Central Administrative Tribunal - Lucknow
Chhotey Lal Aged About 59 Years Son Of Sri ... vs Union Of India on 29 May, 2015
Central Administrative Tribunal, Lucknow Bench, Lucknow
Original Application Nos: 332/00081/2014, 332/00082/2014, 332/00285/2014, 332/00286/2014 and O.A.No.332/00359/2014
Reserved on 01.05.2015
Pronounced on 29.5.2015
Honble Sri Navneet Kumar, Member (J)
O.A. No. 332/0081/2014
1. Chhotey Lal aged about 59 years son of Sri Chunni presently posted as Trackman Hempur N. Rly District Sitapur.
2. Dinesh Kumar aged about 35 years son of Sri Chhotey Lal
Both residents of village Dehuwa, Post Dadeaura P.S. Ramkot Tehsil and District Sitapur.
3. Tauley Ram aged about 60 years son of Sri Sohan presently posted as Trackman/Gangman under CPWI Sitapur.
4. Madan Lal aged about 34 years son of Sri Tauley Ram
Both residents of village Mahmoodpur Sarian, Post Mahmoodpur Sarian, District Hardoi.
5. Shree Pal aged about 59 years, son of Sri Laltu presently posted as Trackman/Gangman under CPWI Sitapur City, Sitapur.
6. Sant Ram aged about 32 years son of Shree Pal
Both residents of village Dehuwa, post Dadeaura P.S. Ramkot Tehsil and District Sitapur.
7. Ram Bux aged about 59 years, son of Sri Chaudhari presently posted as Mate (as promoted 6 months back) earlier Trackman, Sitapur City, Sitapur.
8. Ram Babu aged about 21 years son of Sri Ram Bux
Both residents of village Dehuwa, Post Dadeaura P.S. Ramkot Tehsil and District Sitapur.
9. Parbhoo aged about 60 years son of Sri Devi presently posted as Trollyman under CPWI Sitapur City on Trolly of JE Maholi.
10. Sanjai Kumar aged about 32 years son of Sri Parbhoo
Both residents of Munshi Ganj District Sitapur.
11. Yugul Kishor aged about 60 years son of Sri Bharat Prasad presently posted as Gateman CPWI Sitapur City, Sitapur.
12. Avinash Kumar aged about 23 years son of Sri Yugul Kishor.
Both residents of village Lalpur Chandra Post Maholi District Sitapur.
13. Salik Ram aged about 59 years son of Sri Bisram presently posted as Keyman Balamau under AEN Hardoi.
14. Ramesh Kumar aged about 26 years son of Sri Salik Ram
Both residents of village Ruhi, Post Mawaiya District Hardoi.
15. Mohan Singh aged about 59 years son of Sri Bharat Singh posted as Trackman, Balamau under AEN Hardoi.
16. Rajesh Kumar aged about 30 years son of Sri Mohan Singh
Both residents of village Mareura Post Bakserwa District Hardoi.
Applicants
By Advocate: Sri A.K.Dixit
Vs
1. Union of India, Through General Manager, Northern Railway, Head Quarter, Baroda House, New Delhi.
2. The General Manager, Northern Railway, N. Rly HQrs, Baroda House, New Delhi.
3. The Secretary, Railway Board, Ministry of Railways Government of India, Rail Bhawan, New Delhi.
4. The Divisional Rail Manager, Mooradabad Division Northern Railways, Mooradabad.
5. Divisional Engineer, N. Rly. Hardoi.
Respondents.
By Advocate: Sri B.B.Tripathi
O.A. No. 332/00082/2014
1. Mahesh aged about 58 years son of Sri Jairam presently posted as Trackman under PWI Sitapur City District Sitapur.
2. Sandeep Kumar aged about 23 years son of Sri Mahesh
Both residents of village Jotpur, Post Humaunpur District Sitapur.
