T J Benjamin v Union of India and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** ## **OP (CAT).No.46 OF 2014(Z)** **AGAINST THE ORDER/JUDGMENT IN OA 339/2012 DATED 19-11-2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** **T J BENJAMIN AGED 55 YEARS S/O.T C OUSEPH, MATE, OFFICE OF THE DEPUTY CHIEF ENGINEER/CONSTRUCTION, SOUTHERN RAILWAY/ERNAKULAM JUNCTION, PERMANENT ADDRESS, THANDIACKAL HOUSE , NEAR CIVIL STATION, IRINJALAKKUDA NORTH P O, TRICHUR DIST ,PIN680125** **BY ADVS. SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI** ## **RESPONDENT/S:** - **1 UNION OF INDIA REP BY THE GENERAL MANAGER, SOUTHERN RAILWAY, ERNAKULAM JUNCTION RAILWAY STATION,COCHIN682016** - **2 THE SR.DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, TRIVANDRUM DIVISION, THIRUVANANTHAPURAM 695 014** - **3 THE DEPUTY CHIEF ENGINEER/CONSTRUCTION SOUTHERN RAILWAY, ERNAKULAM JUNCTION RAILWAY STATION, COCHIN -682 016** O.P(CAT) No.46/2014 2 **4 THE CHIEF ADMINISTRATIVE OFFICER/CONSTRUCTION SOUTHERN RAILWAY , EGMORE, CHENNI- 600 008** **R1-4 BY SRI.N.K.SUBRAMANIAN, SC, RAILWAYS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(CAT) No.46/2014 3 ## **JUDGMENT** **Dated this the 06[th] day of February, 2020** **Vinod Chandran, J.** **The question arising herein is whether the respondent who was the applicant in the O.A is entitled to anything more than that the Tribunal granted. Looking at the facts, we have to notice that the appellant who was engaged in the construction wing of the Railways as a casual labour, was regularised as a Gangman in Group D. However, he was continued in the construction wing in a Group C category with the post designation of Technical Mate.** **2. When the applicant was regularised, his pay was reduced since he was a casual labourer in Group C regularised in a Group D post. The applicant approached the Tribunal. The Tribunal by Annexure A2 found that applicant is entitled to be** O.P(CAT) No.46/2014 4 **protected his pay, which he was drawing as a casual labourer. The applicant continued in the post of Technical Mate on an adhoc basis. While he was continuing so, he sought for ACP and MACP.** **3. The respondent granted ACP and MACP by Annexure A1, in the Group D cadre. Such grant of ACP and MACP resulted in the pay entitled to him in the post of Technical Mate getting reduced. The appellant approached the Tribunal. The Tribunal directed that, after the ACP and MACT are granted, his pay has to be protected in his adhoc post of Technical mate cadre.** **4. The learned Counsel appearing for the petitioner, however, would submit that he has to be granted MACP in the Technical Mate Cadre. The learned Standing Counsel appearing for the Railways however, would refute such contention. The learned Standing Counsel also relies on** _**Badri Prasad and**_ O.P(CAT) No.46/2014 5 _**Others v. Union of India and Others (2005 (11) SCC 298)**_ **.** **5. Badri Prasad (supra) is a case in which the Group D Khalasis were continued for long in the higher post in Group C. They claimed regularisation before the Tribunal, which was granted. In a challenge made to the High Court, the High Court reversed the order of the Tribunal and directed consideration for appointment in a regular cadre in Group C by granting relaxation of age. The Hon'ble Supreme Court confirmed the same and directed that the pay they were drawing in Group C posts shall be preserved, even after repatriation. This in fact is the specific measure carried out by the Tribunal in the impugned order.** **6. The applicant who was engaged in construction wing as a casual labour was regularised in Group D as a Gangman/Trackman.** O.P(CAT) No.46/2014 6 **However, he was continued in the construction wing, in the post of Technical Mate. When granting fixation in Group D, there was a reduction of pay which was set aside by the Tribunal. The Tribunal directed his pay to be protected while continuing in the adhoc post. Later when he sought for ACP and MACP the financial upgradation could have been only in the lower cadre of Group C where the petitioner holds a substantive lien. If as the petitioner claims, he should be granted the benefit in the higher cadre, then the benefit on stagnation cannot be allowed since he is deemed to have been promoted.** **7. Having granted the ACP and MACP, by** **Annexure A1, the benefit of higher pay he was drawing in the post of Technical Mate has to be protected. This has been done is the submission of the Railways. The Supreme Court decision cited also** O.P(CAT) No.46/2014 7 **held that if an identical employee continued in Group C on an adhoc basis, is reverted to Group D, where he holds lien, his pay should be protected. It was in such circumstances, the Tribunal directed that the pay drawn in the post of Technical Mate be protected. We do not think that there can be any interference caused to the order of the Tribunal. The Tribunal only clarified that his pay has to be protected. If that has been done, there is no further entitlement to the petitioner. We refuse to interfere with the order of the Tribunal.** **O.P(CAT) is dismissed. No order on costs.** **Sd/K. VINOD CHANDRAN, JUDGE.** **Sd/V.G. ARUN, JUDGE.** **Jma/** O.P(CAT) No.46/2014 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF ORDER DTD 19TH NOW 2012 IN OA NO 339/2012 ERNDERED BY THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **EXHIBIT P2** - **TRUE COPY OF OA NO 339/2012 DTD MAY 2012 ALONG WITH ITS ANNEXURES, FILED BY THE PETITIONER, BEFORE TE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **EXHIBIT P3** - **TRUE COPY OF REPLY STATEMENT DTD 8/8/2012 ALONG WITH ITS ANNEXURES FILED ON BEHALF OF THE RESPONDENTS IN OS NO 339/2012 BEFORE THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** - **ANNEXURE A1** - **TRUE COPY OF MEMORANDUM BEARING NO.P.535/CN/ERS DATED 3/2/2012 ISSUED BY THE 3RD RESPONDENT** - **ANNEXURE A2** - **TRUE COPY OF ORDER DATED 31/1/2001 IN OA NO.443/98 BEFORE THE LEARNED TRIBUNAL, ERNAKULAM BENCH** ## **ANNEXURE A3** - **TRUE COPY OF ORDER IN OA NO.905/97 AND CONNECTED CASES DATED 30/8/3000 RENDERED BY THE LEARNED TRIBUNAL, ERNAKULAM BENCH** - **ANNEXURE A4 TRUE COPY OF THE REPLY STATEMENT DATED NIL FEB 2012 IN OA NO.946/2011.** - **ANNEXURE A5** - **TRUE COPY OF ORDER DATED 15/3/2012 IN** O.P(CAT) No.46/2014 9 **OA NO.946/2011 BEFORE THE LEARNED TRIBUNAL, ERNAKULAM BENCH ANNEXURE R1 TRUE COPY OF RAILWAY BOARD ORDER DATED 10/6/2009 ANNEXURE R2 TRUE COPY OF RAILWAY BOARD LETTER DATED 4/12/2009**