IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 365 OF 2007

Union of India & Ors.         ….Petitioners

Versus

Jagdish Pandey & Ors.               …Respondents

JUDGMENT

Swatanter Kumar, J.

1. The Union of India being aggrieved from the judgment  

and order of a Division Bench of the Calcutta High Court  

dated 2nd March, 2005 dismissing, the Writ Petition filed by  

the  Union  of  India  against  the  order  of  the  Central  

Administrative  Tribunal,  Calcutta,  (hereinafter  referred  to  

as ‘the Tribunal’)  dated 18th January, 2002, has filed the  

present   appeal  under  Article  136  of  the  Constitution  of  

India.   The  Tribunal  vide  its  judgment  had  allowed  the  

application  filed  by  the  respondents  herein  and  had  set  

aside  the order  dated 22nd February,  2001 issued by the  

Union of India.

2. The facts giving rise to the present  appeals are that  

the respondents are/were working as Tower Wagon Drivers  

(for short ‘TWD’)  under the Eastern Railways.  They were  

promoted to the said post between the period 1979-1981.  

These respondents claimed running allowance @ 120 k.m.  

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per  day while  on duty in terms of  para 3.12 of  the  New  

Running Allowance Rules - structuring of the cadre.  This  

was not paid to them resulting in the filing of a Writ Petition  

by  them  before  the  High  Court  of  Calcutta.   This  Writ  

Petition was  allowed  by  the  High Court  and the  Eastern  

Railways  were  directed  to  pay  ‘running  allowance’  to  the  

respondents.  It may be noticed that while disposing of that  

Writ Petition being Civil Petition No. 4143 of 1988 and C.O.  

No. 1812 (W) of 1984 the Court passed the following Order:

“After  hearing  the  Learned  Advocates  and considering their submissions, we  feel  that  a  happy  solution  has  been

arrived  at.   We  thus,  after  bearing  them  direct  that  with  four  months  from today, the petitioners will be paid  at the rate of 120 kilo meter per day  while  on  duty  in  terms  of  paragraph  3.12  of  the  New  Running  Allowance  Rules – structuring of cadre.  We also  keep  it  on  record  that  while  making  such payment, authorities will be able  and  entitled  to  adjust  the  amount,  which has already been received by the  employees  concerned  on  the  basis  of  the works, which they have done.  The  time,  we  directed,  was  suggested  by  

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Mr. Chakrabarty on instructions from  Mr.  C.B.  Chowdhury,  Deputy  Chief  Electrical  Engineer,  Eastern  Railway,  who was present in Court.”

3. After this allowance had been paid to the respondents,  

the Eastern Railways passed an order dated 22nd February,  

2001  stating  that  they  were  granted  higher  pay  scales  

inadvertently and the said scale is withdrawn as well as for  

recovery of amounts paid in excess of the amounts which  

ought to have been paid to the respondents in the lower  

scale.  The correctness of this order was questioned by the  

respondents before the Tribunal, submitting that they were  

granted  the  pay  scale  of  Goods  Driver  vide  IVth Pay  

Commission w.e.f. 1.1.1986.  They continued to draw the  

prescribed  pay  scale  which  was  subsequently  revised  to  

Rs.5,000  -  8,000/-  w.e.f.  1.1.1996  in  terms  of  Vth Pay  

Commission.  The order was arbitrary as the function and  

duties of the TWDs were similar to that of the Goods Driver  

and these posts were treated to be inter-changeable by the  

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department which passed such orders of transfer from time  

to  time.   Thus,  they  prayed  that  they  be  permitted  to  

withdraw  the  same  pay  scale.   This  application  was  

contested by Eastern Railways  on behalf  of  the  Union of  

India  and  it  was  stated  that  the  scale  was  granted  by  

inadvertent error and they are not entitled to the pay scale  

of  Rs.1350-2200/- w.e.f.  1.1.1986 and also that they are  

not  equivalent  to  the  Goods  Drivers.   The  matter  was  

examined at some length by the Tribunal.  It  was noticed  

that vide Annexure ‘E’ to that application dated 15th April,  

1993, the Eastern Railways itself has stated that all TWDs  

should be given the grade of Goods Drivers  i.e.  Rs.1350-

2200/- (unrevised).  There is no Railway Board’s circular or  

order directing that TWDs are not entitled to the pay scale  

of  the Goods Drivers and they are  not justified  in taking  

decision to grant lower pay scales.   The respondents had  

also relied upon the judgment of this Court in the case of  

Chandraprakash  Madhavrao  Dadwa  v.  Union  of  India,  

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[(1998)  8 SCC 154]  and Shyam Babu Verma v.  Union of  

India, [(1994) 27 ATC 121].

