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Capt. T.B.S. Thapar Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 38 of 1971
Judge
Reported in1971WLN505
AppellantCapt. T.B.S. Thapar
RespondentUnion of India (Uoi) and anr.
Excerpt:
.....specified in part a of the table mentioned in rule 13a, and that he was appointed to a post in the senior scale after the first day of july 1939 in as much as he was so appointed on april 1, 1962 at aforesaid. until march 29 1966, the petitioner was not holding a post in the junior scale in any of the services specified in part a of rule 13a, and he was not therefore entitled to the benefit of rule 13a till then. there is however no reason why he should not be held to be entitled to draw pay in the senior scale in accordance with rule 13a on and from march 29, 1966.;the rules have clearly been made applicable to the case of the personal of the defence services released or retired prematurely, & their benefit was actually given to the petitioner in fixing his pay in the new scale. -..........question of fixing the pay of those temporary assistant offices who were to hold charge of senior scale posts, arose for consideration as far back as may 11, 1956, and it was decided by order annexure e-l dated may 11, 1956, that such officers getting rs. 470/- or above shall, when promoted to officiate in the senior scale, have their pay fixed in that scale at a rate equal to their pay as temporary assistant officers plus rs. 100/- if that was a stage in the senior scale, and at the next stage above if there was no such stage. that order was issued by the railway board with the sanction of the president.3. the petitioner was selected for appointment as temporary assistant officer. he was appointed to the post by order dated june 18, 1957 (document no. 1) and took over charge on july.....
Judgment:

P.N. Shinghal, J.

1. The facts giving rise to this petition under Article 226 of the Constitution are spread over the period from May 11, 1956 to August 14, 1970, but it will be enough to refer to the important developments.

2. The Railway authorities took a decision to employ Temporary Assistant Officers. The posts were of gazetted status, but were not classified as Class I or Class II posts. They were in the junior scale of pay admissible to gazetted officers i.e. Rs. 350 to 850. The question of fixing the pay of those Temporary Assistant Offices who were to hold charge of senior scale posts, arose for consideration as far back as May 11, 1956, and it was decided by order Annexure E-l dated May 11, 1956, that such officers getting Rs. 470/- or above shall, when promoted to officiate in the senior scale, have their pay fixed in that scale at a rate equal to their pay as Temporary Assistant Officers plus Rs. 100/- if that was a stage in the senior scale, and at the next stage above if there was no such stage. That order was issued by the Railway Board with the sanction of the President.

3. The petitioner was selected for appointment as Temporary Assistant Officer. He was appointed to the post by order dated June 18, 1957 (document No. 1) and took over charge on July 19, 1957, in the junior scale of Rs. 350 850. His initial pay was fixed at Rs. 410/-.

4. The Railway Board soon felt the necessity of regulating the pay of Ex-defence services officers like the petitioner, on appointment to senior scale, posts, and issued order Annexure E dated November 26, 1957 in that connection. It was decided by that order that when ex-defence services officers were appointed to officiate in the senior scale, their pay as Temporary Assistant Officers plus Rs. 100/-, if that was a stage in the senior scale, otherwise at the next stage above. That order also had the sanction of the President and had the effect of making the benefits of the aforesaid order Annexure E-l dated May II, 1956 available to the ex-defence services officers appointed to officiate as Temporary Assistant Officers in the senior scale.

5. The Railway Board, with the sanction of the President, however, superseded their letter (Annexure E-1) dated May 11, 1956, as also a letter dated November 28, 1957, by order Annexure N dated July 9, 1958, and directed, inter alia, that the pay of Temporary Assistant Officers drawing a pay of Rs. 410/- to Rs. 500/- would, on promotion to the senior scale, be fixed at Rs. 600/-, subject to the other directions contained in that letter.

6. This was followed by the Railway Board's letter dated February 1, 1960 It has been placed on the record as an enclosure to Annexure K. That letter of February 1, 1960 dealt with the regulation of pay of ex defence services officers appointed as Temporary Assistant Officers, on their promot on to the senior scale. It stated, inter alia, that when such an officer was appointed to officiate in the senior scale, his pay ordinarily would be Rs. 530/- plus Rs. 100/-, totalling to Rs. 630/- and, as there was no such stage in the senior scale, it should be fixed at the next higher stage of Rs. 640/-. This was however subject to certain restrictions mentioned in the letter.

