Central Administrative Tribunal - Allahabad
Ram Niwas Sharma vs General Manager N C Rly on 25 August, 2023
Reserved on 23.08.2023
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the day 25th of August, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 1025 of 2021
Ram Niwas Sharma aged about 56 years, son of Sri, Rameshwar
Dayal Sharma, Posted as Pointsman (A) Railway Station Jajau R/o
594 Sarai Jajau Saiyan Agra - 283124.
........... APPLICANT
By Advocate: Shri S.M. Ali
Versus
1. Union of India through General Manager, North Central Railway,
Allahabad.
2. Divisional Railway Manager North Central Railway, Agra.
3. Divisional Railway Manager (P) North Central Railway, Agra
..........RESPONDENTS
By Advocate: Shri Krishna Kumar Ojha
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) Shri S M Ali, learned counsel for the applicant and Shri Krishna Kumar Ojha, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed seeking following relief:
"(i) to quash the office order no. X-6/2021 dated 14.01.2021 for the applicant and to direct the respondents to issue correct list of applicant for coverage under old pension scheme (Railway Pension Rules 1993).
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(ii) to direct the respondents for making past service entry in his service book and to count 50% casual service / temporary service period in the qualifying service period as per I.R.E.M. para 2005 (a) and Board letter dated 24.03.2017.
(iii) to direct the respondents for grant benefits of judgment dated 15.05.2007 seniority and fixation of pay at par with juniors for purpose of O.P.S. contribution and to grant old pension at part with juniors on retirement of the applicant.
(iv) to direct the respondents to grant all others benefits as deem fit in the facts and circumstances of the case, or to pass any such and further order as deem fit by this Hon'ble Court.
(v) To issue award the cost of the petition in favour applicant."
3. The compendium of the facts narrated in the instant original application is that the applicant is aggrieved by non-consideration of his candidature under the old pension scheme by the respondents despite the fact that his case stands supported by the ruling of Principal Bench of Central Administrative Tribunal. By way of the instant original application, applicant seeks a direction to the respondents' authorities to correct his service record thereby counting him under old pension scheme. He further seeks a direction to the respondents for making entry of the past service rendered by him in his service book and to count 50% casual service / temporary service period in the qualifying service period.
4. We have heard the rival contentions advanced by the learned counsel appearing for the parties.
5. Learned counsel for the applicant submits that he was engaged in the respondents' department as casual labour on 01.04.1985 and was granted temporary status w.e.f. 01.05.1988. He worked continuously up to 22.07.1991. Screening was held for regularization of casual labours but the applicant was not regularized on the ground
2|Page that he was overage. Other casual labours who had completed the minimum tenure were regularized. Applicant approached before the Principal Bench of Central Administrative Tribunal through OA No. 1825 of 2006 which was decided on 15.05.2007 directing the respondents to screen / regularize the applicant from the date his juniors have been regularized with all consequential benefits. Learned Tribunal also observed that respondents have wrongly taken the date of birth of the applicant as 12.05.1956 whereas the actual date of birth is 12.05.1966 and thus he was not overage at the time of screening. It was next argued that in compliance of the directions of the Tribunal, the applicant was regularized on 21.07.2008. Learned counsel submits that applicant is still working and thus referring to the prayer clause, it was further argued that respondents be directed to issue correct list of applicant for coverage under old pension scheme thereby quashing the order dated 14.01.2021. Learned counsel further prays that respondents be also directed to count the 50% of the casual service / temporary service period rendered by the applicant under the qualifying service period mentioning the details in the service record of the applicant. Referring to the relief clause, it was next argued that although applicant is still serving in the department but the aforesaid correction in the service record is essential as that would ensure that applicant will be covered under Old Pension Scheme upon attaining the age of superannuation. To substantiate his arguments, learned counsel for the applicant referred to entire documents annexed with the applicant.
6. Learned counsel for the respondents vehemently opposes the prayer of the applicant and by way of his counter reply, he submits that the applicant was regularized on 21.07.2008 in compliance of the direction given by the Tribunal in the aforesaid OA and therefore he cannot claim his regularization from the date when his juniors were regularized. It was also argued that since date of regularization of the applicant is after 01.01.2004, therefore he cannot claim benefit of old
3|Page pension scheme. It is also argued that the present original application is not maintainable because the applicant is still in service.
7. We have considered the rival contentions advanced by the learned counsel appearing for the parties and perused the documents on record and judgment referred to by the parties.
