(1) This judgment will dispose of Civil Writ Petitions Nos. 148-D of 1965 (Harmohinder Singh v. General Manager, Northern Railway and tohers and 153-D of 1965 (K. Audiseshan v. General manager, Northern Railway and tohers). The basic problem arising in buth the writ petitions is similar, though there is a slight difference in the facts.
(2) Harmohinder Singh, petitioner served in the Army from 6th July, 1943 to 9th April, 1953 as Havildar Clerk while petitioner K. Audiseshan served in the Army as Havildar Clerk from 12th June 1945 to 22nd February, 1953. buth were appointed as Commercial Clerks in the Northern Railway on 16th August, 1953 and buth of them claim that on their appointment to the railway service they were entitled to the benefit of war service so that their pay scales had to be fixed on the basis as if they were appointed in the Railways at the time they commenced work in the army. Petitioner Harmohinder Singh claimed that he was entitled to the benefit of 9 years, 9 months, while petitioner K. Audiseshan claimed the benefit of 7-1/2 years. As a matter of fact, buth the petitioners were given the benefit of 6 years and the petitioners have nto raised any dispute regarding that. In the present petitions, the petitioners have alleged that on their appointment in the Railway their cases were finalised by the Divisional Personnel officer (Respondent No. 2) after getting the sanction of respondent No. 1 giving them credit of the service rendered by them in the Army and consequently the salary of each of the petitioners was fixed at Rs.84/- in the prescribed scale. At this stage, it may be mentioned that there were three scales prevailing at different times.
(i) Pre-prescribed or pre-revision scales which was in force before 1947 and the scale of pay therein was Rs. 40-5/2-50-2-60.
(ii) Prescribed scale introduced on 16th August, 1947, carrying the pay scale of Rupees 60-4-120-5-150; and
(iii) Authorised scale introduced in 1959 carrying the pay scale of Rs. 110-4-150-E.B.-4-170-5-180-EB-5-200.
(3) The statement of increment granted as a result of fixation in A./Scales of pay '(Annexure `L' to the petition)' shows that Harmohinder Singh's substantive pay was Rupees 180/- per month which was cut down to Rs.154/-. Similar is the case with the toher petitioner. It is alleged by the petitioners that they were paid the arrears due to them on fixation of their pay at Rs.84/- per month after giving weightage for the service rendered by them in the Armed Forces. This payment was made in the year 1959 and has nto been disputed by the respondents. The Railway Board issued letter No. E 49 CPC/177 dated 6th November, 1951, regarding the fixation of initial pay in the prescribed scales of pay of War Service Candidates and temporary Government employees appointed in civil posts on a permanent or temporary basis. Clauses (i) and (ii) of paragraph 2 of the said letter, on which buth the parties rely, read as under:
'(i) In the case of War Service Candidates and temporary Government employees appointed to civil posts on a permanent basis on or before the 16th August, 1947 their initial pay should first be fixed in the pre-revision scales of pay that were in force on the date on which they are deemed to have been appointed for purposes of seniority and 'fixation of initial pay and then refixed in the `Prescribed scales' in accordance with the Railway Services (Revision of Pay) Rules, 1947, from the relevant dates of option.
(ii) In the case of War Service Candidates and temporary Government employees appointed to civil posts on a permanent basis after the 16th August, 1947, their initial pay should similarly first be fixed in the pre-revision scales of pay and then refixed in the prescribed scales under the provision of the Railway Fundamental Rules.'
It is nto disputed that deductions have been made at the rate of Rs.40/- per month on four different occasions from the pay of the petitioners on account of what the respondents terms as over-payment by mistake. Whereas the petitioners' case is that their salaries were rightly fixed at Rs.84/-, the respondents maintain that it was a mistake and their initial salaries ought to have been fixed at Rs.66/-.
(4) On 25th July., 1963, the Railway Board issued antoher letter (Annexure `D' to the petition) which recites:
'The Board have decided as a special case, that service rendered as Combatant Clerk (Sepoy and above and equivalent ranks in Navy and Air Force) may be treated as equivalent to service as Clerks/Junior Clerks in Railways irrespective of the pay drawn in the Armed Forces and that when such persons are absorbed in such posts on the Railways, their initial pay in the posts of Clerks/Junior Clerks may be fixed at a higher stage in the scale above the minimum equal to the number of completed years of service as Commercial Clerks.'
This letter further recites that the 'orders fixing the pay in such cases should be issued by invoking the provisions of Rule 2023 (F. R. 27) R II'. The orders contained in this letter were expressed to take effect from 11th April, 1963 and past cases were nto to be reopened. The petitioners' case is mainly founded on Rule 2023 (Fundamental Rule 27), which reads:
'An authority may grant a premature increment to a Railway servant on a time-scale of pay if it has power to create post in the same cadre on the same scale of pay.'
