High Court of KeralaSingle Judge2019-12-19Writ petition dismissed

M. Sengodan v Union of India and others

Case / Petition Number:WP(C).No.17659/11

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2019-12-19
Court Decision / Holding: Writ petition dismissed. The court held that the petitioner cannot claim the 3rd financial upgradation; the entire pre-absorption service cannot be counted; the 2nd upgradation had been granted earlier based on half the pre-absorption service; the 3rd upgradation could not be due before retirement; accordingly, the petition is rejected and the relief sought is denied.
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

M. Sengodan

Respondents

Union of India
The Chief Security Commissioner, Railway Protection Force
The Divisional Security Commissioner, Railway Protection Force, Southern Railway, Salem Division
The Divisional Security Commissioner, Railway Protection Force, Southern Railway, Palghat Division
The Sr. Divisional Personnel Officer, Southern Railway, Palghat Division

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.C. Govinda Swamy
• Smt. Kala T. Gopi
• Sri G. Shyam Raj

Counsels for Respondents

• Sri B. Rajesh
• Sri Tojan J. Vathikulam

Case Synopsis & Summary

This writ petition challenges the Railway’s non-grant of the third financial upgradation under the modified ACP scheme to M. Sengodan, a Railway Protection Force employee who began as a Steam Loco Khalasi in 1979 and was absorbed as Rakshak in 1982. The petition traces the evolution of the ACP scheme introduced by Railway Board order (Exhibit P1) in 1999, which provided two upgradations—first after 12 years and second after 24 years of service, later amended by Exhibit P2 granting the second upgradation on 4.10.2003 (with effect from 5.5.2005). Following recommendations of the Sixth Central Pay Commission, the ACP was replaced by the modified ACP scheme on 10.6.2009, providing for three upgradations on 10, 20, and 30 years of service. The petitioner contends that he was entitled to the third upgradation on 4.10.2009 but did not receive it; he retired on 31.3.2011. He argues that the entire service pre-absorption should be counted for ACP/MACP in reliance on a Supreme Court decision in Union of India v. Rakesh Kumar (AIR 2017 SC 1691). The Railways counter that Sengodan was a casual Loco Khalasi absorbed as Rakshak, not a substitute worker, and that under the controlling rule only 50% of pre-absorption service can be counted for ACP; the second upgradation had already been granted, and the third would have fallen due after his retirement. The Court concluded that there is no tenable basis to count the entire pre-absorption service for the third upgradation and dismissed the petition.

Provisions of Law Cited

Assured Career Progression Scheme (ACP) 1999Modified ACP Scheme 2009RBE No.101/09 dated 10/06/2009 (Exhibit P3)RBE No.69/2004Office Memorandum No.J/XP/608/ACP/II/05 dated 08/02/2005 (Exhibit P2)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Railways’ failure to grant the 3rd financial upgradation under the modified ACP scheme, with effect from 04.10.2009, is arbitrary, discriminatory, and unconstitutional. He relies on Exhibit P3 (RBE 101/09) and on the Supreme Court decision in Union of India v. Rakesh Kumar (AIR 2017 SC 1691) to argue that pre-absorption service should be counted for ACP/MACP in full, especially for substitutes. He seeks a mandamus and consequential relief including arrears and pension revision. The petitioner also asserts there was no opportunity to show cause before any adverse action affecting his 2nd upgradation, and that the overpayment recovered was unjustified.

