PETITIONER:
HARKANT HIRALAL VOHRA (DEAD) BY L.RS.
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT: 08/09/1998
BENCH:
K. VENKATASWAMI, A.P. MISRA.
ACT
HEADNOTE
JUDGMENT
JUDGMENT
K. VENKATASWAMI, J. ----------------- The legal representatives of the deceased appellant are prosecuting this appeal. In this judgment, wherever the word ’appellant’ is used, it will mean the deceased appellant. The appellant was aggrieved by the Order dated 1.3.82 which denied the benefit of Railway Board’s Letter No. (ES)-61-CC-176 dated 9.8.6 under which he was to be granted four advance increments from 1.5.61. The appellant joined the then B.B. & C.I Railway Company as a Clerk in the grade of Rs. 55-130. After the taking over of the said Railway Company by the Central Government of January 1, 1942, the appellant was confirmed as a Clerk by the General Manager, Western Railway, on 12.3.43. After crossing the efficiency bar test in 1955, he was promoted and confirmed as a Senior Clerk in the Grade of Rs. 80-220. Subsequently, he was confirmed as Cleark Grade-I w.e.f. 1.4.56 in the payscale of Rs. 130-300. Some time in August, 1958, he was transferred from the Mechanical Department to the Accounts Department in the interest of Railway Administration. The Railway Board’s Letter dated 9.8.61, on the basis of which the appellant claimed four advance increments from 1.5.61, reads as follows (relevant portion only is extracted):-
"(1) In the case of Clerks Grade-II promotion as
Clerks Grade-I on or after 1.5.61 by virtue of
either passing App. II-A examination or having been
permanently exempted from passing App. II-A
examination their pay should be fixed at the stage
that would be arrived at by grant of four advance
increments for grade of Clerks Grade-I after normal
fixation, subject to a minimum of Rs. 150/-. A
statement showing the fixation of pay of Clerks
Grade-II on promotion as Clerks Grade-I with
reference to their pay as Clerks Grade-II at the
time of promotion is attached herewith for guidance.
(2) In the case of Clerks Grade-I promoted before
1.5.61, the pay of all such staff whether working in
a permanent or officiating capacity, should be
refixed on 1.5.61 as (1) above, with reference to
the pay to which they should be entitled as Clerk
Grade-II, but for their promotion as Clerks Grade-I
and they should be allowed either the pay so refixed
on 1.5.61 or their existing pay, whichever is more
beneficial to them." According to the appellant, he was entitled to get the benefit of the said four increments in the light of Clauses (1) and (2), extracted above, as he was promoted before 1.5.61, namely, on 1.4.56. In spite of representations, the relief was denied by an Order dated 1.3.82. Hence, he moved the Gujarat High Court, which transferred the matter to the Central Administrative Tribunal and the Tribunal in the order under appeal has dismissed the claim of the appellant for four advance increments w.e.f. 1.5.61. Aggrieved by that, the present appeal has been preferred by special leave. Learned counsel appearing for the appellant invited out attention to a number of documents to show that the appellant was entitled to the benefit of Railway Board’s Letter dated 9.8.61. One such document was paragraph 644 of the Indian Railway Establishment Manual. It is the further case of the learned counsel for the appellant that the Tribunal, by mentioning only Clause (a) of Paragraph 644, rejected the claim of the appellant without referring to Clause (b) of the same paragraph, which is relevant for his claim. He also invited our attention to the seniority list of the category of ’CGIS’, which, according to the learned counsel for the appellant, exempted the appellant from appearing in the Appendix-IIA examination. He also referred to two other documents dated 22.7.59 and 23.11.60 to further support his contention that the appellant was exempted from appearing in the Appendix IIA examination. In the light of the documents brought to the notice of this Court, learned counsel for the appellant submitted that the order of the Tribunal has to be set aside and the relief prayed for has to be granted. Learned counsel appearing for the respondent railways submitted that the document relied on by the learned counsel for the appellant will not help the appellant to get the increments, but will help him only to get promotion. Before discussing the matter further, we would like to point out that having regard to the fact that the appellant retired and died pending appeal, we had directed the learned counsel appearing for the respondent to find out from the Railway whether they can settle the matter out of Court. Learned counsel for the respondent, after taking several adjournments, informed us that the respondents were not willing to settle the matter out of Court. The learned counsel for the appellant was right when he contended that the Tribunal went wrong in deciding the issue against the appellant by noticing only Clause (a) of Paragraph 644 of the Manual without referring to Clause (b) of the same Paragraph. The relevant documents read as follows:- 1) The relevant portion of Paragraph 644 (a) and (b) of the Manual is given below:-
"644. Clerks Grade II on promotion to post of Clerks
Grade I in the Accounts Department:
(a) Clerks Grade II promoted as Clerks Grade I on or
after 1.5.61 by virtue of either passing Appendix
II-A Examination or having been permanently exempted
from passing that examination, will have the pay
fixed at stage that would be arrived at by grant of
four advance increments, in the grade of Clerks
Grade I after normal fixation, subject to a minimum
of Rs.150/- as indicated below.
