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CASE NO.: Appeal (civil)  1325 of 2008

PETITIONER: L. Parmeswaran

RESPONDENT: Chief Personal Officer & Ors.

DATE OF JUDGMENT: 15/02/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T  [Arising out of  SLP (Civil) No. 18227 of 2005] S.B. SINHA, J :          1.      Leave granted.   2.      Whether for working for a long time in an ex-cadre post, an employee  would be entitled to protection of scale of pay is the question involved in  this appeal which arises out of a judgment and order dated 19.05.2005  passed by the High Court of Kerala in W.P. (C) No. 37269 of 2003.

3.      Appellant was recruited as an unskilled worker.  He was a casual  workman.  He was, however, posted in Electrical Division.  He was  promoted from the post of Khalasi Helper in his parent cadre to that of  Technician Grade III.  He passed a trade test of Technician Grade III, which  enabled him to be promoted to the post of Technician Grade-II.  On or about  13.02.1989, he was promoted as Diesel Mechanic Grade II. He was further  promoted as Diesel Mechanic Grade I with effect from 26.04.1991.  He  served in the said post till 7.04.2003 when by reason of the impugned order  he was reverted to the post of Technician Grade III in the Electrical Division  of the Railway Department.

4.      Questioning the validity of the said order, he filed an Original  Application before the Central Administrative Tribunal, Ernakulam inter alia  contending that he could not have been reverted to the post of Technician  Grade III in the Electrical Division on the premise that it was his parent  cadre.   

5.      By reason of a judgment and order dated 11.11.2003, the Central  Administrative Tribunal dismissed the said original application opining:

\0235. In the face of the fact that the applicant was till  his regular appointment by R-1 order dated  29.10.80 as Electrical Khalasi was working as a  casual artisan, the case of the applicant that he  commenced service in the Railways on 13.11.79 in  the post of Diesel Engine Fitter (Diesel Mechanic)  Grade III is found to be false and baseless.  A-1  order by which the applicant was promoted as  Diesel Mechanic Grade II makes it clear that the  applicant was an artisan staff of the electrical  branch and the posting was to an ex-cadre post.   That the post of Diesel Mechanic Grade II to  which the applicant was promoted is also an ex- cadre post is not disputed by the applicant.  The  applicant who belongs basically to the electrical  branch holding a substantive post of Helper Grade  I can have no legitimate grievance in regard to his

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promotion as Technician Grade III which is in the  direct line of promotion in the hierarchy of service  to which he belongs.  That as a result of promotion  in the parent department and repatriation from the  ex-cadre post, there would be a fall in emoluments  is only natural and unavoidable consequence  which is common when a person is repatriated to  the parent cadre from an ex-cadre post.\024   6.      A writ petition was filed thereagainst before the High Court which has  also been dismissed by reason of the impugned judgment stating:

\0237. Learned Counsel for the Petitioner submits that  the statement in Ext. P6 were incorrect since the  Petitioner had not passed the trade test for  promotion to the post of Technician Grade II/  Power and he had passed only trade test prescribed  for Diesel Mechanics.  However, if Ext. P6  specifically states that the Petitioner has passed  such tests, we are not prepared to hold that this is a  misstatement of fact.  Promotion has been awarded  to him, taking notice of his achievements as well.   Since we find that there was no error in  comprehending the issue at the hands of the  Tribunal, in spite of the laborious effort made by  the Counsel for the Petitioner, it may not be  possible for us to come to a different conclusion.\024   

7.      Mr. Romy Chacko, learned counsel appearing on behalf of the  appellant, in support of the appeal, would submit that the appellant having  worked in the Mechanical Division as a Diesel Mechanic for about 23 years,  the respondents must be held to have acted arbitrarily in reverting him to the  Electrical Division.  In any view of the matter, it was urged, that the  appellant would be entitled to protection of pay and allowance which he had  been enjoying as Mechanical Grade I.   

    Strong reliance in this behalf has been placed on Bhadei Rai v. Union  of India and Ors. [JT 2005 (11) SC 311].

