By virtue of this OA, following reliefs have been claimed by applicant: a) Call for the records of the case;
b) direct the respondents to extend the benefits granted to similarly situated employees by virtue of judgments and orders passed in the following cases:-
1. Mrs. Afsar Jahan Begum v. Union of India decided by Honble High Court of Allahabad in Special Appeal No.9 of 1975 (decided on 12.3.1979).
2. Judgment and order of the Honble Supreme Court in Writ Petition (C) No.939 of 945 of 1983 (decided on 20.7.1988).
3. Janranjan Basu and Others Vs. Union of India and Others in OA No.1007 of 1993 decided on 19.5.2000.
c) Direct the respondents to enhance the pension and other retiral benefits such as DCRG etc., family pension by 55% or 75% of the basic pay being the pay element in running allowance as granted to Loco Running Staff from the respective dates of retirement of the applicant herein.
d) Direct the respondents to refix the pay of the applicant as on 1.1.1986 as per rule 1326 (FR-31) of Indian Railway Establishment Code Vol. II. (1990 Edition);
e) Award exemplary costs of the proceedings.
f) Pass such further order or orders which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.
2. Applicant, who was appointed in Railways as Assistant Driver on 6.4.1962, was promoted as Shunter, Goods Driver, Passenger Driver and lastly in the year 1990 as Loco Running Supervisor. He had retired voluntarily on 31.8.1999. The post of Loco Running Supervisory being promotional by way of selection from running staff category of Drivers, applicant was drawn from the loco running cadre to Loco Supervisory Cadre, as per Rule 140 of the IREM Vol.1.
3. Running staff are eligible to be paid allowances per kilometer as an element of pay or an incentive. The salary of a Driver and Supervisor is different. Supervisor gets less pay than a Driver despite both are in the running staff. 30% add on benefit accorded vide Railway Boards letter dated 25.11.1992 to the running Supervisors for fixation of pay for running staff to work on stationary posts with a restriction that basic pay would not exceed to maximum of the pay scale. Accordingly, this one time 30% add on benefit lost its significance when juniors to the Supervisors are getting more pay. A Committee headed by one Shri Asraf on submission of report in 1968 recommended that in case of raise of pay of the running staff instead of allotting a new pay they should be compensated by increasing the running allowance.
4. As per Boards letter dated 3.11.1987 in clause No. D of Item II and sub item II of Item No.4 the artisans staff who had put in less number of years in running cadre are entitled for full benefit whereas the running cadre employees engaged from the inception of their appointments are denied the benefits. Being aggrieved by the aforesaid decision several Writ Petitions were filed before the Honble High Court of Allahabad by running Supervisors praying for treating the running allowance as part of pay for all running staff on promotion to stationary posts. The High Court in Union of India v. Smt. Afsar Jahan Begum, CWP No.9 of 1975 decided on 12.3.1979 treating the running allowance as part of the pay, salary of petitioners was re-fixed as per Boards letters of 1961 and 1963. The Apex Court in G.C. Ghosh & Ors. v. Union of India & Ors., 1991 Supp. (2) SCC 497 held that pension scheme or any benefit added to the pension is uniformly applicable to all the Railways. Calcutta Bench of this Tribunal in Janranjan Basu & Ors. v. Union of India & Others, OA No.1007 of 1993 decided on 19.5.2000, directed re-fixation of pay.
5. Applicant, who had been working on 31.1.1993 when no benefit of kilometer-age was accorded and retired, on pro rata basis running allowance was paid and on 31.1.1993 it was 30%, sought enhancement of pension and other retiral benefits by adding on 55% or 75% of the basic pay element in running allowance at par with loco running staff with re-fixation of pay as on 1.1.1986 as per Rule 1326 of IREM Vol. 1, when not responded to, gives rise to the present OA.
6. Shri K.K. Patel, learned counsel appearing for applicant relied upon a decision of the single Bench of the Allahabad Bench of this Tribunal in OA-479 of 2002 in A. Amrol & Ors. v. Union of India & Ors., decided on 16.05.2006, to buttress his plea. Learned counsel has also relied upon a decision of the Tribunal in OA-1545 of 2002 in Prem Shanker Gupta v. Union of India & Ors., decided on 15.07.2005, wherein fixation of pay as a claim w.e.f. 1.1.1986 and increase in the pension and retiral benefits by 55% or 75% of the basic pay, direction issued has been complied with.
