Central Administrative Tribunal - Kolkata
Kartik Modak vs N F Railway on 12 December, 2022
ae iy 0.A. No. 350/1926/2018 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A. No. 350/1926/2018 M.A. No. 350/666/2020 Date of Order! 49.12..2022. Coram: Hon'ble Mr.Jayesh V. Bhairavia, Judicial Member In the matter of : 1. Karti< Modak, son of late Rashbehari Modak aged about-44 years,And by occupation-unemployed residing at C/O Sri RakhalCDhar,Ramkrishna Colony, PO PS- Malbajar.Dist-Jalpaiguri Pin-735221 2 SRI RAMEN MODAK son of late - Rashbehari Modak, aged about- 52 years, by occupation-Service,residing at C/o Late RakhalChar,Ramkrishna Colony PO-PS- Malbajar Dist-Jalpaiguri Pin-735221 3 SRI DULAL MODAK son of late. Rashbehari Modak aged about-42: years, by occupation-unemployed. residing at-C/o Late RakhalDharRamkrishna Colony POPS, MalbajarDist-JalpaiguriPin-735221 4 SMT BASANTI MODAK, danghter of late RashbelhhariModak wife of Sri RanjanModak aged about - 36 years, by occupation-Housewife,residing at-Jorpokhri More P-Jorpokhri Dist-Jalpaiguri-735101 . seseeves Applicants -Versus- 1 Union of India through the General Manager, Northeast Frontier Railway, Maligao1, Guwahati-11 Assam Pin- 781011, 2. The Chief Personnel Officer Northeast | Frontier Railway Maligaon Guwahati-11 Assam-781011. 3. The Divisional Railway Manager, Alipurduar Junction Division. Alipurduar Northeast Frontier Railway Alipurduar Pin- 736123 . 4. The Sr. Divisional Personnel Officer- cum-Divisional Personnel Officer Incharge, Alipurduar Junction Division Northeast Frontier Railway. AlipurduarPin-736123. Ase 2 O.A. No. 350/1926/2018 5. The ChairmanRailway Board: Rail Bhavan M/O Railways Rail Bhavan New Delhi-11.Pin-110011. boven Respondents For The Applicant(s): Mr.K. Chakraborty; Counsels For The Respondent(s): Mr. D. Chowdhury, Counsel ORDER Per:Mr.Jayesh V. Bhairavia, Member (J)
'Heard Ld. Counsels for both sides.
1. This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issuecl under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, and, as no complicated question of law is involved, this matter is taken up for disposal, at the admission stage, with the consent of both the parties.
2. In the instant O.A., aggrieved with impugned order dated 10.10.2018 (annexure A-14) whereby thé representation of the applicant no. 1 with respect 'to his claim for grant of compassionate ground appointment to him by treating the ex- railway employee i.e father of the applicants herein, as having retired voluntarily with effect from date on which the application was submitted for voluntary retirement came to be rejected by respondent no. 4, hence, the applicants ( legal heirs of the late Rashbehari Modak, ex-employee ) have filed the present O.A, under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
a) "Do issue mandate upon the respondents, their men and agents and each of them to GIL 3 O.A. No. 350/1926/2018 forthwith rescind,recall and/or withdraw the purported Speaking order dt. 10.10.2018 being Annexure-A14 hereto and not to give -
any or further effect or effects to the same.
b) Do issue further mandate upon the respondents,their men and agents and each of them to forthwith accept the applicant's ~- father's application for his Voluntary Retirement on All Category -- Unfit dh.31.10.2006 being Annexure-A2 hereto relating to the father of the applicant to have retired Voluntarily wef 16.10.2006 in terms of the order c't.18.10.2006 being Annexure-A1 hereto ie. the date on which the Chief Medical Director, Northeast Frontier Railway accepted recommendation of the Medical Board in respect of the applicant's father's All Category Unfit we.f.16.10.2006 and then to offer an employment assistance to the applicant in Group C post and/or to a post commensurate to his educational qualification forthwith without any further: -
unnecessary delay in any manner whatsoever
c) Do issue mandate upon the respondents, their men and agents and each of them to forthwith certify and transmit all the papers and documents in connection with the instant lis before this Id. Tribunal for kind perusal and on such kind perusal do conscionable justice to the applicant.
d) Grant cost of this proceeding in favour of the applicant.
e) Pass such other or further order or orders, direction or directions, mandate or mandates as may appear to.be fit and proper."
