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PETITIONER: UNION OF INDIA AND ORS.

       Vs.

RESPONDENT: O.P. SAXENA, R.D.CHOUDHARY,K.PEREIRA,HARBANS LAL & ORS.

DATE OF JUDGMENT:       05/08/1997

BENCH: J.S VERMA, SUJATA V. MANOHAR, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                           W I T H                   CIVIL APPEAL NO 4662/97     (@ Special Leave Petition (c) No. 14262/97 1601/96)                           W I T H                   CIVIL APPEAL NO.4663/97       (@ Special Leave Petition (c) No.24606 of 1996)                           W I T H                   CIVIL APPEAL NO. 4664/97   (@ Special Leave Petition (c) NO. 12463/97 CC 23426/94)                       J U D G M E N T KIRPAL, J. Civil Appeal No. 8852/96 with C.A.Nos........./97 (arising out  of SLP  (c) CC  No. 1601/96  and SLP  (c)  No. 24606/96)      Leave granted.      The issue which arises in these appeals from the orders of the Central Administrative Tribunal, Jabalpur, relates to stepping up  of the pay of the respondents who were promoted as Loco Running Supervisor prior to 1st January, 1986 vis-a- vis the  pay of one Sh. P.N. Kareer who was promoted to that post after 1st January, 1986 but was drawing higher pay than the respondents.      As the  questions of facts and law in these appeals are the same,  therefore, we propose to dispose of these appeals by a common judgment.      In the  Railway Administration  there is  a category of staff called  the running  staff which  is involved  in  the Running of  frains. It  includes drivers,  guards,  firemen, shunters and brakesmen. The running staff are entitled to an allowance called  the ’running  allowance’ in  view  of  the nature of  their duties pertaining to the running of trains. The pay  scales of  the running  staff are  considered to be incommensurable  with   the  ordeal   of  their   duty  and, therefore, to  balance that element the Running allowance is given to encourage greater efficiency in the running staff.      The locomotive  drivers  are  eligible  for  promotion, amongst other  posts, to  those  of  Loco  Supervisors.  The aforesaid Sh.  Kareer and the respondents, at one time, were holding the  running post  of Driver Grade-C. Sh. Kareer had been promoted  as Driver  Grade-C on  29th August,  1961. In

