Judgment :-

Swatanter Kumar, J.

1. The Union of India being aggrieved from the judgment and order of a Division Bench of the Calcutta High Court dated 2nd March, 2005 dismissing, the Writ Petition filed by the Union of India against the order of the Central Administrative Tribunal, Calcutta, (hereinafter referred to as `the Tribunal') dated 18th January, 2002, has filed the present appeal under Article 136 of the Constitution of India. The Tribunal vide its judgment had allowed the application filed by the respondents herein and had set aside the order dated 22nd February, 2001 issued by the Union of India.

2. The facts giving rise to the present appeals are that the respondents are/were working as Tower Wagon Drivers (for short `TWD') under the Eastern Railways. They were promoted to the said post between the period 1979-1981. These respondents claimed running allowance @ 120 k.m. per day while on duty in terms of para 3.12 of the New Running Allowance Rules -structuring of the cadre. This was not paid to them resulting in the filing of a Writ Petition by them before the High Court of Calcutta. This Writ Petition was allowed by the High Court and the Eastern Railways were directed to pay `running allowance' to the respondents. It may be noticed that while disposing of that Writ Petition being Civil Petition No. 4143 of 1988 and C.O. No. 1812 (W) of 1984 the Court passed the following Order:

"After hearing the Learned Advocates and considering their submissions, we feel that a happy solution has been arrived at. We thus, after bearing them direct that with four months from today, the petitioners will be paid at the rate of 120 kilo meter per day while on duty in terms of paragraph 3.12 of the New Running Allowance Rules - structuring of cadre. We also keep it on record that while making such payment, authorities will be able and entitled to adjust the amount, which has already been received by the employees concerned on the basis of the works, which they have done. The time, we directed, was suggested by Mr. Chakrabarty on instructions from Mr. C.B. Chowdhury, Deputy Chief Electrical Engineer, Eastern Railway, who was present in Court."

3. After this allowance had been paid to the respondents, the Eastern Railways passed an order dated 22nd February, 2001 stating that they were granted higher pay scales inadvertently and the said scale is withdrawn as well as for recovery of amounts paid in excess of the amounts which ought to have been paid to the respondents in the lower scale. The correctness of this order was questioned by the respondents before the Tribunal, submitting that they were granted the pay scale of Goods Driver vide IVth Pay Commission w.e.f. 1.1.1986. They continued to draw the prescribed pay scale which was subsequently revised to Rs.5,000 - 8,000/-w.e.f. 1.1.1996 in terms of Vth Pay Commission. The order was arbitrary as the function and duties of the TWDs were similar to that of the Goods Driver and these posts were treated to be inter-changeable by the department which passed such orders of transfer from time to time. Thus, they prayed that they be permitted to withdraw the same pay scale. This application was contested by Eastern Railways on behalf of the Union of India and it was stated that the scale was granted by inadvertent error and they are not entitled to the pay scale of Rs.1350-2200/- w.e.f. 1.1.1986 and also that they are not equivalent to the Goods Drivers. The matter was examined at some length by the Tribunal. It was noticed that vide Annexure `E' to that application dated 15th April, 1993, the Eastern Railways itself has stated that all TWDs should be given the grade of Goods Drivers i.e. Rs.1350-2200/- (unrevised). There is no Railway Board's circular or order directing that TWDs are not entitled to the pay scale of the Goods Drivers and they are not justified in taking decision to grant lower pay scales. The respondents had also relied upon the judgment of this Court in the case of Chandrap