3. Ld. Counsel for the applicants would submit that the father of the applicant, late Rashbehari Modak, while working as Mate /Engineering/SSE/PWI/MBZ in Alipurduar Junction division of Northeast Frontier Railway, was declared 'Medically Unfit in. All Category' vide order dated 18.10.2006 w.e.f. 16.10.2005. However, only on '31.10.2006 i.e the last date of superannuation, he came to know about his medical de-
categorization. On the same date i.e. on 31.10.2006, father of Via 4 O.A. No, 350/1926/2018 the applicants had submitted his application/request for voluntary retirement on the ground of declaration of unfit in all medical category. (Annexure A/2 refer). However, the respondent authorities' rejected his request for voluntary retirement vide . order dated 09.11.2006 and he retired on attaining the age of superannuation in normal course i.e on 31.10.2006.
4.1. Thereafter, the ex-employee made numerous representations seeking acceptance of his application for voluntary retirement, and, consequently, to consider his son, namely, Kartik Modak (the applicant no.1. herein) for appointment on compassionate grounds in the light of the Railway Board's Circular RBE 8/2000 (annexure A-4 collectively). The said request of ex-ernployee was not acceded to by the respondents vide their letter dated 25.08.2008 (Annexure A-5). Again the grievance of the ex-employee was raised before the competent authority with the help of the Mazdoor Union as well the ex-employee himself. However, same was also came to be rejected by the respondents. In the meantime, father of the applicants expirec on 11.11.2014 leaving behind the applicants herein (wife predeceased the ex-employee, ie father of the applicants).
aa 4.2 Thereafter, again the applicant no. 1 herein made a comprehensive representation dated 17.08.2016 (Annexure A/9) before the competent authority highlighting his claim and requesting the said authority to consider him for compassionate | appointment on grounds of his father's medical de-
oe 5 '0.A. No. 350/1926/2018 categorization. The applicant's prayer was rejected vide order dated 28.09.2016 (Annexure A-10).
4.3. Aggrieved by said rejection order dated 28.09.2016 applicant no. 1 approached this Tribunal by way of filing O.A. 350/1720/2016. The said O.A. was disposed of by this Tribunal vide order 20.07.20 18 by setting aside the impugned order dated . 28.09.2016 and directed the respondents to reconsider the claim of the applicant and to issue a reasoned 'and speaking order within 2 months thereof (Annexure A-13 refer) 4.4, In compliance to the direction issued by this Tribunal, the respondents vide their speaking order dated 10.10.2018 (Annexure A-14 which is impugnecl herein) the respondents rejected the claim of the applicant. Hence, this O.A. 3. Ld. | Counsel for the applicant would su omit that the respondents have failed to take immediate ster to declare father of the applicants unfit from all category. As such, he was made a victim of inordinate delay for declaring him unfit for all category due to medical decategorization. Only on the last date of his service the respondents have informed him about his unfit for all category. Application submitted by father of the applicants for allowing him to retire voluntarily due to the respondents had :
declared him unfit for all category w.e.f. 16.10.2006 was erroneously rejected by the respondents.
It is submitted that the instructions stipulated in RBE NO.
8/2000 dated 18.01.2000 issued by the Railway Board fe 6 O.A. No. ss0/1928/2018 prescribed. the procedure as to how and in what manner the © claim and prayer for accepting the application for voluntary retirement on All Category Unfit and then to offer compassionate appointment to the eligible son/daughter/ward of that employee. In the said RBE 8/2000, no time limit to make an application for voluntary retirement has been prescribed. However, the respondents had erroneously rejected the claim/application of the father of the applicants for his voluntarily retirement and failed 'to follow the instructions containing the said RBE and thereby deprived the applicant no. 1 for fair consideration of his claim for grant of compassionate appointment. It is submitted that the reason assigned in the impugned order dated 10.10.2018 are contrary to the conditions| and instructions prescribed in the RBE 8/ 2000 and deprived the applicant for his legitimate right to be considered for benefit of compassionate appointment.
5. Per contra, the respondents have filed their reply and 'deny the claim of applicant. Ld. counsel fer the respondents submits that the claim of the father of the applicant was considered time . and again by the competent authority and had not found to accept the request for voluntary retirement since he attained the age of superannuation on 31.10.2006 and he retired. accordingly. The request/application for grant of approval for voluntary retirement was submitted only on 31.10.2006 on the ground of declaration of him medically unfit in all categories vide order dated 18.10.2006. The said option of the father of the oe 7 | O.A. No. sconodbnie applicant was not acceded to by the competent authority as well the claim of applicant no. 1 for compassionate appointinent since same is not tenable even in the light of the object of allowing such application for voluntary retirement as welll the appointment of ward on compassionate ground of such vo medically unfit employee.
