PHIROZE SORABJI PAREKH Vs. B M KAUL
HIGH COURT OF BOMBAY
PHIROZE SORABJI PAREKH
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(1.) In this petition under Art. 226 of the Constitution the petitioner who is employed in the Western Railway of the Government of India has challenged the order dated May 5, 1970, reverting the petitioner who was officiating as head clerk in the scale of Rs. 210-380 to the post of a clerk in the scale of Rs. 110-180 with effect from May 4, 1970. The relevant facts are as follows :
(2.) The petitioner was absorbed in railway service as Guard Grade 'C' on December 19, 1955. He was confirmed in that post on February 7, 1956. He had to give what is described as vision test from time to time. He failed in that test in January, 1965. He was accordingly declared unfit to hold the post of a guard on January 8, 1965. In that post the grade of salary was Rs. 130-225 with running allowance and the petitioner's remuneration in January, 1965, was basic monthly salary of Rs. 166 with running allowance of Rs. 75. The petitioner was entitled to be re-employed and absorbed in the alternative employment as medically incapacitated staff in accordance with the Rules in Chapter XXVI of the Indian Railway Establishment Manual. The petitioner's case was examined by De-categorisation Committee and he was declared to be fit to hold four different kinds of posts which are mentioned in paragraph 5 of the petition. The petitioner's case is that the matter of absorption of the petitioner into employment was delayed for five months unjustifiably. The petitioner accordingly by an application dated May 18, 1965, requested that he should be absorbed in any suitable category "by which my monthly pay would not be affected", "and for the time being I may be offered a job of a clerk in the scale of Rs. 110-180(A) till other vacancies exist". The petitioner's case is that he never desired to be absorbed into the post of a clerk in the above scale of pay permanently and he was liable to be absorbed and re-employed in service so that the emoluments payable to him were not less than what he was in fact earning in January, 1965. There is no dispute between the parties that at that date the petitioner was earning Rs. 166.40 by way of basic salary and Rs. 75 by way of running allowance aggregating in all to Rs. 241.40. In response to the petitioner's above application, the Divisional Personnel Officer issued order dated June 8, 1965, stating that the petitioner was absorbed as clerk in scale of Rs. 110-180. The petitioner's case is that as a result of the above order the petitioner's emoluments were reduced from Rs. 384.60 to Rs. 297.40 per month. The petitioner protested against that order in writing with a request that he may be appointed to a post where his emoluments would not be adversely affected. He, however, began to work in the above post under protest. It appears that in connection with the petitioner's absorption in the above post certain correspondence passed between the higher authorities departmentally and ultimately by another order dated October 11, 1967, the petitioner was absorbed in service in the scale of Rs. 130-300. By the order it was directed that the petitioner would receive Rs. 232 per month with immediate effect. His fixation of pay in the above scale was made with the concurrence of Divisional Accounts Officer. The petitioner was in the employment of the railway in accordance with the above administrative absorption order continuously till the issuance of the impugned order dated May 5, 1970. Certain facts about this intervening period are mentioned in paragraphs 12 to 21 of the petition which do not require to be reproduced here. It is sufficient to state that the petitioner earned two annual increments and in fact from May, 1969, was promoted to the post of head clerk in the scale of Rs. 210-380 and at the date of the impugned order his emoluments aggregated to Rs. 491.10 per month as detailed in paragraph 23 of the petition. The result of the impugned order was that as from the date of the impugned order the petitioner would receive the total emoluments of Rs. 364.10 as detailed in the same paragraph of the petition. The petitioner has challenged the above impugned order on various grounds as contained in paragraphs 24 to 41 of the petition. The reasons for the above impugned reversion order are stated in paragraph 22 of the affidavit in reply in the following words :
"...... I deny that the petitioner's absorption in the grade of Rs. 130-300(A) was substantive. I say that under Rule 2609 of the Indian Railway Establishment Manual, the de-categorised staff are to be absorbed only once. I say that the petitioner's reabsorption in the grade of Rs. 130-300(A) by the Divisional Superintendent's Office was not in accordance with the said Rules and as such, the petitioner's said re-absorption was set aside by the said Head Quarters Office."
(3.) Now, in connection with the submission made in this paragraph reliance has been strongly placed on behalf of the respondents on the scheme in Chapter XXVI of the Railway Establishment Manual in respect of the absorptions of medically incapacitated staff in alternative employment and particularly on clause (8) of Rule 2606. Reliance has strongly been placed on behalf of the petitioner on the above scheme and particularly on the clause (i) of Rule 2609 and the Rule 2610.;
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