Decided on August 30,1978

Personnel Officer, Southern Railway Appellant


- (1.) The Southern Railway Administration has filed this writ petition through its Divisional Personnel Officer challenging the legality of the order Ext. P-9, dated 31st July, 1975 passed by the Central Government Labour Court, Kerala State, allowing a claim petition filed by the 2nd respondent herein under S.33C(2) of the Industrial Disputes Act and directing that the pay of the said employee will stand fixed at Rs. 200 in the scale of Rs. 130-300 with effect from 16th August 1967.
(2.) The 2nd respondent was first appointed as a Junior Clerk in the Southern Railway on 16th May 1953 on a scale of Rs. 110-180. He was confirmed in that post on 31st March 1956. Subsequently, the 2nd respondent was posted to work as Steno typist on a purely ad hoc basis and he functioned as such till 16th August 1967, on which date he was promoted as a Senior Clerk in his parent cadre in the scale of Rs. 130-300. While working as Steno typist the 2nd respondent was getting a special pay of Rs. 30 per mensem. On the date of his promotion as Senior Clerk he was drawing a pay of Rs. 159 plus special pay of Rs. 30. While fixing the pay of the 2nd respondent in the post of Senior Clerk, the Railway Administration ignored the special pay drawn by him as Stenographer and took into account only the pay in the substantive category as Clerk. On that basis the 2nd respondent's pay in the promoted post was fixed at Rs. 168 per mensem. In the claim petition filed before the Labour Court the 2nd respondent contended that the omission to take into account the special pay drawn by him as Stenographer was incorrect and illegal and that on his promotion as Senior Clerk he is entitled to have his initial pay in the higher scale fixed at Rs. 200. In opposition to the said claim it was submitted before the Labour Court by the Railway Administration that the fixation of pay in the higher grade is governed by the orders of the Board contained in its letter dated 21st July 1965 (Ext. P-8) and that since the employee in question was not holding any of the posts the special pay attached to which alone could be taken into consideration for purpose of fixation of his pay in a higher scale under the terms of the said letter, the claim put forward by the 2nd respondent was unsustainable. It was pointed out that the 2nd respondent had been posted as Steno typist only on an ad hoc basis and the category of "Steno typist" was not covered by the Board's letter aforementioned. In the objection statements, Exts. P-6 and P-7, filed by the Railway Administration before the Labour Court it was further submitted that the special pay could be taken into consideration while fixing the pay of an employee in a higher grade only where the conditions stipulated in the Board's letter were duly fulfilled and since that those conditions were not satisfied in the case of the 2nd respondent, the employee was not entitled to have the special pay taken into account while fixing his initial pay in the promoted grade. The Labour Court by its order Ext. P-9, which is now sought to be quashed, overruled the above objections put forward by the Railway Administration and allowed the claim of the 2nd respondent.
(3.) The principles governing the subject of fixation of pay of employees on promotion to higher posts with special reference to the question of treatment of special pay for purpose of such fixation have been laid down in the Railway Board's letter Ext. P-8 dated 21st July 1965. That letter incorporates the decision of the President on the said subject matter. As per the terms of Ext. P-8 one of the principal conditions, subject to which alone special pay drawn in a lower post is liable to be taken into account for purpose of fixation of pay on promotion to a higher post, is that the special pay in the lower post should have been granted in lieu of a separate higher scale of pay and should have been drawn in the lower post continuously for a minimum of three years on the date of promotion. It is further stated that the crucial test for determining whether the special pay has been granted in lieu of a separate higher scale is whether the Government servant has a proprietary and inalienable right on the special pay which he is in receipt of, and that "these conditions would be satisfied only in the case of special pays listed below: "(i) Deputy Director, Railway Board promoted from the Railway Board Secretariat Service. (ii) Steno typists and Hindi/English Typists utilised as Stenographers in cases where full time stenographers are not justified. (iii) Wireless operators. (iv) Shop Superintendent". Paragraph 4 of Ext. P-8 enumerates the types of special pay which will not be taken into account for purposes of fixation of pay on promotion. Clause.3 and 4 in that paragraph alone are relevant for our present purpose and they read as under: "(iii) Deputation (duty) allowance or special pay drawn in lieu thereof. (iv) Special pay granted for specific addition to duty or for arduous nature of duties",;

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