5.1. It is.stated that, in compliance of the direction issued by this Tribunal, the respondent: no. 4 had considered and ' re-examine the entire case of the applicant and rejected the same by assigning the cause and reason. It is submitted that when an employee has been medically invalidated de- categorized and where the adrainistration cannot find a suitable alternative post for such an employee, he may be ; kept on supernumerary post in the grade in which he was working on regular basis, till such time a suitable can be identified or till his retirement, whichever is earlier. However in the cases where an employee is totally incapacitated and is not in a position to continue in any post because of his medical condition, he may be allowed to opt for retirement. In the present case, the father of the applicant, who was declared totally incapacitated employee with effect from 16.10.2016 and on the last date of his service i.e the date of his normal 'superannuation 31.10.2006 he had opted for his voluntary retirement, As such there was no further service left in 'his credit or to continue in the service since he attained the age of
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8 . Q.A. No. 350/1926/2018superannuation on 31.10.2006 under the circumstances, it was not opened for the respondents to accept the request / option submitted by the father of the applicant for voluntary 'retirement and accordingly, the claim of applicant no. 1 was rejected.
5.2 Further it is submitted that as directed by this Tribunal in earlier O.A 1720/2016 filed by the applicant no. 1, the respondent no. 4 has also considered the case of applicant in light of order passed by Hon'ble High Court of Kolkata WPCT/912/2012). It was found that the case of the applicant is completely different from the case of WPCT 412/2012. In the present case, the father of the applicant _ late Rashbehari Modak was declared totally incapacitated wed. 16.10.2006 (Id. counsel had submitted due 'to typographical mistake in the impugned order at para 2 it was mentioned as | 16.06.06 and the order dated 18.06.2006 instead of 16.10.2006 and 18.10.2006) and an application for voluntary retirement (VR) on medical ground w.e.f. 31.10.2006 was submitted only on 31.10.2006 i.e.at the time of settlement function ie on 'the date of the superannuation of the father of the applicants. Whereas in the case refer, WPCT 412/2012, the date ; of -- superannuation petitioner wherein was 13.04.2008 and | before it, the employee had submitted application for voluntary retirement ie. 25.02.2008 i.e more than 2 months period of service left for normal superannuation. In the : ip 9 O.A. No. 350/1926/2018 present case as noted herein above, only on the last date of the service of the applicant i.e 31.10.2006 the application was submitted for VR. Therefore, the said case referred by the applicant is not helpful to hin.
Accordingly, the case of the applicant was rejected. The reason assigned by the respondents is just and proper and the applicant is not entitled for the relief as sought for.
6. The applicant has filed rejoinder and reiterate the submission as made in the O.A. Additionally it has been aver that only to defeat and deny the benefit of grant of benefit of voluntary retirement on medical decategorisation and compassionate appointment for one son/ward the respondents had intimated the decision of approval of medical decategorisation in all category of the father of the applicant only on 31.10.2006 . instead of the date of certificate issued in this regard i.e dated 16.10.2006. The reason assigned to ousted the father of the applicant from the zone of consideration for his claim of VR and applicant's no. 1 claim for grant of compassionate appointment are arbitrary and illegal. Further it is submitted that as per RBE 144/2000 DATED 28.07.2000 (Rj-2) stipulates the condition for consideration of claim for grant of compassionate appointment to first son/daughter after a period of five years from the date of medical invalidation and same is permissible. However, the of the case of the applicant has noi beer considered by the respondents. As such the rule of minimum 3 years period for apply of voluntary retirement is nct applicable in the case of Hl 10 0.A. No. 350/1926/2018 applicant herein. It is submitted that the railway board has considered the case of applicant on the representation submitted by the railway EN and vide letter deted 13.03.2014 (Annexure RJ-1 collectively) reiterate the identical reason and rejected the claim of applicant for grant of compassionate appointment in his favour, the copy of the said as such not supplied to the © applicant. In sum it is stated that the respondents have erroneously rejected the claim of the applicant.