3. Durga Prasad aged about 56 years son of Sri Jamuna Prasad, presently posted as Keyman, under CPWI Sitapur City.
4. Khushi Ram aged about 34 years son of Sri Durga Prasad
Both residents of village Jalalpur, Post Kuraira District Sitapur.
5. Jia Lal aged about 58 years son of Sri Gariba presently posted as Trollyman under CPWI Balamau HQ Neemsaar.
6. Anoop Kumar aged about 21 years son of Jia Lal
Both residents of village Manpur Post Manpur District Hardoi.
7. Ram Chandra aged about 58 years, son of Sri Ramautar presently posted as Gateman under CPWI Balamau.
8. Satender Kumar aged about 24 years son of Ram Chandra
Both residents of village Dehuwa, Post Dadeaura P.S. Ramkot Tehsil and District Sitapur.
9. Ram Shankar aged about 58 years son of Sri Raj Kumar Mishra, Devi presently posted as Trackman under CPWI Balamau ADEN Hardoi.
10. Aswani Kumar aged about 30 years son of Sri Ram Shankar
Both residents of Mohalla Imlipur, Post Kachhuana District Hardoi.
11. Ganga Ram aged about 58 years son of Sri Puttu Lal presently posted as Gateman CPWI Balamau.
12. Sushil Kumar aged about 30 years son of Sri Ganga Ram
Both residents of village Fateypur post Gaju District Hardoi
13. Shiva Ram aged about 59 years son of Sri sobran presently posted as Trackman BLM Hardoi.
14. Chandra Pal aged about 24 years son of Sri Shiva Ram
Both residents of village Nathua Rampur, Post Baghauli District Hardoi.
15. Shiva Raj aged about 58 years son of Sri Sadhari posted as Keyman, CPWI Sandila.
16. Dilip Kumar aged about 25 years son of Sri Shiva Raj
Both residents of village Patehara Post Malehara District Hardoi.
17. Manohar aged about 59 years son of Sri Bal Kishan, presently posted as Keyman CPWI Sandila
18. Mahendra Kumar 23 years son of Sri Manohar
Both residents of village Saidapur Khurd Post Masith District Hardoi.
19. Ram Khelawan aged about 57 years son of Sri Ram Swaroop presently posted as Gateman, Hardoi.
20. Umesh Kumar 34 years son of Ram Khelawan
Both residents of village Fateypur Post Gaju District Hardoi.
21. Chiranjoo aged about 58 years son of Sri Ishwari presently posted as Trackman CPWI, Sandila.
22. Dhani Ram aged about 33 years Sri chiranjoo.
Both residents of Mahsona Post Chonia District Hardoi.
Applicants
By Advocate: Sri A.K.Dixit
Vs
1. Union of India, Through General Manager, Northern Railway, Head Quarter, Baroda House, New Delhi.
2. The General Manager, Northern Railway, N. Rly HQrs, Baroda House, New Delhi.
3. The Secretary, Railway Board, Ministry of Railways Government of India, Rail Bhawan, New Delhi.
4. The Divisional Rail Manager, Mooradabad Division Northern Railways, Mooradabad.
5. Divisional Engineer, N. Rly. Hardoi.
Respondents.
By Advocate: Sri B.B.Tripathi for Sri M.K.Singh
O.A. No. 332/00285/2014
1. Chandraeshwar Thakur aged about 59 years son of late Sri Jaggi Thakur, r/o Rly Out House No.F/58, Semra Colony, District- Gonda.
