Central Administrative Tribunal - Madras
Thamarai vs M/O Railways on 18 April, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL MADRAS BENCH DATED THIS THE )§ "ay OF APRIL TWO THOUSAND TWENTY THREE PRESENT: THE HON'BLE SHRI. T. JACOB, MEMBER (A) O A No.310/00160/2020 N. Thamarai D/o T.Nesaraj Retd, Senior Goods Driver No.51A4, Gokul Nagar, 4th Street, Sakthi Nagar Extn., Kattur, Tiruchy-620 019. . Applicant By Advocate M/s Ratio Legis Versus 1. The Union of India Rep. by The General Manager Southern Railway, Park Town, Chennai 600 003. 2. The Divisional Personnel Officer Tiruchchirappalli Division Southern Railway, Trichy-620 001 ... Respondents By Advocate Dr. D. Simon ORDER
(Pronounced by Hon'ble Mr. T. Jacob, Member {A)) This OA has been filed by the applicant under Sec.19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
uu to call for all the records related to the impugned order - No.T/P.535/1V/PR/PAS dated 07.11.2019 made by the 2nd respondent and to quash the same and further to direct the respondents to appoint the applicant in terms of the Scheme for appointment on compassionate grounds and other supplementary orders made by the Railway Board and to Pass such other order/orders as this Hon'ble Tribunal may deem fit and proper and thus to render justice."
2, The brief facts of the case as submitted by the applicant are as follows:-
Applicant's father while working Pilot/Goods was medically examined and was declared unfit in Aye One medical classification but fit in lesser as medical classifications and continued as a Supernumerary Loco Pilot/Goods After recategorization, applicant's father requested for retirement on voluntary request with consequential appointment to the applicant and later a reminder representation dated 15.09.2015 was also submitted by the applicant. However, a letter dated 20.06.2016 was received from the respondents holding that applicant's father was not at all decategorized. Against the order dated 20.06.2016, a detailed representation dated 11.02.2018 was submitted but not responded. Hence O A No.840 of was preferred by the applicant and the same was disposed of at the admission stage and in turn the order No.T/P.535/IV/PR/PASS dated 07.11.2019 was made by an incompetent authority rejecting his claim for compassionate appointment, Hence this OA.
3. The applicant has sought the aforesaid relief inter alia, on the following grounds: -
i. The order of rejection by the Divisional! Personnel Officer is a non-est order being made by an incompetent authority as well as inconsistent with the scheme and thus an outcome of an arbitrary act coupled with colourable exercise of authority which is impermissible in law.
ii. In as much as applicant's father was declared unfit and as such continued in supernumerary capacity and a request was made for voluntary retirement with consequential appointment to the applicant, and applicant's father was permitted to go on voluntary retirement, the respondent is estopped from denying consequential appointment as per the scheme for appointment on compassionate grounds and hence any denial is untenable law and therefore the impugned order No.T/P.535/IV/PR/PASS dated 07.11.2019 is liable to be in quashed.
iii. when the respondent has decided not to extend appointment on compassionate grounds, the respondent ought not to have permitted the applicant's father to go on voluntary retirement since the same is contrary to the Disability Act, 1995 and the law settled in the case between Kunal Singh Vs Union of India by the Hon'ble Supreme Court and thus against the principle of Good Conscience, Equity, and, Justice and therefore untenable in law.
iv. The order of rejection by the Divisional Personnel Officer on the pretext that applicant's father was not at all medically decategorized is factually fallacious in the wake of the facts that the order by the Medical Board dated 11.07.2013 & the order dated 11.10.2013 terminating applicant's father due to voluntary retirement unequivocally holds that he was unfit in Aye One medical classification applied to the cadre of Loco Pilots and therefore the rejection was not legally sustainable.
v. In the light of the mandatory instruction in Para V(a) of the scheme for appointment on compassionate grounds, an appointment is sought to be made within 'S years' from the date of occurrence of the event entitling the eligible person to be appointed on this ground which is relaxed upto 25 years at present, the claim for appointment on compassionate grounds made by the applicant's father immediately after his medical recategorization with a reminder by the applicant within 2 years from the contingency, the non- consideration of applicant's request for compassionate appointments is in gross in violation of the scheme and hence unsustainable in law.
