7th CPC Fixation of Pay in case of employees who seek transfer to a lower post under FR 15(a): Clarification by DoPT OM dated 31.03.2017

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Central Administrative Tribunal – Ernakulam
Basaveswaran K vs The Union Of India on 12 December, 2013

CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH

Original Application No. 975 of 2012

Thursday, this the 12th day of December, 2013

CORAM:

Hon’ble Mr. Justice A.K. Basheer, Judicial Member
Hon’ble Mr. K. George Joseph, Administrative Member

Basaveswaran K., aged 36 years, S/o. V. Krishnamani, Senior Assistant Loco
Pilot, Southern Railway, Palakkad, Residing at 7/65,
RVC Road, Vallanghy Village, Nenmara PO,
Palakkad District – Pin – 678 508. ….. Applicant

(By Advocate – Mr. TCG Swamy)

V e r s u s

1. The Union of India, represented by the General Manager, Southern
Railway, Headquarters Office, Park Town P.O., Chennai-600 003.

2. The Senior Divisional Personnel Officer,
Southern Railway, Palakkad Division, Palakkad-9.

3. The Senior Divisional Personnel Officer, South Western Railway,
Bangalore Division, Bangalore – 560 002. ….. Respondents

(By Advocate – Mr. K.M. Anthru)

This application having been heard on 12.12.2013, the Tribunal on the

same day delivered the following:

O R D E R
By Hon’ble Mr. K. George Joseph, Administrative Member-

The applicant was initially appointed as Assistant Loco Pilot in the pay scale of Rs. 3050-4590/- on 17.5.1999 in the Bangalore Division of Southern Railway. Subsequently, he was promoted to the post of Senior Assistant Loco Pilot in the pay scale of Rs. 4000-6000/- vide order dated 3.8.20005. He had applied for inter-divisional transfer on mutual basis from Bangalore Division of Southern Railway to the Palghat Division of Southern Railway duly accepting reversion to the post of Assistant Loco Pilot in the pay scale of Rs. 3050-4590/-. Accordingly, he was transferred to Palghat Division vide order dated 1.3.2006. As his transfer was before completion of 12 months probation period in the promoted cadre his pay was fixed at Rs. 3500/- in the pay scale of s. 3050-4590/-. His representation dated 22.5.2008 against the reduction in pay which according to him was against the standing orders of the Railways and the reminder dated 15.10.2010 did not elicit any reply. Hence he has filed this Original Application. He has prayed for a direction to the respondents to protect his pay drawn by him prior to his transfer from Bangalore Division of Southern Railway to Palghat Division of Southern Railway.

2. The applicant contended that he was drawing a basic pay of Rs. 4000/- in the pay scale of Rs.4000-6000/- in the post of Senior Assistant Loco Pilot. Refusal on the part of the respondents to protect the pay of the applicant in the above post upon his inter-divisional transfer to Palghat is against Annexures A1 and A2 orders of the Railway Board itself. There has been a number of decisions of this Tribunal directing protection of pay in identical cases which have become final and conclusive. The applicant relied upon the order of the Tribunal dated 7.9.2012 in OA No. 1064 of 2010 at Annexure A5.

