Central Administrative Tribunal - Patna
Yunus Hussain vs Eastern Railway on 14 November, 2024
1 OA No. /051/0100/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
RANCHI CIRCUIT BENCH, PATNA
O.A. No. 051/0100/2022
Reserved on: 22.08. 2024
Pronounced on: 14.11.2024
CORAM
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
Yunus Hussain, aged about 65 years s/o late Fida Hussain, R/o near
Forest Office, Vill-Babhandih, PO Chhenchha, PS-Barwadih, Distt.
Latehar (Jharkhand) -822111.
.......... Applicant.
-Versus-
1. The Union of India through General Manager, Eastern Central
Railway, Hazipur, PO+PS-Hazipur, Distt. Hazipur (Bihar)-
Patna
Bench
844101.
2. The Preferred Board Personal Officer, Eastern Central
Railway, PO+PS+Distt. Dhanbad (Jharkhand) - 826001.
3. The Divisional Rail Manager, Eastern Central Railways,
Dhanbad,, PO+PS+Distt. Dhanbad (Jharkhand)-826001.
4. The Senior Divisional Finance Manager, E.C. Railways,
Dhanbad (Jharkhand)-826001.
........Respondents
For Applicant:- Sh. Awanish Ranjan Mishra, Advocate.
For Respondents:- Sh. Rajendra Krishna, Senior CGSC with Sh.
Amit Sinha, Addl. CGSC.
ORDER
PER:- AJAY PRATAP SINGH, MEMBER [JUDICIAL] Heard learned counsel appearing for the parties through physical mode.
2. Grievance of the applicant as projected by the learned counsel for the applicant seeking direction to the respondents to re-fix the pension and other pensionary benefits by addition of running allowance 55 Percent of the basic pay to be added as a running staff as the 2 OA No. /051/0100/2022 applicant was declared fit in A-1 category from 31.01.2017, the date of superannuation and arrears alongwith interest at appropriate rate.
PRAYER
3. By way of present Original Application filed under Section 19 of Administrative Tribunals Act 1985, applicant has sought the main relief (as extracted from the OA) as under:-
"I. To consider applicant medically fit in aye one category as he was and to provide pensions and other retiral dues according to that. That is to say 55% of his last withdrawn salary.
And II. To consider applicant medically fit in aye one Patna running category and to provide his pension and all Bench other retiral dues from the date of his superannuatio with appropriate interest.
And/Or III. For any other relief (s) for which pensioner is found legally entitled and as your Lordships may deem fit and proper in the facts and circumstances of the case and in the interest of justice."
FACTS IN BRIEF
4. Briefly stated facts as adumbrated by applicant in the instant OA are that applicant joined as Cleaner in Indian Railways on 01.04.1976 after having declared medically fit under A-1 category by Railway Medical Examiner as evident from medical certificate dated 24.03.1976 (Annexure -1). During the course of service while posted as Loco Pilot Mail at Barwadih, Dhanbad, applicant was diagnosed with oral cancer and remained under treatment from 20.08.2014 to 20.08.2015. It is the case of applicant that after getting declared fit for service vide certificate dated 20.08.2015 (Annexure -2) by doctor of Cancer Hospital, Varanasi, he was sent to E.C. Railway, Dhanbad for normal duty from NE Railway, Varanasi.
5. After getting recovered from cancer, as applicant could not appear for periodical medical test scheduled on 08.10.2014, a Medical Board was constituted and applicant was examined medically where he was declared fit in the same medical category, i.e., A-1 category but not involving train running and train passing duty. With the same remark an annexure was issued for alternative post which was deposited by 3 OA No. /051/0100/2022 applicant to Senior Section Engineer, LOCO, Barwadih on 20.08.2015. Subsequently, applicant was instructed to appear in a screening test on 05.10.2015 and on that basis applicant was selected to work against the post of Drafted Crew Controller duly approved by DRM, Dhanbad on 06.10.2015. Accordingly, applicant continuously worked on the said post of Crew Controller and superannuated on 31.07.2017.
6. It is the case of the applicant that just prior to retirement, he was orally informed on 25.01.2017 by a Clerk that he has been declared medically de-categorized and, hence, is being debarred from the facilities of running category and his pensionary benefits are also being calculated treating him medically de-categorized and non-running category employee. Aggrieved, applicant approached respondent nos.3 & 4 and explained that as he was getting all benefits including salary proportionate to his medical category A-1 declared by a Board of Medical constituted lawfully by the EC Railways, which clearly Patna Bench establishes that he was doing running staff duty. However, respondents did not pay attention to applicant's prayer and fixed the pension and other benefits considering him as non-running category employee and treating medically de-categorized. The said action on part of the respondents is illegal, punitive and violative of report of the Medical Board constituted by the respondents themselves. Even in the retirement notice dated 01.06.2016 issued by the respondents, applicant is shown to have superannuated as Running Staff. It is also pertinent to mention here that the applicant used to receive his salary continuously proportionate to his medical fitness in running staff category and at the time of superannuation, his last basic pay drawn was Rs.86,100/-. Accordingly, his pension should have been 55% of the last drawn salary whereas reducing him to non-running category on the basis of alleged medical de-categorization he has been forced to survive on 35% pension illegally for no fault of applicant. Aggrieved, applicant made a representation to the respondents on 27.01.2017 followed by a reminder dated 31.03.2017 for redressal of his grievance, but the respondents did not accede to his request. Then the applicant sought information under RTI and on receipt of information, applicant came to know that Drafted LOCO Pilot is of running category and a person, who retires under the same category, is entitled for getting all benefits as running staff. Applicant against asked questions from the respondents under RTI vide application dated 18.05.2017 and a reply was given by Chief Office Superintendent, E.C. Railways, Dhanbad on 08.06.2017 admitting that applicant is entitled to all benefits admissible to running staff. Applicant has also gathered information under RTI to the effect that there are numerous staff under medical category A-1 as that of the 4 OA No. /051/0100/2022 applicant, who are in stationary duty - not even in the nature of running train job, they are getting all facilities as running staff. He has also stated that applicant has received Accident Free award of Rs.82,230/- on 31.01.2017, which is granted to medically fit category staff - not to medically de-categorized staff. Hence, it is clear as noon day that applicant superannuated as Running Staff and is entitled to all benefits admissible to running staff and he cannot be treated to be medically de- categorized and forced to survive on 30% Pay element added to pension and other benefits.
