WP(C)/5397/2021
2021 Latest Caselaw 2988 Gua

GAHC010129872021




                 THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
                          PRADESH)

                      Case No. : WP(C)/5397/2021
RUPAK KUMAR

S/O SHRI PANDEY BALESHWAR PRASAD, R/A RAILWAY QUARTER NO.
P/212-B, OFFICERS COLONY, LUMDING, DIST-HOJAI, ASSAM, PIN-782447

-VERSUS-

UNION OF INDIA AND 3 ORS
REPRESENTED BY CHAIRMAN, RAILWAY BOARD,
MINISTRY OF RAILWAY, RAIL BHAWAN, NEW DELHI-110001

2:THE SECRETARY
RAILWAY BOARD
MINISTRY OF RAILWAY
RAIL BHAWAN
NEW DELHI-110001

3:THE DIRECTOR FINANCE (ESTABLISHMENT)
RAILWAY BOARD
MINISTRY OF RAILWAY
RAIL BHAWAN
NEW DELHI-110001

4:THE GENERAL MANAGER
NORTHEAST FRONTIER RAILWAY
MALIGAON
GUWAHATI
ASSAM-78101

Advocate for the Petitioner : PETITIONER IN PERSON

Advocate for the Respondent : SC, RAILWAY

-BEFORE-

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE DEVASHIS BARUAH 22-11-2021

Heard Mr. Rupak Kumar, petitioner in person. Also heard Mr. B Sharma, learned Standing Counsel, Railway, appearing for the respondents.

2. The petitioner has filed this writ petition challenging the order of the Central Administrative Tribunal, Guwahati Bench dated 15.02.2021 by which the original application of the petitioner being OA No.040/00045/2021 was rejected. The case of the petitioner before the Tribunal was that he was appointed as Law Assistant in the Indian Railway vide appointment order dated 30.11.2005. The recruitment to the post of Law Assistant was undertaken by the Railways by advertisement published in March/April of 2004 against which the petitioner applied on 26.04.2004. Much prior to the said date, the Railway Board by its letter No.F(E)III/2003/PNI/24 dated 01.12.2003 had implemented the "New Pension Scheme" in respect of further recruitment in Railways. The petitioner, meanwhile, was selected and appointment order was given to him on 30.11.2005 wherein it was specifically stated at condition No.7 that he would be guided by the New Pension Scheme. Condition No.7 of the appointment order reads as under:

"7. You will be guided by New pension Scheme in terms of Railway Board's Letter No. F(E)III/2003/PNI/24 dated 01.12.2003"

Thereafter the petitioner continued to work as Law Assistant and presently he is working in the Lumding Division as Law Officer. After a period of sixteen years of his appointment, the petitioner moved a representation before the Secretary, Railway Board, Ministry of Railway, Rail Bhavan, New Delhi-110001 on 04.08.2020. His case was that he is liable to be governed under the Old Pension Scheme and not under the New Pension Scheme. He relied upon a provision contained in paragraph 131 of the Indian Railway Establishment Manual Volume-I, which reads as under:

"131. The vacancies in the category of Law Assistants in scale Rs.6,500-10,500 will be filled as under:-

331/3% by direct recruitment from open market; and 662/3% of vacancies by promotion by selection from amongst serving employees, Qualification etc. for direct recruitment are as under:- Educational: A University Degree in Law with 3 years standing as a pleader at Bar. Serving employees who are Law Graduates may also be allowed to apply for these posts provided they have served for at least 5 years in any Branch of the Railway Administration. Vacancies earmarked for direct recruitment should also be available to the Railway Magistrates who are desirous of applying for such posts and who also fulfil the prescribed qualifications for the direct recruits.

Age- Up to 37 years.

[Authority: E(NG)II/81/RC-1/153 dated 24.02.1982 and E(NG)II/94/RR-1/29 dated 10.05.1999 (RBE 99/94)]

Qualifications for Promotees:- The remaining quota of 662/3% of posts should be filled by promotion, on the basis of selection, of serving employees in grades lower than the grade of Rs.6,500- 10,500, having 5 years regular service in Group 'C' and possessing a Degree in Law, irrespective of the Department in which the eligible employee may be working. The shortfall against promotion quota, if any, will be filled by direct recruitment.

[Authority: Railway Board's letter No.E(NG)I/98/PM20/1 dated 16.10.2000 (RBE 180/2000)]

The benefit of added years of service under Rule 45 of Railway Services (Pension) Rules, 1993 will be admissible to those recruited directly as Law Assistants (Rs.6,500-10,500) subject to fulfilment of the conditions stipulated therein.

Channel of Promotion/Higher grades:- The next higher grade post available for Law Assistant is that of Chief Law Assistant in scale Rs.7,450-11,500, which will be filled by promotion as per procedure in vogue from time to time.

[Authority: Railway Board's letter No.E(NG)II/99/RR-I/43 dated 10.11.2000]"

(Emphasis provided)

3. The case of the petitioner before the Railway authorities was that recruitment to the post of Law Assistant is made through two processes: 1/3rd of the posts are to be made from direct recruitment from open market from the Lawyers who have 3 years standing as a pleader at Bar and 2/3rd of the posts are to be made by way of promotion from serving employees who have the requisite qualifications for Law Assistant such as law degree etc. His case was on the aforementioned wording of the said provision "the benefit of added years of service under Rule 45 of Railway Services (Pension) Rules, 1993 will be admissible to those recruited directly as Law Assistants (Rs.6,500-10,500) subject to fulfilment of the conditions stipulated therein."

