Central Administrative Tribunal - Ernakulam
P.Rajan vs Union Of India Represented By The on 12 June, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
OA No.842/2012
Wednesday, this the 12th day of June, 2013.
C O R A M
Hon'ble Dr.K.B.S.Rajan, Judicial Member
Hon'ble Mr.K.George Joseph, Administrative Member
P.Rajan, 56 years
S/o Thami
Peon, Office of the Station Manager/Southern Railway
Calicut, R.S. & P.O.
Residing at Payyappandha House
Thumarakavu, Pookayil Posts, Tirur Taluk
Malappuram District-676 317. Applicant
(By Advocate: Mr.T.C.Govinda Swamy)
Versus
1. Union of India represented by the
General Manager, Southern Railway
Headquarters Office, Park Town P.O.
Chennai-600 003.
2. The Chief Personnel Officer
Southern Railway
Headquarters Office, Park Town P.O.
Chennai-600 003.
3. The Senior Divisional Personnel Officer
Southern Railway
Palakkad Division
Palakkad-678 002. Respondents
(By Advocate: Mr.Thomas Mathew Nellimoottil)
This Original Application having been heard on 7th June, 2013, the
Tribunal on 12-06-2013 delivered the following:
O R D E R
HON'BLE DR.K.B.S.RAJAN, JUDICIAL MEMBER The applicant, earlier functioning as Gangman in the scale of pay of Rs 775
- 1025 (IV Pay Commission), which warranted medical category of Bee One, was certified to be "permanently medically unfit for the duties of his original post." And, he was recommended on medical grounds for suitable alternative employment permanently with duties not involving walking or standing for long. Annexure A-3 dated 17-07-1996 refers. As per the provisions of Chapter XIII of the IREM, he was granted eligible leave for the period upto 12-08-1996 followed by grant of extra-ordinary leave without pay from 14-08-1996 onwards. Alternative employment could be fructified only on 18-12-1996 when order was issued. However, the applicant could join after his medical treatment only on 26- 03-1997. He was accommodated in the post of Peon, carrying a pay scale of Rs 750 - 940. Pay drawn as Gangman was, however, protected. The erstwhile pay scale of Rs 750 - 940 was revised to Rs 2550 - 3200 while that of Rs 975 - 1025 by Rs 2610 - 3540.
2. After the coming into force of the "Persons with Disabilities (Equal Opportunities Protection of Right and Full Participation) Act, 1995", which came into operation w.e.f. 07-02-1996, the Railways had modified the provisions of Chapter XIII of the IREM, vide Railway Board Order RBE 89/99 dated 29-04-99, vide Annexure A-4. The applicant had preferred a representation for extending the benefits of AnnexureA-4 to afford him the same pay scale of Rs 2610 - 3540. There was no reply. Of course, he was the beneficiary of the financial upgradation to the above said pay scale.
3. Later on, the Railway Board had by order in RBE 93/2005 dated 31-05- 2005 gave retrospective effect to the earlier Annexure A-4 order in RBE No. 89/99. Thus, in respect of cases in which the disabled/medically decategorised employees on or after 07-02-1996 and upto 28-04-1999 were absorbed in altrernative employment in accordance with the earlier scheme in grade(s) lower than the grade(s) held by them on regular basis at the time of disablement/medical decategorisation, be reviewed on representations received in this regard and decided at the level of General Manager as per the revised scheme. Thus all the actions taken in accordance with the then provisions contained in Chapter XIII were to be reviewed and the medically decategorised persons were to be afforded higher pay scale in which they were functioning prior to such decategorization. Further, other attendant provisions contained in the RBE Order No. 89 of 1999 read with RBE Order No. 93/3005 were also to apply.
