Judgment:
P. Lakshmana Reddy, VC)
This application is filed aggrieved of the alleged wrong fixation of his retiral benefits.
2. The relevant facts in brief are as follows:
The applicant was originally appointed as Yard Khalasi on 5.4.72 in the pay scale of Rs. 70 - 85 which was revised to Rs. 196 - 232 in III Pay Commission scales in Secunderabad Division of South Central Railway. The applicant was screened and posted as 2nd Fireman on 1.1.81 in the grade of Rs.210 - 270. Consequent upon the restructuring of Loco Running cadre, the applicant was allotted to a post of 2nd Fireman in the grade of Rs.260 - 350 w.e.f. 1.9.84. He further progressed as Diesel Assistant during the year 1987 and later promoted as Driver (Goods) in the scale of Rs.1350 - 2200. Later he was promoted to the post of Senior Goods Driver in the scale of Rs.5500 - 9000 with effect from 25.7.2000 and was later converted as Passenger Driver in the same scale on 21.6.2001. The applicant was further promoted as Driver (Mail/ Express) in the scale of Rs.6000 - 9800 on 29.6.2005 and retired in the same scale of pay on 30.4.2008. According to the applicant he has been in continuous employment since 5.4.72 and therefore, he is entitled for reckoning his qualifying service from 5.4.72 to 30.4.2008 for calculation of pensionary benefits, such as pension/ family pension and gratuity. As per rules, the applicant is entitled for maximum qualifying service of 33 years though he completed more than 36 years of service. But, however, the respondent administration calculated his pensionary benefits taking only 28 years 5 months and 9 days as his qualifying service. Immediately after retirement on 30.4.2008, the applicant submitted representation on 8.5.2008 to R-6 stating that he completed 36 years and 25 days of qualifying service and the said service is to be reckoned for the purpose of calculating the retirement benefits. He also solicited information under Right to Information Act in regard to service record which has been made available to the applicant on 30.6.2008. The 6th respondent did not give any reply to his representation. The applicant pleaded that from his service record, it is clear that he was appointed as a Yard Khalasi and he was granted temporary status and continued in service and he was granted first annual increment on 5.4.73 raising his pay from Rs.196 to 199. The entries in the service record show that the applicant was in continuous employment in Railways. In the provisional seniority list dated 31.3.88 issued by R-6, his date of appointment is shown as 5.4.72. According to the applicant, the railway administration, keeping every record about the correct date of appointment, erred in calculating his qualifying service and it has caused a huge financial loss to the applicant. The applicant further pleaded in his application that the respondents themselves had come on record stating that on verification of service register entries, there were 215 days' leave without pay period throughout the service of the applicant which does not qualify as service for pensionary benefits. Even if that period is reduced, the applicant had put in 35 years 5 months 20 days of qualifying service which is to be limited to 33 years of service and not 28 years and odd, as per rules in force. He further pleaded that the leave without pay periods are extracted from the leave account of the applicant. The leave account for the period from 5.4.72 to 31.12.78 is said to be missing and a proposal is said to have been initiated by R-6 for accountal of leave for the missing period on proportionate basis. According to the applicant, to determine the qualifying service, the date of appointment and the date of retirement is crucial while the entries in service record in regard to continuous employment of the Railway servant in conjunction with the leave without pay period recorded in leave account has to be taken into consideration and on perusal of the copy of the leave account of the applicant provided by R-6, it is clear that the respondents have continued the leave account with the available balance as leave on average pay is `nil' and the leave of half average pay as 133 days as on January 1979 and this fact is sufficient to establish the fact that the applicant was in continuous employment in Railways from 5.4.72 to January 1979. The applicant pleaded that if he was not in continuous service from 5.4.72 to January 1979, he would not have earned leave on half average pay to the extent of 133 days reduced by sick leave if any availed by the applicant.
3. The applicant further pleaded that having realized the mistake of not making proper entries in the service record of the applicant in respect of his increments for the years 1974, 1975, 1976, 1977 and 1978, the respondents made revised entries in the service record duly affording annual increments fixing the applicant's pay at Rs.215/- with effect from 1.12.1978 in the scale of Rs.196 - 232. But, however, R-5 while certifying the qualifying service has not accepted the revised entries made by R-6 assigning certain reasons which have not been made known to the applicant. The action of the respondents in considering the available leave account together with proportionate leave for the missing period and rejecting the revised entries made in the service record is illegal and arbitrary. The further case of the applicant is that as there was no system of issuing pay slips during the material period, he is not having any evidence and that the respondents who are the custodian of the service records are bound to accept the entries made therein. The action of the respondents in not considering the representation submitted by him is arbitrary and in violation of Articles 14, 16 and 21 of the Constitution.