8.      Mr. B. Dutta, learned Additional Solicitor General appearing on  behalf of the respondents, on the other hand, would contend that as the  parent cadre of the appellant was the Electrical Wing and as others have  since become qualified to be appointed in the Grade I post in the Mechanical  Wing of the Railways, no illegality has been committed in passing the order  of reversion of the appellant to his parent cadre.

9.      Appellant was appointed on 13.11.1979 as a casual artisan.  He was  then working under the control of XEN/Bridges\022 (Netravathi) as Oil Engine  Fitter on a scale of pay of Rs. 260-400/- as a substitute casual artisan under  the control of EF(W)/OJA.  A screening of substitute electrical khalasis was  undertaken in the year 1980.  A list of the eligible candidates who were  found suitable for absorption in the regular post for the period ending  31.12.1980 including anticipated vacancies was prepared.   Appellant\022s  name appeared at Serial No. 56 in the said list.  He volunteered for the post  of Diesel Mechanic Grade II and he was promoted to that post by an order  dated 13.02.1989.  He was again promoted as Diesel Mechanic Grade I in  the scale of pay of Rs. 4500-7000 (revised).  He was asked to pass the trade  test in the Electrical Wing.  He refused to do so stating:

\023With reference to your above letter No. J/P  535/III/TL of 4.3.93, I am hereby state that I am  not willing to attend any of the trade test except

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my present trade of Diesel Mechanic.\024

10.     The post, therefore, which he had been holding was an ex-cadre post.   The Railway Administration took a policy decision to repatriate the ex-cadre  employees upon completion of a period of four years to the following effect:

\023During the PNM meeting held with the  representatives of SRMU on 18.6.2001 and  20.6.2001, it was pointed out that in some cases  the incumbents of ex-cadre posts are not  repatriated to their parent unit even after  completion of the tenure period of 4 years and in  some cases the incumbents are switched from ex- cadre to another ex-cadre post without being  repatriated to parent cadre.

It has been decided that hence forth the tenure will  be strictly enforced with outer limit of 4 years.\024

 11.     Indisputably, pursuant to or in furtherance of the said policy decision,  the impugned order was passed by the Railway Administration on 7.04.2003  directing:

\0231.  The promotion will take effect from the date  of their assuming higher responsibilities.

2.      They should advise their willingness or  otherwise to this office within 15 days from the  date of receipt of this office order failure to do so  i.e. if they are not willing to carry out the  promotional transfer, the same will be treated as  refusal of promotion and consequently they will  not be eligible to be considered for promotion  before the expiry of one year and that they will  lose their place of seniority to all their juniors who  are promoted in the meanwhile. 3.      *** 4.      *** 5. Shri L. Parameswaran, Helper Gr. I and Shri C.  Rajendran, Helper Gr. I are continuing on ex-cadre  posts.  They are due for promotion as Tech. Gr. III  in their parent cadre.  Therefore, they have no  locus standi or right to continue in the present post.   They stand repatriated on promotion\005\024   12.     Indisputably, the appellant was put on a scale of pay of Rs. 4500- 7500.  By reason of the impugned order, he was to be posted in a grade, the  scale of pay whereof is Rs. 3050-7000.   

13.     Being in an ex-cadre post, the appellant did not derive any right to  continue therein.  He could be reverted to his cadre post.   He opted for the  Mechanical side despite the fact that his parent cadre was Electrical Wing.   If the appellant is allowed to continue in the ex-cadre post, he will be  depriving some employees who are entitled to be promoted to the said post.   Such a deprivation from the right of promotion to a duly qualified employee,  in our opinion, therefore, cannot be countenanced.

       We do not, therefore, think that there is any legal infirmity in the said  order dated 7.04.2003.   

14.     However, in Bhadei Rai (supra), this Court noticed a scheme framed  by the Railway Administration pursuant to the direction of this Court in

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Inder Pal Yadav v. Union of India [(2005) 11 SCC 301].  This Court in view  of the said Scheme and following the principles laid down therein opined  that an employee who had been continued to function in a higher post and  drawing a higher salary could not have been reverted and in any event would  be entitled to the protection of pay and allowance.

       Inder Pal Yadav (supra) was concerned with a regularization scheme.   It was in terms of the said scheme, certain provisions had been made.  The  direction issued by this Court in Inder Pal Yadav (supra) was, therefore, in  terms of the said scheme.  However, the principle laid down therein will  have no application to the fact of the present case.   