7. Learned counsel while referring to the reply filed in Prem Shanker Gupta (supra) contended that respondents in paragraph-5 had admitted that the pay element for the purpose of computation of retiral benefits of running staff, it has been decided to take into consideration the additional component of 55% of pay w.e.f. 1.4.1979, which would have applied to those who retired as Loco Inspectors w.e.f. 1.1.1993 only for purpose of duty of training and monitoring of Drivers on footplates.
8. Learned counsel has also placed reliance on OA-229 of 2000 in Kishan Lal v. Union of India & Ors., decided on 16.10.200, wherein direction issued to add on 55% running allowance as basic pay with all consequential benefits when once assailed before the High Court of Delhi in CWP No.960 of 2002 was dismissed on 29.2.2003, upholding the direction of recalculation of pensionary benefits by adding 55% of the basic pay. The aforesaid decision has attained finality by rejection of SLP in CC No.4355 of 2004 on 6.7.2004 by the Apex Court.
9. Learned counsel states that on all fours the case of applicant is squarely covered by the aforesaid decisions and hence he is legally entitled to be accorded the identical benefits.
10. On the other hand, Shri R.L. Dhawan, learned counsel appearing for respondents has vehemently opposed the contentions. Shri Dhawn has raised an objection as to jurisdiction by contending that applicant had retired from Bhopal and for want of TA this Court has no jurisdiction to entertain the OA. It is also stated that though applicant retired on 31.8.1999 the claim now made is barred by limitation.
11. On merits, it is stated that while fixing retiral dues of applicant as well as pay on stationary post 30% add on running allowance element was taken into consideration as per the instructions dated 25.11.1992. As applicant was posted against a stationary post and was not in the category of running staff as per Rule 49 of the Railway Services (Pension) Rules, 1993, it is only in case of running staff that 55% of the add on benefit for pensionary benefits as pay element has to be reckoned with. As applicant was not included in the category of loco running staff as per paragraph-140 of IREM Vol. 1, the running staff being granted running allowance as per rules, his claim is liable to be dismissed. Reliance has been placed on a decision of the Division Bench of this Tribunal in OA-116 of 2004 in Satya Pal Wadehra & Ors. v. Union of India & Ors., decided on 02.05.2006, wherein rejection of request to add on 30% running allowance to those who retired before 1.1.1993 the claim having been dismissed, it is stated that claim of applicant is to be rejected accordingly.
12. I have carefully considered the rival contentions of the parties and perused the material on record.
13. Insofar as objection as to jurisdiction is concerned, as applicant has been residing in Delhi post retirement as per Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987, the grievance raised by applicant is well within the territorial jurisdiction of Principal Bench, the objection stands overruled.
14. As far as objection as to limitation is concerned, though applicant retired in 1999 but non-counting for pay fixation and determination of retiral benefits add on element of running allowance as a component to the tune of 55% or 75% would, if so added, raise the pensionary benefits which are in the form of pay and allowances. Being a continuing and recurring cause of action no limitation is attracted and accordingly the second objection as to limitation also stands overruled.
15. As regards decision cited by respondents, a ratio decidendi of a decision is to be inferred from what actually has been decided but not what is to be discerned or gathered from the judgment. An issue in its context of being adjudicated is the ratio decidendi. The facts of the case in Satya Pal Wadehra (supra) where pre-retirees of 1.1.1993 for add on 30% running allowance the claim was turned down on the ground of non-retrospectivity of Boards letter dated 25.11.1992 though a decision which is per incuriam of the decision of the Apex Court in G.C. Ghosh (supra) and the decision of the Tribunal in Krishan Lal (supra), as affirmed by the High Court would not to be construed as a binding precedent, I find from the reasoning assigned by the Division Bench that non-consideration of a particular judgment not cited before the Full Bench when remained unconsidered would not make such an order per incuriam, without commenting upon the precedent value of the decision, yet in the facts and circumstances when it has no applicability to the present facts in the OA, the reliance on the same by Shri R.L. Dhawan is misconceived.