7. Per contra, respondents have filed written statement denying the claim of the applicant. Respondents have taken a preliminary objection that the present OA is barred by limitation. The applicant superannuated on 31.01.2017 and approached Hon'ble High Court of Ranchi on 24.07.2018 without exhausting departmental remedies available to him. The writ petition filed by the applicant was dismissed Patna Bench on 10.08.2021. Thereafter, applicant filed the present OA in February, 2022 after a lapse of long time without any cogent reasons.
8. Respondents have further stated that applicant was sent for periodical medical examination as per provision of running staff. After medical examination, "the competent authority vide order dated 19.08.2015 declared him fit in Aye One (A1) category but not involving train running and train passing duty." Accordingly, Railway Administration de-categorized the applicant from Loco Piolot (Mail/Diesel). Respondents have further stated that RBE No.9/98 dated 09.01.1998 provides scheme for filling up posts of Loco Running Supervisor (Loco Inspectors and Power Controllers/Crew Controllers) wherein Para 2(g) it is stated that "medically de-categorized Drivers will be eligible to be drafted to perform the duties of Power/Crew Controllers". However, if their performance is not found satisfactory, in addition to action under D&AR, as they cannot go back to running duties, this will be considered for alternative jobs following the rules applicable to medically de-categorized employees. From the above provisions, it is crystal clear that medically de-categorized drivers will be eligible for the duties of Power/Crew Controllers but they cannot go back to running duties. It means medically de-categorized Crew Controllers are not running staff. Hence, applicant is not entitled for the benefits of running staff holding supernumerary/stationery duties of Crew Controllers. RBE No.12/2004 dated 14.01.2004 deals with benefits admissible to medically de-categorized drivers drafted to perform the duties of Power/Crew Controllers wherein it is stipulated that medically de-categorized drivers drafted to perform the duties of Power Controllers/Crew Controllers cease to be running staff and, 5 OA No. /051/0100/2022 hence, not entitled to any benefit especially admissible to running staff. Accordingly, allowances in lieu of kilometerage or addition in basic pay for computation of retirement benefits are not admissible in such cases and is governed by extant instructions governing fixation of pay of medically de-categorized drivers appointed in alternative post as is the case of the applicant. Therefore, pay of the applicant for the post of Crew Controller was fixed taking 30% running allowance from the date of medical de-categorization as per provision contained in RBE No.138/2011 dated 05.10.2011 and Railway Board's letter dated 08.10.2013. Accordingly, applicant is not entitled for 55% of running allowance commensurate with the running staff as he has been medically de-categorized by the competent authority.
9. In support of their contention on the issue of addition of 55% running allowance in basic pay for calculation of pension, respondents have relied upon a decision of Hon'ble Supreme Court in Union of Patna Bench India & Ors. Vs. B. Banerjee [Civil Appeal No7298/2013 reported in (2013) 10 SCC 265 decided on 06.09.2013] wherein their Lordships have held that "The retention of decategorized drivers working as Crew Controllers in the original cadre of drivers by the Railway Board's Circular No.9/98 dated 09.01.1998 & their entitlement to Running Allowance (ALK) has to be understood in above context. The aforesaid inclusion, which is wholly fictional, cannot confer any benefit contrary to the express provision of the Running Allowance Rules inasmuch as a de-categorized Driver working as a Crew Controller is not a member of the running staff or engaged in performance of running duties as defined by the provisions of Running Allowance Rules. The above position has been made abundantly clear by the Railway Board Circular No.12/2004 dated 14.01.2004, details of which have already been noticed."
10. Insofar as information received under RTI information by the applicant are concerned, same relates to only those Loco Pilots/Running Staff who comes directly under running staff without medically de-categorized in drafted Loco Pilot only for limited period of three years as per RBE No.9/98 (supra) and thereafter again they go back for Loco Pilot as per provisions are called running staff. But it is not made clear that medically de-categorized running staff cannot go back in his running duties after medical de-categorization, hence, they are not running staff.
11. Rejoinder has been filed by applicant denying the averments made in the W.S. Apart from reiterating the averments made in the OA, applicant has laid much emphasis on Clause "e" of RBE No.9/98 dated 6 OA No. /051/0100/2022 09.01.1998 to establish that drivers so drafted will continue to progress in the running cadre and will be subject to all the terms and conditions of service as applicable to running staff, including pay and allowances, periodical medical examination, selections/suitability tests etc. On the same analogy, applicant vehemently contends that the respondents cannot deny him the benefit of 55% addition of running allowances while calculating his pensionary benefits.
Submissions
12.Shri. Awanish Ranjan Mishra, the learned counsel for the applicant vociferously canvassed his contentions and can be summarized as-
(i) Applicant joined Indian Railways on the post of cleaner found medically fit in A-1 category on 24.03.1976. Thereafter posted on the post of Loco Pilot Mail, and Patna Bench remained under treatment of oral Cancer from 28.08.2014 to 20.08.2015. The Sr. S.E (L) Barwadih requested CMD, ECR, Dhanbad for deciding his fitness. The CMS, ECR, Dhanbad vide letter dated 19.08.2015 declared applicant fit in same medical category- (A-1) but not involving train running and track passing duty.