3. Per contra, the respondents contended that the OA is barred by limitation as there is inordinate delay in filing the same. If he was aggrieved by the non-protection of his pay he should have represented at the material time or sought legal remedy in the year 2006 or 2007 itself. The applicant was not holding the higher post substantively on regular basis as on the date of transfer on 21.3.2006. Therefore, he is not entitled for protection of pay as he is reverted to lower post at his request before completion of 12 month’s probation period. Therefore, his pay was fixed at Rs. 3500/- in the pay scale of Rs. 3050-4590/- with effect from 21.3.2006 which he would be drawing had he not been promoted since protection of pay can be given only to substantive pay. As per Railway Board’s letter dated 2.8.2001 probation period of 12 months has been prescribed instead of 24 months, in all grades of promotion. Thus the condition for grant of benefit of pay protection on appointment to a lower post on request is completion of 12 months probation. In the case of the applicant the probation period of 12 months is not completed before he was transferred on reversion to Palghat Division. Therefore, he is not entitled to the benefit of pay protection as claimed. The issue involved in OA No. 1064 of 2012 was whether the benefit of Railway Board letter dated 2.8.2001 prescribing the probation period of 12 months instead of 24 months in all promotions can be allowed or otherwise. Hence, the said order has no application in the present case. As per DOP&T OM dated 21.10.2009 where transfer to a lower post is made subject to certain terms and conditions then pay may be fixed according to such terms and conditions. Completion of prescribed 12 months probation being one of the conditions for grant of pay protection the applicant is not entitled for the same. Applicant’s reference to Annexure A1 of the present OA has no relevance to his case and claim, as it stipulates that where transfer to a lower post is made subject to certain terms and conditions then it may be fixed according to such terms and conditions.

4. We have heard the learned counsel for the parties and perused the records.

5. The issue for determination in this OA is whether the applicant in the facts and circumstances of the case is entitled for protection of pay on his inter-divisional transfer on request. This issue has been dealt with in a number of OAs. One such case, OA No. 1064 of 2010, was allowed in favour of the applicant therein. The relevant part of the order is extracted as under:-

“6. The issue of protection of pay on inter divisional transfer on request in a lower post has been considered by this Tribunal in a number of cases. In the common order in OA No. 701 and 703 of 2005 it was held as under:-

“7. Arguments were heard and documents perused. Under Rule 227 transfer on request for inter divisional posting is permissible and according to the latest clarification by the DOPT, pay drawn in the higher pay scale shall be protected at the stage of pay in the lower pay scale. For an inter divisional transfer the loss sustained by the railway servant will be loss of seniority and he being placed at the lower pay scale. However, the pay drawn prior to such transfer has to be protected and fixation of pay shall be as contained in paragraph 2 of the OM dated 14.2.2006. There cannot be any other possibility for fixation of pay.”

7. In the order in OA No. 893 of 1997 this Tribunal has held as under:-

“5. Coming to the argument of the respondents that the applicant was not holding a lien on a permanent post, we find that Rule 1313 as amended on 12.12.1991 does not prescribe the qualification of holding a lien on the permanent post. Hence, the argument also has to be rejected.”
8. In the order in OA No. 1041 of 1995 it was held that the administrative instruction varying from Rule 1313 of Indian Railway Establishment Code Volume-II issued by the Chief Personnel Officer was unsustainable as the Chief Personnel Officer was not competent to issue such an instruction dated 21.12.1994.

9. In OP No. 15340 of 2002 and connected cases the Hon’ble High Court of Kerala held as under:-

“8. This was hotly contested, and for two reasons. The first was that as per the norms, after promotion, the employee could have claimed the substantive pay for the post as of right only after a period of two years, during which period he was to be put on observation. Therefore, legally he could not have carried with him pay scale of Rs. 5500-9000/- when he opted for transfer, and to a lower post. The second submission was that rules did not permit an employee, who opted for reversion as junior most in a cadre, to claim salary of the higher post as the transfer was on his request alone and carried with it the disabilities including a reduction in pay. No rule required the Administration to pay salary admissible for the higher post to a person who opted to go over to a lower post, and admissibility of such claims would have resulted in repercussions, far and wide.
9. The Tribunal had held that the two year rule would not have been applicable at all, since these were orders passed by the Senior Personnel Officer and could not have been treated as law, which enable the Administration to enforce such orders contrary to the prescriptions of the statutory rules, including the Railway Establishment Manual. The contention, therefore appears to have been overruled by the Tribunal by pointing out that in a series of cases such a view had been taken by the Tribunal and the Administration had not bothered to challenge any such orders and they had to be treated as having become final. The position after the amendment of Rule 1313 of the Indian Railway Establishment Code Vol. I had been considered by a Division Bench of the Tribunal in OA No. 1041 of 1995, where it had been held that:
“Sub Rule (a)(3) of Rule 1313 only prescribed a condition that the old post should have been held regularly. There is no mention of any condition prescribing two years as a necessary service in the old post to qualify for the benefit granted by Sub rule (a)(3) of the Rule 1313.”
Tribunal observed that it was impermissible for the Administration to overreach the above legal position declared, which had become final. It had also been noticed that the decision in OA No. 1041 of 1995 had been followed by the Tribunal in OA No. 893 of 1997 as also in OA No. 403 of 1997.