2. Banarasi aged about 59 years son of late Hira Lal r/o Sahabganj, Balwant Purwa, District- Gonda.
Applicant
By Advocate:- Sri D.R. Mishra
Versus
1. Union of India through Secretary, Ministry of Railway (Department of Railways), Rail Bhawan, New Delhi.
2. Divisional Railway Manager, North Eastern Railway,DRM Office, Lucknow.
3. Sr. Divisional Personnel Officer, DRM Office, Lucknow.
4. Assistant Personnel Officer, DRM Office, Lucknow.
5. Sr.D.M.E., (Divisional Mechanical Engineer) , NER District- Gonda.
Respondents
By Advocate: Sri B.B.Tripathi for Sri M.K.Singh
O.A. No. 332/00286/2014
1. Chattidin aged about 59 years son of Sri Ram Saran r/o House No. 82-C, Khaira Colony, Bardgaon, District- Gonda
2. Ram Surat aged about 59 years son of late Sri Ram Lakhan r/o Gujarauliya, P.O. Chilhiya, District- Siddharth Nagar
Applicants
By Advocate:- Sri D.R. Mishra
Versus
1. Union of India through Secretary, Ministry of Railway (Department of Railways), Rail Bhawan, New Delhi.
2. Divisional Railway Manager, North Eastern Railway, DRM Office, Lucknow.
3. Sr. Divisional Personnel Officer, DRM Office, Lucknow.
4. Assistant Personnel Officer, DRM Office, Lucknow.
5. Sr. D.M.E., (Divisional Mechanical Engineer) , NER District- Gonda.
Respondents
By Advocate: Sri B.B.Tripathi for Sri M.K.Singh
O.A. No. 332/00359/2014
1. Ram Kumar aged about 57 years son of Sri Mohan lal
2. Anand Kumar aged about 23 years son of Sri Ram Kuamr
Both residents of village Gambheri, Post, Post Mahri District Hardoi.
3. Ram Bux aged about 57 years son of Sri Misri Lal
4. Amar Deep aged about 32 years son of Sri Ram Bux
Both residents of village Chaklahaar, Post Sarila, District Hardoi.
5. Chandrika Prasad aged about 59 years, son of Sri Ram Ratan
6. Sarvesh Kumar aged about 38 years son of Sri Chandrika Prasad
Both residents of village Bhithauli, Post Chhonnia, District Hardoi.
7. Saktoo aged about 57 years son of Sri Chhotta
8. Vikas Kumar aged about 32 years son of Sri Saktoo
Both residents of Railway Colony, Hardoi.
9. Ram Shankar aged about 59 years son of Sri ChhoteyLal
10. Ram Das aged about 25 years son of Sri Ram Shankar
Both residents of village Sahi Khera, Post Ruseni, District Hardoi.
11. Ram Ratan aged about 59 years son of Sri Lekhai
12. Sarvesh Kumar aged about 27 years son of Sri Ram Ratan
Both residents of village Golaganj, Post Saank, District Hardoi.
13. Chhotey Lal aged about 57 years son of Sri Gopali
14. Sushil Kumar aged about 34 years son of Sri Chhotey Lal
Both residents of village Patehra, Post Malhera District Hardoi.
15. Vishnu aged about 59 years son of Sri Tilak
16. Brij Lal aged about 33 years son of Sri Vishnu
Both residents of Village Paharpur, Post Malhera District Hardoi.
.Applicants
By Advocate: Sri A.K.Dixit
Vs
1. Union of India, Through General Manager, Northern Railway, Head Quarter, Baroda House, New Delhi.
2. The General Manager, Northern Railway, N. Rly HQrs, Baroda House, New Delhi.
3. The Secretary, Railway Board, Ministry of Railways Government of India, Rail Bhawan, New Delhi.
4. The Divisional Rail Manager, Mooradabad Division Northern Railways, Mooradabad.
5. Divisional Engineer, N. Rly. Hardoi.
Respondents
By Advocate: Sri B.B.Tripathi for Sri M.K.Singh
ORDER
By Honble Sri Navneet Kumar, Member (J) O.A.No. 332/00081/2014 The relief claimed in the O.A. is for issuing a direction upon the respondents to treat the cut of date of applicants as 1.7.2011 and also to grant benefit under the LARSGESS scheme and also include the name of applicant in the list of eligible candidate.
O.A.No. 332/00082/2014 The relief claimed in this O.A. is for issuing a direction upon the respondents declaring the action of respondents as illegal in rejecting the claim of applicants as well as their wards on the ground that they are only class VIIIth Pass /less qualified and not granting them benefit of LARGESS.
