Central Administrative Tribunal - Delhi
Sanjay Kumar Handa vs Union Of India on 7 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.257/2010 New Delhi, this the 7th day of December, 2010 Coram: Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Sanjay Kumar Handa, S/o Late Shri K.L. Handa, R/o H.No.36, DDA Flats, Welcom, Seelampur-III, Shahdra, Delhi 53 .Applicant (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India Through the General Manager, Northern Railway, Baroda House, New Delhi 2. The Divisional Railway Manager, Northern Railway, Delhi Division, State Entry Road, New Delhi Respondents (By Advocate: Shri Shailendra Tiwary) O R D E R
By Dr. Veena Chhotray:
The applicant, a medically de-categorized RPF Constable and absorbed as a Goods Marker (Grade Rs.2650-4000) in the Commercial Department under the Northern Railways, is aggrieved at his non-absorption in an equivalent grade alternative post. Seeking the extension of the benefit of the judgment by Delhi High Court in the WP(C) 2184/2004 and other connected matters decided on 30.10.2007, the applicant claims that like the other similarly situated persons he should have been absorbed in the grade Rs.3050-4590/- to the post of a Clerk or equivalent. Both these are 5th CPC grades. This is the second in the series of litigation. The earlier OA 2863/2009 by the applicant agitating virtually the same claims on the strength of the aforesaid Delhi High Court judgment, had been disposed in limine vide the Tribunals order dated 12.10.2009. Without going into the merit of the case, respondents had been directed to consider the applicants representation submitted in this regard. In pursuance of these directions, the impugned order dated 15.12.2009 has been passed. On re-scrutiny of the matter the claim is still not found to be tenable. This has occasioned the instant OA with the main grievance by the applicant about his claims not having been considered in the light of the aforesaid decision of the Honble Delhi High Court and extension of similar benefits.
By way of relief, the OA seeks quashing the impugned order dated 15.12.2009. Besides, a direction for his absorption, on medical de-categorization, in an alternative post in the equivalent grade i.e. Rs.3050-4590 of a Clerk or some other equivalent post, by way of extending the benefits of the Honble Delhi High Courts judgment dated 30.12.2007 and the judgment of the Tribunal on the same issue with all consequential benefits such as fixation of pay and arrears, has been sought. As an omnibus clause, the OA also seeks any other relief deemed fit along with the costs of litigation.
2. We have carefully considered the submissions by the learned counsels, Shri Yogesh Sharma and Shri Shailendra Tiwary, appearing respectively for the applicant and the respondents. Also the material on record has been duly looked into by us.
3.1 To sum up the brief facts of the case: the applicant, initially in the year 1990 appointed as a RPF Constable, had been declared medically unfit for this post in the year 1992. As per the instructions the applicant, being a medically de-categorized employee, had been absorbed in the year 1993 in the post of a Goods Marker under the Commercial Department. Whereas the then prevailing grade of a RPF Constable was Rs.825-1200, the same for a Goods Marker was Rs.810-1150. These were the 4th CPC grades. Under the 5th CPC, they got respectively revised as Rs.2750-4400 and Rs.2650-4000. The 5th CPC grades were given effect from 1.1.1996. Subsequently, consequent on rationalization of the pay scales in the Non-Gazetted cadre of Central Police Organizations by the Ministry of Home Affairs, the pay scale of Constables was further increased to Rs.3050-4590. This was adopted by the Railways also for the RPF Constables vide the order dated 4.12.1997 (Annex.R/2).
Since the claim agitated by the applicant in the instant OA pertains to absorption in an alternative post in this very scale of Rs.3050-4590; it would be important to note at this point that whereas his de-categorization had taken placed in the year 1993, the higher scales of Rs.3050-4590 (which had nothing to do even with the normal revisions under successive pay commissions) had come into effect much later in the year 1997.
The speaking order mentions regarding the earlier pay of the applicant having been protected on his absorption in the alternative post. Besides, it is also the stand of the respondents that the applicant had been absorbed under the Commercial Department at his own request; though the latter contention has been rebutted by the applicant. Another factual variation is with regard to the claim of the applicant as having been temporarily appointed as a Ticket Collector in 1995 and working as such though without the higher pay and allowances. This again has been rebutted by the respondents (CA para 4.4.).
3.2 The relevant instructions in the matter of absorption of medically de-categorized Railway employees in alternative jobs are prescribed vide Para 1314 of IREM Vol.I. These instructions, inter alia, stipulate that if equivalent post is not available, the concerned employee may accept the job in a lower grade; however, as and when equivalent post is available, he shall be considered and given the said post. This rule even mandates the administration to act suo-motto in such cases. This, however, is subject to a time limitation. The relevant extracts from Para 1314 (C) are as hereunder:
(1) Quite often it happens that due to vacancies not being available in equivalent grades a medically decategorized employee has to be offered absorption in a lower grade. In some cases such employees refuse the lower grades in the hope of vacancies in higher grades materializing. It should be open in such cases for an employee to accept a lower grade with a request that if a vacancy in a grade equivalent to what he held before decategorisation occurs in the same cadre he should be considered eligible for the same in preference to a junior medically decategorized employee. While the employee can be expected to put in an application when this contingency happens, it is also necessary for the administration suo moto, when considering a subsequently decategorized employee for absorption in a cadre, to look into cases where senior decategorized employees may have been absorbed in a lower grade in the same cadre during previous three years and initiate a review. Cases decided before need not be reopened unless there are very exceptional circumstances. In the context of the claims being agitated in the instant OA the two riders of the review being limited only to absorptions in the previous three years and the preferential claims of the seniors being only vis-`-vis other de-categorized employees in the same cadre are pertinent.
