Central Administrative Tribunal - Ernakulam
M.D. Helwin vs Union Of India Represented By on 3 August, 2016
Author: P.Gopinath
Bench: P.Gopinath
Central Administrative Tribunal
Ernakulam Bench
OA/885/2013
Wednesday, this the 3rd August, 2016
CORAM
Hon'ble Mr.Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath, Administrative Member
1. M.D. Helwin, aged 23 years,
S/o. Devadhasan,
Trackman/SSE/P.Way/Southem Railway, Quilon,
Residing at Railway Quarters, Kollam.
2. P. Devadhasan, aged 55 years,
S/o. Ponnayan,
Retd. Sr. Trolleyman/Br/QLN,
Residing at Kaithathukonam,
Perai, Thiruvattar Post
Kanyakumari District,
Tamil Nadu. Applicants
(By Advocate: Mr. Martin G.Thottan)
Versus
1. Union of India represented by
the General Manager
Southern Railway, Headquarters Office,
Chennai-6l
2. The Senior Divisional Engineer,
Southern Railway, Trivandrum Division,
Trivandrum-14
3. The Divisional Personnel Officer
Southern Railway, Trivandrum Division,
Trivandrum-14 Respondents
(By Advocate: Mrs.P.K.Radhika)
The OA having been heard on 28/07/2016, this Tribunal delivered the
following order on 03.08.2016:-
ORDER
By N.K.Balakrishnan, Judicial Member The first applicant was appointed as temporary Trackman/Permanent Way/Quilon as per Annexure A5 order dated 01.03.2013 and he joined as such on 04.03.2013. First applicant obtained the order of appointment under the LARSGESS (Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff) Scheme, as second applicant voluntarily retired from service of the respondents on 01.02.2013 while he was serving as Senior Trollyman/Bridges/Quilon. This application is filed contending that the first applicant is entitled to be appointed in Bridges Section with effect from 01.02.2013 as per the Scheme Annexure A1 series and so Annexures A3 & A5 letters are to be quashed.
2. The gist of his case is stated as follows:-
The second applicant sought voluntary retirement from the post of Senior Trollyman/Bridges/Quilon on 31.01.2013 for the sake of employment of his son (1st applicant) in the lowest recruitment grade of his category in terms of safety related retirement scheme introduced through Railway Board letter No.RBE No.4/2004 dated 02.01.2004 which was later modified by LARSGESS Scheme issued as per RBE 131/2010 dated 11/9/2010. Annexure A1 (a) & (b) are copies of the Scheme referred to above. As per Para 2 (vi) of Annexure A1(a), the ward will be considered for appointment only in the lowest recruitment grade of the respective category from which the employee seeks retirement, depending upon his/her eligibility and suitability but not in any other category. As per the Scheme, the retirement of the employee and appointment of the ward should take place simultaneously.
3. The respondents violated the conditions of the Scheme. Annexure A2 is the copy of the proceedings showing the retirement of the second applicant from service on 01.02.2013. The first applicant got appointment simultaneously but it was in breach of para 4 of Annexure A1(b). The first applicant was offered appointment as temporary Trackman/Permanent Way in PB-5000-20200 + GP 1800. This is in violation of Para 2 (vi). Though representations were given, the first applicant was told that there were no vacancies in Bridges and if the Annexure A3 offer is rejected, he will not get any job. Thus the first applicant was compelled to accept the appointment. But soon thereafter, applications were invited from employees of Works and Permanent Way Section in pay band Rs. 5200-20200 + GP Rs. 1800 for appointment as Helpers/Bridges in the said pay band against 13 vacancies, vide Annexure A6. The appointment was made changing the category from Bridges to Permanent Way. Hence A3 & A5 letters are to be quashed and it should be declared that the first applicant is entitled to be appointed in Bridges Section w.e.f. 01.02.2013.
4. Respondents resit the petition contending as follows:-
The second applicant while working as Senior Trollyman in Bridge Organization of the Civil Engineering Department sought for voluntary retirement and for employment of his son, the first applicant herein, as provided in Annexure A1(a) and A1(b) Scheme. The category of Trollyman is in Permanent way, Works and Bridges Sections in the Civil Engineering Department and is covered by the Scheme. As per Clause 2 (vi) of Annexure A1(a), the ward will be considered for appointment only in the lowest recruitment grade of the respective category from which the employee seeks retirement. The correct date of Annexure A2 is 31.1.2013 and not 31.3.2013. No enquiry was conducted by the applicant regarding the availability of the vacancies in Bridge organization. The vacancies of helpers in Bridge Organisation are not being filled up through direct recruitment. They are filled up by calling for volunteers from the category of Trackman and others in Works and Permanent Way Sections in the Engineering Department. The post of Trackman is in PB-1 Rs.5200-20200 + GP Rs.1800. The post of helper in Bridge Section sought to be filled as per Annexure A6 is also in PB- I Rs.5200-20200 + GP Rs.1200. It is not meant for direct recruitment. Hence those vacancies are not available to be offered to the first applicant as per the Scheme. The second applicant was only a Trackman before he was posted in the Bridge Organization on his volunteering on earlier occasion. Since the appointment as per the Scheme is only as a Trackman, the contention that there was breach of contract is incorrect.