(b) In the case of Clerks Grade I promoted before
1.5.61, the pay of all such staff, whether working
in a permanent or officiating capacity, should be
refixed on 1.5.61 as (a) above, with reference to
the pay to which they would be entitled as Clerks
Grade II, but for their promotion as Clerks Grade I
and they should be allowed either the pay so refixed
on 1.5.61 or their existing pay, whichever is more
beneficial to them:
2) Seniority List of Category of CGIS is given
below:-
Ref: FA & CAO(Adm) CCG’s No.ADM
IV/A2083/E-1030/10/0/Vol-III dated 24.11.69. 3) Copy of Item No. 359 of Minutes of the Meeting with G.M. Held on 21st and 22nd July, 1959, is given below:-
"359. Graded staff transferred from Mech. Deptt.
to Accounts Deptt.
G.P.O. explained that according to the accounts
memorandum of 18.9.1958 issued with the approval of
GMS. The staff who were willing to go on transfer
to the Accounts Deptt. were taken over permanently
by the Accounts treating their transfer as in the
interest of service thereby causing no loss in the
seniority. He also stated that the staff of the
Mech. Deptt. will get seniority in that grade in
the Accounts Deptt. without having to pass any
examination." 4) The document dated 23.11.60 was one relating to Sub-graduation List of Staff as on 1.9.60. This document gives the seniority list of Clerks Grade-I and there is one column saying that the appellant was exempted from appearing in the Appendix-IIA examination.
A careful persual of Paragraph 644 (b) of
the Manual and the other documents, extracted above,
namely seniority list of the category of CGIS
exempting the appellant from the departmental
examination, etc. will support from the
departmental examination, etc. will support the
case of the appellant. It is not in dispute that
had the Appellant been exempted from appearing in
Appendix IIA examination, he was entitled to get 4
advance increments as provided in the Railway
Board’s letter dated 9.8.1961. Railway Board’s
letter’s paragraphs 1 and 2 are in identical terms
with paragraph 644 (a) & (b) of Indian Railway
Establishment Manual. After perusing the documents
produced before us, we are unable to agree with the
learned counsel for the respondents that the
documents referred to and relied upon by the learned
counsel for the appellant, relate only to promotion
and not to grant of increments. A conjoint reading
of the above referred to documents will show that
the appellant was exempted from appearing in the
Appendix IIA examination not only for the purpose of
seniority but also for the purpose of getting four
advance increments under the Railway Board’s Letter
dated 9.8.61. In the result, the appeal succeeds and the respondents are directed to recalculate the salary of the deceased appellant after giving four increments from 1.5.61 and also the pensionary benefits. The additional amount now to be paid, as a result of re-calculation by the respondents, to the legal representatives of the deceased-appellant, will bear interest at the rate of 12% p.a. The appeal is accordingly allowed with costs, which we quantify at Rs. 5,000/-.