Dr. Sobha Jasmine S Vs. Union of India Represented by Secretary to Government of India, New Delhi and Others - Court Judgment

Excerpt:

Judgment:

HON'BLE DrK.B.S.RAJAN, JUDICIAL MEMBER

1. The applicant was initially appointed as Assistant Divisional Medical Officer in the Indian Railway Medical Service w.e.f. 27-08-1991. She was granted the Group A Junior Time scale of Rs 2400 -4000/8000 -13500. Later on after completion of 4 years from the date of initial appointment, the applicant was granted the senior time scale of Rs 10000 - 15200 w.e.f. 27-08-1995. On completion of 6 years in the above grade, i.e. w.e.f. 27-08-2001 according to the applicant, she was due to be considered for grant of JAG in the scale of Rs 12000 -16500/-. The applicant having been selected for the Post Graduate Course in M.S. (General Surgery) in the Kerala University, she had applied for 3 years study leave which was sanction in terms of letter dated 07-02-2000 vide Annexure A-1. Subsequently for the period from 12-06-2000 and 11-06-2002, the applicant was granted study leave in terms of memorandum dated 31-07-2000 vide Annexure, A-2.

2. As the applicant completed 13 years of service from the date of her initial appointment which makes her entitled to for grant of selection grade vide Annexure A-8 and A-9. Respondents have informed the applicant that a JAG officer would be placed in selection grade only on completion of 4 years service in the grade. It was also informed that the residency period is relaxable by one year in the case of officers who have been promoted to JAG on completion of more than 10 years and that the applicant would be considered for placement in the selection grade on being found suitable with effect from the date on which the applicant completes the requisite length of service. Thus, on completion of 3 years from 12-02-2003, the applicant was granted the benefit of selection grade w.e.f. 12-02-2006 vide Annexure A-11. The applicant did send a representation to the Railway Board but the same was stated to have not been received.

3. According to the applicant, in the normal course, she ought to have been granted the benefit of JA grade w.e.f. 27-08-2001 and the selection grade w.e.f. 27.08.2004 i.e. On completion of 13 years of service from the date of initial appointment. In fact, a number of juniors to the applicant had been granted the benefit of selection grade on various dates prior to 01-01-2006 which in fact resulted the pay difference between that of the applicant and her juniors to range from 11,000 to 12000 per month. Thus, the applicant has claimed her JAG and selection grade and w.e.f. 27-08-2001 and 27-08-2004 respectively and the consequential benefits thereof. Respondents have contested the OA. According to them, no financial upgradation could be granted when an individual is on extraordinary leave for pursuing higher studies. They have also raised the question of limitation and in this regard, they have referred to the following decisions of the Apex Court/other courts:-

(a) Ramesh Chandra Sharma vs Udham Singh Kamal, [(2000) SCC (LandS) 53],

(b) Union of India vs Harnam Singh [1993 SCC (LandS) 375]) UOI and Anr vs C.A.T. Chandigarh and another [2003 (2) ATJ 509 HC of Punjab and Haryana]

(d) Bhoop Singh vs Union of India [1992) 21 ATC 675]

(e) S.S. Rathore vs State of M.P. [AIR1990 SC 10]

4. Counsel for the applicant argued that admittedly, the applicant was on study leave when she became due for consideration for financial upgradation under the Non Functional Selection Grade. Law is clear that Study leave is treated as duty for various purposes. In this regard, Rule 556 of the Indian Railway Establishment code Vol I reads as under:-

"556. Study Leave: Study leave may be granted in accordance with the rules prescribed in Appendix V to railway servants to enable them to study scientific, technical or similar problems or to undergo special courses of instruction. Such leave is not debited against the leave account. Counting of study leave for promotion, pension, seniority, leave and increments.?(1) Study leave shall count as service for promotion, pension and seniority. It shall also count as service for increments as provided in rules. Again, in the case of ACP, the same is applicable during study leave."