O.A.No. 332/00285/2014 In this case, the claim of the applicants were considered and rejected by means of order dated 16.1.2014 as such prays for consideration and appoint the wards of applicants under LARGESS and allow the applicant to retire from service.
O.A.No. 332/00286/2014 In this case, applicants claim for quashing of order dated 16.1.2014 through which the claim of the applicants was rejected on the basis of cut of date and also prays for issuing a direction upon the respondents to consider and appoint the wards of the applicants for appointment under the LARGESS scheme and allow the applicant to retire from service.
O.A.No. 332/00359/2014 In this case, applicants again prays for issuing a direction upon the respondents to declare the cut of date as 1.7.2011 and grant benefit under the LARGESS scheme for the retirement/recruitment for the year 2010 and take into account the cut of date as on 30.6.2010, 11.9.2010 or at the most 27.10.2010.
2. The issue involved in all these cases are pertaining to benefit under the LARGESS scheme. Counter and Rejoinder are exchanged and pleadings are complete.
3. The grievance of the applicants are that the respondents are not considering their wards for appointment under the LARGESS scheme.
4. The grievance of the applicants are that the respondents denied them the benefit as envisaged in Safety Related Retirement Scheme (SRRS) issued by the Railway Board vide RBE No. 4/2004 dated 2.1.2004 which is subsequently modified. It is to be indicated that initially it was applicable to Drivers and Gangman wherein the qualifying service was taken as 33 years with the age group of 55 to 57 years. Subsequently, RBE No. 131/2010 dated 11.9.2010 was issued through which the same was extended to other safety category staff with the grade pay of Rs. 1800/- per month. Not only this, RBE No. 141/2010 was also issued through which the post of Gangman/Trackman was also included. Subsequently, RBE No. 42/2011 was issued through which certain modifications were also made and the scheme was made applicable for twice in a year.
5. The applicants are working on different posts under the Railway. The Ministry introduced the SRRS for their drivers and Gangman recognizing the fact that the categories of Drivers and Gangman work in conditions in which fatigue sets in them earlier than in the case of staff who work indoors or within station limits or in depots and workshops, those of them in the age group of 50 to 57 and completed 33 years of qualifying service were made eligible to seek early retirement from service and on accepting their request, one of their wards was also made eligible to seek a suitable employment. The cut off date for reckoning the eligibility of the employee under the Scheme was fixed as 30th of June of the respective year and the applications were accepted once in a year. There are various other conditions to be fulfilled to become eligible under the Scheme.
6. Later on, vide RBE No.131/2010 dated 11.09.2010, the Railway Board modified the SRRS with the nomenclature as Liberalized Active Retirement Scheme for guaranteed Employment for Safety Staff (LARGESS for short)and extended the aforesaid benefits to other safety categories of staff with the grade pay of Rs.1800/-with reduced qualifying service of 20 years and with the lower age group of 50-57 years. However, the condition of qualifying service of 33 years and age group of 55-57 years for drivers remained unchanged.
7. Later, the Railway Board considered both SRRS and LARGESS together again vide RBE No.42/2011 [No.E(P&A)I-2010/RT-2 dated 29.03.2011] and decided to process the retirement/recruitment cases twice in a year as per the following time schedule and for the calendar year 2011 and to start the same from July, 2011:-
Time schedule
(a) Ist half January - June
(i) Cut off date for reckoning eligibility : Ist January of the employee and his ward
(ii) Last date for receiving the : 31st January applications
(iii) Scrutinizing the applications : Ist February to 28th/29th February
(iv) Last day for withdrawal :28th/29th February
(v) Conducting of Physical Test/ : Ist March to 30th Written Test etc. April
(vi) 2nd chance to failure in written : Upto 31st May Test in first chance giving a Gap of 20-30 days
(vii) Medical exam. acceptance of : Ist to 30th June Retirement/joining the job by the wards
(b) 2nd half July - December
(i) Cut off date for reckoning eligibility: Ist July of the employee and his ward
(ii) Last date for receiving the : 31st July applications
(iii) Scrutinizing the applications : Ist to 31St August
(iv) Last day for withdrawal : 31st August
(v) Conducting of Physical Test/ : Ist Sept. to 31st Written Test etc. October
(vi) 2nd chance to failure in written : Upto 3oth November Test in first chance giving a Gap of 20-30 days
(vii) Medical exam. acceptance of : Ist to 31st December Retirement/joining the job by the wards.
