Central Administrative Tribunal - Madras
V Sivapragasam vs M/O Railways on 5 January, 2023
1 OA 545/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA NO.545/2022
Dated Thursday the 5th day of January Two Thousand Twenty Three
CORUM: HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER
V.Sivapragasam,
Sr.Technician, No.11, 5th Cross, Mookambigai Nagar,
M.K.Kottai, Trichy 620 004. ...Applicant
By Advocate M/s Ratio Legis
Vs.
1.The Union of India,
The General Manager, Southern Railway,
Park Town, Chennai 600 003.
2.The Workshop Personnel Officer,
Central Workshop, S.Rly.,
Ponmalai 620004 ...Respondents
By Advocate Mr.M.Kishore Kumar
2 OA 545/2022
ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"To call for records related to office notification dated 29.11.2004 issued by the 1st respondent office and the service particulars of the applicant and the Railway Board letter dated 03.03.2020, further to direct the respondents to bring applicant into the old pension scheme 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 stated by the applicant in nutshell are as under:
The applicant submits that the applicant has been extended with Apprenticeship training in the respondent department from 01.04.1991 till 31.03.1993 under the Act Apprentice Scheme. It is also contended that there is a statutory provision for absorption of the Apprentices against substantive post and offer of appointment to be issued according to their seniority. There were around 4000 persons worked under the said Apprentice Scheme till 1998. However, no one has been given with the appointment and the appointments were kept in abeyance. Subsequently, the applicant was absorbed as a Substitute in the year 2006 considering the seniority as he worked under the Apprenticeship training. After the said appointment applicant's services have been regularized and he has been brought under the New Pension Scheme since the applicant has been absorbed in the regular service in the year 2006. The applicant contended that the said absorption in the services was in continuation of the Apprenticeship training and such Apprenticeship is not barred from being 3 OA 545/2022 reckoned as a pension qualifying service. The applicant contended that the applicant ought to have been brought under the Railway Services Pension Rules 1993. Therefore according to the DoP&PW OM dt. 17.02.2020 adopted by the Ministry of Railways, vide letter dated 03.03.2020, the applicant has submitted option dated 30.5.2020 for extension of the Old Pension Rules and requested to inclusion of his name in the Old Pension Scheme. However, there was no response to the said request and hence the applicant has filed the present OA seeking the above mentioned relief.
3. After notice the respondents have entered their appearance through their counsel and filed their detailed reply and objected to the said claim on various grounds. They have submitted that the Department of Pensions & Pensioners' Welfare (in short, DoP&PW), vide its Office Memorandum No. 57/04/2019-P&PW(B) dated 17.02.2020, stipulated that those government servants who were declared successful for recruitment in the results declared on or before 31.12.2003 against vacancies occurring before 01.01.2004 and are covered under the National Pension System on joining the service on or after 01.01.2004, may be given a one-time option to be covered under the CCS(Pension) Rules, 1972. The letter clearly specifies that the entire selection process (including Written Examination, Interview and Declaration of result) should have been completed before 01.01.2004, but the government servants should have joined Government Service on or after 01.01.2004, the delay being attributable to reasons beyond the control of such appointees.
3.1 The above Office Memorandum was adopted by the Ministry of Railways vide letter No.D-43/12/2018-F(E)III dated 03.03.2020 and circulated to all Zonal Railways/Production Units as RBE No.28/2020. It is stated in the said letter that the Central Civil Services (Pension) Rules, 1972 correspond to the 4 OA 545/2022 Railway Services (Pension) Rules, 1993. This Board letter was circulated within Southern Railway vide letter No.P(R)500/NPS/Vo.III dated 05.03.2020 as PBC No.37/2020.
