Central Administrative Tribunal - Hyderabad
D Sreenivas Rao vs M/O Railways on 7 November, 2024
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OA.No.1581/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATIONS NO.020/01581/2015
ORDER RESERVED ON 29.10.2024
DATE OF ORDER: 07.11.2024
CORAM:
HON'BLE DR. LATA BASWARAJ PATNE, JUDICIAL MEMBER
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, ADMINISTRATIVE
MEMBER
D.Sreenivasa Rao, S/o. D.Ch.Narasimha Rao
Aged 48 years, Occ: Power Controller
O/o The Senior Divisional Mechanical Engineer
South Central Railway, Vijayawada Division
Vijayawada. .....Applicant
(By Advocate Sri K.R.K.V.Prasad)
Vs.
1. Union of India represented by
The Chairman, Ministry of
Railways, Railway Board
Rail Bhavan, New Delhi.
2. The General Manager
South Central Railway
Rail Nilayam, Secunderabad.
3. The Chief Personnel Officer
South Central Railway
Rail Nilayam, Secunderabad.
4. The Divisional Railway Manager
South Central Railway
Vijayawada Division
Vijayawada.
5. The Senior Divisional Personnel Officer
South Central Railway
Vijayawada Division
Vijayawada. ....Respondents
(By Advocate Sri M.Brahma Reddy, Sr.PC for CG)
*****
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OA.No.1581/2015
ORDER
PER: HON'BLE MR. VARUN SINDHU KUL KAUMUDI, ADMINISTRATIVE MEMBER
1. The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"To declare the inaction of the respondents in the matter of providing alternate appointment on medical de-categorization of the applicant befitting his status in the parent cadre in terms of the extant Rules and the statutory protection, resulting in the applicant's status and rank getting affected with loss of emoluments and other career benefits as illegal, arbitrary, unjust, discriminatory and is in violation of the provisions in 'The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995' and direct the respondents to provide alternate appointment to the applicant in a post operated in a regular cadre carrying the pay scale of Rs.6500-10500/- (5th CPC) by granting all consequential benefits, duly revising the office order No.Mech/Rg/42/2002, dated 04.10.2002 and pass such other order or orders as deemed fit and proper in the facts and circumstances of the case and in the interest of justice."
2. The facts of the case, in a nutshell, are as follows:
i. The applicant, while working as Senior Goods Driver in Vijayawada Division of the South Central Railway, in the erstwhile pay scale of Rs.5500-9000 (5th CPC), was medically de-categorized and was absorbed as Power Controller in the Mechanical (Running) Department, in the very same pay scale, vide order, dated 29.08.2002. ii. The applicant contends that, by virtue of his position, prior to the said medical decategorization in the parent cadre of Running, he was entitled to be placed one grade above in a stationary post, carrying the pay scale of Rs.6500-10500 (5th CPC), for providing alternate appointment, as per the then existing instructions. By virtue of the 3 OA.No.1581/2015 statutory provisions prescribed in "The Persons with Disabilities (Equal Opportunities) Act, 1995', medically decategorized running cadre employees could never be put to disadvantage of losing their rank and status, while providing alternate appointment. Thus, the action of not providing alternate appointment to the applicant to a post one grade above amounts to discrimination, affecting his career interest, on account of medical decategorization, in violation of the statutory protection available to him.
iii. The applicant was offered alternate appointment, as Power Controller, in the pay scale of Rs.5500-9000, instead of providing appointment in the scale Rs.6500-10500. In the Office Order, dated 04.10.2002, covering the said appointment of the applicant, it was mentioned that, as the applicant is medically de-categorized and posted as Power Controller, the tenure rule of 3 years is not applicable; however, if his performance is not found satisfactory, in addition to action under the Railway Servants (D&A) Rules, 1968, as he cannot be put to running duties, he will be considered for alternate job, following the rules applicable to medically de-categorized employees. Such rider in the order, at the outset, shows arbitrary exercise of power, while giving the alternate appointment in a tenure post which has no career progression with a threat to work like bonded labour. According to the applicant, the respondents, having conceded that there is a possibility of the applicant not fitting to perform the duties of Power Controller, ought to have given appointment in a regular cadre.4
OA.No.1581/2015 iv. It is submitted that the applicant had submitted a representation, dated 10.092002, before issue of the posting order, on coming to know the decision to provide him with alternate appointment as Power Controller. The applicant made it very clear in the representation that the Screening Committee had pressurized him to accept the said post of Power Controller, even though the applicant had another 25 years of service to his credit and that his future prospects, without any promotions, would be affected adversely. The applicant also mentioned in the said representation that he would retire as Power Controller and requested the 5th respondent either to post him in the Commercial Department or in the Ministerial Cadre of any department.