8. Again, vide letter No.E(P&A)I-2011/RT-6 dated 20.09.2011 addressed to the General Manager, Northern Railway, New Delhi, the Railway Board clarified that the eligibility/suitability of the employee/ward is to be adjudged in accordance with the instructions contained in their letters No.E(P&A)I-2010/RT-2 dated 29.03.2011 and 11.09.2010. Thereafter, the Northern Railway Headquarters, vide their letter No. 220-E/262/LARGSGESS/Rectt./Pt.I/2010 dated 25.10.2011 addressed to the Divisional Railway Managers, Work Shop Managers etc. made a comparative statements of the SRRS and the LARGESS. One of such comparative position was with regard to cut off date for eligibility to apply for the said Scheme. It is stated therein that while the original SRRS envisaged 30th June of the respective year as the cut off date for eligibility, the LARGESS envisaged Ist January and Ist July of the respective year (twice in a year) beginning from 2011 as the cut off date.
9. According to the learned counsel for the Applicants, the interpretation given by the Respondents to LARGESS is absolutely wrong. He has stated that it is clearly mentioned in the LARGESS itself that it is not a new Scheme but it is only an extension of the earlier Scheme of 2004 applicable to the categories of Drivers and Gangmen and as per the order dated 11.9.2010, the benefit of the Scheme has been extended to the categories other than Drivers and Gangmen who fulfilled the eligibility criteria as of age on 25.12.2010.
10. The learned counsel for the Respondents, has invited attention to the letter dated 29.03.2011 issued by the Railway Board to all the General Manages regarding LARSGESS covering Drivers, Gangmen and other safety categories with grade pay of Rs.1800/-. According to the said letter, the employees Federations had raised demands for constitution of a lower level Assessment Committee at Divisions, processing of retirement/recruitment once in a year etc. under the LARSGESS. After due consideration of the aforesaid demand of the Federations, the Board decided to hold retirement/recruitment process under the LARSGESS in respect of all the safety categories of staff including Gangmen in grade pay of Rs.1800/- per month and Drivers/Loco Pilots twice in a year and fixed the time schedule for the same. By the said letter the process of retirement/recruitment has also been decided to be started from July, 2011. He has, therefore, submitted that cut off date for reckoning eligibility of the employee and the ward will hence forth be 01.11.2011 and all the earlier applications will no more be valid for the current calendar year 2011.
11. The matter was considered by the Jaipur Bench of the Tribunal in O.A.No. 654/2013 wherein the Tribunal considered the entire material on record and declared the scheme as ultra virus. It is to be pointed out that the Railway Board seems to have decided at one stage to provide employment to the wards of medically decategorised employee.
12. It is to be remembered that the Railway being the largest employment body of the Govt. and being its agency can not be seen to indiscriminately and without supportive power and requirement of public interest to issue such prejudicial scheme as the Railway board is the powerless to issue such orders even though generally it is to be assumed that at least has all normal power, normally regulating employment regarding its servants.
13. The present scheme is that the employees should have rendered a particular length of service and are in the particular grade which is prior to their retirement , request the authorities to give appointment to their ward which cannot be as a back door entry and the Railway do not have the power to create opportunities for back door entry without significant reasons present in it as it is against public interest without any redeeming features.
14. It is to be indicated that the Honble Apex Court in the case of Uma Devi come down heavily on such back door entries and now it seems that the action is against the soul and spirit of that judgment. 15. As pointed out that Article 14 of the Constitution of India specifically stipulates that the State or its functionaries shall not deny any person equality before the law.