(ii) Applicant appeared in screening test on 05.10.2015 (Annexure A-4) and recommended for absorption in the alternative post and drafted Crew Controller/CCNL/Mech (Q). The applicant joined on 16.10.2015 as Drafted Crew Controller at Barwadih, Crew Lobby and superannuated on 31.01.2027.
(iii) The applicant was declared fit in the Medical Category A-1 and doing running staff duty since 16.10.2015 as Drafted Crew Controller at Barwadih Crew Lobby and superannuated on 31.01.2027.
(iv) The applicant held substantive post of Loco Pilot Mail and Medical fit A-1 Category vide chief medical superintendent, Dhanbad but not involving train running and train passing duty and was posted as Drafted Crew Controller and is entitled for benefits specifically admissible 7 OA No. /051/0100/2022 to the running staff including 55 per cent pay element of running allowance, whereas respondents illegally granted retirement benefits including benefits of running staff by 30 per cent of the basic pay-drawn by him as a running staff.
(v) Applicant was declared medically fit in A-1 category since joining of the railways till supeannuation and cannot be treated as medically decategorized. Applicant retired as Drafted Crew Controller-non-running staff and is legally entitled for addition of running allowance of 50 per cent of the basic pay to be added for calculation of pensioners benefits to the running cadre staff.
(vi) Respondents under RTI dated 31.03.2017 has sent Patna Bench information dated 15.0-5.2017 (Annexure A-8) and stated that Drafted LocoPilot is of running category and is entitled for 55 per cent of running allowance for pension purposes. Thus, the applicant is legally entitled for 55 per cent of the pay element benefits, whereas respondents calculated illegally pesnionary benefits on 30 per cent of the basis pay of the running staff for calculation of emoluments as per Railway Service (Pension) Rules, 1993.
13. Shri. Rajendra Krishna, Senior CGSC with Shri. Amit Sinha, Additional CGSC appearing for the respondents vehemently argued and can be summarized as-
(i) Applicant remained under treatment of cancer disease for one year from 28.08.2014 to 20.08.2015 and Medical Board was constituted. The Chief Medical Superintendent, ECR, Dhanbad vide report dated 19.08.2015 declared him fit in same (A-1) Medical category but not involving train running and train passing duty. Thus, the applicant was taken away from running duties as defined in Rule 902 (2) (iii) of IREM- Vol.I. The undisputed fact that the applicant was medically decategorized based on medical dated 19.08.2015 to the post of Drafted Crew Controller (CCNL) and retired as Drafter 8 OA No. /051/0100/2022 Crew Controller, discharging non-running duties and as per Rule 907 of IREM-I, pay protection running allowance namely 30 per cent of the basis pay granted being member of running cadre staff performing non-running duties and the applicant after absorption as Drafted Crew Controller vide order dated 06.10.2015 (Annexure A-4 page 28 of the OA) cannot claim the benefit of 55 per cent pay element benefits being medically decategorized driver. The order dated 06.10.2015 related to medical decategorization of the applicant has attained finality and the applicant was absorbed in an alternative post as Drafter Crew Controller, not included under Sub-rule (iv) of Rule 902 of IREM-I, not Patna Bench included as running staff but status of the applicant at the time of alternate posting on 16.10.2015 till 31.01.2017 was of medically decategorized driver. Hence, the applicant has been rightly granted emoluments as per Rule 49 and 50 of the Penson Rules, 1993 and fixation taking 30 per cent running allowance from date of medically decategorization i.e. 13.10.2015 as doing stationary duty. The applicant is not legally entitled for 55 per cent of pay element as erstwhile members of running staff permanently engaged in the performance of stationary duty.
(iii)The pay element of 55 per cent can be given to running staff only for performing actual running duty as defined in Rule 902 of IREM-I, running duties means directly connected with movements of the trains and performed by running staff employed on moving duties or engines. The Drafted Crew Controller duty is of stationary work and is not entitled for 55 per cent of pay element due and admissible to running staff doing running duties on moving trains or engines
(iv) The issue involve in the present OA is squarely covered by the law laid down by Hon'ble Supreme Court in the case 9 OA No. /051/0100/2022 of Union of India & Ors Vs. B.Banerjee, reported in (2013) 10 SCC 265 and relied in identical facts and law by Hon'ble High Court of Allahabad, in case titled as Union of India & Ors. Vs. Amrol and Others, Writ A No. 60133 of 2006 decided on 17.08.2017. The applicant has been granted protection of 30 per cent of the basis pay as per the judgment of Hon'ble Apex Court and Railway Board Circulars dated 14.01.2004 and the present OA is bereft of merits deserves to be dismissed.
Analysis and Findings
14. This Tribunal has bestowed anxious considerations on the rival Patna contentions of the learned counsel appearing for the parties and perused Bench the material placed on record as well as considered the precedents cited by the parties.
The Issue
15. From the above submissions of the parties and material placed on record, the short issue which arises for determination is-
" Whether the applicant was medically decategorized fit in the same medical category (A-1) but not involving train running and train passing vide CMS/DHNS letter dated 19.08.2015 and vide order dated 06.10.2015(Annexure A-4) on screening and absorption in alternate post of Drafter Crew Controller post joined on 16.10.2015 performed stationary duty and superannuated on 31.01.2017 is entitled for addition of running allowance 55 per cent of the basis pay to be added for calculation of pensionary benefits in place of 30 per cent pay element for being erstwhile running staff"
Rule of Law
16. To appreciate the issue arising in the present OA, it will be necessary to notice the relevant provisions of Running Allowance Rules as embodied in the Chapter IX- of the IREM-Vol-I, (Revised Edition 1989)-
10 OA No. /051/0100/2022"901. Running Allowance for staff performing running Duties
1. Running Allowance Rules are called "The Rules for the payment of Running and other Allowances to the running staff on the Railways"
coming to force with effect from 1-8-1981.