v. It is further submitted that, in spite of representations, dated 05.09.2002 and 10.09.2002, the respondents did not take any action, in violation of Railway Board instructions, conveyed vide RBE No.92 of 2002, dated 26.06.2002, wherein it was mentioned that, in case, where, for want of posts in the same / equivalent grade, even though the medically de-categorized employees are deployed in the posts not carrying the same or equivalent scale of pay, they should continue to be kept on supernumerary post in the grade(s) in which they were working on regular basis at the time of their medical decategorization, till such time they are adjusted in the post carrying the same or equivalent scale(s) of pay. In the case of the employees who belong to the running cadre, while providing alternate appointment in the stationary cadres, the equivalent grade principle is followed and, 5 OA.No.1581/2015 accordingly, such employees are given posting, one grade above, in the regular cadres. Thus, according to the Applicant, in his case, alternative appointment, one grade above the parent cadre grade, shall be Rs.6500-10500 (5th CPC).
vi. It is also argued that when a number of medically de-categorized running employees were given alternate appointment one grade above the parent cadre grade, and that, too in the regular cadres, in the case of the applicant, serious discrimination had taken place by the action of providing alternate appointment in a tenure post carrying the same pay scale as that in the running cadre post held by the applicant before his medical de-categorization.
vii. It is further submitted that medically de-categorized employees who belong to running cadre and are given alternate appointment in the other disciplines of the respondent-Railways have an avenue to become Group 'B' Gazetted Officers, but as the applicant was deprived of such promotional avenue, he had preferred his grievance to the 4th respondent herein on 29.06.2015, with a request to provide suitable post as the applicant had another 12 years of service left, duly mentioning that Power Controller post is a tenure one, with no channel of promotion as it is an ex-cadre post and even the benefit of restructuring is not granted to him as was given to the employees working in the other regular cadres.
viii. The 3rd respondent, vide letter, dated 17/18.02.2014, made it clear, in his reply, that medically de-categorized staff should be absorbed in suitable alternative posts in regular cadre only and not in tenure posts. 6 OA.No.1581/2015 The answer in regard to offering alternate appointment in a post carrying equivalent grade pay, is not relevant to the applicant as the concept of Grade Pay has been introduced by the 6th CPC, after implementation of which, employees belonging to the running cadre were given alternate appointment in the equivalent grade pay post. However, the Railway Board, vide letter No.E(NG)I-2014/RE-3/1, dated 20.05.2015, made it clear that the instruction of the Railway Board, dated 30.04.2013 will have prospective effect. Hence, the case of the applicant is obviously not covered under the instructions dated 30.04.2013.
ix. In terms of the instructions conveyed by the Railway Board, medically de-categorized staff should be absorbed in a suitable alternate posts in regular cadre only and not in tenure posts. It is also made clear that it is necessary for the Railway administration suo-moto when considering a subsequent de-categorized employee for absorption in a cadre, to look into cases when senior de-categorized employees have been absorbed in lower grades in the same cadre during the previous 3 years and initiate a review and that the senior may be promoted against a vacancy in the grade with the benefit of seniority. It is submitted that a number of juniors to the applicant who were subsequently medically de-categorized were provided with alternate appointments in regular cadres one grade above.
x. The action of the Respondents is in violation of the law laid down by the Hon'ble Supreme Court and the statutory instructions provided at Para 1304 to 1310 or IREM, Vol.I, and is also in violation of the 7 OA.No.1581/2015 provisions of 'The Persons with Disabilities (Equal Opportunities) Act, 1995' besides being in violation of Articles 14, 16 and 23 of the Constitution.
xi. It is mentioned that the re-fixation of the pay in pay scale of Rs.6500- 10500 (5th CPC) should not give an impression that the applicant has been given alternate appointment, one grade above, as the said pay scale of Rs.6500-10500/- has not been extended in a regular cadre.