Contentions of Respondents

The respondents submit that Sengodan was a casual Loco Khalasi who was surplus and absorbed as Rakshak—not a substitute worker—and therefore cannot claim the broader counting of pre-absorption service. They contend that only 50% of pre-absorption service can be counted for ACP/MACP in accordance with Apex Court reasoning in cases involving casual-to-regular appointments. They point out that the 2nd upgradation was rightly granted with effect from 5.5.2005, and that the 3rd upgradation would become due only after six years from that date (i.e., in 2011), by which time Sengodan had retired on 31.03.2011. They also argue that all eligible benefits have already been granted and that any recovery of overpayment was proper; Exhibits P5 and P6 clarify Railway Board positions. Finally, they contend there was no violation of principle of natural justice since no opportunity of hearing was required for the existing orders.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Union of India and others v. Rakesh Kumar and others	AIR 2017 SC 1691	Partly Overruled / Limited	The judgment cites the Apex Court decision to illustrate counting rules for substitutes, applying a limited 50% count of pre-absorption service; it does not adopt the broader interpretation that pre-absorption service should be counted in full, thereby limiting the cited decision to a partial, controlled application.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** ## **WP(C).No.17659 OF 2011(F)** ## **PETITIONER:** ## **M.SENGODAN** **S/O.S.MUNIYAN, (RETD. HEAD CONSTABLE/RAILWAY, PROTECTION FORCE/SOUTHERN RAILWAY/ERODE),, RESIDING AT: NO.206, VRB ILLAM, 2ND FLOOR,, PODANUR, COIMBATORE, PIN-641023.** **BY ADVS. SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI SRI.G.SHYAM RAJ** ## **RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REP. BY THE GENERAL MANAGER,, SOUTHERN RAILWAY,**| ||**HEADQUARTERS OFFICE,, PARK TOWN P.O., CHENNAI-**| ||**600003.**| |**2**|**THE CHIEF SECURITY COMMISSIONER**| ||**RAILWAY PROTECTION FORCE, PARK TOWN P.O.,, CHENNAI-**| ||**600003.**| |**3**|**THE DIVISIONAL SECURITY COMMISSIONER**| ||**RAILWAY PROTECTION FORCE,, SOUTHERN RAILWAY, SALEM**| ||**DIVISION,, SALEM-636005.**| |**4**|**THE DIVISIONAL SECURITY COMMISSIONER**| ||**RAILWAY PROTECTION FORCE,, SOUTHERN RAILWAY,**| ||**PALGHAT DIVISION,, PALAKKAD-678002.**| |**5**|**THE SR.DIVISIONAL PERSONNEL OFFICER**| ||**SOUTHERN RAILWAY, PALGHAT DIVISION,, PALAKKAD-**| ||**678002.**| **R1 BY SRI.B.RAJESH, SC, RAILWAYS R1 BY ADV. SRI.TOJAN J.VATHIKULAM SCRAILWAYS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.11.19, THE CO8URT ON 19.12.2019 DELIVERED THE FOLLOWING:** W.P.(C).No.17659/11 2 ## **JUDGMENT** **Dated this the 19th day of December 2019** ## 1.This writ petition is filed with the following prayers:- “a) Declare that the non-feasance on the part of the respondents to consider and grant the petitioner the 3'“ financial upgradation in Pay Band Rs.9300-34800 with a GP of Rs.4,200/- with effect from 04.10.09 ls arbitrary, discriminatory and unconstitutional; b)Issue a writ of mandamus or other appropriate/ writ, order or direction commanding the respondents to grant the petitioner the benefit of the 3"“ financial upgradation as ordered in Exhibit P3 Railway Board order with effect from 04.10.09 and direct further to grant a" consequential benefits arising there from, including arrears of pay and allowances, revision of pension and other retirement benefits.“ - 2.Heard learned counsel for the petitioner and the learned standing counsel appearing for the respondents. 3. It is stated in the writ petition that the petitioner was initially appointed as Steam Loco Khalasi in the Southern Railways on 04.10.1979 While working so, he was rendered surplus and redeployed as a Rakshak in Railway Protection Force in 1982. W.P.(C).No.17659/11 3 It is stated that the Railway Board introduced an Assured Career Progression Scheme (ACP for short) for railway employees by Exhibit P1 order dated 1.10.1999. Going by Exhibit P1, two financial up-gradations were provided, the first on completion of 12 years of service from the date of initial appointment or with effect from 1.10.1999, whichever is later and the 2[nd] financial up-gradation with effect from date of completion of 25 years of service or with effect from 1.10.1999 whichever is later. It is stated that the petitioner was granted 2[nd] financial upgradation on completion of 24 years of service from 4.10.1979., that is, w.e.f. 4.10.2003, by Exhibit P2 office memorandum dated 8.2.2005, where the petitioner's name is included at Sl.No.26. It is stated that thereafter, the recommendation of the Sixth Central Pay Commission was accepted and implemented and the petitioner was granted pay band of Rs.52000-20200 with a Grade Pay of Rs.2800/-. 