Central Administrative Tribunal - Gauhati
Sushil Ch Barman vs M/O Railways on 12 March, 2020
'CENTRAL ADMINISTRATIVE TRIBUNAL
- GUWAHATIBENCH ~~
Original Application No. 040/00469/2016
JHE HON'BLE SMT. MANJULA DAS, JUDICIAL MEMBER
THE HON'BLE MR. N. NEIHSIAL, ADMINISTRATIVE MEMBER
1. Sti Sushil Ch. Barman
Loco Pilot (Mall/NBQ), N.E.Railway
Resident of Qtr. No.272/8, New Colony
{Mahabirsthan}, P.O: & Dish Bongaigaon
_ Assam, PIN: 783 380.
| 2. Sf Sublrata Barman
S/o Si Sushil Ch. Barman
Resident of Qir, No.272/8
New Colony {Mahabirsthan}
P.O: & Dist: Bongaingaon
Assam, PIN: 783 380.
Applicants --
a. MS OS
1.The Union of indid through the
Secretary fo the Govt. of India,
Ministry of Railways, Rall Bhawan,
New Delhi-110 001.
2. The Chairman, Railway Board, Rail
Bhawan, New Delhi-1 10 001, |
3. The General: Mondger; Northeast
Frontier Railway, «.- Mailigaaon,
Guwahati, Pin 78101), Assam.
4 Divisional Railway. Manager {P),
N.F.Raliway, Rangic, P.O: Rangia,
Dist: Kamrup (R), Assam, PIN: 781 354,
-- 8. Senior Divisional _ Mechanical
_ Engineer, Rangia {in shorn.
SS AKG. GG RQ --_ o
Mitten
fod
7)
SrDME/RNY}, P.O: Bangia, Dist:
Komrupik}, Assam, Pi ~ 781364.
Respondents
_ For the Applicant: re Pp. Bhowmik, or, Advocate
assisied by Ms BJ Mukheriee
Far the Respondents: Ms.U_Das, SC, Raflways.
Date of hearing: 11.12.2019 Date of Order: X03.2020
QRDER
MANJULA DAS, MEMBER (J):
in this application filed under Section 19 of the Administrative Thobunal Act, 1985 the iwo applicants are seeking following rellefs:
_ "A) To pass an. order selling aside the impugned orderfleter dated 09.09.9076 . {Annexure-Q) passed by the Respondent No.4, Divisional Rallway Manager (Pj, KLE Ralivay, Rangic:
8) To. poss oan order directing the respondents' quihorly, more particularly respondent No.4 to recallyrevoke the otder/leNer dated 09.09.2016 wilhout farther delay, faking info consideration fhe misconcelved coe HON of a Jee COOSTNNS Citadines:
SNS , No.2 on being communicated of his selection of various stages of his recruliment process, ©) To pass such further and other orders as your Lordshins may deem fi and. proper under the facts and circumstances of the case in the interest of justice." .
3. The facts, in brief, as narrated by the applicants in the OA are that the applicant no. Sri Sushil Ch. Barman was initially appointed as Gangman ~ in N.E.Rallway on 16.11.1979. He was promoted to the posts of Engine Cleaner in 1993, Diesel Assistant Driver in 1996/97, Loco Pilot (Goods) on 09.12.1999, Loco Pilot (Passenger) in 2007 and Loco Pilot (Mail) w.e.f. 2010.