7. It was at this stage that the Rules called the Railway Services (Authorised Pay) Rules, 1960, hereinafter referred to as 'the Rules'', were made by the President under the proviso to Article 309 of the Constitution and were notified on August 2, 1960. It was stated in Rule 1(ii) that the Rules shall be deemed to have come into force on July 1, 1959.

8. The petitioner has stated in paragraph 3 of the petition that while his initial pay was fixed at Rs. 410/- per month in the scale of Rs. 350-850, it was refixed at Rs. 510/- in the new scale 'on implementation' of the Rules.

9. The Railway Board issued letter (document No. 3) on July 15, 1961, with the approval of the President, regulating the pay of the Temporary Assistant Officers appointed to officiate in the senior scale, and superseded the earlier order on the subject. It stated that, on officiating appointment to a post in the senior scale, the pay of Temporary Assistant Officers who had been appointed to the unclassified gazetted service, shall be regulated in the same way as for a Class I Officer of the junior scale on his officiating appointment in the senior scale.

10. These were the various orders which regulated the pay of Temporary Assistant Officers. As has been stated, some of these orders did not in terms, apply to those Temporary Assistant Officers who were ex-defence services officers.

11. The petitioner was promoted to officiate on a post in the senior scale from April 1, 1962. It is not disputed that he was then drawing Rs. 635/- as pay. It is also not in dispute that the posts of Temporary Officers, which were offered to ex-defence services personnel, were of a temporary nature, and it was specifically clarified that the incumbents would be eligible for appointment against permanent vacancies (Clause (e) of document No. 1). The Railway Board however decided that such of the ex-defence services personnel as were 48 years old, or below, at the time of their re-employment in the railway service, would be eligible for permanent absorption in Class I cadre of the Railways 'like other directly recruited Temporary Assistant Officers'. This was conveyed in Railway Board's letter Annexure M dated September 21. 1964. The restriction against the petitioner's appointment on a permanent vacancy was therefore removed, and he was permanently appointed to a post in the Superior Revenue Establishment of the Indian Railway, in the junior scale, with effect from March 29, 1966, by order document No. 2 dated June 25, 1966. It has not been disputed by Mr. Bhansali that it was a post in class I service. Accordingly, ah order (document No. 5) dated July 20, 1966 was pasted stating that the petitioner would, be eligible to draw Rs. 775/- per mensem in the scale of Rs. 400-950, and that as he was officiating in the senior Scale, his pay in that scale would be refixed as follows,-

Date Pay in Jr. Scale Offg. pay in Sr. ScaleRs. 400-950 (AS) Rs. 700 1250 (AS)Rs. Rs.29-3-66 775/- 980/-19-7-67 810/- (Inurement) 1020/-...

There was nothing in the order to show that it was provisional. It was however stated in order Annexure R dated September 25/26, 1967, that the fixation of pay may be treated as provisional, until further advice. The respondents have brought to notice order Aonexure R dated February 3, 1968, in which it was stated that the general question of fixation of pay of those ex-defence services officers who were reemployed as Temporary Assistant Officers and were promoted to senior scale posts, was under consideration and that the Railway Board's decision oh the general issue would be intimated when it was taken. This was followed by letter dated February 13, 1968 (Annexure T) from the General Manager for re-fixation of the pay of the petitioner and another officer, and for recovery of over payments. A final decision, however, continued to remain pending, and it was ultimately conveyed by letter Annexure 1 dated August 14, 1970. It was stated in that letter that the Railway Board had finally decided that the pay of ex-defence services officers who were initially appointed as Temporary Assistant Officers and were promoted to the senior scale, shall continue to be regulated under the Board's aforesaid letters dated November 26, 1957 (Annexure E) and February 1, 1960 (enclosure to Annexure K). This order was not, however, issued with the sanction of the President.

12. The petitioner feels aggrieved against the issue of the aforesaid order Annexure 1 and the consequent reduction in his pay and the recovery of arrears. He has therefore filed the present petition under Article 226 of the Constitution on September 30, 1970 challenging the validity of the aforesaid order Annexure 1 dated August 14, 1970 and praying for a direction for the fixation of his pay in accordance with the Railway Board's letter dated July 15, 1961 (document No. 3) and the payment of arrears and interest from the date of his promotion on an officiating basis in the senior scale. He has also prayed for the fixation of his pay in the senior scale in accordance with Rule 13A of the Rules from the date of his confirmation in class I service.

