Hon'ble Mr. R. Satapathy, Administrative Member
The applicant has come before this Tribunal by filing the OA under Section 19 of the Administrative Tribunals Act, 1985 for quashing of the impugned order dated 22.10.2010 whereby his request for pensionary benefits based on the pay scale of Rs.7500-12000 has been rejected and consequently prayed for a direction to provide all pensionary benefits based on the said pay scale with effect from 27.10.2000.
2. The facts of the case are that the applicant joined the Southern Railway as Class IV staff with effect from 16.10.1964 and later he was promoted as Personal Assistant Gr.II. By an order dated 14.11.2000, the applicant was promoted as Private Secretary Gr.I.(Group 'B') with effect from 27.10.2000. Though the applicant was performing the duties of the Private Secretary with effect from the said date, a proposal has been initiated by the respondents to amend the rules for promotion to the post of Private Secretary by holding written tests, interview and oral assessment of records of service. Without amending the rules, the respondents have started giving effect to the said proposal. Aggrieved by the same, the applicant along with 12 others filed OA 438 of 2002 which was rejected by the Tribunal on 13.8.2002.
Pursuant to the said order of this Tribunal, he has been reverted back to his original position by an endorsement dated 6.9.2002. Against the order of this Tribunal, they have filed W.P.No.35849 of 2002 in which the Hon'ble High Court gave the following order:
“Under these circumstances, the order of the Tribunal dated 13.8.2002 and the proceedings of the Department dated 19.9.2001 and 5.4.2002 are quashed with a direction not to disturb the petitioners as they were promoted by order dated 27.10.2000 and 20.12.2000 and to regularize their services in the grade of Private Secretary in the scale of Rs.7500-12000 with effect from the date of promotion given to them. It is made clear that considering the peculiar circumstances and the absence of such Rules on the date of their promotion, we are inclined to issue above directions and the same cannot be cited as a precendent for others. The Writ Petition is allowed to the extent mentioned above.”
Pursuant to the judgment dated 29.11.2005 of the Hon'ble High Court, the applicant's pay scale was revised to Rs.7500-12000 from Rs.6500-10500 with retrospective effect from 27.10.2000. The applicant performed the duties of the Private Secretary from 27.10.2000 to till his retirement on 30.6.2004. It is stated that the respondents have initiated proceedings to the effect that the applicant is entitled to have pensionary benefits based on the pay scale of Rs.6500-10500. As such, the applicant has filed a W.P.No.15374 of 2009 before the High Court of Madras for a direction to issue writ of mandamus to the second respondent in the WP to consider his representation dated 15.4.2008 for refixation of pension and other benefits by virtue of the order passed in W.P.No.35849 of 2002 dated 29.11.2005. Based on the direction issued by the Hon'ble High Court in WP No.15374 of 2009, the representation of the applicant dated 15.4.2008 was disposed of by the impugned order dated 22.10.2010 rejecting the claim of the applicant. Hence this OA with the aforementioned relief.
3. On notice the respondents have entered appearance and filed a reply statement. It is stated by them that at that time when the applicant was promoted to the post of Personal Assistant in scale of pay Rs.7500-12000 with effect from 27.10.2000, it was only a Non-Gazetted post. Subsequently, by letter dated 30.1.2001,the Railway Board has changed the said post as Gazetted post(Group 'B') and formulated selection procedures which involves Written examination and viva voce. In the said letter, it was clearly mentioned that promotion to grade Rs.7500-12000 of Stenographers shall be ad hoc in nature till such time the Recruitment Rules are notified. It is further stated by them that he was never allowed to work in the Group 'B' post of Private Secretary and in the Service Certificate issued to him at the time of his superannuation, it was clearly mentioned that he was working in scale Rs.6500-10500 and holding the post of Private Secretary Gr.II. He has not challenged the said Service Certificate till date. It is also pointed out by them that a reference has been made to the Railway Board regarding revision of pension in favour of the applicant as claimed by him, but the same was turned down stating that in terms of Rule 49 and 50 of the Railway Services(Pension) Rules, 1993, the emoulments for the purpose of calculating various retirement and death benefits means the basic pay as defined in clause (i) of Ruled 1303 of the Indian Railway Establishment Code which a railway servant was receiving immediately before his retirement or on the date of his death and average emoulments shall be determined with reference to the emoulments drawn by a railway servant during the last then months of his service. As such, the applicant's pensionary benefits will be payable on the basis of the emoluments actually drawn by him during the last ten months of his service only and the decision was communicated to him by letter dated 20.11.2007. However, he has not challenged the same so far. According to them the action taken by them was in order and prayed for dismissal of the application.