4. However, the representation of the petitioner was rejected by the authority on 29.12.2020.

5. Aggrieved, the petitioner moved the original application before the Tribunal which was also rejected vide the impugned order dated 15.02.2021 and now, he has filed this writ petition challenging the order of the Tribunal dated 15.02.2021. The petitioner has raised three points before this Court. The first is that though admittedly he was recruited in the Railway after the New Pension Scheme had come into force but nevertheless he falls under "a special category" where recruitment was made from amongst lawyers who have three years standing at the Bar and in view of the provision contained at paragraph 1311, referred above, the years of service he had put in as a lawyer, which is seven years, in his case, should be added to his service. The petitioner would argue that although the provision of New Pension Scheme would apply to the employees recruited after the New Pension Scheme had come into force, but that is a general provision and since he has a special case, the special provision contained at paragraph 131 mentioned above would override the general provision. Rule 45 of Railway Services (Pension) Rules, 1993 continued to remain effective till 2013 when it was omitted from the Service Rules. In other words, when the petitioner was recruited in the year 2005, both the aforesaid Rule 45 of Railway Services (Pension) Rules, 1993 as well as paragraph 131 of the Indian Railway Establishment Manual Volume-I were in force.

6. We fail to understand as to how this logic would entitle the petitioner to get pension under the Old Pension Scheme. The settled position of law is that pension is given to an employee under a scheme or a statute. The admitted position is that when the petitioner was recruited in the Indian Railway, he was entitled to get pension under the New Pension Scheme. Even if it assumed for the sake of argument that the aforesaid provision, on which such a heavy reliance has been placed by the petitioner, was applicable, it was definitely not applicable in the case of the petitioner. That benefit, if any, would be given to such persons who were already getting the benefit of Old Pension Scheme and now by reading of the aforesaid provision (the benefit of added years of service

The benefit of added years of service under Rule 45 of Railway Services (Pension) Rules,

1993 will be admissible to those recruited directly as Law Assistants (Rs.6,500-10,500) subject to fulfilment of the conditions stipulated therein. under Rule 45 of Railway Services (Pension) Rules, 1993 will be admissible to those recruited directly as Law Assistants (Rs.6,500-10,500) subject to fulfilment of the conditions stipulated therein) they may be getting a higher pension or in case they run short of qualifying period of service that period of service will be added in order to give them the benefit of pension. But such is not the case of the petitioner. The petitioner was never covered under the Old Pension Scheme and therefore, the reliance placed upon the aforesaid provision is totally misconceived.

7. The second point raised by the petitioner is that such employees of the Indian Railways who were recruited in the Railways after the New Pension Scheme had come into force, but prior to their recruitment they were earlier working as government employee in pensionable service, the benefit of Old Pension Scheme will continue in their case and therefore, this is again violative of Article 14 of the Constitution of India, inasmuch as, the same benefit has not been given to the petitioner. This argument is again misconceived inasmuch as, the petitioner cannot be put in the same footing as a government employee. This benefit of which the petitioner has made reference is being given to a person who has been transferred or being recruited from one government service to another where there is a continuity of service and in recognition of the fact that such an employee was earlier working on a pensionable service, he continued to get the same benefits. This is again not the case with the petitioner as prior to his joining service in the Indian Railways, he was not in any government service.

8. The third point raised by the petitioner is that his period of service in the Bar before his recruitment to the post of Law Assistant in the Indian Railway be considered for calculating pension. In this regard, he has placed reliance in the case of P. Ramakrishnam Raju v. Union of India, (2014) 12 SCC 1 where while calculating the pension of such High Court Judges who have been elevated from the Bar, the period of service in the Bar was also considered for fixation of pension and therefore, the petitioner submits that he may also be given the same benefit. However, this is again not applicable in the case of the petitioner inasmuch as, the said judgment of the Hon'ble Apex Court was specific to the office of the Constitutional authority, i.e. of a High Court Judge. In paragraph 19 of the said judgment, the Apex Court has specifically held as under:

"19. When persons who occupied the constitutional office of Judge, High Court retire, there should not be any discrimination with regard to the fixation of their pension. Irrespective of the source from where the Judges are drawn, they must be paid the same pension just as they have been paid same salaries and allowances and perks as serving Judges. Only practising advocates who have attained eminence are invited to accept Judgeship of the High Court. Because of the status of the office of High Court Judge, the responsibilities and duties attached to the office, hardly any advocate of distinction declines the offer. Though it may be a great financial sacrifice to a successful lawyer to accept Judgeship, it is the desire to serve the society and the high prestige attached to the office and the respect the office commands that propel a successful lawyer to accept Judgeship. The experience and knowledge gained by a successful lawyer at the Bar can never be considered to be less important from any point of view vis-à-vis the experience gained by a judicial officer. If the service of a judicial officer is counted for fixation of pension, there is no valid reason as to why the experience at Bar cannot be treated as equivalent for the same purpose."

In view of the above, the third point raised by the petitioner is also to our mind misconceived.

9. The writ petition has no merit and it fails. Accordingly, this writ petition is dismissed.

            JUDGE                             CHIEF JUSTICE



Comparing Assistant