The learned Counsel for the petitioners points out that the General manager had the power to create such a post and this fact is nto disputed by the learned counsel for the respondents. The case of the respondents, on the toher hand, is that in terms of the letter dated 6th November, 1951, already mentioned above, the initial pay of the petitioners had to be fixed according to paragraph 2 (iii) of the said letter in the pre-prescribed scale of Rs.40/-. Giving them the benefit of six years' war service their initial pay would be Rs. 56/-. According to Mr. Nanak Chand, the learned counsel for the respondents, the pay of the petitioners had then to be refixed 'in the prescribed scales under the provisions of Railway Fundamental Rules' as provided in para 2 (ii) of the said letter. Mr. Nanak Chand then draws my attention to Rule 2017 and relying on the words - 'But if the minimum pay of the time scale of the new post is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay' - in R. 2017 (a) (ii), says that since in terms of the letter dated 6th November, 1951, the refixation in the prescribed scales has to be done under the provisions of the Railways Fundamental Rules, the petitioners would, in view of rule 2017, be entitled to be fixed at Rs.60/- in the prescribed scale.
In toher words, Mr. Nanak Chand's argument is that since the minimum pay in the prescribed scale was Rs.60/- and on fixation in the pre-prescribed scale the petitioners were, after getting due weightage for the war service, entitled to get Rs.56/-, their pay in the prescribed scale could be fixed only at Rs.60/- in terms of the said Rule. The argument is really a gloss over the language of Rule 2017. As I read Rule 2017 it applies only to those cases where the appointment of a person already working under the Railways is made to a new post. Such limitation is obvious from the language of R 2017 when read as a whole. Sub-clause (ii) of clause (a) of Rule 2017 on which reliance has been placed by Mr. Nanak Chand as mentioned earlier, applies to categories of employees mentioned in clause (a) thereof, namely, employees holding a lien on permanent post toher than a tenure post or who could hold such a lien on such a post had his lien nto been suspended. There is no question of a person placed as the petitioners are, holding a lien on any permanent post when appointed to a new post under Railways as they were nto serving under the Railways at all.
It would be impossible to refix the petitioners in the prescribed scale under R 2017. Apart from the fact, that the petitioners were nto holding any permanent posts in the Railways, there could be no comparison regarding duties and responsibilities in the two posts when a person is appointed directly for the first time from the Army as envisaged by clause (a) of the said Rule. Sub-clause (i) of clause (a) of the said Rule, refers to Fundamental Rule 30 for the purposes of evaluation of duties and responsibilities in the two posts. Fundamental rule 30 again shows that it deals with the appointment to a new post of a railway servant.
Similarly, for the purpose of sub-clause (ii) of clause (a) of Rule 2017 one has to refer to Fundamental Rule 30. This further bears out the interpretation that I am seeking to place on the said Rule 2017. The matter is still further clarified by reference to sub-clause (iii) of clause (a) of the said Rule which talks of appointment to a new post being made on employee's own request under Fundamental Rule 15. Fundamental Rule 15 deals only with the transfer of a railway servant from one post to antoher. It thus appears that Rule 2017 has no applicability to the case of employees like the petitioner. Mr. Nanak Chand, the learned Counsel for the respondents, agrees that in case Fundamental Rule 2017 be nto applicable to the petitioners', then their pay scales were rightly fixed at Rs.84/- in terms of paragraph 2 (ii) of the letter dated 6th November, 1951 and consequently the deductions from their pay was unauthorised. I may also mention at this stage that the petitioners moved the authority under the Payment of Wages Act, Delhi, challenging the right of the Divisional Personnel Officer (respondent No. 2) to make the deductions and the decision in principle went in favor of the petitioners. By order dated 22nd February, 1966, the said authority directed respondent No. 2 to refund Rs.40/- to each of the petitioners. The respondents accepted that decision and did nto challenge the same in any toher proceedings.
(5) Having decided that R 2017 does nto apply it must necessarily follow and that Mr. Nanak Chand does nto dispute, that the pay scale of the petitioners was rightly fixed at Rs.84. May be, the words 'under the provisions of the Railway Fundamental Rules' had reference to some toher Rules including Fundamental R. 27, but I really need nto decide that question. It also must follow that the deductions made by the respondents from the salaries of the petitioners were unauthorised. The learned counsel for the petitioners also drew my attention to Rule 1707 and said the deduction in pay being a major penalty could nto in terms of sub-rule (4) of that rule be inflicted without proper hearing. The respondents do nto dispute that no hearing was given to the petitioners as their case is that the salaries were fixed at Rs.84/- only by a mistake and it was nto a case of any penalty but only of rectification of a mistake. Having held that the pay was rightly fixed at Rs.84/-, it is unnecessary for me to elaborate on this aspect any more.
(6) In the result, the petitions succeed and the respondents are directed nto to give effect to the order in Annexure `L' to the petition reducing the salaries of the petitioners. In case the respondents have any toher power to reduce the salary under the law they would be at liberty to consider the matter afresh. I, further direct the respondents to refund to the petitioners the unauthorised deductions made out of their salaries. The parties will bear their own costs.
(7) Petitions allowed