vi. In so far as the Railway Board orders delink the left over service while offering on compassionate grounds and assuming but not accepting that '5 years' left over for service shall be in the retiring staff, applicant's father did have the said service, the impugned non consideration is in gross violation of the mandatory provisions made by the Railway Board and therefore impermissible in law.
vii. In as much as the scheme insinuate for 'When offering appointment on compassionate grounds to a widow, son, daughter, etc, it need not to be checked whether another son, daughter is already working;' which unequivocally pledges appointment in the case of death in harness, the impugned order rejecting appointment on compassionate grounds to the applicant on the pretext of gainful employment is contrary to the mandatory scheme made under Rule 123 of the Indian Railways Establishment code that is made under Proviso to Art. 309 of the Constitution and hence the impugned order dated 07.11.2019 is liable to be set aside.
vii. In as much as the scheme enshrined by the Railway Board does not postulates for the surviving family members to be looked after by the compassionate ground appointees, the impugned order rejecting compassionate ground appointment for want of more family members is in gross violation of the legal principles.
ix. In as much as Railway Board letter No.42/2018 dated 21.03.2018 stipulates in Para 5 (1) (a) that if the legally wedded wife does not want herself to be considered for compassionate appointment, she can nominate for the compassionate appointment, a bread winner for the family from amongst the son (including the adopted son) daughter (including a widowed, adopted, married & divorced), the disagreement by the respondents vide impugned order dated 07.11.2019 is liable to be quashed for violating the Railway Board letter No.42/2018.
x. In as much as the Hon'ble Apex Court has held that death cum retirement benefits should not constitute a yardstick to adjudge financial indigence in catena of cases, the latest being in Civil Appeal No. 260 of 2008, the impugned order if made on setting off the condition of financial indigence with reference to the receipt of retirement benefits which negation is against the spirit of Art 142 of the Constitution of India and therefore untenable in law.
4. The respondents have filed a detailed reply. It is submitted that, the applicant's father T.Nesaraj, was appointed as Substitute Khalasi and attained Temporary Status with effect from 18.10.1979. Further, the applicant's father absorbed on regular post on 31.12.1981 and promoted as Second Fireman and then promoted as Diesel/ Electrical Assistant with effect from 24.02.1999. He was promoted further as Senior Assistant Loco Pilot with effect from 13.03.2007 and further promoted to LP shunter, then promoted to Loco Pilot Goods with effect from 04.06.2011. The applicant's father while working as Loco Pilot/ Goods was placed under sick list at Railway Hospital/Golden Rock(RH/GOC for short) from 13.02.2012. On examination by a Competent Medical Board at RH/GOC on 27.06.2013, he was found as "Unfit for his present job as Loco Pilot in Aye One category and found fit for a job in Aye One and below with glasses in a job not involving Train Running, Train passing and Night duties w.e.f 27.06.2013". (Annexure A.1). Thereafter, the applicant's father had tendered his request for voluntary retirement on 13.08.2013, with a request to consider his daughter for compassionate ground appointment. The request for voluntary retirement alone was accepted from 31.10.2013 by the Competent Authority and his service stands terminated from 01.11.2013 (Annexure A.3).
5. It is submitted that, in the Interest of Public Safety, a Loco Pilot is required to be medically fit in "Aye One" medical classification. In the instant case, the applicant's father had not been medically decategorized from "Aye One" to any other class, but was found to be fit in "Aye One" and below with glasses, in a job not involving train running, train passing and night duties considering his health condition. He had been engaged in the office of the Crew Controller, from where he had tendered voluntary retirement on his own volition. Extant rules permit employees who have been declared medically unfit for all medical classifications, to tender voluntary retirement and seek compassionate ground appointment in favour of thelr wards, Employees who have been medically decategorized from a higher medical classification to a lower medical classification, with 5 years of residual service are also permitted to submit their request for voluntary retirement and seek compassionate ground appointment in favour of their wards in Group "D" posts". It is submitted that the applicant's father has neither been declared medically unfit for all classifications, nor been medically decategorized from a higher medical classification to a lower one. In so far as this cannot be considered to be a case of medical de-categorization, the question of appointment on compassionate grounds does not arise. Under these circumstances, the request of applicant seeking appointment on compassionate grounds against voluntary retirement tendered by her father on own volition, is not justifiable.