16. A decision of the High Court in the doctrine of precedent is a binding precedent on me, especially when it has followed a decision of the Apex Court. Accordingly, in Krishan Lals case (supra) the Tribunal to the Assistant Loading Foreman as regards 55% addition of add on running allowance directed grant of pensionary benefits on re-working, adding 55% of the basic pay as an add on allowance. When it was challenged before the High Court of Delhi in CWP No.960 of 2002, the following order has been passed: No one appears for the petitioners though the matter has been on the Regular Board for quite some time. Accordingly, we have heard learned counsel for respondent No.1. While supporting the order passed by the Tribunal, Mr. Patel, learned counsel for the respondent, has placed reliance on the decision of the Allahabad High Court in Special Appeal No.9/1975 (Union of India & Ors. Vs. Smt. Afsar Jahan Begum & Ors.) and other connected writ petitions. Learned counsel points out the said decision of the Allahabd High Court has attained finality in view of the decision of the Apex Court in G.C. Ghosh & Ors. Vs. U.O.I. & Ors., 1991 Suppl. (2) SCC 497. In the said decision, the Supreme Court has observed that the decision of the Allahabd High Court in Smt. Afsar Begum & Ors., has been accepted by the authorities in as much as relief in terms of the said judgment has been granted to employees of Northern Railway. In view of the afore-noted decisions, no fault can be found with the impugned order of the Tribunal, whereby it has directed the petitioners to re-work the pensionary benefits of the respondents herein by adding 55 per cent of the basic pay. The writ petition and the application for interim relief are, accordingly dismissed with no orders as to costs.
17. If one has regard to the above, the decision of the High Court in Afsar Begum(supra) and the decision of the Apex Court in G.C. Ghosh (supra) were taken into consideration. A Single Bench of this Tribunal at Allahabad in A. Amrols case (supra) on meticulously discussing all the provisions for adding on to the basic pay the component of running allowance and decision of the Apex Court in G.C. Ghosh (supra) and in the light of the constitutional Bench decision of the Apex Court in D.S. Nakara v. Union of India, 1983 SCC (L&S) 145 discerned the following points: 25. Keeping in view the aforesaid and certain other decisions of the Apex Court, if law relating to pension is discerned, the same would be as under:- (a) pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant. (Constitution Bench Judgment in Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330). (b) the basis of calculation has to be the average of the last ten months emoluments. This principle of adopting last ten months emoluments as the basis for calculation of pension must be uniformly applied to all persons drawing pension from the Central Government. (K.L. Rathee v. Union of India (1997) 6 SCC 7. Also see State of W.B. v. W.B. Govt. Pensioners Assns., (2002) 2 SCC 179. (c) The emoluments have to be calculated according to the government rules in force at the time of retirement of the employees (ibid). (d) In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates in adjustment of the pension amount. All India Reserve Bank Retired Officers Assn. V. Union of India, 1992 Supp (1) SCC 664. (e) person eligible for pension, if survives till the time of subsequent amendment of the relevant pension scheme, would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation, the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. (V. Kasturi v. Managing Direcgtor, State Bank of India, (1998) 8 SCC 30).
18. Further, the following observations have been made: 29. Arguments were heard and the documents perused. It is advisable, though perhaps at the cost of repetition, to give a bulletin of the decisions relied upon by the parties. (a) Union of India v. Afsar Jahan Begum (Spl Appeal No.9 of 1975 of the Allahabad High Court) held The running allowance being part of the pay, the pay of the writ petitioners should be re-fixed. (b) As per G.C. Ghosh v. Union of India, 1991 Supp (2) SCC 497 the pension scheme or any benefit added to the pension in one Railway, has universal application, and as such, employees of other Railways cannot be denied the same. (c) V. Kasturi v. Managing Director, State Bank of India (1998) 8 SCC 30 holds that change in pension scheme at a later date shall have corresponding impact upon the pension payable to earlier retirees as well. (d) Janakanjan Basu vs. Union of India and others (OA 1007/93 of the Calcutta Bench)held that since at the time of fixation of pay on promotion to stationary posts, the element of running allowance was not included, whereas as per Afsar Jahan Begum case and C.R. Rangadhamiahs case, such allowance forms part of emoluments, the same should be added @ 55% of pay and corresponding pension should be paid to the retired employees. Krishan Lal vs Union of India and others, (OA 229 of 2000, decided on 16-10-2001) held that the applicant whose pay was fixed at the time of his switching over from running category to stationary category, by including 30% increase in lieu of running allowance is entitled to fixation of pension with addition of 55% of basic pay. This order has, initially stayed by the Honble High Court, vide order dated 08-02-2002 in CWP No. 960/2002. However, the Civil Writ Petition was dismissed vide order dated 23-09-2003 and SLP filed against the same too was dismissed. Thus, the order of the CAT attained finality. The Full Bench decision of the Jabalpur Bench held that the scheme of additional pensionary benefits of 30% add on for Loco Supervisors drawn from Running Cadre on their retirement introduced vide para 5.5 of Railway Boards circular dated 25-11-1992 is applicable to persons retired on or after 01-01-1993 only.