3.2 In response to the above letter, the applicant submitted Option form to be covered under the Railway Services (Pension) Rules, 1993, based on false premises that, his entire selection process had been completed before 01.01.2004 itself and therefore was eligible to make such application. However, the applicant does not fulfill the conditions stipulated by DoP&PW vide their Office Memorandum dated 17.02.2020 and hence was not eligible to exercise option to be covered under the Railway Services (Pension) Rules, 1993, for the following reasons:
i. The Apprenticeship Act, 1961 was enacted to provide for regulation and control of training apprentices and for matters connected therein. Southern Railway has a rich history of successfully training thousands of Apprentices under this Act. These apprentices, on successful completion of their apprenticeship training, are subjected to the prescribed test by the National Council for Vocational Training (in short, NCVT), and upon passing such test, are awarded with National Apprenticeship Certificate by the NCVT. These successful apprentices are termed as Course Completed Act Apprentices (in short, CCAAs).
ii. It shall not be obligatory on part of the Zonal Railways/Production Units, as employers who train these apprentices, to offer any employment to the CCAAs on completion of his/her apprenticeship training in the establishment, nor shall it be obligatory on part of these CCAAs to accept an employment under Zonal Railways/ Production Units. This provision has been stipulated in unequivocal terms as Para 10 under the 'Obligations of Trade Apprentice' under Schedule V of the Apprenticeship Rules, 1992, which is still in vogue. Prior to the amendment of Apprenticeship Act in 2014, the above provision found its place under Section 22(1) of 5 OA 545/2022 the Apprenticeship Act, 1961 as follows:
"It shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment, nor shall it be obligatory on the part of the apprentice to accept an employment under the employer."
iii. There are certain technical posts in Group 'C' category of Southern Railway, where certain portion of the vacancies are filled up, either by recruiting CCAAs directly from Open Market, or from among the serving employees with educational qualification as laid down in Apprenticeship Act, 1961. When CCAAs are recruited from Open Market, they are directly posted against Level-2 Pay Matrix in VII Pay Commission, after undergoing the training wherever prescribed under the extant rules, and during the training period are paid stipends at the rates as applicable. The provisions for appointing CCAAs from Open Market through competitive examinations, as well as through promotion of existing employees working in feeder category are presently made available under the Section-B, Chapter I of Indian Railway Establishment Manual, Revised Edition-1989. iv. In situations where the process of filling the vacant railway posts carrying regular scales of pay and allowances is delayed extensively and the post cannot be kept vacant due to exigencies of work without adversely affecting railway service, Zonal Railways can engage persons with requisite educational qualification and fulfilling other conditions, as "Substitutes" with the personal approval of the General Manager. These Substitutes, on completion of four months continuous service are conferred with all the rights and privileges as are admissible to temporary Railway employees. After being found suitable by a screening committee constituted for this purpose, these substitutes are absorbed into Railway Service against regular erstwhile Group 'D' posts (Level-1 in 7th Pay Commission). In terms of provisions contained in Para 6 of the Railway Board's letter No. E(NG)II/90/SB/10/Master Circular dated 29.01.1991 circulated as Master Circular No.20 of 1991, the date of appointment of such an employee is to be taken as the date on which they are granted 6 OA 545/2022 Temporary status, if the same is followed by regular absorption. Otherwise, the date on which he/she is actually absorbed/appointed on regular basis is taken to be the date of appointment. It may be appreciated that this mode of recruitment is quite different from the conventional recruitment made from open market, stated in para supra.
v. The practice of engaging the CCAAs as 'Fresh Face' Substitutes with the personal approval of the General Manager, is a policy decision of the Ministry of Railways. This practice was put on hold by Railway Board vide letter No. E(NG)II/99/SB/20 dated 19/08/1999 circulated as RBE No.198/1999, wherein it was communicated that CCAAs were not to be engaged as Substitutes against vacancies in regular Group 'D' posts in mechanical workshops. Subsequently, Railway Board issued a clarification vide letter No.E(MPP)2002/12/26/ Vol.II dated 21.06.2004 circulated as RBE No.136/2004, that CCAAs can be engaged as Substitutes in Group 'D' under General Manager's powers in administrative exigencies, subject to fulfilling other conditions. In view of this clarification, another RBE No.189/2004 dated 24.08.2004 was issued communicating that the earlier instructions issued vide Annexure - R.3 letter stood withdrawn.