15. Honble Apex Court in the case of Ajay Hasia Kalif and others reported in (1981) 1 SCC 722 had held that Whenever there is an arbitrary State action, Article 14 brings in to action and strike down such State Action.
16. The Honble Apex Court in the case of Bachan Singh Vs. State of Punjab reported in 1982 (3) SCC 24 have held that under our Constitution, law can not be arbitrary or irrational and if it is, it would be clearly be invalid whether under Article 14 or Article 19 or Article 21.
17. As indicated above, the learned counsel for the respondents relied upon the decision of Principal Bench on O.A. No.2424/2013 and other connected matters decided on 13.1.2015 and in O.A.No. 636/2013 and other connected matters decided on 16.1.2014. The Principal Bench of the Tribunal relied upon the decision of the Jaipur Bench and observed that appointment under the said scheme is ultra virus in nature and as a result the meritorious candidates are denied employment as the same is in violation of Article 14 of Constitution of India.
18. The Principal Bench in O.A. No. 2424/2013 and other connected matters observed as under:-
16. Moreover, the Railways themselves have their separate statutory rules to protect the disabled/medically decategorised employees of any particular post. They are given alternative employments. The relevant rules in Chapter XIII of the Indian Railway Establishment Manual Volume-I are reproduced as under:-
CHAPTER XIII Absorption of disabled/medically decategorised staff in Alternative Employment 1301. A Railway servant who fails in a vision test or otherwise by virtue of disability acquired during service becomes physically incapable of performing the duties of the post which he occupies should not be dispensed with or reduced in rank, but should be shifted to some other post with the same pay scale and service benefits.
1302. Classification of Railway Servants declared medically unfit - Railway servants acquiring disability during service and declared medically unfit are divisible into two groups:-
i. Those completely disabled for further service in any post in the Railway, i.e. those who cannot be declared fit even in the 'C' medical category; and ii. Those disabled/incapacitated for further service in the post they are holding but declared fit in a lower medical category and eligible for retention in service in posts corresponding to this lower medical category.
1303. The railway servants both in group(i) and group(ii) of Para 1302 cease to perform the duties of the posts they are holding from the date they are declared medically unfit for the present post. No officer has the authority to permit the Railway Servant concerned to perform the duties in the post beyond that date. If such a Railway Servant cannot be immediately adjusted against or absorbed in any suitable alternative post he may be kept on a special supernumerary post in the grade in which the employee concerned was working on regular basis before being declared medically unfit pending location of suitable alternative employment for him with the same pay scale and service benefits, efforts to locate suitable alternative employment starting immediately. The special supernumerary post so created will stand abolished as soon as the alternative employment is located.
(Authority: Ministry of Railway?s letter No. E(NG)I-2004/RE-3/9 dt. 7.12.2005.) 1304. Disabled Medically decategorised staff to be absorbed in posts they can adequately fill: - In the matter of absorption of disabled/medically decategorised staff in alternative posts, Railway administrations should take care to ensure that the alternative employment offered is only in posts which the staff can adequately fill and as far as possible should broadly be in allied categories where their background and experience in earlier posts could be utilised. While finding alternative posts for absorption of disabled/medically decategorised staff, the Railway Administration should ensure that the interests of other staff in service are not adversely affected and no reversion of any officiating Railway servant is made to absorb the disabled/medically decategorised staff. For this purpose, attempts should be made to absorb the disabled/medically decategorised Railway servant not only within the Unit/Division or Department, but in other Unit/Division or Department.
1305. Absorption in posts identified for employment of physically handicapped persons/creation of supernumerary posts. The Railway servants falling in group (i) mentioned in para 1302 i.e. those who are declared unfit even for the lowest medically category, may be absorbed in a post/category identified as suitable for employment of physically handicapped persons and fresh recruitment to that post/category from open market from amongst physically handicapped withheld. In case the alternative post is not carrying the requisite pay scale, a supernumerary post may be created in appropriate scale of pay and the employee adjusted against the same keeping the lower grade post vacant by withholding fresh recruitment thereto. The supernumerary post so created to accommodate a disabled/medically incapacitated employee shall stand abolished as soon as a suitable post in the appropriate scale is found for the Railway servant concerned or the post is vacated by him for other reasons, whichever is earlier.