Relevant clarification has been given by the Government in this regard and the same reads as under:-

Counsel for the applicant also referred to the provisions at para 4 of RBE No. 91 of 2002 at Annexure A-6, which reads as under:-

"4. residency period of 4 years in JA grade is relaxable to 3 years in the case of those who have been promoted to JA grade after 10 years of regular service under the old scheme. Such IRMS officers will be promoted to the Non Functional Selection Grade after completion of a total of 13 years of regular service in Group 'A'. For others residency period mentioned in para 2 as per new scheme will be strictly followed."

Counsel for the respondents emphasized the aspect of limitation and invited our attention to the decisions of the Apex Court as referred to in the counter. As regards the merits of the matter, he had invited our attention to para 4(xi) wherein it has been contended that whenever the Railway Medical Officers become due for promotion under Dynamic Assured Career Progression Scheme on completion of service when they still on sanctioned Extraordinary Leave for pursuing higher studies, the benefit of promotion should be allowed to them only on their return to duty after Extraordinary Leave and on their assuming charge of the higher grade post and no proforma promotions are to be allowed to them with effect from the date on which they complete the stipulated service because the promotion upto Senior Administrative Grade are time bound and not based on availability of vacancies. Thus, having got her Junior Administrative Grade and later Selection Grade promotion as per rules, the applicant has no legitimate grievances.

5. Arguments were heard and documents perused. First as to the point of limitation raised by the Respondents in their Counter. Though many a citation has been made in the counter, in fact in the facts and circumstances of the case, the decision by the Apex Court in the case of M.R. Gupta vs Union of India (1995) 5 SCC 628 and subsequent decisions following the same would apply in this case. M.R. Gupta decided that where the challenge is as to the fixation of pay, the cause of action is recurring as every month the individual is getting reduced pay, the same would give a cause of action. The apex Court in the case of Union of India vs Tarsem Singh (2008) 8 SCC 648, referring to M.R. Gupta's case, held as under:-

5. In M.R. Gupta v. Union of India (1995) 5 SCC 628 the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1-8-1978. The claim was rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the decision. This Court held:

"5. ... The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time-barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion, etc., would also be subject to the defence of laches, etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time-barred...."

6. In so far as arrears are concerned, reference could be made to the decision of the Apex Court in the case of State of Madhya Pradesh vs Yogendra Shrivastava [(2010) 12 SCC 538] would apply, wherein, the Apex Court has held as under:-

Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. (See M.R. Gupta v. Union of India and Union of India v. Tarsem Singh.)

7. Thus, in so far as limitation is concerned, the contention made by the respondents is rejected as the applicant has a continuous cause of action. Of course, in so far as his entitlement is concerned, the same is on the basis of the merit of the matter and the same is discussed in the succeeding paragraphs.

8. The admitted fact is that at the material point of time the applicant was on study leave. and, as per the rules extracted above, study leave does not disqualify the applicant from being considered for financial upgradation. When study leave is granted, the individual is entitled to his pay and allowances and further, such a study leave shall not be debited to any leave account. This is as per CCS(Leave) Rules and in all expectation, the same would be followed by the Railways as well. Thus, during study leave one is deemed to be on duty. Further, ACP is comparable to DACP and when for ACP, clarification has been given as extracted above, the same is applicable to DACP as well. If a person is on study leave his tenure during study leave is treated at par with deputation. In that event, DACP shall be admissible but on notional basis and is available actually on his repatriation. Likewise, when a person is on study leave, the NFSG shall be granted on his fulfilling the requisite conditions and the same shall be, as in the case of deputation, on notional basis, actual being on his return from study leave.

9. In view of the above, the OA is allowed. Respondent shall consider the grant of the benefit of JAG in the scale of Rs 12000 - 16500 and that of selection grade in the scale of Rs 14,300 - 18300 w.e.f. Respectively 27-08-2001 and 27.08.2004 (subject to verification from the records) and afford the same as per rules, on notional basis till the applicant was on study leave and actually from the date he had returned from study leave. Arrears arising out of the difference in pay drawn by the applicant and due to him on his return from study leave shall also be paid to him restricting the same to three years prior to the date of filing of the O.A. i.e. w.e.f.01-09-2007 (as the OA has been filed during September, 2010 only). We order accordingly. Let this order be complied with, within a period of three months from the date of communication of this order.

10. No cost.