4. One of the grounds rejecting the claims of the applicant in the impugned order is regarding the same pre-dating the Disability Act and hence not being covered by the relevant provisions there under. This Act titled The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 had incorporated certain safeguards, including pay protection and non-reduction in rank, in case of employees who had acquired disability during service. The relevant provisions of Section 47 (i) are reproduced below:
47. Non-discrimination in Government employment. (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. This Act had come into effect from the date of the Notification i.e. 7.2.1996, and had been given effect in the Railways vide their Circular dated 29.4.2009. Later on, the Railway Boards Letter dated 31.5.2005 (RBE No.93/05) further extended the protection of pay and scale to those employees who had been reverted due to medical de-categorization between 7.2.1996 and up to 28.4.1999. As per the respondents, the case of the applicant was not covered under the 2005 Circular since his medical de-categorization and consequent reversion had been prior to 7.2.1996. The order dated 15.12.2009 states about the grant of protection of scale and grade from retrospective effect not having been mandated in these instructions.
5. The relevant rules (Para 1314, (a) & (b)) also contained specific provisions with regard to determining the seniority of the medically de-categorized employees, absorbed in alternative posts. The Railway Boards letter dated 31.7.2006 had protected the interests of senior employees reverted prior to even 7.2.1996, who had subsequently become junior to the persons to whom they had been senior in their previous grades. The relevant extracts are reproduced as here under:
The Ministry of Railways have reviewed the matter, it has been decided that General Managers, on representation, may review cases of senior employees who on medical decategorisation were absorbed in posts carrying scale of pay lower than the scales of pay in which they were working on regular basis at the time of medical de-categorisation before coming on regular basis at the time of medical de-categorization before coming into force of the Act with reference to absorption of their juniors in the same grade under the provision of the Act. This may, however, be subject to the condition that both senior and junior should belong to the same department / cadre/ category/ grade before medical decategorisation and also absorbed in the same department in the same cadre / category. In such cases, while the actual monetary benefit to the senior, as a result of review, may accrue with effect from the date of absorption in the appropriate higher grade, proforma benefit may be allowed with effect from the date of absorption of the junior on or after 7.2.96, with reference to whose absorption the seniors case is reviewed. (emphasis supplied) Suffice it is to note at this point that the 2006 Circular is of critical significance in the adjudication of the claims in the present OA.
6. In some other cases, medically de-categorized RPF Constables who had been absorbed in the jobs of Daftary/Luggage Porter/Goods Marker, with less pay scales and lower in hierarchy, had agitated through a series of OAs claims for being absorbed in the posts of Clerks /equivalent in the scale of Rs.3050-4590. This had been on the ground of such absorption having been granted to some of their erstwhile juniors, ignoring the claims of the applicants as seniors. The OAs had been allowed with the Tribunal directing the respondents for considering the claims of the applicants. In a challenge by the respondents vide WP(C) 2184/2004 (UOI vs Shri Varender Kumar Gupta & Anr) and other similar matters, the Delhi High Court vide its common order dated 30.10.2007 had not considered it fit to interfere with the Tribunals orders.
The Respondents in these OAs i.e. V. K. Gupta & Anr (WPC 2184/2004); Mahavir Singh (WP(C) 4539-40/05); Balwan Singh & Ors (WP(C) 6666/2004); and Braham Prakash & Ors (WP(C) 14456/2004) had been agitating claims that three other similarly situated persons had been given the job of Assistant Canteen Manager or Clerk ignoring their claims. The Honble High Court in its Judgment (Para 3) had specifically referred to the cases of one Shri Narinder Singh absorbed as a Clerk; and Shri Sharadanand and Dalel Singh absorbed as Assistant Canteen Manager and Clerks respectively.
In respect of WP(C) 4539-40/2005 dealing with the claims regarding Mahavir Singh, the following finding had been arrived at by the Honble High Court in Para-4:-
4. In WP (C) No.4539-40/2005 counter affidavit has been filed by the respondent therein Mahavir Singh. Along with the counter affidavit, copy of the notice/order dated 21.6.2005 passed by the Northern Railways, i.e., the petitioner herein is placed on record as per which the directions given to the petitioner in the cases of one Kewal Krishan, Dal Chand and Shri Ram Kanwar in WP (C) No.2270/1998 to give them the post of clerk-cum-typist in Engineering-Ministerial cadre, who were earlier posted as chowkidar has been implemented and the directions are duly complied with
7. The applicants learned counsel, Shri Yogesh Sharma, would contend regarding the non-consideration of the applicants case by the respondents in the light of the directions of the Honble High Court in the above referred decision. Non-extension of the same benefits, as given to others, would be the main thrust of the learned counsel. It has also been contended in the OA that as per the provisions of Para 1314 of IREM read with the Circular dated 31.7.2006, non-consideration of the case of the applicant for absorption in a post in the scale of Rs.3050-4590, while granting the same to his juniors is not only illegal and arbitrary but also discriminatory in the eyes of law.