7. Heard counsel for the party at length and perused the materials on record.
8. In the present case. it emerges from the record that the. Chief Medical Superintendent NF Railway/ Alipurduar Junction vide his letter dated 18.10.2006 (Annexure A/1) informed the DRM (P)/Engineer/APDJ (i.e respondent no. 3 herein ) that All. Category Unfit certificate no. 1 (IV) dated 18.10.2006 'with respect to. Shri Rashbehari Modak (Mate Engineer/under SSE/Way/MBZ) has been sent for needful. Further it is stated in the said letter that though the said certificate has been issued on 18.10.2006 but it will come into effect from 16.10.2006 i.e the date on which CMD has accepted the recommendation of the Medical Board as communicated vide CMD/MLG's Letter no. HM/Medical Board (Loose) date 16.10.06. Along with the said letter the certificate in original was also sent. Thereafter, ait is - stated that the father of the applicants late Rashbehari Modak received the said certificate of being "All category "unfit" on 31.10.2006 i.e. at the time of settleraent function going on for | | wr 11 O.A. No. 350/1926/2018 his superannuation. It is not in dispute that the date of birth as -- per service record of late Rashbehari Modak was 25.10.1946 and accordingly his normal date of superannuation was on 31.10.2006. On receipt of such certificate of his medical incapacitation, said Late Rashbehari Modak had submitted his request/option for voluntary retirement on the day of his - superannuation ie. on 31.10.2006. The said request for VR came to be rejected by the office of DRM, respondent No. 3 on | 9.11.2006 mainly on the ground that he retired from service on 31.10.2006 on superannuation and same has become infructuous.
8.1 Thereafter the representation/application submitted by the said ex-employee for reconsideration of his claim and grant of compassionate appointment to his son i.e. applicant No. 1 also came to be rejected in the year 2008. He continued to submit his claim / application for reconsideration of his request for grant of VR and appointment to his son.
8.2. It is noticed that on his behalf the Mazdoor/Railway Employees Union/Federation had also submitted representation for re-examining his case which was considered by the competent authority i.e. Railway Board and vide order dated 13.3.2014 (Annexure A/7) the -- Secretary, Railway Board informed the General Manager of the said Federation that all ailments of said Mr. Rashbehari Modak was treated from 8.11.2004 to 3.4.2006, related to fi:
120 O.A. No. 350/1926/2018cataract surgery. Thereafter, from 20.4.2006 to 22.4.2006 he was admitted at Alipurduar Junction hospital for treatment to hypertension and cardiac ailments. Further, he was admitted to various hospitals w.e.f. 28.7.2006 for complaint of Lumber Spondylosis. As per MRI investigation of Lumber Spine he was diagnosed as case of Lumber Spondylosis. Thereafter, all process formalities . for invalidation of Mr. Modak of his ailment were completed on 16.10.2006 within a period of four months. Hence, there seems to be no delay in dealing with his case. The same was communication to him 31.10.2006 i.e. the day of his retirement and as such he stands retired normally, his application for Voluntary Retireraent submitted on the date of his normal retirement i.e afternoon, his case was not covered under the extant rules (Annexure A/7 refer).
8.3. Further, it is noticed that as per the direction issued by this Tribunal, the case of the applicant No. 1 has been reconsidered by the respondent No. 4 and vide impugned speaking order dated 10.10.2018, the claim of applicant No. 1 for grant of appointment on compassionate ground has been rejected, which is impugned in the present O.A.
9. It is the core submission of Ld. Counsel for the applicant that the respondents had rejected the claim of his father for .
grant of voluntary retirement in violation of terms / instructions | stipulated in RBE No. 8/2000 dated 18.1.2000 since in the said RBE no time limit has been prescribed to claim VR. Further, it is jw +53 13 O.A. No. 350/1926/2018 also the grievance of the applicant that since his father was declared medically unfit in all categories and became eligible to claim appointment on compassionate ground, the said request has not be acceded to by the respondents and failed to adhere to the guidelines /policy in vogue i.e. RBE No. 8/2000. Therefore, it is appropriate to refer the said instructions contained in RBE No. 8/2000 which reads as under:
"RBE No. 8/2000:
(Supplemetary Circular No. 39 to Master Circular No. 1 6) Subject: Appointment on compassionate grounds in cases of medical invalidation decategorisation.
(No. E(NG)-I1/95/RC/I-94, dated 18.1.2000) Kindly refer to the instructions contained in Board's letter No. E(NG)II/78/RC-Ifl dated 7.4.83, 3.9.83, as well as Board's letter of even no, 22.9.1995 (Bahri's 107/95, p. 95) on the above mentioned subject.
2. Pursuant to the notification of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participations) Act, 1995," instructions were issued vide Board's letter No. E(NG)}I/96/RE-3/9(2) dated 29.4.1999 (Bahri's 89/99, p.88), laying down inter alia that, in cases where an employee -has been medically invalidated decategorised and where the Administration cannot find a suitable alternative post for such an employee, he may be kept on a supernumerary post in the grade in which he was working on regular basis, till such time a suitable post can be identified or till his retirement, whichever is earlier. As these instructions provided for continuation of a medically invalidated decategorized employee, there would be no occasion for an employee, to be retired from service on medical ground. Therefore, according to these instructions, in such cases, the occasion to consider a request for appointment on compassionate ground of an eligible ward would not arise.