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other words,  Sh. Kareer  was senior  to the  respondents as Driver Grade-C.      The respondents  then  opted  to  be  promoted  to  the ’stationary post’  of Loco Supervisor directly from the post of Driver  Grade-C which  they were holding. Their promotion was made  prior to 1st January, 1986 and they were placed in the grade of Rs. 550 - 750.      Sh. Kareer chose to remain in the running staff. On 1st January, 1981 he was promoted as Driver Grade-B in the scale of  Rs.  425-640  and  his  pay  was  fixed  at  Rs.  580/-. Thereafter on 28th November, 1984 Sh. Kareer was promoted as Driver Grade-A in the scale of Rs. 550-700. With effect from 1st January,  1986 revised pay scales came into existence as a result  of the  fourth pay commission report. At that time the respondents  were working on the stationary post of Loco Supervisors while Sh. Kareer was working on the running post of Driver Grade-A.      The  pay   of  running   staff  on  promotion  to  Loco Supervisor’s post is fixed under Rule 1316 of Indian Railway Establishment Code after fixation of an additional component of thirty  per cent  of basic  pay last drawn in the running cadre, which  represents the  pay  element  in  the  running allowance. On  introduction of  the revised  pay scales with effect from  1st January, 1986 this thirty per cent addition in the  pay element of the running allowance increased which resulted  in   higher  fixation  of  pay  of  running  staff appointed as  Loco Supervisors  after 1st January, 1986 than those appointed  as Loco  Supervisors  before  1st  January, 1986. Therefore,  when Sh.  Kareer was  appointed as  a Loco Supervisor, his  pay as  Loco  Supervisor  was  fixed  after taking into  account the  aforesaid thirty per cent addition which  resulted   in  his   getting  higher   pay  than  the respondents. It appears that in the pay of respondent - O.P. Saxena was  stepped up  but when  the department  discovered that the  benefit had  been wrongly given to him his pay was re-fixed and  recoveries were made of the excess amount paid to him. Sh. O.P. Saxena challenged the aforesaid decision by filing OA  No. 462 of 1994 before the Central Administrative Tribunal, Jabalpur.  O.A. Nos.  191/94 and 768/93 were filed by the other respondents seeking the benefit of stepping up.      The Tribunal  first decided the case of Sh. O.P. Saxena and came  to the  conclusion that stepping up of the pay was admissible to  him. It  did not  accept  the  contention  of appellant that  Sh. Kareer  was senior  to the  respondent - O.P. Saxena and, furthermore, on a correct interpretation of the Railway  Board’s letter  dated  16th  August,  1988  the principle of  stepping up was not applicable. Following that decision relief  was given  by the  Tribunal  to  the  other respondents herein  and, while allowing their OA Nos. 768/93 and 191/94  the appellant  was directed to step up their pay keeping the pay of Sh. Kareer in view.      In our  opinion, the decision of the Tribunal directing stepping up  of the  pay of  the respondents  herein was not correct. It  had been classified by the Ministry of Railways in its  latter dated 14th September, 1990 that the principle of stepping  up referred  to in  its earlier of 16th August, 1988 was  "subject to codal conditions being fulfilled". The principle of stepping up of pay is contained in Rule 1316 of Indian  Railway   Establishment  Code  Vol.  II  which  also contains conditions which have to be followed while ordering stepping up. Two of the conditions contained therein are:      (a)  Both  the  senior  and  junior      officers should  belong to the same      cadre and  the post  in which  they      have been  promoted  on  a  regular

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    basis should  be identical  in  the      same cadre;      (b) The  scales of pay of the lower      and higher  posts in which they are      entitled   to    draw   should   be      identical.      By a  Presidential decision  given under  Rule 1316 the aforesaid conditions were further explained as follows:      " If  as a result of application of      the proviso  to and  the  exception      below Rule 1316 (F.R.22) the pay of      the juniors  more than  that of the      senior in  the  lower  post,  there      would be no question of stepping up      the pay of the senior in the higher      post. If despite the application of      the proviso  to and  the  exception      below  Rule   1313   (F.R.22)   the      junior’s pay  is less  than that of      the senior  and  on  promotion  the      former’s pay  happens to  be prater      than the pay of latter by virtue of      the provisions of Rule 1316 (F.R.22      C), stepping  up will  have  to  be      done with  reference to  the actual      pay drawn  by  the  junior  in  the      higher post."      It is  not in dispute that as driver Grate C Sh. Kareer was  senior   to  and  was  drawing  more  salary  than  the respondents. Thereafter  while Sh.  Kareer remained  in  the cadre of  running staff  the respondents  by choice  as Loco Supervisors. Thereafter Sh. Kareer on the one posted as Loco Supervisors. Thereafter  Sh. Kareer  on the one hand and the respondents on  the other  belonged to  two different cadres having their  own seniority  list. The pay of Sh. Kareer was fixed according  to the  scales which  were approved for the running staff  including the  running allowance.  Sh. Kareer was drawing  more salary  as Driver Grade-A, just before his appointment as a Loco Supervisor, than the respondents. With the revision  of pay  scales with  effect from  1st January, 1986 Sh.  Kareer’s pay  was fixed  at Rs.  2360/- as  on 1st January, 1986  while the  salary of respondent - O.P. Saxena on the  stationary to  the post which he was holding was Rs. 2300/-. The  sources of  the recruitment to the post of Loco Supervisor  in   the  case   of  Sh.  Kareer  vis-a-vis  the respondents being  different the principle of stepping up of pay would  not arise.  Whereas the respondents were promoted as Loco  Supervisors from  Driver Grade-C, Sh. Kareer on the other hand  was placed in the cadre of Loco Supervisor after being promoted  from the  post of  Driver Grade-A.  When the feeder posts of Sh. Kareer and that of the other respondents were  different   the  applicability  of  the  principle  of stepping up  cannot apply.  The pay  of Sh. Kareer had to be fixed with  reference to  what he was last drawing as Driver Grade-A,  a  post  which  was  never  held  by  any  of  the respondents. In our opinion, therefore, the Tribunal was not justified in  applying the  principle of  stepping up and in directing there fixation of the pay of the respondents.      For the  aforesaid reasons the appeals are allowed. The orders dated  18th May,  1995 and  4th October,  1995 of the Tribunal in OA Nos. 462 of 1994, 191 of 1994 and 768 of 1993 are set aside. There will be no order as to costs.      Leave granted      The question  involved in  this case  is similar to the one in Civil Appeal No. 8852 of 1996. The only difference is