4. The Applicant No.2 $i Subrata Barman is the --
son of applicant no.2, Applicant Now applied for voluntary retirement from service and appointment of his son (applicant no.2} under Liberalized Active. Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) Scheme vide his application dated 31.01.2014. Accordingly, his son was called for the written fest and he came out successful in the | second attempt. Thereafter, he was called to appear» in the Aptitude Jest for appointment to the post of OA.040/00469/2016 4 Asst. Loco Pilot (ALP) fo be held on 11h & 12% December, 20]4 In Maligaon. The applicant no.2 'appeared In fhe Aptitude Test for the said: post and
- eame out successful. Accordingly, vide letter daied 03.03.2015, ff was informed that appiicani nog was selected for appoinirnent as Assistant Loco Pilol and therefore, applicant no.2 was advised to fender his voluntary retirement within seven working Gays. IT was mentioned in the said fetter that as soon as medical examination of applicant no2 is completed, VR of applicant no.i would be effected which wouid be intimated in due course. The applicant no.2 was found fit in the medical test held on 12.03.2015. 5, Vide order dated 23.02.2016 the authorities have accepted voluntary refirernent of the applicant no.) from 29.02.2016. His name was siruck aff from master roll wef. 29.02.201%. Thereafter, vide letter report at Principal ZRT/APDJ on 15.03.2016 for initial... course training as 'Apprentice ALP for 17 weeks for appointment against LARSGESS. Affer compietion of . training the applicant no.2 appeared ina written fest oS = = :
= SS Se 5 and viva voce in which he came out successful as declared and nofified vide remo daiéd 21.07.2016. - Having no information received from the authorities after declaration of above results, the applicant no.! submitted a representation dated 17.08.2016 praying for final settlement of his retirement dues as well as pasting order of the applicant no.2. However, vide the impugned order dated 09.09.2016 it was informed that appointment of applicant no.2 in railway service in exchange of voluntary retirement under the LARSGESS was considered | by the railways with wrongful assessment of eligibility criteria based on service particulars of the applicant no.1, The applicant no.1 was accordingly advised to submit application for voluntary -- refrement : under normal rule wel. 27.02.2016 and appoiniment of applicant no.2 was not given effect fo, Against the said order applicant 31 0.201 6 praying for release of his retirement benefits and posting order of his son but to no avail. Hence this OA.
OA.040/00469/2016 nod) submitted another representafion dated 6 The | 'respondents nave. fled their written, statement. The respondents quoted the condi ions fo. be fal led pefore availing the benefits of LARSG ESS. 7 , AS per the scheme the Loco Pi fot | in the age group of 55-57 years and having compl leted 33° years of qualifying service are eligible for seeking refrement under the scheme. | | - S 7 = According to the respondents, the applicant no} applied for benefits "under LARSGESS on 31 or 2014. Accordi ingly he was refired from railway "service wel. 29. 02.2016 and. his | son was sent for fraining wel. 15.03.2016 for 17 weeks, However, while the case for final settlement dues of the applicant no. was processed, i was found that the applicant : did not comp iste the eligibility period of 33 years of | qualify ng service for availing the benefit of LARSGESS. the respondents have given the fabular forms 'ot the. : comparative assessment dene wrongfully 'and octualy 0 as pert LARSGESS as under: -
"Assessment of el igibiity under LARSGESS based on service record done wrongfully [1 Date of birth ofemployee | 22.12. 1957 12 Date of appointment | 16.1 1.1979 _
-- OA.040/ 4 20 1a _ ie | Hokenwief casuailabour) |. oo
3. | Age as.on.01.01.2014 | Séyears 10 days 4, | Qualifying service as on) 34 years 16 days O1.01 2014 ;
| Name of ward :
Educational qualification + Sh Subrata Barman HS Pass (Sclence}, vb Ronee Li(Mech/DSh) 7, (Date ofbith 12.05.1993 Ojon | Actual Assessment of eligibility under LARSGESS as per). rule... oe 1 | Date of bith ofemployee | 22.12.1957 2 | Date of grant of temporary | 16.11.1979 status | |
3. | Date apnrdaval of screening | 24.04. 198? 4 | Qualifying service as on/ 29 yr 04 month 26) O101.2014 --idays Age as on 01.01.2014 56 yr 10 days Qualifying service as on) 31 yrs 06 month 24 129.02.2016 -- (date of | days | retirement) 4 | .
7. | Age as on 29.02016 +58 years 02 mihs 07 | days Se ny 'According to the respdndents, in the first calculation sheet the date of dopoiniment af the applicant no.1 was taken as 16.11.1979. in fact he was granted:
fermporary status on 16.11.1979 and was screened on 94.04.1989. As per clause 20 of the Master Circular $4 'and clause 2008 of IREC Voli), half the period of service of a casual labour after attaining the cececeaeegnenaca ah ce eeeanennanat temporary status on 120 days continuous service if it is followed by absorption: in. service os réquiar employee, counts for pensionary benefits. Thus, as per above provision following particulars are found Date of screening. 24.04.1989 Date of Temporary Status L6.1 L187 08.05.09 a Le 09 years 05 months 08 clays. 50% of above period i 04 years 08 months 19 days.
& Seo N Re = x:
Ni & } Date of retirement 29.02.2016 _ Date of appointment 1.1 1.1979 Total period of service «15.03.36 Now total period of qualifying service is 31 years 06 \ months 26 days (36 years 03 months 16 days ~ 04 years - O8 moriths 19 days). Thus, i is apparent thal applicant not did nof complete qualifying service of 33 years for being eligible to claim benefits under LARSGESS.