902. 2. In the provision of these rules, the following terms shall have the meaning assigned to them for the purpose of payment of Running and other Allowances to the running staff :--
(i) "Competent authority" means the President of India or any authority to whom the power to amend or interpret these Rules may be delegated or any authority in whom powers are vested by or under these Rules.
(ii) "Day" means a calendar day beginning at midnight of a day/date and ending at midnight of the following day/date. The concept of "Rostered Day" as existing hitherto shall be abolished with effect from 1-8-1981.
(iii) "Running duties" mean duties directly connected with the movement of trains and performed by running staff while Patna Bench employed on moving trains or engines including shunting engines.
(iv) "Running staff" performing "running duties" shall refer to Railway servants of the categories mentioned below :
Loco Traffic
(a) Drivers, including (a) Guards
Motormen &
Rail Motor Drivers
but excluding
shunters.
(b) Shunters (b) Assistant
Guards
(c) Firemen,
including Instructing
Firemen, Electric
Assistant on Electric
Locos and Diesel
Assistant/Drivers.
Assistants on Diesel
Locos.
v) "Running Allowance" means an allowance ordinarily granted to running staff in terms of and at the rates specified in these rules, and/or modified by the Central Government in the Ministry of Railways (Railway Board), for the performance of duties directly connected with charge of moving trains and includes a "Kilometrage Allowance" and "Allowance in lieu of kilometrage" but excludes special compensatory allowances.
903. Pay element in running allowance:- 30% of the basic pay of the running staff will be treated to be in the nature of pay representing the pay element in the Running Allowance. This pay element would fall under clause (iii) of Rule 1303-FR-9 21 (a) i.e. "emoluments which are specially classed as pay by the President".
11 OA No. /051/0100/2022904. Dearness Allowance on the pay element of Running Allowance:-The running staff shall be paid Dearness Allowance, at the appropriate rates sanctioned by the Government from time to time, on their basic pay plus the pay element of Running Allowance i.e. 30% of the basic pay.
905. Types of Allowances admissible to Running Staff :-
Running staff shall be entitled to the following allowances subject to the conditions specified by or under these rules :--
(i) Kilometrage Allowance for the performance of running duties, in terms of and at the rates specified in these rules.
(ii) An allowance in lieu of kilometrage (ALK) for the performance of stationary duties such as journeys on transfer, joining time, for attending enquiries or law courts on Railway business, attending departmental inquiries as Defense Counsel or witness, Ambulance classes, volunteer duty in connection with Territorial or other similar Fund and Staff Loans Fund Committees, meeting of Railway Institutes, Welfare and Debt Committees, Staff Benefit Fund and Staff Loan Fund Committees, Staff and Welfare Committees, for Patna attending the meetings of Railway Co-operative Societies in Bench cases where special casual leave is granted for doing so, medical and departmental examinations, participating in recognized athletic contests and tournaments, scouting activities and Lok Sahayak Sena Camp, representing recognized labor organizations, attending periodical meetings with District Officers, Heads of Departments and General Managers, attending First-aid classes, undergoing training in carriage sheds and as worker teacher under the Workers' Education Scheme attending training schools for refresher and promotion courses, undergoing sterilisation operation under Family Planning Scheme appearing in Hindi Examination Guards booked on escort duty of treasure and other insured parcels on trains, Drivers and Firemen when kept spare for a day or two to enable them to examine and clean the engines thoroughly before being deputed to work special trains for VIPs, or any other duties which may be declared in emergencies as qualifying for an allowance in lieu of kilometrage.
(iii) Special Compensatory Allowances The running staff are eligible for the following compensatory allowances under the circumstances and at the rates specified in these rules :--
(a) Allowance in lieu of Running Room facilities.
(b) Breach of rest allowance.
(c) Outstation (Detention) Allowance.
(d) Outstation (Relieving) Allowance.
(e) Accident Allowance.
(iv) An officiating Allowance when undertaking duties in higher grades of posts open to running staff or in stationary appointments.12 OA No. /051/0100/2022
907. Allowance in lieu of Kilometrage (ALK) When running staff are engaged in or employed on non-running duties as specified in Rule 3 (ii) above, they shall be entitled to the payment of an allowance in lieu of Kilometrage as indicated below for every calendar day for such non-running duties as may be required to be performed by them :
(a) When such non-running duties are performed by the running staff at their headquarters, they shall be paid the pay element of the Running Allowance, namely, 30% of the basic pay applicable for the day.
(b) When such non-running duties are performed by the running staff at outstations, they shall be paid ALK at the following rates :--
Patna Bench
924. Reckoning of Running Allowance as pay :
(i) 30% of the basic pay of running staff shall be reckoned as pay for the following purposes :
(a) Entitlement to Passes and P.T.Os.
(b) Medical attendance and treatment.
(c) Educational assistance.
(d) Fixation of pay in stationary posts.
(e) Compensatory (City) Allowance,
(f) House Rent Allowance.
(g) Entitlement to quarter.
(h) Recovery of rent for quarters.
(i) Dearness Allowance/Addl. Dearness Allowance.
(j) Overtime Allowance,
(k) Leave Salary.
(ii) For the purpose of educational assistance, 30% of the basic pay shall be reckoned as pay for determining the eligibility for all the scheme of assistance given to Railway employees for the education of their children/ward viz. reimbursement of tuition fees, children's educational assistance and subsidized hostels.13 OA No. /051/0100/2022
(iii) For the purpose of retirement benefits, 55% of basic pay shall be taken into account in the case of running staff retired/retiring on or after 1-4-1979. 55% of basic pay shall also be reckoned as pay for the purposes of recovery of subscription towards Provident Fund.