4. Referring to the pleadings of the parties and the record  

available before  the Tribunal, the Tribunal did not accept  

the  contention  of  the  Eastern  Railways  that  it  was  by  

mistake that higher pay scale was given to the respondents  

as they were getting the same pay scales right from the year  

1959.   The  Railways  had  hardly  produced  any  records  

before the Tribunal to justify its decision in down grading  

the  pay  scale  of  the  respondents  and  directing  the  

consequential  recoveries.   It  will  be  useful  to  refer  to  

reasoning given by the Tribunal at this stage itself:  

“12  In  view  of  the  clear  averments  made in the OA, which have not been  specifically  rebutted  by  the  respondents,  as already stated above,  and  in  view  of  the  Railway  Board’s  letter issued in implementation of the  Calcutta High Court’s order, by which  the Tower Wagon Drivers were placed  in the category of Goods Drivers for all  purposes,  the  applicants  were  certainly entitled to have the salary in  

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the pay scale of Rs.1350-2200/- w.e.f.  1.1.1986 and as a matter of fact, they  have been paid salary in the same pay  scale  till  the  impugned  order  was  issued.

13.   It  may also  be  pointed  out  that  pursuant to the acceptance of the 5th  

Pay  Commission  Report  by  the  Government, the Tower Wagon Drivers  were given the salary in the pay scale  of Rs.8000-8000/- w.e.f. 1.1.1996.  In  the  letter  dated  15.4.1993  (Annexure  E),  the  Sr.  DLD/TRD/Sealdah,  intimated to the Sr. DPC/Sealdah that  in  Sealdah Division,  out  of  32  Tower  Wagon  Drivers,  24  Tower  Wagon  Drivers  were  getting  the  pay  scale  of  Rs.1350-2200/-  and the  remaining  8  Tower Wagon Drivers were getting the  pay  scale  of  Rs.1320-2040/-  and  according  to  him,  all  the  Tower  Van  Drivers may be given the uniform pay  scale  of  Rs.1350-2200/-.   It  seems  that two different pay scales for Tower  Van Drivers  were  prescribed  because  of  the  fact  that  prior  to  1986,  there  were  two  different  pay  scales  at  the  ratio  of  60%  and  40%  for  Goods  Drivers as mentioned above.   Be that  as it may, it is evident that in Sealdah  Division also, the Tower Wagon Drivers  were  given  the pay scale  of  Rs.1350- 2200/- w.e.f  1.1.1986.   It  is different  thing that the order of giving pay scale  

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of  Rs.1350-2200/-  was withdrawn by  the respondents after filing of this O.A.

14.   It  is  not  understood  on  what  basis,  the  respondents  decided  to  discontinue  to  pay  the  salary  to  the  Tower Wagon Drivers in the pay scale  of Rs.1350-2200/-.  There could be a  situation  if  the  Tower  Wagon Drivers  were  not  considered  as  part  of  the  “Running  Staff”  and,  therefore,  their  service  conditions  would  be  different.  Once they have been treated as part of  the “Running Staff” and they are also  performing the job of driving the Tower  Vans/Wagons,  there  cannot  be  any  justification  not  to  treat  them at  par  with the lower grade of Goods Drivers  in the railway.

15.   It  is  not  the  case  where  the  respondents claim that the pay scale of  the Tower Wagon Drivers has been re- fixed  on  the  basis  of  some  Expert  Committee Report.  It  is obvious that  the  pay  scale  of  Rs.1350-2200/-  was  given to the applicants on the basis of  some Expert Committee  Report.  It  is  obvious that the pay scale of Rs.1350- 2200/- was given to the applicants on  the basis of the decision that they were  at par with the Goods Drivers.  Now if  the  respondents  seek  to  place  the  applicants in the lower pay scale, the  burden lies on them to show the basis  

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of taking such decision adverse to the  interest of Tower Wagon Drivers.”

5. As already noticed,  the challenge  to the above order  

was not accepted by the High Court and both the issues  

raised before the High Court, namely that the case of the  

Railway  was  not  considered  properly  by  the  Tribunal  on  

merits and secondly, it had no jurisdiction to examine the  

said  circular  as  the  order  was  passed  by  the  Divisional  

Railway  Manager  outside  the  jurisdiction  of  the  Tribunal  

were rejected and while upholding the order of the Tribunal,  

the High Court of Calcutta held as under:

“Considering  the  aforesaid,  it  is  apparent  that  at  all  relevant  time  Tower Wagon Drivers are being treated  as equivalent to Goods Train Drivers.  There is no reason shown for treating  them  now  differently.   Contention  of  authorities refusing to treat the Tower  Wagon Drivers  equivalent  to driver  of  Goods  Train,  cannot  be  accepted.   If  the  Tower  Wagon  Drivers  are  continuously being treated as running  staff and equivalent to drivers of goods  trains;  drivers  there  is  no  reason  shown for which Tower Wagon Drivers  

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cannot  be  refused  to  be  treated  as  equivalent to the same grade as earlier  was being done for a long period.  The  impugned  judgments  have  dealt  with  the relevant aspects appropriately and  there is no reason to interfere with the  same.”

