered and the applicant along with others were appointed to officiate as Guard Grade C in the scale of Rs. 330-560/- subject to their qualifying medical examination A-2 and passing the competency test after completion of 14 days . The issue which is involved is in regard to re-fixation of pay of the applicant. The learned counsel appearing on behalf of the respondents has categorically pointed out that earlier the fixation of pay of the applicant was wrongly fixed and since excess payment was made to the applicant from the public exchequer which was required to be corrected, hence there was no option before the administration except to issue a revised change memo/ recovery memo dated 2.5.1991 and subsequently, it is revealed that the pay of the applicant was correctly re-fixed as he was getting Rs. 360/- w.e.f. 1.10.1993 as AYS in the grade Rs. 330-560/- and he retired under age limit of Rs. 1560/- per month w.e.f. 31.7.1993. It is also pointed out by the learned counsel for the respondents that in pursuance of the directions of the Tribunal passed in O.A. No. 587/1997, the respondents have gone through the entire records and the matter was thoroughly examined, thereafter the order dated 9.8.2005 was passed , as such there is no illegality in the present O.A. and the same is liable to be dismissed.
4. Learned counsel for respondents has filed Supple. Counter Reply and through Supple. Counter reply, the respondents have annexed certain documents wherein they also annexed the undertaking given by the applicant.
5. Learned counsel appearing on behalf of the applicant has filed Rejoinder Reply as well as Supple. Rejoinder Reply and mostly reiterated the averments made in the O.A. It is also pointed out by the learned counsel for the applicant that he has moved an application for calling for records and in pursuance of the same, the records were also called for and perused by the Bench.
6. Heard the learned counsel for the parties and perused the record.
7. The applicant was initially appointed in the respondents organization and has also passed P-3 course in 1981 and he was kept on waiting for promotion to Guard during the intervening period. The applicant got promoted on the post of Assistant Yard Master and he has given an undertaking that he is ready to work as Shunting Jamadar and he will not claim any benefit of the post of AYM. The applicant has also mentioned in the said letter that on the basis of declaration , he should be given promotion to the post of Guard. Not only this, the respondents while deciding the representation of the applicant in pursuance of the order of the Tribunal, categorically pointed out that the matter was carefully considered and it is found that applicant while officiating as Train Clerk in the grade of Rs. 260-400 w.e.f. 17.6.1976 was due for promotion in the grade Rs. 330-560/- and accordingly he opted for AYS cadre after qualifying PS course from where he worked upto 20th September, 1984. He thereafter, requested and given his willingness to work as Guard and also pointed out that he is ready to take his reversion from AYS to Shunting Jamadar and given an undertaking that in future, he will not claim any benefit for the post of AYM and also requested to promote him as Guard on the basis of his declaration. The respondents considered the request of the applicant and was allowed for reversion from AYS to Shunting Jamadar at his own request for promotion as Guard. Accordingly the applicant along with others were appointed as officiating as Guard Grade C in pay scale of Rs. 330-560/- subject to their qualifying medical examination A-2 and passing competency test for completion of 14 days of learning. It is also pointed out that the grade of AYS was replaced in higher grade much after the date when the applicant submitted his option and also after joining on the post of Guard Grade C. It is also pointed out by the respondents that the pay of the applicant was wrongly fixed and since the excess amount paid from the public exchequer , hence the respondents were having no other option except to issue a revised change memo/ recovery memo dated 2.5.1991. But subsequently, it was found that the pay of the applicant has been correctly refixed as he was getting Rs.360/- w.e.f. 1.10.1993 as AYS in the grade of Rs. 330-560/- and after taking reversion from AYS to Shunting Jamadar in grade Rs.330-480/- and then on promotion as Guard Grade C in the grade Rs. 330-560/-, his pay was fixed @ Rs. 354 + 6PP w.e.f. 21.9.1984 and by giving the annual increment, the applicant retired ot pay Rs.1560/- per month w.e.f. 31.7.1993. Since the applicant first accepted and exercised his option , cannot be allowed to be changed at later stage as is found by doctrine of estoppels after joining as Guard Grade C in 1984 and the applicant enjoyed the benefit of the said post upto the date of his retirement, as such the same cannot be altered at this belated stage. The learned counsel for the applicant has also alleged that the respondents have misplaced certain records of the applicant. It is also submitted by the learned counsel for the applicant that the applicant submitted the letter withdrawing his option but the said letter is not on record and the same was taken away by the respondents from the records. But while perusing the original records of the applicant, allegation was found incorrect, as such the contention of the applicant cannot be accepted. It is also pointed out that as per his own request in 1987, the applicant was reverted to the post of Shunting Jamadar and thereafter promoted as Guard Grade C on which he continued upto the age of retirement as such, the applicant kept on waiting and also kept silent for about 9 years during his service.
8. After perusal of the entire records and after careful consideration of the arguments advanced by the learned counsel for the parties, we could not find any justified reason on the part of the learned counsel for the applicant that the after option given by him was subsequently withdrawn and he has not worked on the post of Guard Grade C from 1984 till the date of his retirement as such, it cannot be said that the reversion of the applicant was illegal
9. Considering the submissions made on behalf of the parties , we are not inclined to interfere in the present O.A., Accordingly, the O.A. is dismissed. No order as to costs.