4. The applicant thus, preferred further representation and an inpsection was thereafter conducted and the Inspection Report of the Assistant Personnel Officer, Southern Railway, Palakkad was rendered, vide Annexure A-6 dated 24-11-2009
5. The respondents have, by Annexure A-1 order, revised the pay of the applicant ,amending the pay scale from 2550 - 3200 as on 26-03-1997 to Rs 2610
- 3540. However, the said order referred to the first financial upgradation originally granted w.e.f. 01-10-2000 placing the applicant in the pay scale of Rs 2610 - 3540 (when the earlier pay scale was Rs 2550 - 3200) but since the said pay scale of Rs 2610 - 3540 was granted as early as 26-03-1997, his first financial upgradation from 01-10-2000 to the next higher pay scale was not granted to the applicant. The said pay scale of Rs 2610 - 3540 was replaced by the revised pay scale w.e.f. 01-01-2006 in PB 1 with G.P. of Rs 1800 w.e.f. 01-01-2006. Since the above Annexure A-1 order postponed the date of increment by excluding the period of extra ordinary leave taken by the applicant at the time of decategorization, resulting in the recovery of excess amount paid to the applicant, the respondents have also issued Annexure A-2 order deciding to recover the excess amount paid to the applicant. Thus,. The said AnnexureA-1 and A-2 orders are under challenge and the relief sought for is to the following extent:-
1. Call for the records leading to issuance of Annexure A1 and A2 and quash the same to the extent they treat the period between 13.01.1997 to 25.03.1997 as EXL/Absent;
2. Quash Annexure A1 & A2 also to the extent they deny the benefit of First Financial upgradation under the ACP Scheme in the scale of Rs.2750-4400 with effect from 1.10.2000;
3. Declare that the respondents are bound to treat the period between 17.7.1996 to 13.01.1997 as duty wih all consequential arrears of pay and allowabnces arising therefrom and direct the respondens to grant the same accordingly;
4. Declare that the respondents are bound to trea the period between 14.01.1997 and 25.03.1997 as leave due and admissible taking into considertion reliefs granted as above and direct further to grant the leave salary for the above period;
5. Direct the respondentsto grant the applicant the benefit of seniority and all consequential benefits as if the applicant was absorbed as Peon in scale of Rs.2750-4400 with effect from 26.03.1997 dul;y reckoning the past service also wih all consequeital benefits arising therefrom.
6. Award costs of and incidental to this application;
7. Pass such other orders or directions as deemed just fit and necessary in the facs and circumstances of the case.
6. Respondents have contested the O.A. Facts are not in dispute. However, they have contended that the applicant has not been medically decategorized but continued to be fit in medical classification of Bee One and below and was recommended that he may be provided with duties not involving walking or standing for long. Thus, his case did fall within the ambit of the provisions of Rule 1311(1) which states that the staff who get their cases recommended for a change of category on medical grounds will not get the benefit of these rules but will be treated as staff on their own request. Since the applicant had availed of LAP, LHAP and Extra Ordinary Leave, postponement of increment was in accordance with rules, by excluding the period of extra ordinary leave.
7. In their additional reply, the respondents have stated that on a reference made to the Chief Personnel Officer, Madras, the Chief Personnel Officer had informed that the benefit granted under the provisions of RBE No. 93 of 2005 was by way of an inadvertent mistake treating the applicant as medically decategorized. Even the pay protection granted to the applicant at the time of his appointment as peon is an inadvertent mistake.
8. Counsel for the applicant argued that the case of the applicant is clearly one covered under the Persons with disabilities Act, 1995 as the Medical authorities have clearly certified that the applicant is permanently, medically unfit for holding his original post. This means nothing but decategorization of medical category. Initially, his case was dealt with as per the then extant provisons under Chapter XIII of the IREM. At that time, till the alternative employment is granted, the railway servant had to take only medical leave. It is only after the framing of the Persons with Disability Act that the medically decategorized Railway Servant would be kept against supernumerary post in the same post in which he was originally functioning and on grant of alternative employment, he would be placed in the very same pay scale and stage of pay/GP in which he was placed prior to medical decategorisation. Once, by way of RBE No. 93 of 2005, all the cases were to be reviewed, the case of the applicant was also reviewed and it was on account of the same that his pay scale was restored to Rs 2610 - 3540 which was the pay scale attached to the post of Gangman, which the applicant was holding at the time of decategorization. Giving retrospective effect to the provisions of the said Act entailed the following:-
(a) The pay scale or pay shall in the alternative post not be varied and would be the same as was enjoyed before decategorization.
(b) From the date of medical decategorization till the offer of alternative employment, the applicant ought to have been treated as being adjusted against a supernumerary post created in accordance with the Rules.
(c) In view of (b) above, there is no question of earned or half average pay or extraordinary leave till alternative post was offered.
Thus, there cannot be a situation of postponement of increment on account of the Extra ordinary leave taken.
(d) The pay scale of the alternative post in so far as the medically decategorized persons are concerned would be the one which they were enjoying prior to medical decategorization.