3. On notice, Respondent No.5 has filed the reply statement on behalf of Respondents 1 to 5, wherein he has averred as follows:
i. The applicant, while working as Sr.Goods Driver in the scale of Rs.5500-9000, in the Vijayawada Division, was medically decategorised and was recommended for the alternative post as Power Controller by a Screening Committee of 3 Officers, including a Medical Doctor. Accordingly, he was absorbed as Power Controller and, since then, he has been working as Power Controller. ii. As per the CPO/SC's serial Circular No.50/98, medically decategorised Running Staff can be considered for the post of Crew / Power Controllers. The post of Crew/Power Controller is a tenure post for 3 years, but the same condition will not be applicable to the Running Staff, medically decategorised and absorbed as Crew / Power Controllers, vide circular cited above (Annexure-R1). iii. The post of Power Controller is a tenure post, but to the medically decategorised Running Staff, absorbed as Power / Crew Controller, the tenure will not be applicable and, hence, the post cannot be treated 8 OA.No.1581/2015 as a Tenure Post. While giving the office order No.B/P.608/III/9/Vol.VII, dated 04.10.2002, the same condition was mentioned and the applicant was well aware of the Rule position and joined as Power Controller. Later, the applicant was absorbed in the equivalent grade of R.6500-10500 and his pay was also fixed in the said grade, duly adding 30% pay element. An entry was also made in the SR of the applicant to that effect(Annexure R-2). As such, the contention of the applicant, that he was absorbed in same scale, is not correct.
iv. It is submitted by the Respondents that the post of Power Controller / Crew Controller is a cadre post in respect of the Running Staff, medically decategorised and absorbed in such post. The applicant had joined and was absorbed as Power Controller. After a lapse of 13 years, the applicant's contention that the Screening Committee pressurized him to join as such is not correct.
v. It is also submitted that the contention of the applicant that he was not absorbed in the higher pay scale is not correct. He was absorbed in higher scale, i.e., from the scale Rs.5500-9000 to Rs.6500-10500, as per the rules prevailing at that time.
vi. Having accepted the alternative absorption as Power Controller, he is estopped from taking a 'U' turn and seeking alternative absorption in a different cadre. Hence, the OA is liable for dismissal on the grounds of acquiescence and estoppel.
vii. It is further submitted that the contention of the applicant is not correct as he was absorbed in equivalent scale of Rs.6500-10500 on 9 OA.No.1581/2015 medical decategorization and his pay was fixed in Scale Rs.6500- 10500, w.e.f. 08.10.2002, vide letter No.B/P.608/III/9/Vol.III, dt. 25.06.2007, in the equivalent grade, from scale Rs.5500-9000 to Rs.6500-10500, and the same was acknowledged by the applicant in the SR. On verification of the SR, it may be seen that he had got three promotions within the prescribed period and, hence, he is not eligible for MACPS as per the rules in vogue. For the above reasons, Respondents have prayed for dismissal of the OA.
4. We have heard both the parties and gone through the material placed before us.
5. We have gone through the Rules governing the posting and absorption of medically decategorised personnel in subsequent posting. The following relevant portions of Circular No.50/98, covering RBE No.9/1998, vide No.E(P&A)II-83/RS/10, dt. 09.01.1998, cited by the Respondents, are extracted:-
"Subject :- Scheme for filling up the posts of Loco Running Supervisors (Loco Inspectors and Power Controllers/Crew Controllers) - Modification thereof. Reference : Board's letter No. E(P&A)II-83/RS/10(iv) dated 25.11.1992 (RBE 198/1992).