(iv) When running staff are on leave (including casual leave) they shall be paid their leave salary based on their basic pay plus 30% thereof and the other allowances including Dearness Allowance/Addl. Dearness Allowance due on such basic pay plus 30% thereof.
(v) For the purpose of deduction of Income-Tax, 30% of the actual Running Allowance earned by the running staff shall be reckoned as pay and the balance 70% of the Running Allowance shall be exempted under section 10(14) of the Income-Tax Act, 1951, with effect from the financial year 1982-83 (Assessment Year 1983-
84).
(vi) The pay element in Running Allowance viz. 30% of basic pay is also reckoned as pay for the purpose of grant of Interim Relief in terms of Board's letter No. PC-III-83/PC-IV/3(IR) dated 2-8-
1983.
Patna Bench Note--
(a) While 30% of the basic pay of running staff will be taken into account for the purpose of determining entitlement to Passes and PTOs, the members of the running staff who were already entitled to a higher class of Passes/ PTOs on regular basis as on 31-7-1981, shall continue to be eligible to such Passes/PTOs.
(b) For the purpose of retirement been fits, 55% of basic pay shall count as pay for calculating pension and DCRG as well as for special contribution to PF Rules.
(c) While determining the emoluments for the purpose of calculation of retirement benefits, Dearness Pay as admissible from time to time, shall be calculated on basis of pay plus 30% thereof in the case of running staff retired/retiring on or after 1-8-1981."
(Emphasis supplied)
17. The Railway Board issued RBE No. 9/1998 dated 9.1.1998, scheme for filing up the posts of Loco Running Supervisors (Loco Inspectors and Power Controllers/Crew Controllers)-Modification thereof. The Scheme dated 25.11.1992 as under-
(g)Medically decategorised drivers will be eligible to be drafted to perform the duties of Power/Crew Controllers. In their case, the tenure rule of three years under Para (f) above will not be applicable. However, if their performance is not found satisfactory, in addition to action under D&AR, as they cannot go back to Running duties, they will be considered for alternative jobs following the rules applicable to medically decategorised employees"
(Emphasis supplied) 14 OA No. /051/0100/2022
18. The Railway Board in concurrence of the finance Directorate of the Ministry of Railways issued RBE No. 12 of 2004 dated 14.01.2004 in reference to instructions contained in Para 2 (g) of Boards letter, RBE No. 9/1998 dated 09.01.1998 reproduced for ready reference.
"Please refer to the instructions contained in Para 2(g) of Board's letter No.E (P&A)I-83/RS-10 dated 9-1-1998.
2. It has come to notice that on some divisions in the Zonal Railways, allowance in lieu of kilometreage is being allowed to medically decategorised drivers drafted to perform the duties of Power Controllers/Crew Controllers, in terms of the above instructions. In this connection, it is brought to your notice that medically decategorised drivers drafted to perform the duties of Power Controllers/Crew Controllers, cease to be running staff and, therfore, are not eligible to any benefit specifically admissible to the Running staff. Accordingly, the allowance in lieu of kilometreage or addition' in Patna Bench basic pay for computation of retirement benefits is not admissible in such cases. The pay of the medically decategorised drivers on such drafting, has also necessarily to be fixed as per the extant instructions governing fixation of pay of medically decategorised drivers appointed in alternative stationary posts.
3. This issues with the concurrence of the Finance Directorate of the Ministry of Railways.
4. Please acknowledge receipt."
(Emphasis supplied)
19. The Railway Board issued instructions dated 08.10.2013- Query for WR for 55 per cent pay element benefits to medically decategorized drivers who retire voluntary or superannuated. The same reads as under:
"It may be recalled that WR. in their letter dated 17-05-2011 had raised the following queries:
"It may kindly also be clarified as to how the settlement of medically decategorised running staff is to be done in case of Loco Running Staff:
(a) If retired (voluntarily or superannuation) while working on special supernumerary post before posting on stationary post.
(b) If retired (voluntarily or superannuation) while working on special supernumerary post clue to non acceptance of offer of posting in a stationary post".
The above queries have already been addressed to by Board's letter No. E(NG)-1/2009/RF-3/9 dated 5-10-2011. In this letter it has been stated that the pay of medically decategorised running staff while they are kept on supernumerary posts i.e. from the date, they are declared 15 OA No. /051/0100/2022 medically unfit till the date they are absorbed in suitable alternative posts, needs to be suitably fixed by addition of the pay element of running allowance as may be in force. As per Board's letter No. E(P&A)11/2005/RS-34 dated 26-12-2008, the pay element for specified benefits excluding retirement benefits for the running staff is 30%. After such pay fixation of the erstwhile running staff who are medically decategorised, the question of reckoning of pay element again does not arise.
Therefore, when a running staff is medically decatagorised, he is placed on supernumerary post and his pay is fixed after adding 30% pay element from the date he was medically decategorised. If such an employee who is no more a running staff retires voluntarily or on superannuation, his settlement should be done without any further reckoning of pay element:"
(Emphasis supplied) Discussion and Analysis
20.The provisions of Running Allowance Rules extracted above. The Patna Bench sub-rule (iv) of Rule 902 defines only a specific category of employees in the Railway like Drivers, Firemen, Asst. Drivers on electrical/Diesel, Asst. Guards etc constitute the running staff who are directly connected with the movement of the trains perform running duties.
21.Rule 902 (2) (iii) defines running duties to mean duties directly connected with the movements of trains and performed by running staff while employed on moving trains on engines.
22. Rule 907- Allowance in lieu of Kilometres and as specified by Sub-Rule (ii) of Rule 905, whenever non-running duties are performed by the running staff at their HQ, they shall be paid the pay element of the running allowance, namely, 30 Per cent fo the basis pay applicable.