"Therefore, his final settlement dues after retirement could not be released to him. Accordingly, vide letters. "dated 09.09.2016 and 15.12.2016, the applicant no.1 was advised to submit application for voluntary retirement under normal rule w.e.f. 29.02.2016 so that OA.040/00469/2016 his VR can be given effect with payment? of oll payable FS dues to him at the eatllest, but the applicant no.) has not given any response. 8 Inview of the above, the respondents claimed that since the application of the applicant no.) for voluntary retirement under LARSGESS cannot be accepted, the appointment of applicant no.2 under LARSGESS is also not admissible. Accordingly, respondents prayed for dismissal of this QA. counsel assisted by Sri B J Mukheriee, learned counsel for ine applicant: Ms U Das, learned sianding counsel for the railway - respondents; perused the pleadings and materials placed on recerd. 10, Learmed senior counsel for the appiean! forcefully contended that if the applicant nod was not eligibie fo aval benefit under LARSGESS, then. how the authorities could telire fhe applicant no.lw.et. | 29.02.2016 and send the applicant no.2 for training for appointment as Assistant Loco Pilot under LARSGESS. Learned senior counsel submitted that applicant no.2 . OA.040/00469/2016
9. - We have heard Sri B P Bhowmik, learned senior DLE EE EEE EE sacrificed lucrative job in ONGS foste Region at Sivasagar Qs he was. 5 akready selected. 'for Assy Loco Pilot under | LARSGESS | and when he had. diready completed the necessary iraining and offer passing
- 'the necessary written fest and viva voce when he was | waiting for posting order, the respondents have tssued the impugned order which is not permissible in law, | 1. On the other hand, Ms U Das, learned standing 'counsel - for the railway = respondents applicant no.} was aware af the ell igibllity criteria i.e. to. complete 33 years of qual fying service and to be within the age 'graup of 55-57 years to avail the ony Fe .
BP fay 550% an nc mitigg~.,
- benefit of the LARSGESS and despite knowing that he had not FOP leted the fequi ired 33 years of qua ifying ae fe service as on 01 01.2014. he de! ioerately kept dient WM the date: of f retirernent fo oval the undue ene under LARSGESS whi ch is agal inst Ape gui idelines of Railway Board,
12. Admittedly, due fo wrong ossessmnent of"
eligibi ity. criteria, the application of appl ficant no, 4 for voluntary retirement was accepted wef. 39 02. 9016 wo OA. O40) 0469/20 16 "
4
iW | and his son was sent for training. The applicant no. - had already completed all the required formalities for | appointment under LARSGESS fight from passing the. _ Aptitude test, medical fest, the required training, then again passing the writen fest and viva. voce. According. fo the learned senior counsel, applicant
-no.2 had a genuine legitimate expectation for posting order. In support of his contention, learned senior counsel relied on para 25 of the decision of the Service Station & Another vs Delhi Development under
- Minister for the Civil Services. a locus classicus Hon'ble Supreme Court in the case of Sethi Auto | Authority, (2009) 1 SCC 180 which is extracted as "29. At this juncture, we deem i} necessary to refer fo a decision by the House of Lards 'in Council of Civil Serice Unions & Ors. Vs. on the subject. wherein for the first time an_ attempt wos made jo give a comprehensive _ Gefinilon fo the orincinle of legitimate expectation. Enunciating the basic principles _ felating fo legitimate expectation, Lord _ Snforceable by or against him in oF (6) by depriving him of some.
Diplock observed that for a iegiimate _ &xpeciation to arise, the decision of the administrative authority must affect such person elfher {a} by altering rights or abligations of that person which are By depr neti or advantage which either: () he has} ant OA.040/00469/2016 vate law 12 fpsen permitted by the decision maker to enjoy and which he can jlegilimately expect fo be permitted to continue to do unfil sorne- rafional ground for [1984] 3. Al ER"
935 withdrawi Ing ff has been communicated - fo him and he has been given an opportunity te comment therean or (i) he has rece! ved. assurance fram the decision-maker Ue they will not be withdrawn without first giving him an opportunity of advancing - panies for. : contending that they should be withdrawn." cS The contention of the Fespendens is that \ "epplicant 10.1 despite Knowing that | he had not . completed the qualifying service of 33 years as on 0} OF 2014 he del berately kept silent tH the date of retirement to sel ihe benefil af LARSGESS. H was incumbent an the concemed department fo verify his € R\ service paricuars and exam ine wheiher he is al igible 'to avail the pee of LARSGESS or not. They could 7 have rejected the appl fication af the Threshold having . found not eligible. Having not done sa, NOW they : cannot put the blame on. the appl icant nod, | Therefore, such & content on is not at all acceptable.