30. In so far as the decision of Full Bench (Jabalpur), which is heavily relied upon by the respondents, the same is not applicable to the facts of this case as the applicants do not claim the 30% add on, on the basis of the Railway Board circular dated 25-11-1992. As such, the same is not to be considered. With due respect to the Full Bench Judgment, the said judgment does not seems to have taken into account the decision of the Apex Court in the case of R.L. Marwaha v. Union of India, (1987) 4 SCC 31, in which point for consideration was whether a scheme introduced in a pension scheme subsequent to the retirement of a person, could be applied to such retirees as well and in that case whether the extension of the scheme to such already retired persons would amount to giving retrospective effect to the new scheme introduced. In that case the facts in brief are that the petitioner served the Central Government from October 4, 1950 to November 23, 1953 and on the same day i.e. November 23, 1953, he joined the services of ICAR, an autonomous body. The posts held by him under the Central Government and thereafter under the ICAR were pensionable. He retired from the service of the ICAR on September 30, 1980. On retirement he demanded that his pensionary benefits be computed by counting the period of service put in by him in the Central Government department as part of his qualifying service in view of para 3(A) (i) of OM No. 28/10/84-Pension Unit dated August 20, 1984. This was denied and he was accorded pensionary benefits by reckoning his qualifying service from November 23, 1953 to September 30, 1953 only on the ground that as he retired before issue of the OM he was not entitled to the benefit of para 3(A) (i) in view of the prospective effect given to the OM by para 7 thereof. The petitioner contended that it was not open to the government to deny the benefit of the order to those employees who had retired prior to the date of the order as it would bring into existence two classes of pensioners. Allowing the writ petition, the Apex Court has held as under: -
9. We do not also find much substance in the plea that this concession being a new one it can only be prospective in operation and cannot be extended to employees who have already retired. It is true that it is prospective in operation in the sense that the extra benefit can be claimed only after August 29, 1984 that is the date of issue of the Government Order. But it certainly looks backward and takes into consideration the past event that is the period of service under the Central Government for purposes of computing qualifying service because such additional service can only be the service rendered prior to the date of issue of the Government Order. By doing so the Government Order will not become an order having retrospective effect. It still continues to be prospective in operation. Whoever has rendered service during any past period would be entitled to claim the additional financial benefit of that service if he is alive on August 29, 1984 under the Government Order but with effect from August 29, 1984.
31. If the above is read with the decision in the case of All India Reserve Bank Retired Officers Association (supra), it would reveal that the above order was only deemed to have been an extension of an already existing scheme. In that case the Apex court has held, It is not a new retrial benefit. It is an upward revision of an existing benefit. In any event, the applicants in the instant case do not claim the benefit of the circular of 25-11-1992. Thus, Full Bench judgment is not applicable to the facts of this case.
32. So far as Krishnan Lal case is concerned, the same is fully applicable as in that case also the applicants were initially were in running posts and later on brought to stationary post; At the time of such shifting, the element of 30% of pay in lieu of their running allowance was included in their pay and as they were denied the increase by 55% they moved the matter before the Tribunal, which had allowed the OA against which civil writ petition (960/02) filed was dismissed vide order dated 23-09-2003 and later on even SLP filed against the dismissal of writ petition was also dismissed vide order dated 06-07-2004 in CC 4533/2004. Thus the order of the Tribunal has attained finality and the case of the applicants is fully covered inasmuch as the applicants were all initially in the running post and later on came to stationary post and at that time their pay was incremented with an addition of 30% in lieu of running allowance and these were also denied the 55% of pay for the purpose of working out the pensionary benefits.