8. In this matter, as is evident from the records, applicant was initially engaged as casual labour on 01.04.1985 and he worked up to 23.06.1987 as casual labour. He was granted temporary status on 01.05.1988. He could not be regularized after screening for the reason that he was overage. It also transpire from the record that applicant approached before the Principal Bench of this Tribunal through the aforesaid OA which was allowed on 15.05.2007. The operative paragraph of the above judgment is reproduced herein below:
"8. We may mention that in order dated 1.5.1988 issued by the Divisional Railway Manager Office (Personnel Bench), Jhansi to All the Station Superintendents / Masters it was clearly mentioned therein that the date of birth of applicant is 12.5.1966 and was granted temporary status w.e.f. 23.06.1987. When respondents themselves admit that applicant's date of birth is 12.5.1966, then whey he has not been screened / regularized. The Apex Court in the case of S. Nagaraj Vs. State of Karnataka, 1993 SCC Supp.4 page 595 in para 18 has held as follows:
"(18) JUSTICE is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudiced to anyone. Rule of stare decisis is adhered for consistency but if it is not as inflexible in Administrative Law as in Public Law, Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on
4|Page equity and fairness. If the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the court. In Administrative Law the scope is still wider. Technicalities apart, if the court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order.
Here as explained, the bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue (emphasis supplied)."
9. In view of the above, it is clear that once the department has committed a mistake the same should have been rectified to avoid any undue harassment to a person / individual. In this case, respondents themselves admit that in the order dated 1.5.1988, his date of birth was mentioned as 12.5.1966 but while regularizing the services of the applicant they had taken it as 12.5.1956. Thus it was a mistake committed by the respondents. Therefore, the OA be allowed and the question of
5|Page delay will not come in the way of applicant because it is due to fault of the respondents that applicant could not obtain his reliefs.
10. Accordingly, OA is allowed. Respondents are directed to screen / regularize applicant from the date his juniors have been regularized with all consequential benefits. These directions may be implemented within a period of 3 months from the date of receipt of a copy of this order. No costs"
9. A perusal of the aforesaid judgment and order dated 15.05.2007 clearly reveals that respondents were directed by the Tribunal to regularize the applicant from the date his juniors have been regularized with all consequential benefits. Date of birth of the applicant was also found as 12.05.1966 instead of 12.05.1956. Respondents regularized the applicant from 21.07.2008 mentioning in the letter "दयादधर पर चतुर्थ श्रे णी के सं बंध में ". If the judgment and order passed in the aforesaid OA filed earlier by the applicant before the Principal Bench of this Tribunal is taken into consideration in light of the relief claimed in the matter, it is also evident that applicant's prayer for covering him under Old Pension Scheme was rejected vide the impugned order on the ground that he was regularized in the year 2008. New Pension Scheme was implemented from 01.01.2004. Since there was specific direction of the Tribunal that applicant must be regularized from the date his juniors have been regularized with all consequential benefits, therefore, respondents ought to have taken applicant's date of birth as 12.05.1966 and regularized the applicant from the date when his juniors were regularized. A perusal of the record also reveals that first time screening was conducted in the month of April 2003 of other ex-casual labours as per live register in lines of railway board regularization scheme dated 28.02.2001. Other casual labours who participated in the screening test and were not overage were regularized in the year 2003 itself meaning thereby applicant should
6|Page also have been regularized from the date i.e. April 2003 when the screening took place.
10. It is evident that respondents committed a mistake again i.e., instead of regularizing the applicant w.e.f. the date his juniors have been regularized, applicant was regularized from 21.07.2008 which is not correct situation in the matter. Applicant's date of birth was 12.05.1966 meaning thereby he was not overage on the date of screening test held in the year 2003 and thus, we are of the considered view that respondents observation that applicant was regularized on mercy basis is contrary to the direction given in the aforesaid OA by the Principal Bench of Central Administrative Tribunal. Neither he was regularized / appointed on compassionate grounds nor on mercy ground. He shall be deemed to have been regularized in view of the regularization scheme adopted by the Railway department itself and he will be considered as a regular employee of the respondents' department from the date his juniors were regularized. Cut-off date for coverage under old pension scheme was 01.01.2004 and since date of regularization of the applicant is prior to 01.01.2004, therefore applicant will be entitled to be covered under old pension scheme. Observation of the respondents that he will be covered under New Pension Scheme is illegal and uncalled for. In addition to this, applicant is also entitled to the benefit that upon attaining the age of superannuation, 50% of the service rendered by him as casual service / temporary status shall be treated as qualifying service and his service record may be updated accordingly.
11. Accordingly, in view of the above quoted deliberations, the instant original application is liable to be allowed and is accordingly allowed with following directions:
i. Impugned order dated 14.01.2021 passed by the respondents is hereby quashed / set aside. Respondents are accordingly
7|Page directed to issue correct list in favour of the applicant thereby covering him under old pension scheme.
ii. Respondents are also hereby directed to count 50% of the past service rendered by the applicant during casual service / temporary service period in the qualifying service period and update applicant's service records accordingly. Applicant's pay may also be fixed accordingly at par with his juniors.
12. All associated MAs stand disposed of accordingly.
13. No costs.
(Dr. Sanjiv Kumar) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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