15.     The post held by the appellant was an ex-cadre post.  He opted for  change in this cadre.  He did not have any right therefor.  He in his own  cadre might not have been promoted particularly when he has not passed the  requisite trade test.

16.     Furthermore, the question in regard to right of a person to be  regularized in services so as to enable him to draw salary as if he is recruited  on a regular cadre came up for consideration before a Constitution Bench of  this Court in Secretary, State of Karnataka and Others v. Uma Devi (3) and  Others [(2006) 4 SCC 1] wherein while laying down the necessity for  adherence to the rule of equality in public employment as a basic feature of  the Constitution, it was opined that no order should be passed which would  amount to violation of Article 14 of the Constitution of India or overlooking  of the need to comply with the requirements thereof.   This court, however,  furthermore opined:

\02344. The concept of \023equal pay for equal work\024 is  different from the concept of conferring  permanency on those who have been appointed on  ad hoc basis, temporary basis, or based on no  process of selection as envisaged by the rules. This  Court has in various decisions applied the principle  of equal pay for equal work and has laid down the  parameters for the application of that principle.  The decisions are rested on the concept of equality  enshrined in our Constitution in the light of the  directive principles in that behalf. But the  acceptance of that principle cannot lead to a  position where the court could direct that  appointments made without following the due  procedure established by law, be deemed  permanent or issue directions to treat them as  permanent. Doing so, would be negation of the  principle of equality of opportunity. The power to  make an order as is necessary for doing complete  justice in any cause or matter pending before this  Court, would not normally be used for giving the  go-by to the procedure established by law in the  matter of public employment. Take the situation  arising in the cases before us from the State of  Karnataka. Therein, after Dharwad decision the  Government had issued repeated directions and  mandatory orders that no temporary or ad hoc  employment or engagement be given. Some of the  authorities and departments had ignored those  directions or defied those directions and had  continued to give employment, specifically  interdicted by the orders issued by the executive.  Some of the appointing officers have even been

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punished for their defiance. It would not be just or  proper to pass an order in exercise of jurisdiction  under Article 226 or 32 of the Constitution or in  exercise of power under Article 142 of the  Constitution permitting those persons engaged, to  be absorbed or to be made permanent, based on  their appointments or engagements. Complete  justice would be justice according to law and  though it would be open to this Court to mould the  relief, this Court would not grant a relief which  would amount to perpetuating an illegality.\024  

17.     Keeping in view the aforementioned two principles in mind, we are of  the opinion that in a case of this nature, a balance has to be struck.  In the  peculiar fact of the present case, despite the law operating in the field as  noticed supra, appellant might have been recruited as a casual employee but  the fact that he was brought on the rolls of a regular cadre is not in dispute.   The fact that he had passed a trade test is also not in dispute.  It furthermore  stands admitted that as an ex-cadre employee or otherwise he was promoted  twice.  He had been holding the said post for a period of more than 12 years.   A policy decision was taken by the Railway Administration only on or about  15.10.2001.  Prior thereto, there was no requirement to repatriate an  employee to his parent cadre after a period of four years.  The policy  decision, furthermore, was not given immediate effect.  Despite the said  policy decision, the appellant was permitted to work for another two years.   

18.     Faced with the situation, the learned Additional Solicitor General  submitted that the question in regard to protection of pay of the appellant  would be considered by an appropriate authority if a representation is filed  in that behalf.    Keeping in view the lapse of time, we are of the opinion that  in this case we should ourselves make an endeavour to strike a balance.  In  our opinion, it is a fit case where this Court should exercise its jurisdiction  under Article 142 of the Constitution of India to do complete justice to the  parties.  We think that, while upholding the validity of the order dated  7.04.2003, interest of justice would be met if the pay of the appellant is  protected in the scale of pay of Rs. 4500-7500 to be fitted    in   the   post  of   Technician  Grade  III  for  which  the  scale  of  pay  is  Rs. 3050 - 7000.     By doing so, we would not be violating any law or perpetrating any  illegality.

19.     This appeal is allowed to the aforementioned extent.  However, in the  facts and circumstances of this case, there shall be no order as to costs.