5. Rejoinder was filed by the applicants contending that the respondents are estopped from committing breach of promise contained in para 2 (vi) of Annexure A1(a). As the first applicant was of the view that his appointment would be delayed, he accepted the offer of appointment. Cadres in Permanent Way/Bridges and Works are separate with separate seniority but sometimes, volunteers may be called from Permanent Way and Works for filling up the vacancies in Bridge Organization.
6. Additional reply statement has been filed by the respondents refuting the averments made in the rejoinder.
7. The first applicant is not entitled to be appointed as Khalasi in Bridge Organization. 3rd respondent being the competent authority finalized the orders based on the rules on the subject and in consultation with the second respondent. Simply because pay band and grade pay of the post of Bridge Khalasi is identical to the pay band and grade pay of the post of Trackman, it cannot be considered as a recruitment post.
8. The point for consideration is whether the applicant is entitled to be appointed in Bridges Section w.e.f. 1.2.2013. The respondents would submit that it is a case where the applicant got appointment under the LARSGESS Scheme. The legality or sustainability of the LARSGESS Scheme was considered by different Benches of the Tribunal. In most of the cases, it was found that the Scheme is violative of the Articles 14 & 16 of the Constitution of India. In one of the orders, which was placed before us by the respondents, i.e., OA 1008/14, it was held by this Tribunal thus:-
10. It is pointed out that the provisions for compassionate appointment is limited to 5% of the direct recruitment quota and that too, it is based only on the question of impecuniousness of the family. The appointment under that scheme postulates a position wherein the breadwinner of the family die suddenly leaving the family in penury but that is not the condition of an employee at the fag end of his career deciding to take voluntary retirement with the dubious design of inducting his ward into the service avoiding competitive examination and meritorious selection. The right of the other job seekers is infringed by this subtle device contrived at with impunity for conferring employment to the ward of an employee who seeks voluntary retirement at the fag end of his service making it a 'hereditary appointment'. When lakhs of competitively meritorious candidates are waiting outside how could such illegitimate appointment be made is the pertinent point that persuaded the Benches to quash the scheme holding that it is violative of Articles 14 & 16 of the Constitution of India.
9. It is submitted by learned counsel for the applicants that there is a full Bench decision of the CAT which upheld the LARSGESS Scheme even though some other Benches of the Tribunal took a different view. Be that as it may, since the first applicant was already appointed as a temporary Trackman in the Engineering Department, as borne out by Annexure A5 order, the other contention regarding legality or validity of the LARSGESS Scheme is not necessary to be gone into now.
10. The main thrust of the contention advanced by the 1 st applicant is that he ought have been appointed in the Bridges Section whereas he was given appointment in the Permanent Way Section. According to the applicant, there were vacancies in the Works & Permanent Way Sections in pay band of Rs.5200-20200 + GP Rs.1800 for appointment as Helper/Bridges in the said pay band. Thus, according to the applicant, Helper/Bridges in the Permanent Way Section was actually available and so he should have been given appointment in that cadre. The pay of the Trackman in Works and Permanent Way Sections is the same as that of the pay band of Helper/Bridges in Bridges Section, but it is pointed out by the respondents that the appointment as Helper/Bridges is not actually a direct recruitment but applications are invited from employees of Works & Permanent Way Section in PB Rs.5200- 20200 + GP Rs.1800/-, who are willing to be considered for the post of Helper/Bridges in Pay Band Rs.5200-20200+GP 1800/-. Therefore, though the pay of the similarly placed employees of Works & Permanent Way Sections and that of Bridges is same, that does not mean that the applicant can aspire for the post of Helper/Bridges when those posts are being filled up by inviting applications from employees of Works & Permanent Way Sections. Therefore, the applicant cannot, as of right, contend that he is entitled to be posted as Helper/Bridges. He has to work as Track man in Permanent Way Section for the required period and then if applications are invited, he can opt to be considered for appointment in the Bridges Section.
11. It is worthwhile to remember that the first applicant had voluntarily accepted the offer of appointment given to him under the LARSGESS Scheme. Clause (vi) of Annexure A1(a) reads thus:-
'(vi) The ward will be considered for appointment only in the lowest recruitment grade of the respective category from which the employee seeks retirement, depending upon his/her eligibility and suitability, but not in any other category.' The applicant was given the very same post carrying the same pay band of Rs.5200-20200 + Grade Pay Rs.1800/- . Therefore, it cannot be said that he was not given the appointment strictly in accordance with the Scheme. There was no violation of any mandate of law nor of any Scheme.
12. The post of Helper/Bridges Section is intended for being given to those volunteers who opt for the post. Such volunteers can be from Permanent Way Section as well. Since that is not a post directly to be filled up from persons like the applicant, he cannot aspire for appointment to that post since the applicant has voluntarily accepted the offer of appointment. Though many things have to be said about the LARSGESS Scheme, we do refrain from going into the correctness or otherwise of that scheme.
13. Since the applicant has already been granted appointment as per the LARSGESS Scheme following the prescriptions contained in Clause (vi) of Annexure A1(a), we find absolutely no reason to hold that any injustice was done to the applicant. The OA is found to be bereft of any merit. It is accordingly dismissed.
P. Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member aa.