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PETITIONER: GENERAL MANAGER, WESTERN RAILWAY & ORS.

       Vs.

RESPONDENT: Y.P.SHARMA & ORS.

DATE OF JUDGMENT:       18/12/1998

BENCH: SUJATA V.MANOHAR, G.B.PATTANAIK,

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT Mrs. Sujata V. Manohar. J. The   respondents   are   Ex-servicemen   who   were re-employed by the Western Railways some time  in  the  year 1990 against  10%  quota fixed for Ex-servicemen.  They were engaged through  the  Railway  Recruitment   Board.      The respondents   filed   an   application  before  the  Central Administrative Tribunal, Bombay Bench, being OA No.  1311 of 1992 claiming that they should be  given  city  compensatory allowance and house rent allowance on the basis of their pay plus  pension  in view of Rule 1712(i) of the Indian Railway Establishment Code.  They also claimed privilege passes  and P.T.Os.  on the basis of their pay as well as pension.  This claim was  based  on Rule 65 (1)(b) of the Pass Manual.  The tribunal has granted these claims to the respondents.  Hence the present appeal. Rule 1712(i) of  the  Indian  Railway  Establishment code, Volume II is as follows:           "In  the  case  of re-employed pensioner, where pay           plus pension exceeds the sanctioned maximum pay  of           the  post,  the  allowances  would be calculated on           that maximum; in other cases, the allowances  would           be calculated on pay plus pension." Under   this   rule,  therefore,  all  allowances  given  to re-employed pensioners have to be calculated on the basis of pay plus pension.  However, in supersession of all  previous orders  on the subject the President Promulgated the Central Civil Services (Fixation of Pay of  Re-employed  Pensioners) Order, 1986,  under  Article  309  of the Constitution.  The 1986 Order, therefore, replaced all previous  orders.    The Railway  Board by its letter dated 21.1.1987addressed to the General Managers of all Indian Railways informed  them  that the   Department   of   Personnel   and   Training  had  now consolidated the existing orders in a single body of  orders with  a  view  to  rationalise  and  simplify  the procedure governing the initial fixation of pay on re-employment.  The 1986 Order was enclosed with this letter  and  the  railways were  instructed  to bring into force the 1986 Order for all appointments made on or after 1st of July, 1986.  Clause  II of  the  said  Order  which  deals  with  allowances  is  as

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follows:-            "Allowances :  The drawal  of  various  allowances            and other benefits based on pay shall be regulated            with  reference  to  the  pay  that  is  fixed  on            re-employment.   Pay  for  these  allowances   and            benefits  will  be  the pay fixed before deducting            the non-ignorable part  of  the  pension  and  the            pension   equivalent   of   the  other  retirement            benefits." Therefore, it is  Clause  II  Which  is  applicable  to  the respondents.   Under  Clause  II  the  allowances have to be granted  with  reference  to  the  pay  that  is  fixed   on re-employment.   The  pay  is expressly mentioned as the pay fixed before deduction of non-ignorable part of the  pension and the pension equivalent of the other retirement benefits. In the case of Ex-servicemen, since the initial pay is fixed by ignoring the pension which they receive as Ex-servicemen, what  will  have  to  be  taken  into  account for fixing of allowance is the pay which they will get  on  re-employment. Pension  cannot  be  added  to  this  pay for the purpose of calculation of allowances.  The Tribunal was, therefore, not right in holding that Rule 1712(i)  of  the  Indian  Railway Establishment  Code would prevail over Clause II of the 1986 Order. The respondents claimed privilege passes and P.T.Os. under Rule 65(1)(b) of the Pass Manual, 1977. Rule  65(1)(b) of the Pass Manual is as follows:-           "65(1)(b):   Non-Railway  Government  Servants  and           Employees of Quasi-Government Bodies:           During re-employment the person will be entitled to           Privilege Passes  and  P.T.Os.    on  the  scale as           admissible to temporary railway employees under the           extant rules as amended from time  to  time.    The           class of  such  Passes  and P.T.Os.  in the case of           staff re-employed in  non-gazetted  posts  will  be           determined  on  the basis of the pay in the post in           which he is re-employed plus gross  pension  and/or           pension  equivalent  or  other  forms of retirement           benefits." However,  the issue of passes and privilege ticket orders to railway servants for travel by trains in now governed by the Railway Servants (Pass) Rules, 1986  which  have  been  made under  Article  309  of  the  Constitution by the President. Rule 16 of the Railway Servants  (Pass)  Rules,  1986  which deals with the status of the Pass Manuals is as follows:-            "16.  Status of Pass Manuals etc - The provisions            contained  in  Pass   Manuals   issued   by   the            respective  Railway  or  any  other provisions on            Passes contained in any other  Manual/Rules  etc.            shall   be   valid   provided   it   is   not  in            contravention with the provisions  laid  down  in            these Rules." Therefore,  in  the  case  of conflict, the Railway Servants (Pass)  Rles,  1986  will  prevail  over  the  Pass  Manual. Schedule  II  of  the  Railway Servants (Pass) Rules of 1986 deals with passes on privilege account framed  under Rule 6. In the case of those appointed  to  railway  service  on  or after  1.4.1987, those drawing pay of Rs. 2301/- or above or if they are in a scale the minimum of which is  Rs.  2,000/- first  class  passes  are  permissible  as  set  out  in the Schedule. In respect of employees other then  these,  second class  passes  are  permissible  as set out in the Schedule. These are employees in Group C. Employees  in  Group  D  are only  entitled to a second class Pass. Therefore, it is only those employees in Group C who draw pay  of  Rs.  2301/-  or

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above  or  those employees who are in a scale the minimum of which is Rs 2000/-, who will get first class  passes.  There is  no  provision  under  the Railway Servants (pass) Rules, 1986  to  add  pension  to  the  pay  for  the  purpose   of determining  the category of passes to which the re-employed persons are entitled. Under Rule 2(j) "pay"  is  defined  to mean  the  amount  drawn monthly by a railway servant as (i) basic pay; and (iii) any other pay which  may  be  specially classified as pay by the President. Under sub-clause (ii) in the case of running staff, basic pay plus 30% thereof or any other  percentage  of basic pay declared as pay from time to time  will  also  count  as  pay.  Therefore,  there  is  no provision  for adding pension to the pay for the purposes of privileges passes and P.T. Os. The  Tribunal  was  thus  not right  in  relying  upon  the Pass Manual for the purpose of granting relief to the respondents. In the permises the appeal is allowed  the  impugned order  of  the  Tribunal  is  set  aside  and  the  original application filed by the respondents before the Tribunal  is dismisse.