vi. Following receipt of above guidelines from Railway Board, a notification was issued by Southern Railway on 29.11.2004 calling for CCAAs to volunteer for engagement as Substitutes in Group 'D' posts. As evident from the letter annexed by the applicant as Annexure - A.1, the applicant had volunteered to be considered as a Substitute, only against this notification. He had been subjected to physical endurance test and his certificates were verified by the Screening Committee on 03.05.2005. Upon being found fit by the Screening Committee, with the approval of Competent Authority, the applicant was engaged as a 'Fresh Face' Substitute w.e.f. 04.09.2005. On completion of four months continuous service, he was granted temporary status w.e.f. 05.01.2006. The applicant was found fit for absorption in a regular erstwhile Group 'D' post as Helper Grade II in 7 OA 545/2022 Scale Rs.2550-3200 (Equivalent to Level-1 in 7th Pay Commission) by the Screening Committee, and was subsequently absorbed into regular service in that post w.e.f. 05.07.2006.
vii. Thus, it is obvious in unambiguous terms that the entire recruitment process (notification - 29.11.2004, Screening - 03.05.2005, Engagement - 04.09.2005, Temporary Status - 05.01.2006, regularisation - 05.07.2006) of the applicant had commenced only after 01.01.2004. Hence, it is established beyond doubt that, the applicant is not eligible to exercise the option in accordance with the para 4 of DoP&PW O.M. dated 17.02.2020, adopted by the Ministry of Railways and circulated as RBE No.28/2020 dated 03.03.2020.
3.3 The respondents contended that the applicant's regular appointment in the year 2006 cannot be compared with the selection process which is normally conducted in the matter of new recruitment. The applicant cannot claim benefit under the said DoPP&W OM dated 17.02.2020, since the applicant does not fulfil the conditions stipulated in the said OM. Hence they prayed for dismissal of the OA.
4. Heard both sides and perused the OA along with relevant records.
5. It is not in dispute that the applicant has joined Apprenticeship training in the year 1991. Accordingly he has been placed in the said seniority list as per the rule and while giving appointment the respondents have to follow with the 50% appointment ratio giving preference over the seniority. Since the applicant has completed his apprenticeship training successfully, the applicant was engaged as a 'Fresh Face' Substitute w.e.f 04.09.2005 and was granted temporary status w.e.f 05.01.2006 and subsequently absorbed as Helper Grade II w.e.f 05.07.2006. In the OM dated 17.02.2020 issued by the DOP& PW, the Union Government has considered the representations 8 OA 545/2022 received from the Government employees and observed that in many of the cases referred to that department, selection process for recruitment had been completed before 01.01.2004. However the employee was given appointment and joined the Government services on or after 01.01.2004. Therefore the Government of India has decided as under:-
"5. Those Government servants who are eligible to exercise option in accordance with para-4 above, but who do not exercise this option by the stipulated date, shall continue to be covered by the National Pension System. 6. The option once exercised shall be final.
7. It is clarified , that the above option would be available to only those Government servants who were declared successful for recruitment before 01.01.2004, against vacancies pertaining to the period prior to that date. This option shall, however, not be available to the Government servants appointed on or after 01.01.2004 if they fall in any of the following categories:
(i) Government servants whose names were included in a panel of selected candidates before 01.01.2004 for recruitment against vacancies occurring on or after 01.
01.2004 and were, accordingly, recruited on or after 01.01.2004."
6. It is to be noted that though the applicant has submitted his representation/option dated 30.05.2020 and requested for the said entitlement so far same is pending with the authorities. Accordingly, the OA has been disposed of with a direction to the respondents to consider the representation of the applicant in accordance with the direction issued by the DOP&PW dated 17.02.2020 and the Railway Pension Rules. The said exercise shall be carried out within a period of three months from the date of receipt of a certified copy of this order. The respondents have to pass a detailed order considering the rules and regulations in respect of the claim of the applicant on merit. The OA is disposed of. No order as to cost.
(Lata Baswaraj Patne) Member (J) 05.01.2023 MT