(f) Since the pay scale applicable to the individuals prior to medical decategorization would be continued when posted against any other alternative post, entitlement to financial upgradation in accordance with the provisions of ACP or MACP Scheme as the case may be, remains intact.
The counsel further argued that in the case of the applicant thus, once the provisions of persons with inabilities Act are pressed into service, all the action taken under the erstwhile provisions of Chapter XIII would be reviewed. The respondents did review and made available the pay scale as of Gangman when the applicant was offered the post of Peon, but they have omitted to ensure restoration of the leave granted to the applicant from the date of decategorization till the date of offer of appointment. Rather holding that at the time of grant of increment discount of the period of extraordinary leave was not given, the same was sought to be given by postponing the increment by seven months i.e. from 01- 03-1997 to 01-10-1997. In addition, the respondents failed to afford the applicant the next financial upgradation due w.e.f. 01-10- 2001.
9. As regards the contention of the respondents that the shifting of the applicant from the post of Gangman to Peon is not one under medical decategorisation, the counsel submitted that such shift from one seniority unit to another could be there either in the case of medical decategorisation or under the provisions of para 227 of IREM under which the case of the applicant does not fall. The contention as per the Chief Personnel Officer that the pay scale of Rs 2610 - 3540 granted was by inadvertent mistake is untenable since the applicant had to be given the employment of Peon only on account of his medical decategorization. Counsel for the applicant relied upon the decision of this Bench in OA No. 590 of 2003, which had not been upset by the High Court vide judgment dated 18th June, 2010 in W.P.(C) No. 17724 of 2010.
10. Counsel for the respondents relied upon the contents of the counter as well as the additional reply.
11. Arguments were heard and documents perused. The post of Gangman warrants medical category of Bee One. It also warrants, as admitted by the counsel for the parties, walking and standing for a long time. The medical authorities in categorical terms stated that the applicant has been found permanently medically unfit for the duties of his original post. Respondents have taken the medical authorities' opinion, "he is fit to work in Bee one and below" to contend that there is no variation in the medical categorization and hence, the case of the applicant does not come under medical decategorization. And, his pay fixation in the higher pay scale for the post of Peon is by inadvertence. The Medical authorities' opinion is contained in two communications, both on the same date i.e. 17-07- 1996 . What is relied upon by the respondents is one with the subject "Sri. P. Rajan, Gangman/Engg under PWI/CLT". That relied upon by the applicant contains the subject as "CERTIFICATION OF RECOMMENDATION FOR ALTERNATIVE EMPLOYMENT" This communication does contain the reference of the previous communication and thus, this is later than the other one. Further, in the earlier communication, what was recommended by the Medical authorites had been reflected in the later communication as "recommended light duty/change of occupation", while the later, in unequivocal term, states "is permanently medically unfit for the duties of his original post." The strength of the later certificate is more and the same is more clear as well.
12. The case of the applicant is identical to the one dealt with by this Tribunal in OA No. 590 of 2003. That was a case wherein the applicant, functioning as Goods Guard and the medical authorities opined as contained in para 4 of the order dated 14th July, 2009. For reference, the said order is reproduced as hereunder:-
4. Sometimes in 1991, when the applicant was in sick list, the medical authorities had opined as under:-
"He has been examined by me today. He is being discharged from sick list; fit for duty. But due to the nature of his sickness, he cannot do any strenuous type of job. Therefore, it is recommended that he may be given a job not involving heavy manual labour" (Annexure R-2 letter dated 28-10-1991) refers."
13. The above order was challenged before the High Court, but the High Court had rejected the writ petition on the ground of delay and certain other reasons as contained in the judgment.
14. Order in OA No. 590 of 2003 applies in all the four squares to the facts of this case.
15. The contention of the respondents that the applicant's case cannot fall under one of decategorization has only to be negative. For, change in the occupation could occur on certain conditions. Either it should be on the ground of medical decategorisation or else, should be one falling under para 227 of the IREM. Admittedly, the case of the applicant does not fall under the provisions of para 227 of IREM. If the transfer is on personal request, then the individual would stand to lose the seniority. That is not the case here. Nor is this a case of suo moto transfer on account of misconduct. There is no other rule under which the applicant could have been shifted from the post of Gangman to peon. Thus, the case is one coming under alternative employment on ground of medical decategorization. Contention of the respondents that the applicant remained in the medical category of Bee one and below and hence, there is no downgradation of his medical category cannot be accepted since the medical authorities' opinion is that the applicant is permanently medically unfit for the duties of his original post. Thus, the finding of the Tribunal is that this is a case of medical decategorization.