"........ In the light of the above, Railway Board have further considered the matter in consultation with the recognised Federations viz. AIRF & NFIR and have decided to modify the scheme dated 25.11.1992 as under : -
x x x x x x x c. Such drafting, as stated in (b) above, will be done from those Drivers who apply for the same in response to notification on the basis of a screening to be done by the Officer controlling the motive power of the Division. Seniority will not be the criteria for such drafting.
d. Drivers drafted to perform such duties will be eligible for payment of allowance in lieu of kilometreage of 120 kms per day at the rates 10 OA.No.1581/2015 applicable to them, even if posted at their Headquarters. Such staff would not be eligible to claim TA/DA and Special Pay.
e. Drivers so drafted will continue to progress in the Running cadre and will be subjected to all the terms and conditions of service as applicable to Running staff, including pay and allowances, periodical medical examination, selections/suitability tests etc. f. The tenure of posting of such Running staff drafted to perform the duties of Power/Crew Controllers will be three years with a cooling off period of equal duration.
g. Medically decategorised drivers will be eligible to be drafted to perform the duties of Power/Crew Controllers. In their case, the tenure rule of three years under Para (f) above will not be applicable. However, if their performance is not found satisfactory, in addition to action under D&AR, as they cannot go back to Running duties, they will be considered for alternative jobs following the rules applicable to medically decategorised employees". (emphasis added)
6. The applicant has relied upon Serial Circular No.122/2002, vide Letter No.P[R]8, dated: 15.07.2002, which has endorsed a copy of Min. of Railways' letter No.E(NG)I-2001/RE-3/5, dt.4.3.2002, as follows:-
"Sub: Protection of Grade and Status of Medically de-categorised employees - Faulty implementation of Railway Board's orders dated 29th April 1999.
Ref: S.E.Railway's letter No.P/I/13/M/EL(RG)/Alternative post/RB dated 21.9.2001.
With reference to the instructions issued by your Railway under letter No.P/R/4/32/Pt.III dated 11.7.2001, mentioned in your letter under reference, staff side have tabled an item for discussion in the forthcoming DC-JCM meeting stating inter alia that the said instructions are against the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, based on which IREM has been modified vide ACS No.77, issued under this Ministry's letter No. E(NG)I/96/RE-3/9(2) dated 29.4.99.
2. The matter has been considered by this Ministry who wish to clarify that absorption of medically decategorised staff in grade(s) lower than the grade held by them on regular basis at the time of their medical decategorization is in contravention of the provision of the Act. However, in cases where for want of posts in the same/equivalent grade, such employees are engaged in productive work by deploying them in posts not carrying the same or equivalent scale of pay, while they may work against such posts they should continue to be kept on supernumerary posts in the grade(s) in 11 OA.No.1581/2015 which they were working on regular basis at the time of their medical decategorization, till such time they are adjusted in the post carrying the same or equivalent scale(s) of pay. This will be in keeping with the provisions contained in para 1305 of IREM, as incorporated vide ACS No.77, referred to in the preceding para."
7. Thus, it is not true that the applicant has been dumped in a tenure post, since it has been incorporated in his appointment order, dt.04.10.2002, that -
"As he is medically decategorised and posted as Power Controller, the tenure rule of 3 years is not applicable. However, if his performance is not found satisfactory in addition to action under DAR as he cannot be put back to running duties, he will be considered for alternative job following the rules applicable to medically decategorised employees." (emphasis added) It is also noted that grade of pay in the new post is not lower than that enjoyed at the time of medical decategorisation.
8. It is also worth noting that the applicant had acquiesced with the terms and conditions of the appointment order of the year 2002 and, thereafter, only after 13 years, has raised the issue and alleged that the Screening Committee had pressurised him to join. This is against the principles of estoppel as contended by the Respondents.