4. It is stated that ACP Scheme was replaced by the modified ACP Scheme by Exhibit P3 proceedings dated 10.6.2009. It provided for three financial up-gradations on completion of 10 W.P.(C).No.17659/11 4 20 and 30 years of service. It is stated that the petitioner was entitled to 3[rd] financial up-gradation on completion of 30 years of service, that is on 4.10.2019 (30 years from 4.10.1979). However, this benefit was not granted and the petitioner retired from service on 31-3-2011. Though petitioner submitted Exhibit P4 detailed representation, he received no reply and therefore he approached this Court seeking the grant of the 3[rd] financial up-gradation with effect from 4.10.2009. The petitioner places reliance on Exhibit P3 to contend that he is entitled to the 3[rd] financial up-gradation on the basis of the modified ACP scheme on the basis of the 2[nd] financial upgradation granted by Exhibit P2. 5. A counter affidavit has been placed on record by the 3[rd] respondent. It is submitted that the petitioner had been appointed in Palakkad division of the Southern Railway on 4.9.1979 on a temporary status. He was surplused and absorbed in the RPF on 8.12.1982, after completing seven months of training. Further the petitioner was promoted as Head Constable on 1.7.2004. He was granted first ACP on W.P.(C).No.17659/11 5 1.10.1999 under the ACP scheme. It is stated that under Exhibit P2 the petitioner was eligible for 2[nd] financial upgradation on completion of 24 years of service. However, he was granted 2[nd] financial up-gradation calculating his length of service from the date of appointment as Loco Khalasi, erroneously. It is stated that as per Railway Board letter No.PC-V/2004/ACP/1 dated 31.3.2004 RBE No.69/2004 only 50% of CPC status can be calculated for counting the 12/24 years of service. It is stated that the mistake in Exhibit P2 was rectified and his pay was revised to grant of 2[nd] ACP w.e.f. 5.5.2005 instead of 04.10.2003 vide letter dated 29.7.2008 and the over payment of Rs.3123/- was recovered from his salary by the Accounts Branch, Palakkad, Southern Railway. It is stated that the petitioner was granted refixation of pay in the pay band of Rs.5200-20200 with a Grade pay of Rs.2800/- pursuant to the implementation of the Sixth Pay Commission. It is stated that he would be entitled to the 3[rd] financial up-gradation only on completion of service of 30 years from 8.2.1982 and counting half the temporary service before regularisation as Rakshak. Since W.P.(C).No.17659/11 6 the petitioner retired on 31-3-2011 on superannuation, and he would be eligible for the third financial up-gradation only from 8.5.2011, the said benefit was not liable to be granted. It is stated that all eligible benefits have already been granted to the petitioner. 6. A reply affidavit has been placed on record quite belatedly on 22.11.2019. It is contended therein that the petitioner was a “substitute” within the meaning of the term as recognised in the railways and what the petitioner was granted in 1982 was an alternate appointment on surplusage. It is therefore contented that Exhibits P5 and P6 Railway Board proceedings which provide for counting the entire service of substitutes for ACP and MACP is applicable to the petitioners case. It is further contended that the contention that the order granting 2[nd] financial up-gradation was modified by order dated 29.7.2008 is factually incorrect and is hence denied. It is stated that the said order was not communicated to the petitioner nor was it preceded by an opportunity to show cause so as to make it valid in law. It is W.P.(C).No.17659/11 7 further stated that as far as the petitioner recalls, no recovery was also made, as alleged. 7. The learned counsel for the petitioner places reliance on a decision of the Apex court in Union of India and others v. Rakesh Kumar and others [AIR 2017 SC 1691] to contend that substitute workers are entitled to count their service before absorption for the purpose of grant of ACP and MACP. 8. The learned standing counsel appearing for the Railways would, on the other hand, contend that the petitioner was only a casual Loco Khalasi and could by no stretch of imagination, claim the status of a substitute worker, which is a completely different kind of service as far as railway service is concerned. It is stated that substitutes are persons engaged in the establishment on regular scale of pay, where posts are vacant for long periods of time and such persons are treated differently from casual and temporary employees. It is stated that the decision of the Apex court relied on by the learned counsel for the petitioner itself is authority on W.P.