16. Once the finding arrived is that the case of the applicant is one of medical decategorization, the question arises as to whether the revised provisions of Chapter XIII of IREM as contained in RBE No. 89 of 99 as modified by RBE No. 93 of 2005 should apply. The answer is in affirmative. Thus, for this purpose, the clock has to be put back to the date of medical decategorization, i.e. 17-07-1996 and the applicant should be deemed to have been kept in supernumerary post till the alternative employment was made available to him. Alternative employment was offered on 18-12-1996. Thus, from 18-07-96 to 18-12-1996, the period of absence should be regularized as duty period (against the supernumerary post). The leave earlier availed of should therefore be restored as leave at the credit of the applicant in view of the period having been construed as period of duty. The period of absence from 19-12-1996 to 25-03-1997 should be taken as earned leave as the applicant did have leave at his credit. Thus, no extra-ordinary leave was availed of by the applicant to have his increment deferred by seven months. Thus, his increment due as on 01-03-1997 remained in tact. Further his pay in the post of Peon should be that in the pay scale applicable for Gangman.
17. Coming to the question of grant of ACP, the claim of the applicant is that the applicant should be granted the ACP, in the next pay scale of Rs 2750 - 4400 from 01-10-2000. Respondents had earlier placed the applicant in the pay scale of Rs 2550 - 3200 as for peon and afforded him the benefits of first financial upgradation w.e.f. 01-10-2000 by grant of pay scale of Rs 2610 - 3540. However, in the impugned Annexure A-2 order the grant of first MACP has been granted w.e.f. 01-09-2908 and the second MACP w.e.f. 02-01-2010. This means that the applicant has completed 20 years service as on 02-01-2010. In other words, his initial appointment had been reckoned from 02-01-1990. Since the applicant was initially engaged as a casual labourer and was granted temporary status w.e.f. 22- 08-1984 and was made regular Trackman w.e.f. 11-03-1995, the period of temporary status i.e. 10 years and 6 months enabled him to have half the service thereof to be treated as regular service, and thus, his regular appointment w.e.f. 11- 03-1995 was advanced by 5 years and 3 months, placing him as regularly appointed w.e.f. January, 1990. The procedure adopted thus is quite intact. But, as 12 years from the date of regularization works out to January, 2002, when ACP was in vogue, he should be afforded the benefit of first ACP in 2002 and his second MACP should be as scheduled w.e.f. January, 2010.
18. In view of the above, the OA is allowed to the following extent:-
(a) It is declared that the case of the applicant is one of medical decategorization when he was offered the post of Peon in December, 1996 (in which the applicant joined in March, 1997).
(b) Consequently, the benefit under RBE No. 89 of 1999 read with RBE No. 93 of 2005 is available to the applicant.
(c) In view of the fact that the above provisions cater for supernumerary posts to be created till alternative employment was available, the period from 18-07-1996 till 17-12-1996 should be treated as on duty instead of leave on full or half average pay as earlier treated. This resulting in the above leave having been re-
credited into the leave account of the applicant, the same is treated to have been construed against his absence from 18-12-1996 to 25-03- 1997 consequent to which the question of extra ordinary leave does not arise.
(d) Once there was no extra ordinary leave, there is no question of deferment of the date of next increment in 1997. As such, the date of increment should be restored to 01-03-1997.
(e) As regards grant of ACP, since the applicant's date of regularization taking into account half of his temporary service was January, 1990, his first ACP should be from 02-01-2002 while the second MACP would be from January, 2010. While the benefit under first ACP would be the next scale i.e. 2750 - 4400, the second MACP would be only the next G.P., of course adding one increment in the present scale of pay, as per the scheme. Respondents shall rework the same.
(f) Seniority of the applicant is as per the provisions governing the alternate employment on the basis of medical decategorisation.
19. The above order shall be complied with, within a period of eight months from the date of communication of this order.
20. Under the circumstances, there shall be no orders as to costs.
(K.George Joseph) (Dr.K.B.S.Rajan) Administrative Member Judicial Member aa.