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Thakar Dass Kakkar Vs. General Manager Northern Railway, Etc. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 752 of 1983
Judge
Reported in1985(8)DRJ48
ActsRailway Establishment Code - Rule 2017
AppellantThakar Dass Kakkar
RespondentGeneral Manager Northern Railway, Etc.
Advocates: B.S. Charya and; H.S. Dhir, Advs
Excerpt:
.....seriall no. 5915 dated june 15, 1973--the service rendered by an incumbant against ex-cadre post on a construction project, on reversion to the parent cadre, can count towards initial fixation of pay to the extent and subject to the conditions indicated in rule 2017. but this cannot be interpreted independent of circular no. 5915. last drawn basic pay of an incumbent should not be reduced but the difference between the pay as already fixed and the pay as now fixed under the revised orders should be treated as personal pay to be absorved in future increments or increases in pay. (paras 4 & 5) - - 5915. it has clearly been laid down that in such a situation as in the case of the petitioner and in order to avoid hardship, the railway board has decided that last drawn..........has raised two points. firstly, whether the posts in the said construction project are also cadre posts and secondly, whether the benefit of fixation of .pay in a cadre post can be given with the weightage of pay last drawn in ex-cadre post in case it is held that the posts in the said project are ex-cadre posts. (4) on the first point, the submission of the counsel is that no post on the said project is an ex-cadre post because the general manager, northern railway has not declared so. my attention is invited to certain rules and instructions laying down that the posts have first to be declared as ex- cadre posts by the general manage', northern railway and then posting is to be done. according to the counsel, the respondents have not produced any material on the record to show.....
Judgment:

S.S. Chadha, J.

(1) This petitioner under Article 226 of the Constitution of India seeks a writ of certiorari or any other appropriate writ, order or direction to quash the order dated December 31, 1982 passed by the Northern Railway Headquarters fixing the basic pay of the petitioner at Rs. 600.00 in the grade of Rs. 425-700 (RS) with effect from September 27, 1982 on his reversion from Robertsganj Garwah Road Construction Project, Northern Railway.

(2) The facts lie in a very narrow compass and are these. The petitioner was originally appointed as a Lower Division Clerk with effect from December 1, 1953 in the then existing pay scale in the office of Senior Civil Engineer/Const. TKJ/DLI of the Northern Railway. The petitioner was thereafter promoted as Senior Clerk with effect from March 10, 1958. The respondents released a notification published in the Extra-ordinary Northern Railway Gazette of October 4, 1958 asking for names of persons who could volunteer to work on the Robertsganj Garwah Road Construction Project, Northern Railway. The petitioner opted to work on the said project. Consequently, the e petitioner was ordered to be transferred to the said project and was posted as Senior Clerk. The petitioner was promoted to officiate as Head Clerk with effect from September 19, 1959. The pay scales of Head Clerk were revised from time to time and finally revised to Rs. 425-700 in the year 1973. The petitioner continued to work on the said project till September 26, 1982. The petitioner was relieved by the said project and was directed to report to Gm (P) Northern Railway for Northern posting. The petitioner waited for the period from September 27, 1982 to October 6, 1982 and was posted as Head Clerk (Stores) in the Store Branch Headquarters Office, Northern Railway. By the impugned office order dated December 31, 1982, the pay of the petitioner was fixed at Rs. 600.00 in the grade of Rs. 425- 700 (RS) with effect from September 27, 1982.

(3) Mr. B. S. Charya, the learned counsel for the petitioner has raised two points. Firstly, whether the posts in the said construction project are also cadre posts and secondly, whether the benefit of fixation of .pay in a cadre post can be given with the weightage of pay last drawn in ex-cadre post in case it is held that the posts in the said project are ex-cadre posts.

