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TMI Blog1996 (5) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant-relating to the meaning and scope of the memorandum. The Ernakulam Bench of the Tribunal has even regarded the memorandum as invalid. 3. The broad contents of the memorandum may he noted. It brought about some changes in the recruitment of Traffic/Commercial Apprentices - one of the changes being that on and from 15.5.1987 the recruitment of these Apprentices would be made in the pay scale of Rs. 1600-2660 (this scale earlier was Rs. 1400-2300) and, instead of all the posts being filled up by promotions, ratio of promotees was made 75%, and of the remaining 25%, 10% were required to come through Railway Recruitment Boards and 15% on the basis of Limited Department Competitive Examination. The pre- 1987 Apprentices laid their claim for the higher scale of pay on the basis of 1987 memorandum; and it is this claim which has come to be allowed by the majority of the CATs. 4. The appellant has challenged the legality of this view. It has also been contended that the memorandum is not invalid for the reason given by the Ernakulam Bench or, for that matter, any other reason. The learned Counsel appearing for the respondents have supported the view taken by the majority of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice, Secunderabad, it appears that the pay scale of Rs. 1400-2300 was being made available to Traffic Inspector Grade III, whereas scale of Rs. 1600-2660 was meant for Traffic Inspectors of Grade II. Similarly, Commercial Inspector, Grade III, was getting the scale of Rs. 1400-2300 and Commercial Inspector, Grade II, the scale of Rs. 1600-2660. Mrs. Sharda Devi has referred to us in this connection to the Table of "Avenue of Promotion for SS/TIs." finding place at page 82 of this counter, to bring home her point. This chart itself shows that there are promotional posts and the old scale of Rs. 455-700 (which on revision became Rs. 1400-2300) was meant for some Traffic Apprentices and not all. We may refer in this context to what finds place in Section B of Chapter II of the Manual. This Section deals with Rules governing the promotion of Group 'C' and shows that some promotional posts have been categorised as selection posts and some non-selection. The aforesaid chart relating to the 'avenue of promotion' has itself mentioned which are the non-selection posts and which are selection posts. 7. From the aforesaid, it is clear that the memorandum of 1987 was really ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction. Now, there is no dispute in law that statutory provision cannot be changed by administrative instruction. But then, the Tribunal, despite having noted Rule 1-A of the India Railway Establishment Code (Volume-I) as published on 21st March, 1951 reading: Normally recruitment will be to the lowest grade of the lowest class but direct recruitment on limited scale to intermediate grades will be made in accordance with instructions laid down by the Railway Board from time to time ultimately failed to bear in mind the aforesaid provision. Rule 1-A which had come to be made pursuant to the power conferred by the proviso to Article 309 and having stated that the recruitment in the lowest grade will be made in accordance with the instructions laid down by the Railway Board from time to lime, the rule itself permitted the Railway Board to issue necessary instructions, and the memorandum of 1987 having been issued by the Railway Board in exercise of this power, we hold that Board had valid authority to issue the memorandum. 10. Another submission made by Mrs. Sharda Devi in assailing the validity of memorandum was that tough pre- 15.5.1987 Apprentices would get the scale of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to an advertisement of January 1985, they were called for training programme commencing from August 1989; and so, they should be taken as post - 1987 Apprentices, for which reason they would be entitled to the benefit of the memorandum. This contention has been advanced because of the language of sub-para (xii) of para 2 of the memorandum, according to which the revised pay scale of Rs. 1400- 2300 was meal for "apprentices already under training". It was urged that the aforesaid respondents were not "under training" on 15.5.1987 as they had been called for training which was to commence from August 1989. Our attention was also drawn by Shri Das to a document at page 130 of the paper book, which is a communication of the Principal, Sonal Training School, addressed to the Chief Optg. Supdt. by which the representation of 30 Traffic Apprentices for the absorption/posting in the pay scale of Rs. l600-2660 was forwarded for consideration. 13. As to the last document, we would say that the same is inconsequential inasmuch as the Principal had only forwarded the representation. Though it is correct that the respondents were called for training from 1989, that is not enough to distingui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date of the notional promotion; it has to be from the date of the actual promotion. 16. We, therefore, hold that the view taken by the Patna Bench qua this respondent is not sustainable. Conclusion 17. All the appeals, therefore, stand disposed of by setting aside the judgments of those Tribunals which have held that the pre-1987 Traffic/Commercial Apprentices had become entitled to the higher pay scale of Rs. 1600-2660 by the force of memorandum of 15.5.1987. Contrary view taken is affirmed. We also set aside the judgment of the Ernakulam Bench which declared the memorandum as invalid; so too of the Patna Bench in appeal @ SLP (C) No. 15438 of 1994 qua respondent No. 1. We also state that cases of respondents 2 to 4 in appeals @ SLP (C) Nos. 2533-35 of 1994 do not stand on different footing. 18. Despite the aforesaid conclusion of ours, we are of the view that the recovery of the amount already paid because of the aforesaid judgments of the Tribunals would cause hardship to the concerned respondents/appellants and, therefore, direct the Union of India and its officers not to recover the amount already paid. This part of our order shall apply (1) to the respondents/appe ..... 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