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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO. 7298 OF 2013 (Arising Out of SLP (C) No.3446 of 2012)

Union of India & Ors. ... Appellant(s) Versus

B. Banerjee ... Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

1. The precise  question  that  arises  for  determination  in  

the present appeal is whether the respondent, a medically  

decategorised Driver  of  the Indian Railways,  working as a  

Crew  Controller  with  stationary  duties,  is  entitled  to  

allowance  in  lieu  of  kilometerage  (ALK).   The  Central  

Administrative  Tribunal  by  its  order  dated  10.02.2011  

answered the question against the respondent which led to a  

round of litigation before the Calcutta High Court.  The High  

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Court held that the respondent was entitled to the allowance  

in question.  Aggrieved, the Union has filed this appeal.

2. The  basic  facts  that  would  require  notice  are  not  in  

dispute.   The respondent while serving as a Diesel  Driver  

(Goods) Grade-II  was found unfit  to work as a Driver in a  

special medical examination that was held on 5.1.2005.  He  

was, however,  allowed to work as a Crew Controller.   The  

said post, though involved performance of stationary duties  

was included in the cadre of Driver in terms of Railway Board  

Circular  No.9/98  dated  09.01.1998.   Regular  Drivers,  in  

addition  to  medically  decategorised  Drivers  like  the  

Respondent, were also drafted to perform the duties of Crew  

Controller.  Both categories of employees i.e. regular Drivers  

and  medically  decategorised  Drivers  in  the  post  of  Crew  

Controller  were  being  paid  ALK.   A  subsequent  Circular  

No.12/2004 dated 14.01.2004 was issued to make it  clear  

that  medically  decategorised  Drivers  allowed  to  perform  

duties of Crew Controller were ineligible to the grant of any  

benefit  specifically  admissible  to  the  running  staff  on  the  

premise  that  such  decategorised  Drivers  ceased  to  be  

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running staff.  Accordingly, it was clarified that the benefit of  

allowance in lieu of kilometerage (ALK) is not admissible to  

medically  decategorised  Drivers  working  as  Crew  

Controllers.   Following  the  aforesaid  clarificatory  Circular  

No.12/2004  dated  14.01.2004,  the  respondent  who  was  

drawing ALK was denied further benefit of the same which  

led to the institution of the proceeding before the Tribunal.  

The Tribunal, as it appears from its order dated 10.02.2011,  

took the view that following his medical decategorisation the  

respondent ceased to be a running staff and as he had been  

performing  stationary  duties  he  is  not  entitled  to  any  

Running Allowance. The High Court, on being approached by  

the respondent, however, took the view that even after his  

medical  decategorisation  the  respondent  continued  to  

remain in the cadre of Driver (the said cadre included the  

post  of  Crew Controller).   Hence,  he was entitled to  ALK.  

Accordingly,  the  impugned  directions  have  been  issued  

which have led to the institution of the present appeal by the  

Union.

3. We have heard the learned counsels for the parties.  

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4. To appreciate the issues arising in the present appeal,  

it will be necessary to notice the relevant provisions of the  

Running Allowance Rules (1981) as embodied in the Indian  

Railway Establishment  Manual  –  Volume-I  (Revised Edition  

1989).   

5. Rule  902  (2)(iii)  defines  “running  duties”  to  mean  

“duties directly connected with the movement of trains and  

performed by running staff while employed on moving trains  

or engines including shunting engines”.

Sub-rule (iv) of Rule 902 is in the following terms:

“(iv)   “Running  staff”  performing  “running  duties” shall  refer to Railway servants of the  categories mentioned below:

Loco Traffic

(a)Drivers,  including  Motormen  &  Rail  Motor  Drivers  but  excluding  Shunters.

(a) Guards

(b) Shunters (b) Assistant  Guards

(c)  Firemen,  including  Instructing  Firemen,  Electric  Assistant  on  Electric  Locos  and  Diesel  

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Assistant/Drivers.  Assistants  on  Diesel  Locos.

“Running Allowance” as defined in sub-rule (v) of Rule  

902 is extracted below:  

“(v) “Running Allowance” means an allowance  ordinarily granted to running staff in terms of  and  at  the  rates  specified  in  these  rules,  and/or modified by the Central Government in  the  Ministry  of  Railways  (Railway  Board),  for  the performance of duties directly connected  with  charge of  moving trains  and includes a  “Kilometrage  Allowance”  and  “Allowance  in  lieu  of  kilometrage”  but  excludes  special  compensatory allowances.”