4. We have heard the learned counsel on both sides and carefully gone through the pleadings and the materials furnished by the respective side.
5. It is an admitted fact that the applicant was promoted to the the upgraded post of PA in scale Rs.7500-12000 by order dated 15.9.2000(Annexure A-1). Thereafter, as a result of the Tribunal's order in O.A.438 of 2002, he was reverted to the post of PA but the reversion order was set aside by the Hon'ble High Court on 29.11.2005 in W.P.No.35849 of 2002. Pursuant to the direction given by the Hon'ble High Court, the respondents have taken action to promote the applicants therein to the post of Private Secretary Gr.I(Group 'B') by an order dated 4/5.4.2006 (Annexure A.3). The name of the applicant finds place at S.No.5. In the meantime, the applicant has retired on 30.6.2004. Therefore, the respondents have not extended the benefit of order dated 4/5.4.2006. It is true that the pay of the applicant was fixed on notional basis in the pay scale of Rs.7500-12000 and therefore, it may not be possible to draw any arrears to be paid to him. But we are unable to understand how the notional pay fixation cannot be taken into account for fixation of retiral benefits including fixation of pension. The scale of pay of Rs.7500-12000 has been recommended by the Fifth Pay Commission. While giving direction how to implement the pensionary benefits, the Government of India has issued an order in O.M. F.No.45/10/98-PandPW (A) dated 17.12.1998. In the said OM, it is specifically mentioned that with effect from 1.1.1996, pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced with effect from 1.1.1996 of the post last held bythe pensioner. Since the applicant's promotion to the post of PS Gr.I has been confirmed by the High Court and the respondents also have implemented the same by passing an order dated 4/5.4.2006, they cannot now deny him the benefit of 50% of pay fixed for the post of PS Gr.I. applicant. The applicant was retired on30.6.2004 and he was reverted to the post of PA because of the order of this Tribunal in OA 438 of 2002. However, the said order of this Tribunal has been set aside and the reversion of the applicant has also been set aside. Therefore, he continues to be in the post of Private Secretary Gr.I in the scale of 7500-12000 on the date of retirement and moreover by the order dated 18.4.2006(Annexure A.4), it is specifically mentioned that the services of the applicant has been regularized in the grade of PS Gr.I.(Group 'B') in scale of pay of Rs.7500-12000 with effect from the date of promotion as mentioned in Office Memorandum of even number dated 4./5.4.2006(Annexure A.3). In such view of the matter, we are of the opinion that the action of the respondents in not granting the pension in the scale of Rs.7500-12000 is flawed. Therefore, we have no hesitation in setting aside the impugned order dated 22.10.2010 in so far as it relates to the applicant. We are also of the opinion that the orders of the Government of India in OM dated 17.12.1998 cited supra also will be applicable to the applicant since he has been regularized in the post of PS Gr.I with effect from the date of his promotion i.e.27.10.2000.
6. Placing reliance on the above OM and also in the facts and circumstances of the case, we set aside the impugned order dated 22.10.2010 and direct the respondents to provide pensionary benefits to the applicant based on the pay scale of Rs.7500-12000 with effect from the date of his promotion i.e. 27.10.2000. However, we make it clear that there will no payment of arrears and the order will apply only for fixation of pay on notional basis and other retirement benefits. The respondents are further directed to pass orders in accordance with rules within a period of three months from the date of receipt of a copy of this order.
7. The OA is allowed as above without any order as to costs.