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that the  respondent in  this appeal  claimed stepping up of his salary  by contending  that his junior one Sh. S.K. Sood was getting higher pay than him.      The respondent  was appointed  as a  Fireman Grade-I in the running  cadre in  the year 1949. He was promoted to the post of  Driver Grade-C  and  on  27th  June,  1965  he  was promoted to  the stationary  job as  ALF. Thereafter  he was appointed to  various stationary  posts and  was allowed the benefit in  fixation of  pay in  the  respective  posts  and grades. His salary as on 1st January, 1986, after the fourth Pay  Commission   report,  was   fixed  at  Rs.  2900/-.  He ultimately retired  from service  from 31st  march, 1988  on which date he was drawing a salary of Rs. 3050/-      Sh. S.K.  Sood, with  reference to  whom the respondent made a  claim for  stepping up  of his  pay,  was  initially appointed as  boy fireman  in  the  year  1948  in  Ferozpur Division, whereas  the respondent  was appointed  at Lucknow Division. Sh.  Sood was  promoted as  Driver  Grade-C,  then Driver Grade-B and lastly Driver Grade-A. He was promoted to the stationary post of CFI with effect from 5th May, 1977 in grade of Rs. 700-900. As in the running cadre he was drawing the maximum  of Rs.  700/- in  the grade,  his  pay  on  the stationary post was fixed at Rs. 900/-.      At the  respondent had  been posted  on the  stationary post from the running post of Driver Grade-C, while Sh. Sood had been posted on the stationary post from the running post of Driver  Grade-A, this  had resulted  in Sh.  Sood getting higher pay than the respondent.      The respondent  did not  make any claim for stepping up of his  salary as  long as was in service. Having retired on 31st March,  1988, in  July, 1991  he filed  an  application before the  Central Administrative  Tribunal for stepping up of his pay to bring it at par with that of Sh. Sood and also to give him consequential benefits.      The Tribunal  by  the  impugned  judgment  allowed  the application and  directed that  the pay  of  the  respondent should be  stepped  up  and  he  should  be  given  all  the consequential benefits.      Apart  from  the  fact  that  the  application  of  the respondent before  the Central Administrative Tribunal which was filed  in July  1991 was highly belated, the position in this case  is no  different from  that of Union of India and Ors. Vs.  O.P. Saxena.  In this case also the respondent and Sh. Sood  were appointed  to the  stationary post  from  two different sources. The respondent was Driver Grade-C when he was so  appointed  while  Sh.  Sood  was  appointed  to  the stationary post  from the post of Driver Grade-A. Therefore, for the reasons contained in judgment in CA No. 5582 of 1996 the order of the Tribunal has to be set aside.      We accordingly  allow this  appeal, set aside the order dated 27th  January, 1993,  of  the  Central  Administrative Tribunal, Lucknow  Bench with result that OA No. 322 of 1991 filed by  the respondent  stands dismissed. There will be no order as to costs.