23. As evident from the scheme of Running Allowance Rules as embodied in Chapter X of the IREM-Vol-I, extracted above, it is clear as noon day that 30 per cent of the basis pay of the running staff is required to be treated as representing the pay element in the running allowance. The members of running staff who are emploiyed on non- running duties are paid aforesaid 30 per cent of the basic pay on doing non-running duties whereas in case of the running staff at out stations to be paid ALK at rates as per Rule 907 (b).
16 OA No. /051/0100/202224.The scheme of the Running Allowance Rules also makes abundantly clear that the no running allowance is contemplated for any staff, including erstwhile members of the running staff, permanently engaed in performance of stationary duties.
25.The Scheme of running allowance provides for payment of running allowance of any type required to be paid only to the members of the running staff, who are directly engaged in actual movement of trains or such who are temporarily assigned stationary duties but who are likely to go back and perform running duties.
26.Now again coming to the basic facts lies in narrow compass to decide the controversy in the present case. Undisputedly applicant had undergone long treatment of Cancer from 28.08.2014 to 20.08/2015. The Cancer Hospital Patna granted certificate of fitness and Medical Board was constituted to examine Bench the applicant. It is also admitted fact that the applicant was medically examined and report vide letter dated 19.08.2015 sent by CMS/Dhanbad. The relevant extract of order dated 06.10.2015 (Annexure A-4) reads as under:
"Sub: Screening and absorption of medically decategorised staff. Ref: Screening test held on 05.10.2015.
On being medically decategorised, the following staff has been screened on 05.10.2015 by the Screening Committee and recommended for absorption in alternative posts which is mentioned below and the same has been approved by the Competent Authority i.e. DRM/DHN.
S. Name(Sri/S Substanti Medical Category Recommendati To report
N mt.) ve Scale & Date of on Of The in section
of Pay & Decategorization Screening of the
GP By CMS/DHN Committee Departme
nt For
Posting
1. Yunus 9300- fit in same Drafted Crew EL
Hussain/D 34800/-, medical category Controller
Under GP (A-1) but not (CCNL)/Mech
SSE/L/BRW 4200/- involving train (D) in same
D running and train scale & GP
passing duty, vide
CMS/DHN's letter
No. -
H/Conf/MBD/Y.H
/15, dt. 19.08.2015
2. - - - - -
3. - - - - -
17 OA No. /051/0100/2022
Accordingly, please arrange to advise above mentioned staff who is working in your control to report concerned section of the department for their further posting as recommended by the Screening Committee in same scale & Grade Pay."
(Emphasis supplied)
27.The screening committee held meeting on 05.10.2015 and the applicant also appeared before the screening committee. The Screening Committee after adopting due procedure decided to medically decategorize the applicant and also recommended for absorption in alternative post of Drafter Crew Controller (CCNL) in the same scale and Grade Pay.
28.The applicant accepted the decision of the competent authority- DRM, Dhanbad and complied order dated 06.10.2015 (Annexure A-4)- Patna Bench on screening absorption of medically decategorized to alternative post of Drafted Crew Controller, not defined as running staff under Sub- Rule (iv) of Rule 902 of IREM-Vol-I involving stationary duty and not released to running duties involving train running and even train passing duty was excluded by the Medical Board.
29.Applicant accepted the order dated 0610.2015 of medical decategorization and absorption in alternative post of Drafted Crew Controller, non-running duty, duty of stationary nature. The applicant from L.P. (M) changed to Drafted Crew Controller on permanent absorption on non-running post with no running duties.
30.Railway Board has issued RBE No. 9 of 1998 and para (g) as extracted provides medically decategorized drivers will be elgible to be drafted to perform the duties of Crew Controllers and the applicant also considered as per rule for alternative job on medically decategorized staff, now cannot go back to running duties.
31.Railway Board in continuation of instructions in para 2 (g) of RBE No. 9 of `1998 issued RBE No. 12 of 2004 dated 14.01.2004 also extracted above. Para 2 of RBE No. 12/2004 specifically provides that medically decategorized drivers drafted to perform duties of Crew Controllers, ceased to be running staff and therefore not eligible to any benefit specifically admissible to the Running Staff.
18 OA No. /051/0100/202232.So also, Railway Board issued instructions No.E ( P & A) II- 2004/RS-5 dated 08.10.2013 with respect for 55 per cent pay element benefits to medically decategorized drivers on superannuation. It was clarified that when a running staff is medically decategorized, he is no more a running staff retires on superannuation his settlement should be done without any further reckoning of pay element i.e. 30 per cent pay element again does not arise.
33.Railway Board has issued RBE No. 12/2004 dated 14.01.2004 that medically decategorized drivers drafted to perform duties of Crew Controllers cease to be running staff and therefore not eligible to any benefit specifically admissible to the Running Staff and addition in basic pay for computation of retirement benefits is not admissible. Patna Bench 34.The respondents have fixed the pay of the applicant on being decategorized vide CMS, Dhanbad letter dated 19.08.2015 and absorbed and posted on alternate post as Crew Controller CCNL (M) at BRWW wef 01.07.2015 by taking 30 per cent running allowance from the date of medical decategorization as per RBE No. 138 of 2011 on very date of regular absorption i.e. 18.10.2015 as per RBE NO. 41/13 (Annexure A-10)
35.The applicant was working as Crew Controller, CCNL (M) at BRWW wef 06.10.2015, non-running staff performing stationary duties are not connected with train running duties involving movement of train. The applicant was holding substantive post of Loco Pilot Mail, driver running staff post at the time of medical decategorization and said component of 30 per cent of the basic pay of the running staff represents the basic pay element in the running allowance under Rule 903 of Running Allowance Rule and said pay component of 30 per cent basic pay element has to be protected while he was already member of the running staff and admittedly protected.