6.       The above decision of the High Court is impugned in  

the present appeal.    The basic contention raised on behalf  

of  the  Union  of  India  before  this  Court  is  that  the  job,  

duties, responsibilities and even essential training required  

for  TWDs are  not  comparable  to  those  of  the  good  train  

drivers. In addition, the contention is also that the scales  

were  granted  inadvertently  and   now  the  competent  

authority,  after  due  application  of  mind,  has  passed  the  

order granting  lower scales to the TWDs in comparison to  

goods train drivers.

7. In order  to examine the merits of these contentions,  

which obviously are disputed by the respondents, it will be  

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appropriate  to  refer  to  the  order  impugned  itself  which  

reads as under:

“Eastern Railway Estt. Office Order No. 199/02/Misc. C  of 2001                     (22.02.01)

With  the  approval  of  the  competent  authority  the  following  order  are  issued to have immediate effect –  

The  pay  of  the  following  T.W.  Drivers of Dhanbad Division was fixed  in  scale  S.  1350-2900  (RP)  w.e.f.  01.01.1996 in IVth PC in the scale  Rs.  1350-2200/-  (R.P.)  and  scale  Rs.  5000-8000/-  (RSRP)  erroneously  for  which they were not entitled.

As such their pay scale is revised  to  S.1320-2040  (RSRP)  w.e.f.  01.01.1986 in IV  P.C.  and Rs.  4500- 7000/-  (RSRP)  w.e.f.  01.01.1996  in  Vth P.C.

  xxx                  xxx                    xxx  

The  staff  concerned  should  be  intimated accordingly”   

8.        The  respondents  in  the  present  appeal  had  

challenged  the  validity  of  the  above  order  before  the  

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Tribunal  on  various  grounds  including  that  they  have  

always  been  placed  at  parity  with the  goods  driver,  they  

have been given similar  scales  and there  was no reason,  

whatsoever, for altering the pay scale to the prejudice of the  

respondents, which was in force for a considerable time.  It  

will be useful for us to notice the findings recorded by the  

Tribunal.   In  paragraph  8  of  its  judgment  the  Tribunal  

noticed  that both the parties have not placed on record any  

material to indicate as to what was the pay scale provided  

for  the  TWDs  pursuant  to  the  various  Pay  Commission  

Reports.  The Tribunal specifically noticed and recorded the  

finding that for the last 40 years, i.e. right from 1959 the  

respondents were being paid the same pay scale as goods  

drivers.   There  was  no  disparity  of  pay  scales  between  

TWDs and goods drivers after Union of India and Railways  

had accepted recommendations of the IInd, IIIrd, IVth  and  

even  of   Vth   Pay  Commissions.   The  Tribunal  also  

specifically noticed vague denials of the Union of India and  

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that such denials were hardly substantiated by any cogent  

material.   Reliance  was placed  upon the judgment  of the  

Calcutta  High  Court  in  relation  to  the  grant  of  running  

allowance. In that Writ Petition, the only dispute raised by  

the parties  related to the grant of running allowance and  

the Union of India did not raise the issue of disparity in pay  

scale.   This order of the High Court had attained finality.  

We have already  referred  to the findings recorded  by the  

Tribunal  where  it  is  specifically  noticed  that  after  

acceptance  of  Vth  Pay  Commission  Report  by  the  

Government, TWDs were given the salary in the pay scale of  

Rs.  5000-8000  w.e.f.  1.1.1996  and  in  the  letter  dated  

15.4.1993 the concerned authorities noticed the disparity  

created even between the TWDs i.e. in Sealdah division out  

of 32 TWDs, 24 were  getting pay scale of Rs. 1350-2200  

(unrevised) and remaining 8 were getting the pay scale of  

Rs. 1320-2040 and it directed a uniform pay scale of Rs.  

1350-2200  should  be  given  to  all  the  TWDs.   Another  

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reason that weighed with the Tribunal was that no material  

has been produced to show as to what were the reasons or  

material on the basis of which the authorities had decided  

to  discontinue  the  pay  scale  of  Rs.  1350-2200  to  these  

respondents.  The  above  reasoning  and  discussion  in  the  

order of the Tribunal clearly shows that the action on the  

face  of  it  was arbitrary.   This  order  of  the  Tribunal  was  

confirmed by the High Court and the respondents made no  

effort to place anything on record to show that they were  

different and distinct  classes  and were  entitled  to receive  

different pay scales.  Even in the order dated 9th August,  

2002 the Tribunal specifically noticed that it was not even  

averted  that  eligibility  criteria  for  the  post  of  TWDs  was  

different  than that  for  the  goods  driver  and  their  duties  

were substantially different.  In other words, either before  

the Tribunal or before  the High Court the Union of India  

never pleaded the essential basis  for justifying payment of  

different pay scales to two categories  of drivers i.e. TWDs  

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on the one hand  and  goods train  drivers   on the other.  

