Om Prakash VII, Member J
1. By means of this Original Application (OA), the applicant has sought quashing of orders dated 24.2.2016 and 19.4.2016 passed by the respondent no.3 with a further prayer to direct the respondents to make the payment of arrears of salary TA, Bonus as the same was withheld wrongly without passing any order. The applicant has also prayed to make the payment of benefit of financial up-gradation under 3rd MACP on completion of 30 years of service.
2. The facts leading to this Original Application are that the applicant was initially engaged as Khalasi w.e.f. 27.1.1976 as Painter. According to the applicant, despite rendering of more than 180 days service, he was not granted the benefit of temporary status, though the said benefit has been extended to his counterparts. Being aggrieved, the applicant approached Industrial Tribunal, Kanpur by filing the case no. 121 of 1991 claiming regularization, which came to be decided vide order dated 2.5.1995/2.6.1995. The said order was challenged by the respondents before this Tribunal by filing O.A. No. 1093 of 1995, which came to be dismissed as not maintainable vide order dated 24.4.1997. In compliance of the order of Industrial Tribunal dated 2.6.1995, the services of the applicant came to be regularized as Painter Gr.III in the erstwhile pay scale of Rs. 950-1500/- vide order dated 18.3.1998. According to the applicant, the respondents had given the benefit of regularization to the post of Painter Gr.III w.e.f. 5.1.1987, Painter Gr. II w.e.f. 13.5.1998 and Painter Gr.I w.e.f. 16.1.2003. Since the respondents have failed to assign the correct seniority in the aforementioned grades, he preferred a representation for the same on 30.1.2012. The applicant preferred another representation on 30.1.2013 with a request to make the payment of benefit of MACP as he had worked satisfactorily during the period, in question. It is averred in the O.A. that the respondents have given the benefit of the post of MCM/Painter –I in the pay-band of Rs. 9300-34800/- with Grade Pay of Rs. 4200, which has been revised under restructuring scheme w.e.f. 1.11.2013. The request of the applicant for grant of TA, arrears etc. came to be turned down by the respondents vide order dated 24.2.2016, which is impugned in this case. The respondents have also rejected the request of the applicant for grant of third financial up-gradation under MACP vide order dated 19.4.2016. The said order is also under challenge in this O.A. Hence, this O.A.
3. Per-contra, learned counsel for the respondents have contested the claim of the applicant by filing a detailed Counter Affidavit wherein they have stated that the respondents have paid all the dues including Bonus, Travelling allowance etc. and nothing more is due to be paid either on account of any due nor the applicant is entitled for any benefit of financial up-gradation under 3rd MACP. They have further stated that the applicant was initially engaged as Khaalsi w.e.f. 27.1.1976. He was granted temporary status w.e.f. 1.1.1982. Subsequently, his services came to be regularized. The case of the applicant was considered for promotion on the post of Painter-III on adhoc basis, which was subsequently regularized by the screening committee. He was further promoted to the post of Painter Gr.II w.e.f. 13.5.1998 and thereafter on the post of Painter Gr.I w.e.f. 16.2.2003. The applicant was, thereafter, promoted to the post of Master Craftsman Painter in Grade Pay of Rs. 4200/- w.e.f. 1.11.2013 under restructuring. From the records, it is clear that the applicant had already been earned all requisite promotions from time to time. The applicant has also been paid due benefits i.e. Medical benefit, Pass PTO and other admissible benefits due to him. The candidature of the applicant was duly considered for his promotion as Master Craftsman/ Painter in Grade Pay of Rs. 4200 w.e.f. 1.11.2013 under restructuring. Since the applicant has already been granted all promotions in time and as such he is not eligible and entitled for the benefit of MACP Scheme. The respondents have further stated that in terms of the instructions as contained in Railway Board’s letter dated 8.10.2013, the applicant was considered for promotion as MCM/Painter under modified selection procedure and accordingly he was promoted on 27.2.2015. The respondents have superficially denied that neither any travelling allowance nor any arrears are pending with the Railway administration. Lastly, the respondents have stated that the applicant has not been able to make out a case for interference of this Tribunal and as such the O.A. is liable to be dismissed.
4. Rejoinder Affidavit has been filed by the applicant to the Counter Affidavit filed by the respondents negating the contentions of the respondents made in their Counter Affidavit while reiterating the averments made in the O.A.
5. Written submission has also been filed on behalf of the applicant enclosing therewith the order of Hon’ble Supreme Court rendered in the case of Union of India & Others Vs. V.K. Sirothia reported in 1998 O Supreme (SC) 1158.
6. We have heard the learned counsel for the parties and also perused the pleadings available on record.
7. The short question involved in this O.A. is whether the relief(s) as sought for by the applicant is liable to be granted or not in view of the facts and circumstances as narrated by the applicant in the O.A.
8. The facts as projected by the applicant in the O.A. are not in dispute. Admittedly, the applicant was engaged as Khalasi on 27.1.1976 and thereafter he was granted temporary status w.e.f. 1.1.1982. In compliance of the order of Industrial Tribunal, Kanpur, the applicant came to be regularized by the screening Committee. The applicant got his promotions as Painter Gr.III, Gr.II, Gr.I and lastly as Master Craftsman Painter in Grade Pay of Rs. 4200/- w.e.f. 1.11.2013. As such the applicant has earned four promotions during his service career. As per the MACP Scheme, three financial up-gradation is being provided to an employee at the intervals of 10, 20 and 30 years of service, if he did not receive any promotion in the meanwhile. In the case, in hand, the applicant has already earned more than three promotions namely, Painter Gr. III, Gr.II, G.I and lastly as Master Craftsman and as such from any angle he is not entitled to be given any financial up-gradation under MACP Scheme. Further, all the dues have been paid to the applicant as per the version of the respondents made in the Counter Affidavit. If the version of the respondents is not taken into consideration to be true, then the applicant must produced the clear picture/data that for what period, his due is pending, which the applicant has failed to do so. In absence of the clear narration that what dues is pending and what was the period thereof, it is very difficult to issue any such direction to the respondents in the air without knowing/ascertaining the correct data from the applicant.
9. We have also perused the judgment as cited by the learned counsel for the applicant and we are of the considered view that the said judgment is not applicable in the present set of facts as the facts of the cited case with that of the case, in hand, are on different footing. As such, no benefit could be derived by the applicant from the cited case.
10. Since the applicant has already earned three promotions during his service career, which has not been refuted/denied by the applicant and as such the benefit of 3rd financial up-gradation under MACP does not arise and on this count alone, the O.A. is liable to be dismissed.
11. In view of the discussions made hereinabove, the O.A. fails and the same is liable to be dismissed. We order accordingly. No costs.
12. All the associated MAs stand disposed of.
