K.K. Ajayakumar Vs. Union of India Represented by General Manager, Southern Railway, Chennai and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/940364
CourtCentral Administrative Tribunal CAT Ernakulam
Decided OnJan-12-2010
Case NumberO.A. No.321 of 2009
JudgeHONOURABLE DR. K.B.S. RAJAN, JUDICIAL MEMBER & HONOURABLE MS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
AppellantK.K. Ajayakumar
RespondentUnion of India Represented by General Manager, Southern Railway, Chennai and Another
Advocates:For the Applicant: Mr. M.P. Varkey, Advocate. For the Respondents: Mr. K.M. Anthru, Advocate.
Excerpt:
hon'ble dr.k.b.s.rajan,judicial member facts capsule: the applicant, initially belonging to palghat division,was, on request transfer, brought to trivandrum division on 19-08-1999 and was absorbed in the lower scale of rs.4500 - 7000 with due pay protection (rs.5,750) drawn at the time of his move to trivandrum division. the interdivisional transfer inter-alia stipulated that his increment at trivandrum division would fall due only on completion of 12 months of service at that division. in other words, the period from the date of previous increment in the palghat division till the date of joining at trivandrum division was to lapse for the purpose of grant of increment. last para of annexure a-1 memorandum dated 2nd december, 1999 refers. believing the same as the rule position stipulated, the applicant was satisfied about the same. 2. the applicant was afforded the first acp at the trivandrum division w.e.f. 23-08-2000 in the scale of pay of rs.5000 - 8000 and his pay was fixed based on the condition that the pay shall not exceed the pay that the applicant would have drawn in the higher grade in his parent unit. thus, the benefit of acp was only rs.25/-vide annexure a-2 order dated 10-10-1999, and the applicant, again, believing that the fixation is as per rules, kept quiet. 3. it was, however, as late as in 2007 that the applicant could on verification, come to know that the above stipulation as to reckoning of 12 months period for increment at the transferred division as well fixation of pay with the condition that the same would not exceed the pay that would have been drawn in the parent division was arbitrary and illegal and hence, he penned a representation vide annexure a-4 dated 30th october, 2007. as there has been no response, the applicant has moved this o.a. seeking the following reliefs: (a) quashing and setting aside of the conditions relating to completion of 12 months in the trivandrum division for increment purposes as contained in annexure a-1 and restricting the pay fixation with an increase of only rs.25/- vide annexure a-2; (b) for a direction to the respondents to reckon the period of service after the last increment drawn at palghat division for working out the period of 12 months for increment purpose and fixation of pay on grant of acp in accordance with condition no. 6 contained in annexure a-2. i.e. under rule 1313(1) (a)(1) r.ii {fr 22(1)(a)} subject to minimum financial benefit of rs.100/-and for a direction to pay the consequential arrears of pay. 4. respondents have raised the preliminary objection of limitation as the orders impugned date back to 1999 while the application has been filed only in 2009. as regards merits of the case, the respondents contended that the applicant had failed to exercise his option at the time of passing of order at annexure a-2 and he has to blame himself for the same. as regards annexure a-4 representation, they have denied receipt of such communication and asserted that the same is in fact a fabricated document, since, the said letter dated 30th october, 2007 refers to the recommendations of the vi pay commission, which came into existence only in 2008. 5. in the rejoinder, the applicant submitted that limitation reckons from the date of expiry of one year of the date of representation. other averments in the counter have all been denied. reference was made to the order of this tribunal dated 19-02-2009 in o.a. no. 492/2007 and also order dated 03-08-2009 in o.a. no. 579/2008. 6. counsel for the applicant made available a copy of the order dated 03-08-2009 in o.a. no. 579/2008 and stated that the preliminary objection in that case also related to limitation and the same has been answered stating that fixation of pay is a recurring cause of action and that limitation would apply only with reference to the claim for arrears. the same ratio applies to this case as well. as regards the merits of the matter, the counsel for the applicant invited the attention of the tribunal to para 14 of the counter, wherein it has been fairly conceded that when inter-divisional transfer takes place, for working out the period of 12 months, the period spent in the parent division subsequent to the drawal of the last increment would also be counted. as regards fixation of pay on the grant of acp, the counsel submitted that rule 1313(1) (a)(1) r.ii {fr 22(1)(a)} should have applied and the difference in pay ought to have been a minimum of rs.100/- instead of a meager rs.25/-. 7. counsel for the respondents submitted that limitation applies fully in the instant case and the applicant has not come up with clean hands and hence, he cannot seek equity. as regards fixation of pay on the grant of acp, the counsel argued that it was for the applicant to exercise his option and he not so having opted, has to suffer the loss if any.
Judgment:

HON'BLE Dr.K.B.S.RAJAN,JUDICIAL MEMBER

Facts Capsule: The applicant, initially belonging to Palghat Division,was, on request transfer, brought to Trivandrum Division on 19-08-1999 and was absorbed in the lower scale of Rs.4500 - 7000 with due pay protection (Rs.5,750) drawn at the time of his move to Trivandrum Division. The interdivisional transfer inter-alia stipulated that his increment at Trivandrum Division would fall due only on completion of 12 months of service at that Division. In other words, the period from the date of previous increment in the Palghat Division till the date of joining at Trivandrum Division was to lapse for the purpose of grant of increment. Last para of Annexure A-1 Memorandum dated 2nd December, 1999 refers. Believing the same as the rule position stipulated, the applicant was satisfied about the same.

2. The applicant was afforded the first ACP at the Trivandrum Division w.e.f. 23-08-2000 in the scale of pay of Rs.5000 - 8000 and his pay was fixed based on the condition that the pay shall not exceed the pay that the applicant would have drawn in the higher grade in his parent unit. Thus, the benefit of ACP was only Rs.25/-vide Annexure A-2 order dated 10-10-1999, and the applicant, again, believing that the fixation is as per rules, kept quiet.

3. It was, however, as late as in 2007 that the applicant could on verification, come to know that the above stipulation as to reckoning of 12 months period for increment at the transferred division as well fixation of pay with the condition that the same would not exceed the pay that would have been drawn in the parent Division was arbitrary and illegal and hence, he penned a representation vide Annexure A-4 dated 30th October, 2007. As there has been no response, the applicant has moved this O.A. seeking the following reliefs:

(a) Quashing and setting aside of the conditions relating to completion of 12 months in the Trivandrum Division for increment purposes as contained in Annexure A-1 and restricting the pay fixation with an increase of only Rs.25/- vide Annexure A-2;

(b) For a direction to the respondents to reckon the period of service after the last increment drawn at Palghat Division for working out the period of 12 months for increment purpose and fixation of pay on grant of ACP in accordance with condition No. 6 contained in Annexure A-2. i.e. under Rule 1313(1) (a)(1) R.II {FR 22(1)(a)} subject to minimum financial benefit of Rs.100/-and for a direction to pay the consequential arrears of pay.

4. Respondents have raised the preliminary objection of limitation as the orders impugned date back to 1999 while the application has been filed only in 2009. As regards merits of the case, the respondents contended that the applicant had failed to exercise his option at the time of passing of order at Annexure A-2 and he has to blame himself for the same. As regards Annexure A-4 representation, they have denied receipt of such communication and asserted that the same is in fact a fabricated document, since, the said letter dated 30th October, 2007 refers to the recommendations of the VI Pay Commission, which came into existence only in 2008.

5. In the rejoinder, the applicant submitted that limitation reckons from the date of expiry of one year of the date of representation. Other averments in the counter have all been denied. Reference was made to the order of this Tribunal dated 19-02-2009 in O.A. No. 492/2007 and also order dated 03-08-2009 in O.A. No. 579/2008.

6. Counsel for the applicant made available a copy of the order dated 03-08-2009 in O.A. No. 579/2008 and stated that the preliminary objection in that case also related to limitation and the same has been answered stating that fixation of pay is a recurring cause of action and that limitation would apply only with reference to the claim for arrears. The same ratio applies to this case as well. As regards the merits of the matter, the counsel for the applicant invited the attention of the Tribunal to para 14 of the counter, wherein it has been fairly conceded that when inter-divisional transfer takes place, for working out the period of 12 months, the period spent in the parent division subsequent to the drawal of the last increment would also be counted. As regards fixation of pay on the grant of ACP, the counsel submitted that Rule 1313(1) (a)(1) R.II {FR 22(1)(a)} should have applied and the difference in pay ought to have been a minimum of Rs.100/- instead of a meager Rs.25/-.

7. Counsel for the respondents submitted that limitation applies fully in the instant case and the applicant has not come up with clean hands and hence, he cannot seek equity. As regards fixation of pay on the grant of ACP, the counsel argued that it was for the applicant to exercise his option and he not so having opted, has to suffer the loss if any.