There  has  to  be  a  substantial  difference  in  method  of  

recruitment,  eligibility,  duties  and  responsibilities  before  

substantial  disparity in scale  can be justified.   As far as  

recording of finding of facts is concerned, factual disputes  

can hardly be raised before this Court and in any case for  

the first time.  Despite this the Union of India has failed to  

place any material  to substantiate  its decision before  the  

Forum/Courts.   The judgment of the Calcutta High Court,  

in relation to running allowances, has attained finality.  At  

that time no other issue was raised by Union of India that  

they  are  different  and  distinct  posts  with  different  pay  

scales and as such identical running allowances could not  

be paid.  In fact, the judgment of the Calcutta High Court  

has duly been implemented now for years together without  

objection.   Not  only  this,  same  pay  scale  as  that  of  the  

goods train driver has been paid to these respondents for  

years and there appears to be no justification on record for  

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unilateral  withdrawal  of  such  a  scale.   Pay  scale  is  a  

legitimate  right  of  an employee  and  except  for  valid  and  

proper reasons it cannot be varied, that only in accordance  

with  law.  None  of  these  justifiable  reasons  exist  in  the  

present case.  The impugned order itself does not give any  

reason.  The expression ‘erroneously’ used in the order can  

hardly justify withdrawal of such an existing right.  

9. We  may  also  notice  that  the  respondents  had  

specifically  pleaded  and  even  placed  on  record  certain  

orders  in  which  in  certain  divisions  the  post  of  TWD is  

inter-changeable with goods driver.  Orders have also been  

placed on record to show that in different divisions TWDs  

are getting different scales and the Railway Board, as such,  

has  not  passed  any  final  order  which  is  uniformly  

applicable to all the divisions of the Railways in India.  Of  

course,  this  has  been  disputed  by  the  appellants.   The  

appellants have also attempted to file  certain documents  

on record to show  that the duties of both these posts are  

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different and even recruitment criteria is different.   We are  

afraid  that  this  contention  cannot  be  raised  for  the  first  

time before this Court.  This was expected of the Union of  

India to raise all these issues before the appropriate forum  

i.e.   the Tribunal  and justify the  same.   Even before  us,  

these averments  have been made without any supporting  

data  or  documents  to  substantiate  such  a  plea.   No  

comparative chart of the duties and responsibilities of these  

two  posts,  recruitment  rules  specifying  eligibility  or  

selection criteria and working conditions have been placed  

on record. The vague averments made to that effect cannot  

persuade  this  Court  to  disturb  the  concurrent  findings  

recorded by the Tribunal as well as by the High Court.

10. It  is  a  well  settled  rule  that parties  are  expected to  

raise  specific  pleadings  before  the  first  forum  for  

adjudication of the dispute.  Those pleadings are the basis  

of  the  case  of  the  respective  parties  even  before  the  

appellate/higher Courts.  The parties  would be bound by  

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such  pleadings,  of  course,  subject  to  the  right  of  

amendment allowed in accordance with law.  In the present  

case, no such amendment has been carried out even before  

the High Court and it will be unfair for this Court to get into  

the controversy of factual matrix of the case at this stage of  

the  proceedings,  particularly,  when  there  exists  no  

justification  whatsoever  on  record  as  to  why  even  these  

averments were not made before the Tribunal and not even  

before  the High Court,  despite  the fact that the Tribunal  

had  specifically  made  comments  in  this  regard  in  its  

judgment.   Even before this Court but for bald averments  

no documents, data or cogent material has been placed for  

appropriate adjudication of the rights of the parties.

11. During the course of arguments this was also brought  

to our notice that most of the respondents in the present  

appeal have already retired from service and there exist no  

justification for affecting any recoveries from their salaries  

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as they have already worked and received their salaries as  

granted by the Union of India itself.  

12. For the reasons afore stated, we find no legal infirmity  

in the judgments of the Tribunal and the High Court.  While  

dismissing this appeal we make it clear that this judgment  

will  not  affect  the  right  of  Union  of  India  to  pass  an  

appropriate order in relation to the pay scales applicable to  

any class of its employees including the respondents afresh  

and   in accordance with law. We do hope that if such an  

order is passed  it will   be  upon  proper  application of  

mind  and  after  taking  into  consideration  appropriate  

material and/or data.

13.   The  appeal  is  dismissed  leaving  the  parties  to  bear  

their own costs.  

................................J.  [ DR. B.S. CHAUHAN ]

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..............................J.       [ SWATANTER KUMAR ]

New Delhi July 08,  2010.

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