(Authority: Ministry of Railway?s letter No. E(NG)I-2004/RE-3/9 dt. 7.12.2005.) 1306. Steps to be taken for finding alternative employment :-
1. With a view to determine the categories in which the disabled/medically decategorised Railway servant is suitable for absorption, a committee should examine him. The committee may consist of two or three officers posted at the headquarters of the officer under whom the disabled/medically decategorised Railway servant was working, the Railway servant's immediate officer being one of the members of the committee. After the committee has examined the Railway servant and determined his suitability for certain categories of posts, the officer under whom the Railway servant was working will proceed to take further action to find suitable alternative employment for him.
2. The officer concerned will prepare a list of vacancies within his jurisdiction in the categories for which the disabled/medically incapacitated Railway servant has been found suitable and a post with same scale of pay as was attached to the post he was holding on regular basis before being declared medically unfit, will be offered to him.
3. It will be the responsibility primarily of the officer under whom the concerned Railway servant was directly working to find suitable alternative employment for him. This will be done first by trying to find alternative employment in the officer's own unit/division, office, workshop etc. and a register with the details as mentioned in sub-para (6) below will be maintained for this purpose.
4. If there is no immediate prospect of employment in his own unit/division, office, etc., the name of the Railway servant with particulars as given in sub-para (6) below will be circulated to all other offices or establishments where suitable employment is likely to be found.
5. Nothing in the previous paragraphs, however, debars a Railway servant from applying for a particular post for which he is likely to be deemed suitable and it is known to be vacant under any officer. Such an application must be addressed through the immediate officer of the Railway servant concerned and must contain full particulars of his service and must be forwarded to the officer to whom addressed or to the authority competent to make the appointment. The result of the application must be intimated to the Railway servant.
6. A register containing the names of all Railway servants declared medically unfit and to be absorbed in alternative post will be maintained by Headquarters, Divisional and other extra-Divisional offices. These registers will contain not only the names of the staff of the particular division, etc., but also the names notified to the unit Officer concerned by other unit/offices. This will not, however, absolve officers under whom the Railway servant was last working from continuing their efforts to find suitable employment for the disabled/ medically decategorised employee. The particulars required to be maintained in registers and notified to other officers in accordance with the instructions above are as follows: ?
i. Serial number.
ii. Date on which incapacitated.
iii. Name and Father's name.
iv. Post last held on regular basis with scale of Pay and rate of pay.
v. Educational qualifications ? If no educational qualifications, then general remarks regarding knowledge of English, regional language etc.
vi. Medical category in which placed.
vii. Details of special supernumerary post till absorption in alternative appointment (Para 1303).
viii. Date from which absorbed in alternative appointment.
ix. Nature and category of alternative appointment.
x. Scale of Pay of the alternative post and the pay fixed at.
xi. Details of supernumerary posts, if any after absorption in Alternative appointment (Para 1305).
xii. Remarks.
7. If and when a Railway servant is absorbed in an alternative post, intimation will be sent by the officer under whom he was previously working to all other officers to whom his name was notified. On receipt of such intimation, his name will be deleted from the registers.
8. Before any post is filled or a promotion is ordered, officers concerned will refer to their registers and satisfy themselves that no disabled medically incapacitated Railway servant who is suitable for the post is available. If any such disabled/ medically incapacitated employee is available, he will be given preference over all other categories of staff for appointment.