36.Respondents have fixed the pay of the applicant as evident from document dated 19.01.2017 (Annexure A-10) protecting 30 per cent of the basic pay of the running staff, the pay element of running staff as a part of his pay on the post of Crew Controller on superannuation as the 19 OA No. /051/0100/2022 applicant was legally entitled being an erstwhile member of running staff.
37.The applicant has been medically decategorized, screened and accepted alternate appointment in non-running cadre of Drafted Crew Controller and is no more member of running cadre since 06.10.2015 and joined on same day and performed stationary duty only. Hence is not entitled for claiming addition of running allowance 55 per cent of the basic pay to be added for calculation of pensionary benefits to be paid to running staff only for performing actual running duty till retirement. The OA is bereft of merits and no interference is called.
38. Hon'ble Supreme Court in the case of Union of India & Ors Vs. B. Banerjee, reported in (2013) 10 SCC 265. Their Lordships were in Patna Bench seisin with the issue- "whether a medically decategorized driver of Indian Railways, working as a Crew Controller with stationary duties, is entitled to allowance in lieu of kilometrage (ALK)?". The respondents while serving as a Diesel Driver (Goods) Grade-II was found unfit to work as a driver in a special medical exam held on 05.01.2005 and allowed to work as a crew controller. The post of Crew Controller, the post involving performance of stationary duties was included in cadre of drivers in terms of RBE No. 9/1998 dated 09.01.1998. The Medically decategorized driver like the respondent were drafted to perform the duties of crew controller. Both the regular drivers and medically decategorized drivers in the post of Crew Controller were being paid ALK. The RBE NO. 12 of 2004 was issued to make it clear tht medically decategorized dreivers allowed to perform duties of Crew Controller were ineligible to the grant of any benefit specifically admissible to the running staff on the premise that such decategorized drivers ceased to be running staff. Accordingly, it was clarified that the benefit of allowance in lieu of kilometrage (ALK) is not admissible to medically decategorized drivers working as crew controller. Their Lordships scanned the provisions of Running Allowance Rules and observed that only a specific category of employees in the railway like drivers, motormen, firemen, guards, Asst.
20 OA No. /051/0100/2022Guards etc who constitue the running staff and such staff who are directly connected with the movement of the trains performing running duties. The running allowance under the Rules is required to be paid to the running staff who are engaged in the performance of the duties directly connected with the movement of the trains and such allowance includes kilometrage allowance or allowance in lieu of kilometrage (ALK). While kilometrage allowance is to be paid for performance of actual running duties, the allowance in lieu of kilometrage (ALK) is to be paid to such members of the running staff who are temporarily required to perform stationary duties. The Rule also make it clear that 30 per cent of the basic of the running staff is required to be treated as representing the pay element in the running allowance. Those members Patna Bench of the running staff who are employed on non-running duties are paid the aforesaid 30 per cent of the basis pay, if such non-running duties are performed at the headquarters, whereas in case such non-running duties are performed by the running staff at outstations they are required to be paid ALK at rates by Rule 907 (b).
39.Their Lordships, further held in para 12 of the above judgment that it is clear that no running allowance i.e. either kilometrage allowance or allowance in lieu of kilometrage is contemplated for any staff including erstwhile members of the running staff, permanently engaged in performance of stationary duties. The running allowance of either description is required to be paid only to members of the running staff who are directly engaged in actual movement of trains or such staff who are temporarily assigned stationary duties but who are likely to go back and perform running duties. Their Lordships in UOI Vs. B. Banerjee (supra) The relevant in paragraphs 9 to 12 observed as under:
"9. From the provisions of the Running Allowance Rules, extracted above, it is abundantly clear that only a specific category of employees in the Railways like Drivers, Motormen, Firemen, Guards, Assistant Guards etc. who constitute the running staff and such staff who are directly connected with the movement of trains perform running duties. Running Allowance under the Rules is required to be paid only to the running staff who are engaged in the performance of duties directly connected with the movement of trains and such 21 OA No. /051/0100/2022 allowance includes kilometerage allowance or allowance in lieu of kilometerage (ALK). While kilometerage allowance is to be paid for performance of actual running duties, the allowance in lieu of kilometerage (ALK) is to be paid to such members of the running staff who are temporarily required to perform stationary duties. The rules also make it clear that 30% of the basic pay of the running staff is required to be treated as representing the pay element in the Running Allowance. Those members of the running staff who are employed on non-running duties are paid the aforesaid 30% of the basic pay if such non-running duties are performed at the headquarters whereas in case such non-running duites are performed by the running staff at outstations they are required to be paid ALK at the rates prescribed by Rule 907(b). It is thus clear that no Running Allowance ie. either kilometerage allowance or allowance in lieu of kilometerage is contemplated for any staff, including erstwhile members of the running staff, permanently engaged in performance of stationary duties. Running Allowance of either description is required to be paid only to members of the running staff who are directly engaged in actual movement of trains or such staff who are temporarily assigned stationary duties but who are likely to go back Patna and perform running duties. The respondent does not fall in either of Bench the above two categories.
10. The retention of decategorized Drivers working as Crew Controllers in the original cadre of Drivers by the Railway Board's Circular No.9/98 dated 9.1.1998 and their entitlement to Running Allowance (ALK) has to be understood in the above context. The aforesaid inclusion, which is wholly fictional, cannot confer any benefit contrary to the express provision of the Running Allowance Rules inasmuch as a decategorised Driver working as a Crew Controller is not a member of the running staff or engaged in performance of running duties as defined by the provisions of Running Allowance Rules. The above position has been made abundantly clear by the Railway Board Circular No.12/2004 dated 14.1.2004, details of which have already been noticed.