13. The respondents have denied the claim altogether and I have already made a reference to some of the important documents which form the basis of their defence. The petitioner has filed a rejoinder, but it is not necessary to make a special reference to it because the above facts, which are admitted at all hands before me, are quite sufficient for a proper and full disposal of the case.

14. The fate of the case depends on the basic question whether the Rules which, it will be recalled, came info force from July 1, 1959, are applicable to the case of the petitioner and will govern the fixation of his appointment to a post in the senior scale?

15. A perusal of Rule 2(ii) shows that the Rules shall not apply to the persons specified in its clauses. The Clause (h) provides that the Rules shall not apply to the following category of persons-

(h) re-employed Railway servants subject to the provisions made in Board's letter No. PC-60/ROP 1/16 of 5-12-61. (Annexure B);

A cross-reference to Annexure B of the Rules shows that the President decided as far back as December 5, 1961 that the following categories of reemployed persons shall, among others, be eligible to opt for the authorised scales in accordance with the provisions of the Rules,-

II. (A)(b)(ii) Personnel of Defence services released or retired prematurely.

It is not disputed that the petitioner was an officer of the defence services who had been released or retired prematurely. In fact this was the very reason why he was appointed as Temporary Assistant Officer on July 19, 1957, as aforesaid. It is also not disputed that he exercised his option to be governed by the authorised scales of pay, in accordance with the provisions of the Rules, within the prescribed time limit. His therefore became entitled to draw the authorised scales of pay in accordance with the provisions of the Rules, and I am unable to uphold Mr. Bhansali's argument that this could not be so. It will be recalled in this connection that the petitioner clearly stated in paragraph 3 of his writ petition that on 'implementation' of the Rules his pay was refixed in the new scale of pay, and that statement of fact has not been controverted in the reply, so that it is quite clear that even according to the concerned Railway authorities the Rules governed the petitioner's pay.

16. Now Rule 13A of the Rules provides as follows-

13A. Where a Railway servant holding a post in junior scale in the Services specified in Part 'A' of the Table below is appointed to a post in the senior scale after the first day of July 1959, he shall draw pay in the senior scale, at the stage in Part 'B' of the said Table, corresponding to the stage of the pay he would have drawn in the junior scale from time to time but for his appointment to the post in the senior scale.

TABLE

Part A

(i) Indian Railway Service of Engineers

(ii) Indian Railway Accounts Service

(iii) Superior Revenue Establishment of Indian Railways comprising of the following departments.

(a) Transportation (Traffic) & Commercial Department

(b) Mechanical Engineering and Transportation (Power) Department.

(c) Electrical Engineering Department.

(d) Signal & Tele-Communication Department.

(e) Store Department.

Part B.

___________________________________________________________________________________Stage Pay in Junior Scale Pay in Senior Scale___________________________________________________________________________________1st 400 As in Note 1 below2nd 400 As in Note 1 below3rd 450 As in Note I below4th 480 As in Note 1 below5th 510 7006th 640 7007th 670 7408th 600 7809th 635 82010th 670 Efficiency Bar 86011th 705 90012th 740 94013th 775 98014th 810 102015th 845 106016th 880 110017th 915 110018th 950 115019th 950 115020th 960 120021st 980 120022nd 950 1250______________________________________________________________________________Note 1. A Railway servant on the junior scale drawing pay at the stage of that scale or below it when appointed to the senior scale shall draw a special pay of Rs. 150 per mensem in addition to the pay admissible in the junior scale.

Note 2. The initial pay of Railway servant promoted substantively to a permanent post in the junior scale subsequent to 1st July 1959, shall not be less than Rs. 450/- per mensem.