1307. Reckoning of element of Running Allowance for the purpose of fixation of pay of disabled/medically unfit running staff: While determining pay for the purpose of fixation of pay of medically unfit running staff in an alternative (stationary) post, an amount equal to such percentage of basic pay representing the pay element of running allowance as may be in force from time to time, may be added to the existing pay in Pay Band and the resultant figure (ignoring the fraction of rupee, if any) rounded off to the next multiple of 10 would be the pay in the Pay Band in the alternative post with no change in the Grade Pay of substantive post, in suitable alternative post.
(Authority: Railway Board's letter No.E(NG)l-2008/RE-3/4 dated 30.04.2013)?.ACS No.224 1308. Fixation of Pay (other than Running Staff) : The pay in Pay Band of the disabled/medically unfit Railway servants (other than Running Staff) will be fixed in the alternative post as previously drawn in the post held by them on regular basis before acquiring disability.
(Authority: Railway Board's letter No.E(NG)l-2008/RE-3/4 dated 30.04.2013)?.ACS No.224 1309. Benefit of past service to be allowed : A disabled/medically decategorised Railway servant absorbed in alternative post, will for all purposes, have his past service treated as continuous with that in the alternative post.
1310. Fixation of seniority of disabled/medically decategorised staff absorbed in alternative employment : The disabled/medically decategorised staff absorbed in alternative posts should be allowed seniority in the grade of absorption with reference to the length of service rendered on non-fortuitous basis in the equivalent or corresponding grade before being declared medically unfit. This is subject to the proviso that if a disabled/medically decategorised employee happens to be absorbed in the cadre from which he was originally promoted, he will not be placed above his erstwhile seniors in the grade of absorption.
1311. Other types of cases:-
(1)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 transferred on their own request.
(2) The staff declared as malingerer in terms of Note (ii) below para 512(2) of Indian Railway Medical Manual will also not be covered by these rules. They will continue to be governed by the provisions in the IRMM ibid.
(Railway Boards letter no. E(NG)1/96/RE3/9(2) Dated 29-04-99, E(NG)I-2000/RE-3/5 Dated 31-07-01, E(NG)I-2000/RE-3/5 Dated 01-07-03 and E(NG)I-2004/RE-3/9 dt. 7.12.2005.)
19. The issue involved before the Principal Bench was relief claimed by the applicants in their respective O.As is for grant of the benefits of LARGESS. According to the said Scheme, the Railway employees working in the categories of Drivers (excluding shunters) and Gangmen has a critical bearing on safety of train operations and track maintenance. With the advancing of age, the physical fitness and reflexes of staff of those categories deteriorate and causes safety hazard. Therefore, the Railways have decided that the Drivers and Gangmen in the age group of 50 to 57 years and who have completed 33 years of service may seek retirement and in their place, to consider their eligible wards for appointment in the lowest recruitment grade of the respective category from which the employee seeks retirement.
20. The other conditions were that the request of the employee for retirement will be on a voluntary basis and there is no element of compulsion on the part of the administration. The discretion to accept the request of retirement also depended upon the administration, depending upon the shortage of staff, physical fitness and the suitability of the ward for appointment in the category of Driver/Gangmen. The condition of eligibility in the case of wards, being considered for appointment would be the same as prescribed for direct recruitment from open market.
21. The learned counsel for the applicants relied upon the decision of O.A. No. 95/2014 and other OAs. It is to be indicated that the Honble High Court passed an interim relief on 01.05.2015 in W.P. No.596 (SB) of 2015, 597 (SB)/2015 and 598 (SB)/2015.
22. After considering the rival contentions of the parties and also after perusal of pleadings available on record, I have no occasion to defer with the observations of the Principal Bench passed in O.A. No. 2424/2013 and other connected OAs as well as in O.A. No. 636/2013 and other connected matters, as such considering the facts and circumstances of the case, I do not find any reason to interfere in the present O.As. as the scheme is already declared ultra virus of Article 14 and 16 of Constitution of India. Accordingly, appointment under the said scheme is not tenable in the eyes of law.
23. Accordingly the OAs are dismissed. No order as to costs.
(NAVNEET KUMAR) MEMBER (J) HLS/-