6. Rule 903 which is quoted below makes it clear that 30%  

of the basic pay of the running staff is required to be treated  

as representing the pay element in the Running Allowance:

“903. Pay element in Running Allowance:- 30% of the basic pay of the running staff will  be  treated  to  be  in  the  nature  of  pay  representing the pay element in the Running  Allowance.  This pay element would fall under  clause  (iii)  of  Rule  1303-FR-9  21(a)  i.e.  “emoluments  which  are  specially  classed  as  pay by the President”.

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7. Rule 905 deals with the types of allowances admissible  

to running staff and is in the following terms:

“905. Types of Allowances admissible to  Running Staff:-Running staff shall be entitled  to  the  following  allowances  subject  to  the  conditions specified by or under these rules:

(i) Kilometrage  Allowance  for  the  performance of running duties,  in terms  of  and  at  the  rates  specified  in  these  rules.

(ii) An allowance in lieu of kilometrage (ALK)  for the performance of stationary duties  such as journeys on transfer, joining time,  for  attending enquiries or law courts on  Railway business, attending departmental  inquiries as Defense Counsel or witness,  Ambulance  classes,  volunteer  duty  in  connection with Territorial or other similar  Fund and Staff  Loans Fund Committees,  meeting  of  Railway  Institutes,  Welfare  and Debt Committees, Staff Benefit Fund  and  Staff  Loan  Fund  Committees,  Staff  and  Welfare  Committees,  for  attending  the  meetings  of  Railway  Co-operative  Societies  in  cases  where  special  casual  leave is granted for doing so, medical and  departmental examinations, participating  in  recognized  athletic  contests  and  tournaments, scouting activities and Lok  Sahayak  Sena  Camp,  representing  recognized labor organizations, attending  periodical  meetings  with  District  offices,  Heads  of  Departments  and  General  Managers,  attending  First-aid  classes,  undergoing training in carriage sheds and  as  worker  teacher  under  the  Workers’  

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Education  Scheme  attending  training  schools  for  refresher  and  promotion  courses,  undergoing  sterilization  operation under Family Planning Scheme  appearing  in  Hindi  Examination  Guards  booked  on  escort  duty  of  treasure  and  other  insured  parcels  on  trains,  Drivers  and Firemen when kept spare for a day or  two to enable them to examine and clean  the  engines  thoroughly  before  being  deputed to work special trains for VIPs, or  any other duties which may be declared  in  emergencies  as  qualifying  for  an  allowance in lieu of kilometrage.

(iii) Special Compensatory Allowances  

The running staff are eligible for the following  compensatory  allowances  under  the  circumstances  and  at  the  rates  specified  in  these rules:

(a) Allowance  in  lieu  of  Running  Room  facilities.

(b) Breach of rest allowance.

(c) Outstation (Detention) Allowance.

(d) Outstation (Relieving) Allowance.

(e) Accident Allowance.

(iv)  An  official  Allowance  when  undertaking  duties  in  higher  grades  of  posts  open  to  running staff or in stationary appointments.”

8. Rule  907  which  deals  with  allowance  in  lieu  of  

kilometerage (ALK) is in the following terms :

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“907. Allowance in lieu of Kilometrage (ALK)

When running staff are engaged in or employed on  non-running duties as specified in Rule 3 (ii) above,  they  shall  be  entitled  to  the  payment  of  an  allowance in lieu of Kilometrage as indicated below  for every calendar day for such non-running duties  as may be required to be performed by them:

(a) When such non-running duties are performed  by  the  running  staff  at  their  headquarters,  they  shall  be  paid  the  pay  element  of  the  Running  Allowance, namely, 30% of the basic pay applicable  for the day.