6. -- Itis submitted that the applicant has already filed O.A. No. 840 of 2019 before this Tribunal praying for compassionate ground appointment and the Tribunal by order dated 05.07.2019 disposed the O.A, with direction to the respondents to dispose of the representation of the applicant dated 11.02.2019 in accordance with the rules and regulations and pass a reasoned speaking order. In due obedience, the respondent, General Manager has examined the case of the applicant and disposed the same vide letter dated 05.11.2019 to the effect that" T. Nesaraj has neither been declared medically unfit for all classifications, nor been medically decategorized from a higher medical classification to a lower. In so far as this cannot be considered to be a case of medical decategorization, the question of appointment on compassionate grounds does not arise". This was communicated to the applicant by Annexure A.6 letter of the 2nd respondent. In terms of the Railway Board's letter No. E(NG)ITI/78/RC-1/1 date 07/04/1983, the General Manager is the Competent Authority for approving Compassionate Ground Appointment. Hence the allegations of incompetent authority does not arise in this case.
7, Heard the learned counsel for the respective parties and perused the pleadings and documents on records.
8. The issue for consideration in this OA is whether the applicant is 9 entitled for compassionate appointment or not,
9. Admittedly, this is the second round of litigation before this Tribunal. The applicant has already filed an O.A. No. 840 of 2019 before this Tribunal praying compassionate ground appointment and the Tribunal by an order dated 05.07.2019 directed the respondents therein to dispose of the representation of the applicant dated 11.02.2019 in accordance with the rules and regulations and pass a reasoned Speaking order. Pursuant to the directions of this Tribunal, the case of the applicant was examined by the General Manager and rejected her request for compassionate appointment by his order dated 05.11.2019. Against this order, this Original Application is preferred before this Tribunal.
10. Facts are not in dispute. The applicant's father, while working as Loco Pilot/Geods in TPJ division was Placed under sick list at RH/GOC from13.02.2012. On examination by a Divisional Medical Committee atRH/GOC on 27.06.2013, he was found Unfit for his present job as Loco Pilot in Aye One category and found fit for a job in Aye One and below with glasses in a job not involving Train Running, Train passing and Night duties w.e.f 27.06.2013. Thus, the applicant has been declared medically unfit for the present job and was engaged in the office of Crew Controller whereby,
(a) the applicant cannot rise in the cadre of loco pilot to the higher levels
(b) he stands to lose his running allowance, which is treated as pay for the purpose of pension; and
(c) there is a definite and permanent depletion in his emoluments during 10 his service and pension on his retirement.
11. Under these circumstances, it cannot be held that there is no medical decategorisation. Once, an employee is medically decategorized, he is entitled to seek voluntary retirement and further ask for employment on compassionate grounds, by operation of law. This is what exactly done by the applicant when he was engaged in the office of Crew Controller. Crew Controller post is an ex cadre post and it carries pay level 7, The applicant was in Pay level 6 and it is not exactly known whether his pay including the running allowance was protected on his being engaged in the office of Crew Controller. If the respondents ensured pay protection of the applicant including running allowance which is treated as pay for pension purposes, then save that the applicant loses his chances of promotion in the cadre of loco pilot, he does not suffer any monetary loss much less any depletion in pension. Thus, the entitlement to grant of compassionate appointment hinges on the pay fixation of the applicant. If pay protection is ensured when he was engaged in the office of Crew Controller, the respondents are right in declining his request for compassionate appointment for his daughter. Otherwise, the applicant is entitled to compassionate appointment as her father had been medically decategorized.
12. The OA is thus disposed of with a direction to the respondents to 1i verify the records qua the entitlement granted to him on his being engaged in the office of the Crew controller and act accordingly, as per the above situation. No costs.
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