11. There is yet another aspect of the matter which would require a mention. Under Rule 903 of the Running Allowance Rules, as noticed above, 30% of the basic pay of the running staff represents the pay element in the Running Allowance. Therefore, in case of medically decategorised Driver, like the respondent, the said component being a part of the pay drawn by him as a running staff has to be protected. The same apparently has been done as is evident from the rejoinder affidavit of the Union. The above act of the appellants also ensures compliance with the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which entitles the respondent to receive the pay and service benefits earlier drawn by him. The Running Allowance to which the respondent was entitled while he was a member of the running staff has been protected as a part of his pay in the post of Crew Controller. In such circumstances, any further grant of ALK will not be justified.
12. We, therefore, hold that the High Court was not justified in issuing the impugned directions for grant of ALK to the respondent. The order of the High Court dated 20.6.2011 is therefore set aside and the appeal is allowed."22 OA No. /051/0100/2022
(Emphasis supplied)
40.Hon'ble High Court of Allahabad in Writ-A-No. 60133 of 2006 titled as Union of India & Others Vs. Amrol and Others, decided on 17.08.2017. Their Lordships were seisin with the similar issue "whether railway servant working on stationary post from the running staff can be given addition of running allowance 55 per cent of the basic pay to be added for calculation of pensionary benefits of the employee?" Their Lordships held that the issue to addition of 55 per cent of the basic pay of the running staff to be added and calculated as pensionary benefits by Hon'ble Supreme Court in case of Union of India & Ors. VS. B. Banerjee (supra) and no running staff including the erstwhile members of the running staff permanently engaged in the Patna Bench performance of stationary duty can be given running allowance. The running allowance are to be paid to the running staff only for performing actual running duty. So also, the protection to the respondents of 30 per cent of the basic pay as per the judgment of the Apex Court has also been extended.
41. Railway Board issued instructions NO. E ( P & A) II-2009/RS-18 dated 04.12.2017 relating to demand for reckoning of pay element of 55 per cent at the time of retirement reads as under-
"Kindly refer to this office letter No. E(P&A)I|/2008/RS-32/Vol.Ill . dated 2-03-2016 and E(P&A)I|/2016/RS-18 dated 22-07-2016 on the above subject whereby it was informed that *Stay has been obtained in Civil Appeal No.3110/2016. UOI Vs. Sh. Kishan Lal Sharma and Civil Appeal No. 4386/2016 UOI Vs. K. L.Mehndiratta against the verdict dated 09-10-2015 of Hon'ble High Court of Delhi in the Hon ble Supreme Court of india.
It is understood that several court cases have been filed before various Hon'ble Tribunals and High Court on the subject. WP No. 60133 of 2006 before the Hon'ble High Court. Allahabad filed by UOi & Ors. Vs. A. Amrol, Retd. Loco Inspector has been decided in favour of UOl on 17-08-2017. In this connection, it is stated that the Hon'ble High Court, Allahabad has given the following order:-
"(9)It is undisputed that the respondents had been promoted as stationary staff from the running staff. (10)In the background of the aforesaid judgment UOl Vs. B. Baneerjee, no running staff including the erstwhile members of the running staff permananently engaged in the performance of stationary duty can be given running allowances. Running allowances are to be paid to the running staff only for performing actual running duty.23 OA No. /051/0100/2022
(11)The protection to the respondents of 30% of the basic pay as per the judgment of the Apex Court has also been extended as urged by Sh. Mathur, learned counsel for the petitioners. (12) Consequently, in view of the aforesaid judgment, we allow the writ petition and set aside the impugned order dated 16-05-2006 to the extent indicated above."
In view of the above. it is advised that if any similar issue is pending before any Court of Law on your Railways, the above position may be brought to the notice of the Hon ble Courts. A copy of the said order is enclosed. It is requested to take adequate care to defend and assign similar case, if any, to a Senior officer for proper monitoring and follow up. The status of such cases may be informed to this office from time to time"
(emphasis supplied)
42.What comes out loud and clear from the above facts and circumstances that the issue is no more res-integra and is covered by law laid down by the Hon'ble Supreme Court in the case of Union of Patna Bench India & Ors Vs. B. Banerjee (supra). So also said precedent relied by Hon'ble High Court of Allahabd in the identical case to the case in hand, in the present OA, titled Union of Indis & Ors. Vs. Amrol and Others, in Writ -A-No 60133 of 2006, decided on 17.08.2017. Their Lordships held that no running staff including erstwhile members of the running staff permanently engaged in the performance of stationary duty can be given running allowances. The running allowances are to be paid to the running staff only for performing actual running duty. The protection of 30 per cent of the basis pay as per the the judgment of the Apex Court has already been extended in the case in hand and the respondent claim of addition of running allowance of 55 per cent of the basic pay to be added for calculation of the pensionary benefits of the employee cannot be given to running staff absorbed in alternative post as stationary staff from running staff, permanently engaged in performance of the stationary duty and not performing actual running duty directly connected with movement of trains.
Conclusion
43. For the reasons stated hereinabove, the issue is decided against the applicant. The applicant was medically decategorized vide letter dated 19.08.2015 by the Chief Medical Superintendent, ECR, Dhanbad and 24 OA No. /051/0100/2022 Screening Committee on 05.10.2015 recommended for absorption in alternative post of Drafter Crew Controller (CCNL) vide order 06.10.2015 and the applicant performed stationary duty on non-running staff post, So also, not connected with duties directly connected with the movement of trains while employed on moving trains or engines. The applicant is held to be not entitled for protection of running allowance of 55 per cent of the basic pay to added for calculation of pensionary benefits.
44.Resultantly, the OA being bereft of merit stands dismissed.
45.There shall be no order as to costs.
46.As a sequel thereof, pending MA(s), if any, shall also stands disposed of.
Patna Bench 47. The order be uploaded on the website forthwith.
(Ajay Pratap Singh) Judicial Member.
Central Administrative Tribunal, Patna Bench, Patna.
Abhay/