4. The respondents 1 to 6 contested the application and filed common reply with an affidavit of 6th respondent, viz. Senior Divisional Personnel Officer, Secunderabad. In the said reply, the respondents submitted that the applicant was initially appointed as Yard Khalasi on 5.4.72 and was subsequently promoted as Grade-II Fireman in the scale of Rs.210 - 270 on 1.1.81 and earned several other further promotions and ultimately retired as Driver (Mail/ Express) on 30.4.2008 in the pay scale of Rs.6000 - 8000. But, they denied that the applicant was regular in his duties with effect from 5.4.72 and his qualifying service is to be reckoned from 5.4.72. The respondents pleaded that on completion of one year's service, the applicant's pay was raised from Rs.196 to 199 with effect from 5.4.73 and the next increment was given enhancing his pay from 199 to 202 in the same pay scale only with effect from 19.12.79 and thus there is no entry in the service register of the applicant for having earned annual increment from 1974 to 1978 and hence the said period is not treated as qualifying service. The leave records of the applicant are not available for the period from 5.4.72 to 31.12.78 and hence it is not reckoned for pensionary benefits. The respondents further pleaded that the mere availability of 133 days' half pay leave as on 1.1.79 will not support his contention that he was regularly working during the period from 1974 to 1978. The respondents admitted that the revised entries sanctioning the annual increments for the period from 1974 to 1978 were made in the service register of the applicant. But they pleaded that the said revised entries were not agreed to by the Associate Accounts, with an observation that increments were not drawn deliberately either due to punishment or LWP/ AWP but not due to oversight as advised in their letter dated 23.4.2008. The fact that the leave records for the period from 5.4.72 to 31.12.79 are missing, gives rise to a doubt with regard to eligibility for drawal of increments and as such the proposal for drawing increments for the period from 1974 to 1078 has been turned down by the Senior Divisional Finance Manager (R-5). Regarding the applicant's earning of promotion as Fireman-II, the respondents pleaded that there was no stipulation of minimum of three years' service for promotion within Group `D' categories. It is further pleaded by the respondents that the applicant remained unauthorisedly absent for the period of 163 days in succession during the period from 1.1.1979 to 29.2.2008 for which leave records are available. The respondents asserted that the total qualifying service of the applicant was rightly reckoned and certified as 28 years 5 months and 9 days and there is no illegality and therefore, the application is liable to be dismissed.
5. The applicant filed rejoinder reiterating the contentions that since the date of his appointment from 1972, he continuously worked till the date of his retirement in 2008 and he served for 36 years and that even if the period of 163 days of leave without pay is excluded, he is entitled for maximum qualifying service of 33 years and hence he is entitled for full pensionary benefits. He pleaded that the respondents in unequivocal terms admitted that the applicant was initially appointed as Yard Khalasi from 5.4.72 and subsequently promoted as Grade-II Fireman on 1.1.81 and in his career progression he was finally promoted as Driver (Mail/ Express) on 29.6.2005 from which post the applicant retired from service on 30.4.2008 and having admitted the same, the respondents are precluded from taking a contrary stand. No assumptions/ presumptions can be drawn to the disadvantage of the applicant and non-drawal of increments cannot be cited as a reason to mention that the applicant did not work continuously. The respondents themselves are not sure of the reason for non-drawal of the increments in favour of the applicant. Had the applicant remained absent from April 1974 to December 1979, nothing prevented the administration from initiating action against the applicant. The very fact that no action was initiated against the applicant confirms that the applicant worked continuously. The contentions of the respondents that the absence of entries in the service record for the period from 5.4.74 to 18.12.79 indicates that the applicant would have either remained absent or did not work is bereft of truth, logic and reason. Non drawing of increments or drawing increments but not recording the same was not in the hands of the applicant as the service register is maintained by the office of the respondents. The administration is solely responsible for discrepancies in the service register. The applicant was neither removed/ dismissed/ kept under suspension during the period from April 1974 to December 1979 and it is sufficient to establish the fact that he was in continuous employment and therefore, the respondents have no option but to reckon the said period as qualifying service for all purposes. Non-making of entries in the service register from 1974 to 1979 does not disentitle the applicant from reckoning that period as qualifying service when the respondents failed to bring in any evidence to prove that the applicant had not worked during that period. The very fact of restructuring the leave account from 5.4.72 to 31.12.78 lends credence to the fact that the applicant was in continuous employment. If the applicant was not in continuous service, he would not have been promoted to the post of Fireman `C' in the year 1981. The applicant further pleaded that the availability of half pay leave to the applicant's credit is a fact in support of the applicant. The respondents erred in ignoring that circumstance. The applicant further asserted in the rejoinder that the revised entries sanctioning annual increments for the period 1974 to 1978 have rightly been made in the service register. The rejection of the proposal by the office of R-5, based on assumptions/ presumptions is not correct. Doubts cannot be substituted for evidence. If at all there is any doubt, the benefit of that doubt shall be given to the applicant and not to the department. Thus, the applicant reiterated the contentions raised in the application.
6. The points that arise for consideration in this application are:
(i) Whether the respondents are entitled to exclude the period from 5.4.74 to 18.12.78 for the purpose of reckoning the qualifying service of the applicant?