(b) When such non-running duties are performed  by the  running  staff  at  outstations,  they  shall  be  paid ALK at the following rates:

S.  No.

Category of Running  Staff

New  scales  of pay

Revised  rates of ALK  (160  km.)  per  day  w.e.f.  1-11-1986*

1. Mail Driver 1640-2900 45.20

2. Passenger Driver 1600-2660 45.10

3. Goods Guard 1350-2200 45.05

4. First Fireman/ Diesel  Asstt/Electric  Asstt.

950-1500 30.90

5. Second Fireman 825-1200 26.25

6. Shunter 1200-2040 33.05

7. Mail Guard 1400-2600 36.95

8. Passenger Guard 1350-2200 36.90

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9. Goods Guard 1200-2040 36.80

10. Assistant Guard/  Brakesmen

950-1400 22.00

9. From the provisions  of  the  Running Allowance Rules,  

extracted above, it is abundantly clear that only a specific  

category  of  employees  in  the  Railways  like  Drivers,  

Motormen,  Firemen,  Guards,  Assistant  Guards  etc.  who  

constitute the running staff and such staff who are directly  

connected  with  the  movement  of  trains  perform  running  

duties.  Running Allowance under the Rules is required to be  

paid  only  to  the  running  staff  who  are  engaged  in  the  

performance of duties directly connected with the movement  

of  trains  and  such  allowance  includes  kilometerage  

allowance or allowance in lieu of kilometerage (ALK).   While  

kilometerage  allowance  is  to  be  paid  for  performance  of  

actual running duties, the allowance in lieu of kilometerage  

(ALK) is to be paid to such members of the running staff who  

are temporarily required to perform stationary duties.  The  

rules also make it  clear that 30% of the basic pay of the  

running staff is required to be treated as representing the  

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pay element in the Running Allowance.  Those members of  

the running staff who are employed on non-running duties  

are paid  the aforesaid  30% of  the basic  pay if  such non-

running duties are   performed at the headquarters whereas  

in  case  such  non-running  duties  are  performed  by  the  

running staff at outstations they are required to be paid ALK  

at the rates prescribed by Rule 907(b).   It is thus clear that  

no Running Allowance i.e. either kilometerage allowance or  

allowance in  lieu  of  kilometerage is  contemplated for  any  

staff,  including  erstwhile  members  of  the  running  staff,  

permanently  engaged in performance of stationary duties.  

Running  Allowance  of  either  description  is  required  to  be  

paid only to members of the running staff who are directly  

engaged in actual movement of trains or such staff who are  

temporarily assigned stationary duties but who are likely to  

go back and perform running duties.  The respondent does  

not fall in either of the above two categories.   

10. The retention of decategorised Drivers working as Crew  

Controllers in the original  cadre of Drivers by the Railway  

Board’s  Circular  No.9/98  dated  09.01.1998  and  their  

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entitlement  to  Running  Allowance  (ALK)  has  to  be  

understood in the above context.  The aforesaid inclusion,  

which is wholly fictional, cannot confer any benefit contrary  

to  the  express  provision  of  the  Running  Allowance  Rules  

inasmuch  as  a  decategorised  Driver  working  as  a  Crew  

Controller is not a member of the running staff or engaged in  

performance of running duties as defined by the provisions  

of Running Allowance Rules.  The above position has been  

made  abundantly  clear  by  the  Railway  Board  Circular  

No.12/2004 dated 14.01.2004, details of which have already  

been noticed.

11. There is yet another aspect of the matter which would  

require a mention.  Under Rule 903 of the Running Allowance  

Rules, as noticed above, 30% of the basic pay of the running  

staff represents the pay element in the Running Allowance.  

Therefore, in case of medically decategorised Driver, like the  

respondent,  the  said  component  being  a  part  of  the  pay  

drawn by him as a running staff has to be protected.  The  

same  apparently  has  been  done  as  is  evident  from  the  

rejoinder  affidavit  of  the  Union.   The  above  act  of  the  

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appellants  also  ensures  compliance with  the  provisions  of  

Section  47  of  the  Persons  with  Disabilities  (Equal  

Opportunities, Protection of Rights and Full Participation) Act,  

1995 which entitles the respondent to receive the pay and  

service  benefits  earlier  drawn  by  him.   The  Running  

Allowance to which the respondent was entitled while he was  

a member of the running staff has been protected as a part  

of  his  pay  in  the  post  of  Crew  Controller.   In  such  

circumstances, any further grant of ALK will not be justified.

12. We, therefore, hold that the High Court was not justified  

in issuing the impugned directions for grant of ALK to the  

respondent.  The order of the High Court dated 20.06.2011 is  

therefore set aside and the appeal is allowed.  

..………………………..………………………J.                                         [SUDHANSU JYOTI  MUKHOPADHAYA]                     

..………………………..………………………J.                                         [RANJAN GOGOI]                     

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NEW DELHI SEPTEMBER  06, 2013

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