9. In the meantime, according to the SR (Annexure-R2), as pointed out by the Respondents, he was absorbed in the scale of Rs.6500-10500 w.e.f. 08.10.2002, that is, within two months since his absorption on medical decategorization. The relevant entry is as follows:-
"S/P. 608/III/9/Vol.III Dt 25.6.2007 His Pay on Medical Decategorization and absorbed as Power Controller in scale Rs.6500-10500 Rs(np) in Mechanical Running(Dsl) is fixed in the equivalent grade in terms of SC.No.89/2004 & SC No.138/99 is as under:
12OA.No.1581/2015
Pay W.e.f.
Rs.
7710+123 dp 8.10.02
7900 1.3.03
8100 1.3.04
8300 1.3.05
8500 1.3.06
8700 1.3.07 "
Thereafter, he got three promotions within the prescribed period. This contention of the Respondents is not challenged by the applicant.
10. It is clear that the applicant has taken more than a decade to challenge the impugned order. Courts have held that laches and delay are an important factor to be considered in exercise of granting relief. On the point of laches, in Rup Diamonds v. Union of India, (1989) 2 SCC 356, it was observed that those people who were sitting on the fence till somebody else took up the matter to the Court cannot be given the benefit. Thus, when there is an unexplained and inordinate delay, it may be sufficient to persuade the Court to decline to interfere. In State of Karnataka v. S.M. Kotrayya, (1996) 6 SCC 267, it was said that if any explanation for condonation of delay is given by the litigant, then the Court must satisfy itself that the explanation given is proper. Similar observations were also given in cases like Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, etc. In the present case, we find no explanation as to why the matter has been agitated after more than a decade of the issue of the impugned Office Order, dt.04.10.2022, which is sought to be revised.
11. In the order, dt. 16 Nov., 2021, the Apex Court in Chairman, State Bank of India vs. M.J.James in Civil Appeal N.8223 of 2009, held as follows: 13 OA.No.1581/2015
"27. Further, the dismissal order passed on 18.04.1985 remained unchallenged for more than four years, as the appeal to the Chief General Manager of the State Bank of India was filed on 20.09.1989. The respondent, however, relies on Clause 22(x) of the Service Code relating to appeals, which reads thus:
"An aggrieved employee in all such cases may appeal to the Board of Directors whose decision shall be final." Undoubtedly, the Service Code does not stipulate any time period within which the appeal may be preferred to the Board of Directors whose decision is to be final, but it is well settled that no time does not mean any time. The assumption is that the appeal would be filed at the earliest possible opportunity. However, we would hold that the appeal should be filed within a reasonable time. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non- existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. ........"
x x x x x x
30. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.
12. Since the pay scale of Rs.6500-10500/- is already granted to the applicant and it is made clear in the appointment order itself that the Tenure Rule of 3 years is not applicable in his case, the main grievance is found to be baseless. We are not inclined to go into the circumstances of the appointment of one T.N.V.S.Sekhar in the year 2013, that is, after over a decade of the appointment 14 OA.No.1581/2015 of the applicant. More so, because Sri Sekhar has not been impleaded as a respondent in the OA.
13. In the light of the discussions above, the OA is found to be without merits and is, accordingly, dismissed. Pending MAs, if any, stand closed. No order as to costs.
(Varun Sindhu Kul Kaumudi) (Dr. Lata Baswaraj Patne)
Administrative Member Judicial Member
07.11.2024
/ps/
PANDIRLAP
Digitally signed by PANDIRLAPALLI SANDHYA
DN: c=IN, o=CENTRAL ADMINISTRATIVE TRIBUNAL,
ou=DEPARTMENT OF PERSONNEL AND TRAINING,
postalCode=500004, l=Hyderabad, st=Telangana, ALLI street=NO 5-10-193 1ST FLOOR HACA BHAWAN HYDERABAD, 2.5.4.20=ec4f909cdddc28931061bef733616fb5c6549 3d179209a8c2cfaa0a510742c22, serialNumber=35e33c0d6e61374d1b11744a9726517 SANDHYA 5a0ceaf8ba7768772f41813a4eb590082, [email protected], cn=PANDIRLAPALLI SANDHYA Date: 2024.11.26 17:19:11 +05'30'