33. Thus, while the full Bench decision of the Jabalpur Bench is not applicable what is to be seen is whether the applicants case is covered by the decision of Calcutta Bench of the Tribunal. The contention of the applicants is that the same is fully applicable, while the respondents contend as not applicable. The respondents contention is on the basis of the fact that in the Calcutta Bench case, the applicants did not derive the benefit of 30% of the pay in lieu of running allowance at the time they switched over to stationary posts. And it was on account of the same the Tribunal directed that they be afforded the benefit of 55% of the pay in lieu of running allowance, while in the case of the applicants; they had derived the benefit of 30% of pay in lieu of running allowance at the time they were promoted to stationary posts. The question is, whether this distinction would be adequate to deny the benefit of 55% of the pay in lieu of running allowance to the applicants (for the purpose of working out the pensionary benefits). The answer has to be an emphatic NO. For, what the applicants were paid at the time of their posting at the Stationary Posts is in terms of para 1(3) of order dated 22-03-1976 while the benefit of 55% of the pay for pensionary purposes is in accordance with the provisions of order dated 17-08-1981 which inter alia reads as under:- 3.23. Reckoning of running allowance as pay.-(i) For the specified purposes for which running allowance is reckoned as pay at present, 30% of the basic pay of the running staff concerned will be reckoned except as below: (a) for the purpose of retirement benefits, 55% of basic pay will be taken into account. This provision will be made applicable retrospectively from 1-4-1979 so that that running staffs who have already retired with effect from that date or afterwards will also have their retirement benefits recalculated and resettled.
34. The above benefit is available to all irrespective of whether th individuals were earlier paid 30% of pay in lieu of running allowance at the stationary posts or not. Those who were not the beneficiaries of 30% would be getting a full benefit of 55% of pay to be taken into account while those who were the beneficiaries would be getting the difference between 55% and 30%. Since this rule that 55% of the pay should be added for pensionary purposes is available right from 22.03.1976 and even earlier as per the order which takes retrospective effect, the applicant having retired posterior to the coming into existence of the above rule, the said rule and the benefit flowing there-from is fully available to the applicants. Nothing less; nothing else. It is not the case of the applicants that the claim for 55% of pay would be in addition to the earlier benefit of 30% of pay already made available to them.
35. In view of the above, the OA succeeds. It is declared that the applicants are entitled to the benefit of order dated 17-08-1981 and the respondents are directed to work out 55% of the pay and add the same to the pay of the applicants for working out the ten months average pay for the purpose of pension. Since their last pay as earlier calculated included 30% of the pay, the increment shall be worked out as under:- Last average 10 months pay X 155/130. It is on the above pay that pension and other terminal benefits should be calculated. Once the revised terminal benefits are worked out the difference between the amount payable and paid shall be worked out and the same should be paid to the applicants. There shall, however, be no change in the commuted value of pension already paid to the applicants. The difference in the pension should be paid within a period of six months from the date of communication of this order.
36. Under the circumstances, there shall be no orders as to cost.
19. If one has regard to the above, the claim of applicant is squarely covered by the decision in G.C. Ghosh (supra) and Krishan Lal (supra), which has attained finality on rejection of SLP, being binding on me, overrules any decision of the coordinate Bench as well as the Full Bench of the Tribunal.
20. In the matter of precedent, I do not offend the principles thereof, if pitted with decisions of binding nature of the High Court as well as of the Apex Court. Following them, ignoring in law the decisions of Full Bench and Division Bench would not constitute as an infraction to the doctrine of precedent.
21. Accordingly, for the foregoing reasons, applicant cannot be denied the add on component of running allowance to the tune of 55% or 75% with consequent fixation of pay and upward revision in the retiral benefits and payment thereof. Being similarly circumstanced with the petitioners before the Apex Court in G.C. Ghosh (supra), applicants before the Calcutta Bench in A. Amrols case (supra) as well as akin to Krishan Lals case (supra), applicant is also entitled to the same relief. Respondents are accordingly directed to refix the pay of applicant and enhance his pension and other retiral benefits by adding on 55% or 75% of the basic pay being pay element in running allowance as granted to loco running staff from the date of retirement with all arrears, within a period of three months from the date of receipt of a copy of this order. The O.A. is allowed accordingly. No costs. (Shanker Raju) Member (J) San.