"Had the respondents informed the applicant no.) | about his" 'ineligibi ay at that relevant ime, "euch"
"unwarranted situation could have been 'avoided. Ht is OA.040/00469/2016 13 very sronaé tharapplcant no.) was allowed fo retire voluntarily in exchange of. appointment af his son under LARSGESS from 29.02.201 é without verifying: His . service pariculors. He submitted his application on. | 81.01.2014 and after more two and half years he was | | infonhed that he is not eligible for benefit of LARSGESS. that too. after six months of bis voluntary. retirement, . The scheme, in question, is not new, and since introduction, at no point of time, the length of qualifying service of Loce Pilot was liner enhanced OF feduced. Thus, such a callous attitude on the part of railways in allowing the apblcaet nad to voluntary
- fetire from service under LARSGESS when he is not at ail eligible Is. highly condemnabie. For such serious mistake on the part of railways noi only the cnplicant No.1 suffered immensely but also the applicant no.2 Rave lost few Years OF his valuable time wh be compensated in any manner 14, Be that as if May, the fact remains applicant no} applied for benery under LARSC 31.01.2014. His son was selected for appointme:
Asstt, Loco Pilot and he was dllowed to rellre from ~ ther, a 7 a ee Fpl e GEA 3 eA 4 service wer 29.02.2016. His son had already
-compleled the necessary -- faihing oeeic. for appointment. When he was legitimately expecting posting order. the imougned order dated 09.07.2016 | was issued that too after more than six months of Ais @ father' 5 vO luntary retirement wef. 29.02.2016. vi the 'pass ng of this order, more than four years have passed si sit nce s the tefirement of the appl pan! noa.l and a\ : pensionary dues was not released fo him. "Because af wrong. coicvation of eligibility criteria by the respondents, the both the applicants hod suffered _ immensely. The date of birth of the aeplicant no.t is 3 ] . 12 1987, Had the applicant no.1 was not allowed to voluntary retire, aulomatically he would pave vatired | on attain ing. ie age of superannuation | je. On 3h. 12. 2017.1 Thus. he was relired from service when he WdOs stil one year 40 months at his credit. Therefore.
on the respondents to submit appiicatio n y ielreen under normdi rule wel.
isnot at all justified inasmuch for the fault of ondents, the applicant no.! cannot be made -- . her: the case of Stale of Maharashira vs « OF 040100469! 2016 \ Lee SN ase, EH Jagannath Achyut Karandikar,. 1989 SUPP (1) SCC 393, the Hon'ble Supreme Court held. "Employee should not suffer for fhe lapse on fhe part of the Government,"
1S. in View of the above, considering the fact thal anplicant nol had already been retired more than four years ago Le., wef. 29.02.2016 under LARSGESS and his son had already completed the frainings etc. after having been selected for appointment as Asstt. Loca "Pilot under the Scheme, we direc} the respondent no.3 ~ the General Manoges NF Railway, Maligaon to reconsider the moter by relaxing the _ qualifying service of fhe applicant no.} subject to ony So relaxation power is vested. upon him, and pass appropriate orders within a period of one month from ihe date of receipt of this order. Allematively, for any compelling reason fo be communic the applicant in writing His not feasible to rel qualifying service. the applicant no.) shall be deemed - fo have retired from senice wef. 34.12.90) attaining the age of superannuation of 60 years of _ service. Thus, he shall be aniited to atrears salary i.e. ; :
Sy not later fhan three months from the date of receipt of this order.
16. The OAls disposed of in dbave terms.
dilletence of salary minus monthly pension for the period hom March, 2016 fo December. 2017. The respondents are, directed fo fix and disburse the monthly pension of the applicant no.] and all other | pensionary benefits. All the poyriens will attract 9% interest per annum fo be calculated from January, -- 7 2018 fo the date of actual payment. The directions shall be cared out as expeditiously as passible but He € ardor as Ir The SRES fig DOAN ERE ad that oll is 8 ' chair heave Goan wigihly and -
eogies with ne enodifications:
¢ this is 2 s bree copy af Sdi-
Mani ula Das Hon'b! @ Member { } :
Co Mr. Ni. Neihsial as Hon'ble Member (A) oes CA.040/00469/201 &