(C).No.17659/11 8 the point that where initial appointment is of a casual nature and the appointment is not against a post, only 50% of the pre-absorption service is liable to be counted for ACP or pensionery benefits. 9. I have considered the contentions advanced. It is the admitted case of the petitioner in the writ petition that he was initially appointed on 4.10.1979 as a Steam Loco Khalasi. It is admitted that while working so, he was rendered surplus and was re-deployed as a Rakshak. Petitioner had no case in the writ petition that he was a substitute worker as specifically defined and the related claim in the reply affidavit that he would be entitled to count the entire service put in by him as Steam Loco Khalasi before absorption as Rakshak is therefore evidently only an after thought. - 10.The petitioner was granted second financial up-gradation by Exhibit P2 on completion of 24 years with effect from 4.10.1979. The respondents have taken a specific contention W.P.(C).No.17659/11 9 that the said financial up-gradation was recalled by an order dated 28.7.2009 and that the over-payment had been recovered from the petitioner. The learned counsel appearing for the respondents made available a copy of the service book of the petitioner wherein this fact appears to be clearly entered. The learned counsel for the petitioner thereupon sought time to place a reply affidavit on record. The only statement with regard to the recalling of the benefits already granted in the reply affidavit is that no order was communicated to the petitioner nor was it preceded by an opportunity to show cause. It is stated that “as far as the petitioner recalls, no recovery was also made”. 11. The petitioner, who was a Loco Khalasi absorbed as Rakshak in 1982 cannot claim counting of his entire pre-absorbtion service for the purpose of grant of financial up-gradations under Exhibit P3. The respondents contend that the petitioner would therefore be entitled to second financial upgradation only with effect from 5.5.2005. It is contended that he would be entitled to the third financial up-gradation only W.P.(C).No.17659/11 10 from 8.5.2011 and since he had retired on 31-3-2011 he was not entitled for the same. 12. I find that the petitioner's claim for 3[rd] financial upgradation w.e.f. 4.10.2009 would be tenable only if his entire pre-absorption service from 4.10.1979 is taken as qualifying service. However, it is the specific case of the respondents that the first and second up-gradations were granted reckoning the petitioner's date of absorption as 8.12.1982 and adding 50% of the pre-absorption service. The date of grant of 2[nd] financial up-gradation is specifically mentioned as 5.5.2005. It is stated that the 3[rd] financial up-gradation would be due at the earliest after six years from that date, that is, in May, 2011. Since the petitioner retired on 30.3.2011, the 3[rd] financial up-gradation fell due after his retirement. - 13.Having considered the contentions advanced on either side at considerable length and having gone through the judgment of the Apex Court relied on, which provides a 11 W.P.(C).No.17659/11 casual worker, who is later absorbed in the railway establishment is eligible to count only 50% of the casual service for pension, I am of the opinion that the prayers in the writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.17659/11 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF RBE NO.233/1999 DATED 01/10/1999.** **EXHIBIT P2** **A TRUE COPY OF OFFICE MEMORANDUM ISSUED UNDER NO.J/XP/608/ACP/II/05 DATED 08/02/2005 BY THE 4TH RESPONDENT, DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, PALGHAT.** **EXHIBIT P3** **A TRUE COPY OF RAILWAY BOARD ORDER BEARING RBE NO.101/09 DATED 10/06/2009.** **EXHIBIT P4** **A TRUE COPY OF REPRESENTATION DATED 25/04/11 ADDRESSED TO THE 3RD RESPONDENT.** **EXHIBIT P5** - **RBE NO.181/2004 DATED 17/08/2004 ISSUED BY THE RAILWAY BOARD.** **EXHIBIT P6 RBE NO.36/2010 DATED 25/02/2010 ISSUED BY THE RAILWAY BOARD.** **True copy** **PS to Judge**