10. This seems to be a reasonable approach, as the two year rule does not appear to be one intended to do away with the settled rights of employees. Apart from the copy of the letter No. E(NG) I/88/CN5/2/RBE No. 23/89 dated 20.1.1989 from the Joint Director/Establishment (N)/Railway Board to the General Managers of All Indian Railways (Ext.P3), no other authority had been pointed out by Mr. Radhakrishnan for imposition of such stipulation. But, these administrative instructions had come in the effort of the Railway Board for simplification of confirmation procedure for non-gazetted staff. A practical approach alone was being resorted to whereby the confirmation procedure was to be confined at entry cadre, and later on non-availability of permanent posts was not to create a career block. What had been proposed was a ‘rigorous screening of his performance’ and a possibility of reversion. This could not have, therefore, interfered with the rights of an officer to claim the salary on transfer or even in the case of a reversion, if otherwise rules permitted for such pay protection.”

10. In view of the above settled legal positions the prescription of two years service in the old post to qualify for the benefit granted by other provisions is not to be applied. Following the above decisions we hold that the applicant is entitled to protection of pay without completing two years of regular service in the promoted higher grade of Station Master Grade-III in the scale of pay of Rs. 1400-2300/- (IVth CPC)/Rs. 5000-8000/- (Vth CPC). But in view of the long delay on the part of the applicant in making the claim for protection of pay, payment of arrears will have to be restricted to 3 years prior to the filing of this OA on 29.11.2010. Accordingly, the Original Application is allowed as under.

11. The respondents are directed to fix the pay of the applicant w.e.f. 3.12.1996 duly protecting the pay of Rs. 5150/- drawn by him with all consequential benefits arising there from with arrears of pay restricted to three years prior to filing of this OA and thereafter and to issue appropriate orders in this regard within a period of sixty days from the date of receipt of a copy of this order. No order as to costs.”

6. The settled legal position is that a Railway employee is entitled to protection of pay without completing two years of regular service in the promoted higher grade. It does not matter whether the probation period is one year or two years. Annexures A1 and A2 circulars of the Railway Board make it amply clear that on transfer to lower post under FR 15(a) the pay of an employee holding the post on regular basis will be fixed at a stage equal to the pay drawn by him in the higher grade. If no such stage is available the pay will be fixed at the stage next below the pay drawn by him in the higher post and the difference may be granted as personal pay to be absorbed in future increments. The applicant in the instant OA is entitled to the benefit granted by the Railway Board as above.

7. As a fresh cause of action arises every month when pay is drawn this OA is not, hit by limitation as contended by the respondents.

8. The cause of action for the applicant arose in the year 2006 when his pay was fixed upon his inter-divisional transfer in the Palaghat. He has filed this OA in 29.10.2012. He could have filed this OA much earlier. Hence, relief has to be moulded taking this aspect into account.

9. In the light of the above the Original Application is disposed of as under:-

The respondents are directed to fix the pay of the applicant with effect from 20.3.2006 duly protecting his pay in the pay scale of Rs. 4000- 6000/- (PB-1) plus Grade Pay of Rs. 2400/- with all consequential benefits arising therefrom with arrears of pay restricted to three years prior to filing of this OA and thereafter. The appropriate orders in this regard should be issued to all concerned including the applicant within a period of sixty days from the date of receipt of a copy of this order.
10. No costs.

(K. GEORGE JOSEPH) (JUSTICE A.K. BASHEER)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
“SA”