- (1.) The petitioners are all retired employees of Indian Railways, having retired between the year 1989 to 1996. They were all granted Running Allowance for working on the trains. The allowance was increased from time to time on the basis of the administrative instructions issued by the competent authority. At one time, the petitioners were entitled to get 75% of the average emoluments merged in the Basic Pay as the Running Allowance. However, by Notification No E(P And A) II/76/RS/15 dated 5.12.1988 issued under Proviso to Article 309 of the Constitution of India, Rule 103(5) of Indian Railway Establishment Code, Vol. I (Fifth Edition, 1985) was amended with effect from 1.1.1987. Rule 103(5) gives the definition of Average Pay. By the amendment sub-rule (5) was substituted by the following :- "Average Pay" means the pay drawn in the revised scales of pay, or that would be drawn by a railway servant in the permanent post held substantively by him on the date preceding that on which he proceeds on leave provided that the pay of staff entitled to running allowances shall include the average running allowance earned during the 12 months immediately preceding the month in which a railway servant proceeds on leave subject to a maximum of 45% of average of the pay drawn for the same period, the average running allowance once determined remaining in operation during the remaining part of the financial year in cases of leave not exceeding one month." With effect from 1.1.1973, the Running Allowance was fixed at maximum limit of 45% of Pay in the revised scales of Pay. Subsequently, by Notification No. GSR 11449 (E), the limit was increased from 45% to 55%. This amendment was effective from 1.4.1979. The aforesaid notifications were challenged in OA No. A-269 of 1988 before the Ernakulam Bench of the CAT on the ground that the same could not be given retrospective affect with effect from 1.1.1973 and 1.4.1974 respectively. The OA was allowed by the Ernakulam Bench of the Tribunal by judgment dated 2.4.1990 and the retrospective operation of the notifications was held to be unjust, unreasonable and violative of Article 14 of the Constitution of India. A review application filed by the Union of India against the aforesaid judgment was also dismissed by Order dated 20.7.1950. Special Leave Petition No. 10373 of 1990 and others were filed by the Union of India which were decided on 25.7.1997. The judgment of the Supreme Court was rendered in the case of Chairman, Railway Board and others v. C.R. Rangadharmaih and others, 1997 4 SLR 759. We will make reference to this judgment a little later.
(2.) The petitioners being aggrieved by the same notification challenged it before the CAT, Chandigarh Bench (hereinafter referred to as, 'the Tribunal'). By order dated 24.7.1997, the OA has been dismissed. Hence the present writ petition under Article 226/227 of the Constitution of India.
(3.) On notice of motion having been issued, the respondents have filed a written statement. The respondents have taken a preliminary objection that the notification challenged by the petitioners has been upheld by the Supreme Court. It has been held that notification dated 5.12.1988 cannot be made effective retrospectively but its implementation can be enforced from 5.12.1988. Admittedly, all the petitioners have retired from service after 4.12.1988 and therefore, Running Allowance has to be calculated in accordance with Notification dated 5.12.1988. The respondents also plead that Notification dated 5.12.1988 has been challenged after a period of 9 years, therefore, the OA before the Tribunal was barred by limitation.;