It will thus appear that the benefit of fixation of pay under the rule was admissible to a Railway servant holding a post in the junior scale in the services specified in Part A of the Table. One of these was a post in the Superior Revenue Establishment of the Iadian Railway in the Transportation (Traffic) and Commercial Department. As has been stated, the petitioner became the holder of such a post with effect from March 29, 1966 by virtue of the order (document No. 2) dated Jane 25, 1966 The relevant portion of the other order Ex. 5 has been extracted already. It is clear therefore that the petitioner was holding a post in the junior scale in one of the services specified in Part A of the Table mentioned in Rule 13A, and that he was appointed to a post in the senior scale after the first day of July 1959 in as much as he was so appointed on April 1, 1962 at aforesaid Until March 29, 1966, the petitioner was not holding a post in the junior scale in any of the services specified in Part A of Rule 13A. and he was not therefore entitled to the benefit of Rule 13A till then There is however no reason why he should not be held to be entitled to draw pay in the senior scale in accordance with Rule 13A on and from March 29, 1966. In fact it is not in dispute that the petitioner was entitled to draw Rs. 775/- as his pay in the junior scale on March 29, 1966. He was therefore entitled to draw Rs. 980/- as his pay in the senior scale from that date for that was the corresponding stage in accordance with Part B of the Table of Rule 13A. I have no hesitation in holding therefore that the petitioner was entitled to draw Rs. 980/- on and from March 29, 1966, and that the subsequent stages of his salary had also to be determined in accordance with Part B of the aforesaid Table.

17. It may be mentioned however that there is justification for the argument of Mr. Bhansali that the petitioner will not be entitled to draw any arrears of salary beyond a period of three years preceding the date of filing of his writ petition on September 30, 1970, if any such salary has remained unpaid and is sought to be recovered by the present petition.

18. Mr. Bhansali has raised a further argument that the petitioner could not be said to be entitled to the benefit of Rule 13A of the Rules because he was an ex-defence services officer who had been re-employed under a special arrangement. The learned Counsel has pointed out that in giving an appointment to the petitioner as Temporary Assistant Officer, the Railway Board treated him very liberally by ignoring the normal requirement in regard to age and other qualifications, and in appointing the petitioner without requiring him to pass the same competitive test which was prescribed for candidates from the open market. The learned Counsel has further pointed out that the Railway Board gave a preferential treatment to the petitioner by allowing him a much higher initial starting salary and in further allowing him to draw the pension earned by him in the defence services. He has therefore argued that the petitioner's case was quite different from that of the ether Temporary Assistant Officers who had been recruited from the open market, and that he should not get a further benefit under Rule 13A of the Rules.

19. I have kept this argument of the learned Counsel in mind all through but I am not really called upon to examine it closely on the basis of the comparative terms of appointment of Officers recruited from different sources because, as I have stated, the Rules have clearly been made applicable to the case of the personnel of the defence services released or retired prematurely, and their benefit was actually given to the petitioner in fixing his pay in the new scale.

20. I may refer here to another argument of Mr. Bhansali that if any question arises relating to the interpretation of the Rules, 'it shall be referred to the Central Government whose decision thereon shall be final'' This argument has been based on Rule 4 of the Rules. The learned Counsel has thus argued that as the Railway Board has given its decision in Annexure 1 dated August 14, 1970, it is not open for this Court to take any other view of the matter. But this argument is also untenable. It will be sufficient to say that a persual of order Annexure 1 shows that it does not contain any interpretation of the Rules, for it merely conveys the final decision of the Railway Board regarding the pay of the released/- retired defence services officers.

21. The remaining argument of Mr. Bhansati may also be mentioned before leaving the case. He has argued that the use of the words 'is appointed' in Rule 13A shows that its benefit could be available to a Railway servant who held a class I post in the junior scale and was appointed to hold a post in the senior scale after July 1, 1959. The learned Counsel has thus argued that as the petitioner was appointed to a post in the junior scale of his appointment to a post in the Superior Revenue Establishment of the Railway with effect from March 29, 1966 and was already officiating in the senior scale from April 1, 1962, it could not be said that he was appointed to a class I post in the junior scale after the first day of July 1959. It will be sufficient for me to say that the simple requirement of Rule 13A is that a Railway servant should hold a post a post in the junior scale in any of the services specified in part A of the Table of the rule and that he should be appointed to a post in the senior scale after July 1, 1959 As the petitioner became the holder of a class I post in the junior scale on and from March 29, 1966, and he was appointed to a post in the senior scale from April 1, 1962, which was alter July 1, 1959, I do not find any force in this argument of Mr. Bhansali also.

22. I have therefore no hesitation in holding that the petitioner was entitled to draw Rs. 980/- as pay in the senior scale from March 29, 1966 arid that the subsequent stages of his pay should have been determined in accordance with part B of the Table given in Rule 13A. The petitioner are directed to fix his pay accordingly. The petitioner will not, however, be entitled to any such benefit if it has been denied to him and dates beyond a period of three years calculated from September 30, 1970. His claim for interest is not justified and is negatived. The petitioner will be entitled to one set of the costs from the respondents.


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