(4) On the first point, the submission of the counsel is that no post on the said project is an ex-cadre post because the General Manager, Northern Railway has not declared so. My attention is invited to certain rules and instructions laying down that the posts have first to be declared as ex- cadre posts by the General Manage', Northern Railway and then posting is to be done. According to the counsel, the respondents have not produced any material on the record to show that any such declaration was made by the General Manager declaring the posts in the said project as ex-cadre posts. Reference is also made to para 2003 (3) of the Indian Railway Establishment Code, Volume Ii which defines cadre meaning the strength of a service or a part of a service sanctioned as a separate unit. The contention is that the posts in the said project were sanctioned as a separate unit, and thereforee, it has to be treated as a cadre post. There is no merit in these arguments. The Northern Railway Extraordinary Gazette of October 4, 1958 reveals that Robertsganj Garwah Road Construction Project was for the purpose of the construction of about 100 miles of Broad Gauge Railway line between Garhwa Road Station on the Barkakana Loop of the Eastern Railway, and Churk on Chinar/Churk section of Allahabad Division. Staff in the mentioned categories was required for this construction. Offer was made to the serving employees who volunteered for service on this new railway line. It specifically mentions that 'Permanent staff who will be transferred from various offices to this project will retain their lien in parent offices. Temporary staff will continue to be on the books of their parent offices and will be considered for confirmation and promotion along with others in those office'. The counter-affidavit on behalf of the Railway Administration reiterates the position that the petitioner was posted as Head Clerk in the ex-cadre post and that the petitioner's lien remained with the Stores Department of Headquarters Office on transfer to the ex-cadre post under the said project. This position is further confirmed from the office order of the Northern Railway granting proforma promotion to the petitioner as Head Clerk in the grade of Rs. 425- 700 (RS) in his parent cadre. The petitioner has himself filed a copy of the office order dated April 17, 1982. The petitioner was allowed the benefit in the grade of Rs. 425-700 (RS) with effect from September 22. 1981 viz. the date from which his junior has been put to officiate as Head Clerk/Store grade. Necessary entry was made in the service record of the petitioner and the petitioner was informed accordingly. The strength of the staff sanctioned for the said project was purely temporary and the said organisation was conceived as a temporary department. Mr. Dhir is right in his submission that in such cases declaring of any particular post as ex-cadre on the temporary organisation does not arise. I am unable to hold that the posts in the said project are cadre posts of the Construction Division of the Northern Railway.

(5) On second question, my attention is invited to Rule 2017 of the Indian Railway Establishment Code, Volume II. The service rendered by the petitioner on the ex-cadre post of Head Clerk in the said project on reversion to the parent cadre can count towards initial fixation of pay to the extent and subject to the conditions which are indicated in Rule 2017. The service will count from the date his junior is promoted and the benefit will be limited to the period the railway servant would have held the post in his parent cadre had he not been appointed to the ex-cadre post. This benefit has been given by the Railway Administration when the pay of the petitioner has been fixed at Rs. 600.00 in the grade of Rs. 425-700 (RS) with effect from September 27, 1982. The Railway Administration has, however, ignored their own Seriall No. 5915, namely, circular No. 831-E/123-IV (IV) dated June 15,1973. After the impugned order, the petitioner had represented to the Railway Administration in his representation dated January 12, 1983 and specific attention of the Railway Administration was invited to the establishment circular No. NRS-5915. While rejecting the representation, the Railway Administration has not adverted to or explained as to why establishment circular No. 5915, is not applicable. The last part of S. No. 5915 read as under:

'...HOWEVER, in order to avoid hardship, it has been decided that the difference, if any, between the pay as already fixed and the pay as now fixed under the revised orders, should be treated as personal pay to be absorbed in future increments or increases in Pay-

(6) Mr. Charya is right in his submission that the provisions of Rule 2017 of the Indian Railway Establishment Code, Volume Ii cannot be interpreted, independent of circular No. 5915. It has clearly been laid down that in such a situation as in the case of the petitioner and in order to avoid hardship, the Railway Board has decided that last drawn basic pay of an incumbent should not be reduced but the difference between the pay as already fixed and the pay as now fixed under the revised orders should be treated as personal pay to be absorbed in future increments or increases in pay. The Railway Administration has not disclosed as to why the petitioner is being deprived of the benefit of circular No. 5915.

(7) Accordingly, the writ petitioner is allowed in part. The Railway Administration is directed to treat the difference between the pay as already fixed and the pay as now fixed under the impugned order as personal pay of the petitioner to be absorbed in the future increments or increases in pay. However, on facts and circumstances of the case, I make no order as to costs.


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