(ii) Whether the retirement benefits fixed by the respondents are required to be revised?
(iii) To what result?
7. Point No. (i):
It is not disputed that the applicant was appointed to Railway Service on 5.4.72 and he was given the first increment on 5.4.73 and that later he earned several promotions and retired on 30.4.2008. It is not the case of the respondents that there was any break in service. Therefore, the total period between 5.4.72 to 30.4.2008 comes to more than 36 years. According to the respondents, the applicant was on leave without pay for a period of 163 days during the period 1.1.1979 to 29.2.2008 and therefore the said 163 days are to be excluded for the purpose of reckoning the qualifying service as per rules. If it is excluded, the remaining period comes to 35 years and odd. But according to the respondents, as the applicant did not earn increments due on 5.4.74, 5.4.75, 5.4.76, 5.4.77 and 5.4.78, and the next increment was given only from 1.12.79 as per the original entries in the service register, it is presumed that the applicant did not work during the period from 5.4.73 to 18.12.78. But, admittedly, no action has been taken for his alleged absence during that period. As seen from the service register entries, no punishments have been recorded during that period. In the service register, the date of first appointment is shown as 5.4.72 and the date of retirement is shown as 30.4.2008. Therefore, the burden is on the respondents to prove that the applicant did not attend for duty during the period between 5.4.74 to 18.12.78. Admittedly, the department under whom the applicant was working corrected the entries in the service register and made the entries relating to annual increments, increasing his pay from 199 to 202 with effect from 1.10.74, to Rs.205 with effect from 1.10.75, to Rs.208 with effect from 1.10.76, to Rs.211 with effect from 1.12.77 and to Rs.214 with effect from 1.12.78. Admittedly, the service register is maintained by the department and the applicant did not have any access to service register. When the department itself revised the entries in service register of the applicant, it is not for the Accounts Department to suspect the revised entries without any basis. It is also not the case of the respondents that the service register entries were revised mischievously with the connivance of the departmental officers concerned in whose custody the service register was kept. There is no material to show that whether any departmental action is taken against any of the officers responsible for revising the entries in the service register of the applicant. The revised entries have been duly certified by the controlling officers. Under those circumstances, it is not open for the Divisional Finance Manager, R-5 to unilaterally reject the revised entries made in the service register. Merely because, originally the increments of Rs.3/- per annum were not sanctioned and made entries in the service register of the applicant for the period from 5.4.73 to 19.12.79, it cannot be presumed that the applicant was absent during that period and he did not render service to the Railways, in the absence of positive evidence to the effect that the applicant remained absent during that period. It might be that the concerned clerk misplaced the service register for certain period or negligent in promptly granting increments to the applicant. If really, the applicant was not on duty during that period, the department would not have failed to take action against the applicant for his absence for a continuous period of more than five years. Above all, as seen from the leave account available, 133 days of half pay leave was brought forward on 4.1.79. If really the applicant was not in service from 1.4.73 to 18.12.79, there was no scope for the applicant to earn 133 days of half pay leave. Of course, according to the respondents, the leave account of the applicant for the period from 5.4.74 to 4.1.79 is missing. It is not disputed that the respondents have restructured the leave account of the applicant from 5.4.72 to 31.12.78 on pro rata basis as per rules. If really the applicant was not in service during that period, there was no need for the department to restructure the leave account of the applicant. In view of these circumstances, from the fact of mere non-drawal of increments for the period from 5.4.74 to 18.12.79, it cannot be presumed that the applicant was on leave without pay and then deny the reckoning of that period for the purpose of calculation of qualifying service. Further, the applicant was given promotion on 1.1.1981. If the applicant remained absent after working for one year, for a period of about six years and rejoined on 18.12.78, he would not have been given promotion on 1.1.1981. Above all, it is not disputed that R-6 under whom the applicant was working sent proposals for sanctioning annual increments for the period 1974 to 1978. Without making proper enquiries, R-6 would not have made such proposals. There was no basis for R-5 to reject such proposal. Hence, in our considered view, the respondents are not entitled to exclude the period from 5.4.74 to 18.12.78 while calculating the qualifying service of the applicant. Thus, this point is found in favour of the applicant.
8. Point No. (ii):
It is not disputed that if the period between 5.4.74 to 18.12.78 is not excluded, the qualifying service of the applicant is more than 33 years of service even after exclusion of 163 days' leave without pay. Therefore, the applicant is entitled for full pension and all other retirement benefits on the basis of 33 years' qualifying service. Hence, all the retirement benefits of the applicant are required to be revised. Thus, this point is also found in favour of the applicant.
9. Point No. (iii):
In the result, the application is allowed directing the respondents to reckon 33 years of qualifying service for the purpose of calculation of retirement benefits of the applicant and revise the orders relating to retirement benefits accordingly. The said exercise shall be completed within three months from the date of receipt of this order. There shall be no order as to costs.