(3) The matter has been reviewed pursuance to a demand raised by the staff side in the DC/JCM and it has now been decided that in cases where employee is totally incapacitated and is not in a position to continue in any post because of his medical condition he may be allowed to opt for retirement. In -- such cases, request for appointment on compassionate ground to an eligible ward may be considered.
4. In the cases of medical clecategorisation i.e. those cases in which an employee becomes inedically unfit for the post held at present but is fit to perform the duties of an alternative suitable post in lower medical category, the request for Biss nae 14 O.A. No. 350/1926/2018 appointment on compassionate ground to an eligible ward witt not be admissible, even if the employee chooses to retire voluntarily on his being declared medically decategorised. Such an employee then either be continued in a supernumerary post or allowed to retire voluntarily if he so desire but without extending the benefit of appointment on compassionate grounds to a ward."
10. It can be seen that to achieve the object of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the Ministry of Railway/ Railway:
Board had issued certain instructions vide letter dated 29.4.1999 to the effect that where an employee has been medically invalidated/decategorised, he may be given a suitable alternative post in the same grade and where the Railway Administration cannot find a suitable alternative post for such an employee, he may be kept on a supernumerary post in the same grade till such time a suitable post can be identified or till his retirement, whichever is earlier. The said instructions provided for continuation in service for a medically invalidated decategorized employee, there would be no occasion for an employee to be retired from service on medical ground and therefore in such cases no occasion arise to consider a request for appointment on compassionate ground of an eligible ward.
Further, the competent authority on review of the said instructions also decided that in cases where an employee is totally incapacitated and is not in a position to continue in any post because of his medical condition, he may be allowed to opt for retirement only in such cases request for je ft, 15 O.A. No. 350/1926/2018 appointment on compassionate ground to an eligible 'ward may be considered.
11. Thus, in the present case, as noted hereinabove, only on the date of normal superannuation i.e. on 31.10.2006, the father of the applicants i.e. late Rashbehari Modak had submitted his option / application for grant of Voluntary Retirement, naturally there exist no service time to be continued for him since he.
attained the age of superannuation on 31.10.2006, accordingly his request for Voluntary Retirement due to his medically decategorisation was not accepted by the competent authority.
Therefore, the submission of applicants that though his father was declared medically unfit on all categories by the expert medical board w.e.f, 16.10.2006, the said certificate /recommendation was made known to him on 31.10.2006 and thereby respondents have intentionally deprived their father and applicants to avail the benefit of instructions / | policy in' RBE 8/2008 is not tenable in the facts and circumstances as narrated hereinabove. Undisputedly, the father of the applicant stands retired on attaining the age. of superannuation.
Further, it can be seen that while re-examining the case of said Rashbehari Modak represented through the Railway Employees Federation, the competent authority i.e. Railway Board held in the decision dated 13.3.2014 (RJ/1 refer) that. 7 said Rashbehari Modak admitted to various hospital wef.
28.7.2006 for complaint of Lumber Spondylosis. As per MRI ple 16 | O.A. No. 350/1926/2018 investigation of Lumber Spine he was diagnosed as case of Lumber Spondylosis. Thereafter for the purpose of examining his fitness to be continued to work, his case was expeditiously processed and the team of medical experts of Railway had completed the process/ formalities within 'a period of four months and the medical board recommended that said Rashbehari Modak is unfit for all categories and same was immediately accepted by the CMD on 16.10.2006 the certificate to that effect was issued thereon as well the decision was immediately sent by the Chief Medical Superintendent vide his letter dated 18.10.2006 addressed to DRM, respondent No. 3 herein and in turn on 31.10.2006 the same was communicated or received by the said Rashbehari Modak. In view of this factual matrix, the submission of applicant that intentionally the case of father of the applicant was delayed is not tenable.
Further, it can be seen that the respondent No. 4 while considering the claim again in terms of the directions issued by. this Tribunal has recorded cogent reason including the finding that the judgment passed in case of WPCT No. 412/2012 is not applicable in the case of the applicant. Even otherwise, applicant No. 1 has no vested right to claim appointment on compassionate ground since his father was not retired voluntarily on the ground of medicel decategorisation and as such he stands retired on attaining his normal axe of fpr superannuation.
47 -. OLA. No. 350/1926/201812. In view of the aforesaid discussion, the O.A. lacks merit and accordingly the same is dismissed. No costs.
M.A. for early hearing of the O.A. stands disposed of accordingly.
(ayesh V. Bhairavia) Member () Ww