8.1 Certain pleas raised by the respondents, opposing the claims in the OA, are not found to be tenable. The preliminary objection of the OA being barred by the doctrine of constructive res judicata would not be valid in this case, since the earlier OA had not examined the claims on merit. Similarly, the contention of the respondents learned counsel Shri Tiwary regarding the representation in this case (A/2) not raising the matter regarding extension of the High Courts judgment, would also not really weigh with us; inasmuch as the speaking order in this case was being passed in pursuance of the directions of the Tribunal in the OA 2863/2009 which had contained a very clear mention of extending similar benefits as in the High Courts judgment and Tribunals judgments.
8.2 Having looked into the matter closely, we agree with the view taken by the respondents that the provisions of the Disability Act cannot be evoked in support of the claims in the OA as they are anterior in time from the date this Act came into force. Similarly, they would also not be covered under the 2005 circular, as it was with regard to the employees decategorized and reverted between 7.2.1996 and 28.4.1999. However, the subsequent circular of 2006 which had provided certain safeguards vis-`-vis their erstwhile juniors, even in case of employees medically decategorized and alternatively absorbed prior to 7.2.1996 would come into play. This is also relevant considering the decisions of the coordinate Benches of the Tribunal in the other OAs as well as of the Honble High Court, being relied upon by the applicant.
8.3 As stated above, the review provided under 2006 circular was to take place only in cases where both seniors and juniors had belonged to the same department, cadre, category and grade before medically decategorization; and also been absorbed in the same department in the same cadre/category. The counter affidavit filed by the respondents throws light in respect of some of the cases that had figured in the Honble High Courts judgment.
Para 4.7 of the CA makes the following averment:-
........it is further informed that, Mahavir Singh, Balwan Singh Ors and Brahma Prakash Ors. all were redeployed in same department except Virender Kumar Gupta who was absorbed as clerk in optg department and there is no comparison with his case as he does not cover under the Rules as explained in brief history. It is further submitted that as far as Balwan Singh & Ors and Brahim Prakash & Ors are concerned it is informed that, they all have not yet been granted the benefit due to non passing the selection post in the light of directions of the Honble Tribunal passed in CP No.345/2008 in Original Application 78/2003 and CP No.356/2008 inn Original Application no.1700/2003, as the selection is being conducted shortly, whereas in the matter of Sh. Mahavir Singh (who was redeployed/absorbed in the year 2000) a CWP bearing No.389/2008 in Writ Petition No.4539-40/2005 is still pending before the Honble High Court of Delhi
9. Even though the present OA does not contain a specific mention of the claimed juniors, who have been absorbed in higher grade posts ignoring the applicants claims as a senior in the erstwhile grade; the fact remains that such claims, if any, deserved to be considered as per the respondents own circular of 2006. This view has been reinforced in various decisions of the Tribunal in number of OAs as well as upheld by the Honble High Court in its common order dated 30.10.2007.
In D.C. Wadhwa (Dr.) Vs. State of Bihar, 1987 (1) SCC 378, the constitution Bench of the Honble Apex Court, while speaking of the exalted position of law, observed:
The rule of law constitutes the core of our constitution and it is the essence of the rule of law that the exercise of the power by the state whether it be by the legislature or the executive or any other authority should be within the constitutional limitations.
Since the RB circular dated 31.7.2006 provided certain safeguards to the medically decategorized employees, in their subsequent absorptions in alternate posts, vis-`-vis their erstwhile juniors; non-implementation of the same in respect of the applicant cannot be countenanced in law. Again, as is the settled position of law, any discrimination in this regard would also be antithesis to the fundamental right of equality guaranteed under the constitution.
Considering the totality of the facts, we find it in the interest of equity and justice to dispose of this OA with the following directions:-
The applicant would make a representation to the respondents specifying the cases of any juniors, vis-`-vis whom he is claiming the benefits of review under 31.7.2006 circular. Such a representation would be made within a period of one month.
On receipt of such a representation, the respondents would consider it duly keeping in view the provisions of aforesaid 2006 circular as well as the benefits granted in the other OAs and upheld by the Honble High Court vide its common order of 30.10.2007. The same would be disposed of by a speaking and reasoned order within two months of receipt of such a representation.
As an abundant safeguard to protect the interests of a low paid medically decategorized employee, we further direct the respondents that even if no such representation is made by the applicant; the respondents suo moto would review his case in the light of the 31.7.2006 circular and consider providing the necessary relief by a speaking and reasoned order, within the overall time limit of three months, from the date of passing of this order, as stipulated above. Needless to say, in this exercise our observations in the body of this order would be kept in view.
No order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
/PKR/