Delhi High Court
Union Of India & Ors. vs Shri S.K. Roy on 11 February, 2011
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PEITTION (Civil) No. 121/2011
UNION OF INDIA & ORS. ....Petitioners
Through Kumar Rajesh Singh, Advocate.
VERSUS
SHRI S.K. ROY .....Respondent
Through Ms. Jasvinder Kaur, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 11.02.2011
SANJIV KHANNA, J.
Union of India assails the order dated 6th September, 2009
passed by the Central Administrative Tribunal in OA No. 785/2007 and
the order dated 8th August, 2010 dismissing the review application.
2. By order dated 6th September, 2009, OA NO. 785/2007 filed by
the respondent was allowed and the order dated 8th June, 2006 was
quashed with the following directions:-
"Respondents are directed to extend the
applicant fresh option regarding his two
promotions for fixation of pay and accordingly fix
the pay, which would entail removal of anomaly
and bringing him at par with his juniors and
colleagues. This would further entail revision of
his retiral dues and arrears, which shall be
determined and paid to applicant, within a period
of three months from the date of receipt of a
copy of this order. No costs."
3. The undisputed facts are that the respondent S.K. Roy had joined
as a clerk on 24th April, 1966 and was promoted as Guard (goods) on
20th January, 1989, Guard (Passenger) on 28th September, 1991, Senior
Guard (Passenger) on 25th October, 1994 and was promoted as Guard
(Mail/Express) on 21st December, 1995. The grievance of the
respondent was regarding fixing of his pay in the promotional grade
from the next low grade and that the same were fixed without taking
into account the increments, as a result of which the respondent was
being paid lower pay compared to his juniors and colleagues. The
respondent retired on 31st August, 2005 and requested the petitioner
for fixation of his pay at par with his juniors and collegues. This
requested was turned down by the order dated 8th June, 2006 passed
by the petitioner.
4. OA No. 785/2007 was earlier allowed by the Tribunal vide order
dated 21st February, 2008. This order was challenged before the High
Court and was set aside on the ground that it was a non-speaking and
non-reasoned order. Accordingly, the matter was remanded to the
Tribunal and parties were directed to appear before the Tribunal on
18th March, 2009 vide order dated 9th February, 2009.
5. The petitioner/the Union of India did not appear before the
Tribunal on 18th March, 2009 and subsequently when the original
application was taken up for hearing on 6th October, 2009. The
aforesaid order specifically records that the matter was passed over
twice but there was no appearance on behalf of the petitioner.
Accordingly, the petitioner was proceeded ex-parte, but the counter
affidavit filed by the petitioner was taken into consideration.
6. The petitioner thereafter filed a review application which has
been dismissed by the subsequent order dated 18th August, 2010.
7. Learned counsel for the petitioner has submitted that the
Tribunal has erred and has wrongly failed to take into consideration the
notification dated 16th October, 2003 with regard to fixation of pay
under Rule 1313 of the Indian Establishment Code, Volume-II which is
para materia and similar to Fundamental Rule 22(C). According to this
notification, the respondent was required to exercise his option within
one month from the date of promotion.
8. It was pointed out to the learned counsel for the petitioner that
the notification relied upon is dated 16th October, 2003, whereas the
respondent was last promoted as Guard (Mail/Express) on 21st
December, 1995 and, therefore, the said notification was not
applicable. Learned counsel for the petitioner could not meet and
answer the aforesaid contention regarding applicability of the
notification dated 16th October, 2003.
9. It may be noted that it is a contention of the respondent that he
did not receive any letter or communication stating that if the
respondent wanted to exercise option in fixation of pay in promotional
grade, he must exercise the option within one month. It is also
submitted that it is difficult to believe that respondent would have
accepted a lower pay without protest if he was aware of the facts and
circumstances. On the other hand, learned counsel for petitioner has
submitted that the promotions were made in way back in 1989, 1991,
1994 and the last promotion was made in 1995. It is submitted that the
respondent retired on 31st August, 2005 and till his retirement he did
not raise any objection or claimed that his pay was not correctly fixed in
accordance with Rule 1313 of Indian Railways Establishment Code
Volume II (IREC II). It is pointed out that the respondent had made a
representation after his retirement which was turned down by the
order dated 8th June, 2006.
10. Keeping in view the aforesaid factual position and balancing out
equities, it is directed that the pension of the respondent will be re-
fixed after proper fixation of pay and the anomaly pointed out by the
respondent will be corrected bringing him at par with his juniors and
colleagues. The respondent's retirement benefits will also be
calculated on the said basis. The same will be paid by the petitioner to
the respondent within a period of two months from today. However,
respondent will not be entitled to payment of arrears of salary till the
date of his retirement on 31st August, 2005. To the extent of
computation of retirement benefits and fixation of pension, we do not
find any reason to interfere with the order passed by the learned
Tribunal. The error or mistake has been directed to be corrected by
correct fixation of the respondent's pension and retirement benefits. It
will be unjust and unfair that the respondent is not paid pension and
retirement benefits on the basis of pay-scale which he was entitled to
and should have got in accordance with Rule 1313 of IREC-II.
11. The writ petition is disposed of with the aforesaid modification.
SANJIV KHANNA, J.
CHIEF JUSTICE
February 11, 2011
kkb
