Central Administrative Tribunal - Ahmedabad
Batuk S Savasadia vs M/O Railways on 10 September, 2021
(CAT/AHMEDABAD BENCH/OA/79/2017) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.79/2017
Dated this the 10th day of September 2021
Reserved on :23.06.2021
Pronounced on :10.09.2021
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. A K Dubey, Member(A)
Shri Batuk S/o Sahamjibhai Laljibhai Savasadia,
Occupation: Service, Aged about 55 years,
Qtr. Mp/53, Vivekanandnagar,
Near Popatpara,
Rajkot - 360 001. ... Applicant
By Advocate Ms K L Kalwani
V/s
1 Union of India,
Owning and Representing Western Railway,
Through: It's General Manager,
Western Railway,
Churchgate,
Mumbai - 400 020.
2 Divisional Railway Manager,
Western Railway,
Kothi Compound,
Rajkot - 360 001. ... Respondents
By Advocate Ms R R Patel
ORDER
Per: Jayesh V.Bhairavia, Member (J)
1 The applicant has filed the instant OA under Section 19 of Administrative Tribunals Act, 1985 seeking relief for direction to the respondents for grant of grade pay of Rs.1800/- in category of Gangman and also for relief of deemed effect from 10.07.2002 and 09.07.2003 as the case may be and have sought the following reliefs:
(CAT/AHMEDABAD BENCH/OA/79/2017) 2"Para-8 (A) The Hon'ble Tribunal may be please to admit and allow the OA. (B) The Hon'ble Tribunal may be pleased to pass appropriate order and direction to the Respondent to place the applicant in PB-1 grade pay Rs.1800/- from the date of his appointment with all consequential benefits including arrears, etc. (C) The Hon'ble Tribunal may be pleased to hold, declare and direct that the applicant is entitled to the deemed appointment in Railway service as Gangman from the date of vacancies as per notification dated 10.07.2002 and 09.07.2003 as the case may be and as deemed just and proper by the Hon'ble Tribunal with all the consequential benefits. (D) Any other Order or Order(s) which may be deemed to fit for the interest of the injustice."
2 The brief facts of the case as stated by the applicant are as under:-
2.1 The applicant who was a Project Casual Labour had earlier approached this Tribunal vide OA 596/1997 seeking a direction to Railways to offer him employment in accordance with the relevant scheme as per his turn in the seniority list dated 24.12.1987 which came to be disposed of by this Tribunal vide order dated 17.03.1998 directing the respondents to conduct an inquiry and find the genuineness of the claim and if on such an inquiry it transpires that applicant's claim is genuine, then the Railways shall proceed to engage him as per his turn and that he shall not claim any other reliefs such as back wages, etc. (Annexure A/2).
2.2 In response to aforesaid judgment, the Office of Chief Project Manager, Western Railway, Ahmedabad vide letter dated 16.04.1998 informed the applicant to attend the office of Dy. Chief Engineer (Const.), Kothi Compound, Rajkot immediately during any working day alongwith original documents for verification and deciding the genuineness of the claim (Annexure A/3).
2.3 The applicant attended the concerned office at Rajkot as directed alongwith the original service card, birth certificate, etc for verification and the service card was retained with the office.
Subsequently, the name of applicant was included in the live register and he was waiting for his re-engagement. However, vide order dated 26.09.2008, the claim for re-engagement was rejected on the (CAT/AHMEDABAD BENCH/OA/79/2017) 3 ground that he has crossed the age limit of 43 years applicable to OBC candidate.
Therefore, again he approached this Tribunal by way of OA 360/2008. The said OA of the applicant was allowed by this Tribunal vide order dated 23.11.2010 (Annexure A/4) wherein it was observed that the applicant was eligible to be considered for the vacancies that occurred after the direction of this Tribunal was issued in OA 596/1997. The cut-off date for the purpose of determining the age limit should be based on previous notification dated 10.07.2002 and 09.07.2003 instead of 01.01.2006 as relied on in identical case of Smt Lilaben Raviji in OA No.315/2005 and EA No.23/2007. Accordingly, this Tribunal vide its order dated 23.11.2010 in OA Noi.360/2008 filed by the applicant, the respondents were directed to grant the same benefits to the applicant herein as were granted to the applicant of EA No.23/2007 (Annexure A/4).
2.4 It again took about 2 years for the respondents to initiate the actions in the matter by issuing letter No.EE/891/1(G.man) Vol.III dated 223.09.2013 (Annexure A/5) calling upon applicant to attend their office with documents and photographs.
2.5 The applicant appeared before the Railway Medical Authority and passed the required medical explanation and presented all the necessary documents within the time limit given. Copy of letter dated 23.09.2013 and medical memo (Annexures 5 & 6). Thereafter, once again the respondents vide letter dated 07.01.2014 called upon the applicant to produce original school leaving certificate, original marks sheet and caste certificate on 10.01.2014 (Annexure A/7). 2.6 Subsequently, office of respondent no.2 issued an appointment order to applicant alongwith one Shri Natuba Ravjibhai Jadeja vide memo dated 11.02.2014 (Annexure A/1) engaging/appointing applicant as "Trainee Gangman" in minimum pay band (Rs.4440-7440) excluding grade pay in the category of Gangman in Engg. Department, as he did not possess the educational qualification of 10 th pass or equivalent.
(CAT/AHMEDABAD BENCH/OA/79/2017) 42.7 Applicant therefore vide his representation dated 26.08.2014 requested the respondents that as he is an old face and therefore his appointment is not subject to minimum qualification of S.S.C.E and his pay is required to be fixed by granting Rs.1800/- grade pay as admissible to him.
2.8 It is contended that in response to aforesaid representation and the issue raised in PNM to place the applicant in PB-1 grade pay Rs.1800/- imparting 15 days multi tasking training as he is old face casual labour and have been re-engaged/appointed on regular basis as per the decision of CAT-ADI, the respondent no.2 vide his letter dated 02.01.2015 had referred the matter to Headquarter office, i.e. General Manager with a request to decide the issue and sought advice whether the applicant may be placed in grade pay Rs.1800/- after imparting fifteen days multi tasking training or he has to acquire the required educational qualification minimum 10th pass or equivalent (Annexure A/9).
2.9 Learned counsel for applicant Ms K L Kalwani submits that the respondent had not taken any decision on the said recommendation dated 02.01.2015. It is submitted that an illiterate casual labour has to run pillar to post to get his legitimate right to fix his pay in grade pay Rs.1800/-.
3 Per contra, the respondents on receipt of notice have filed their reply denying the contentions raised by the applicant. Learned standing counsel for the respondents Ms R R Patel submitted as under:-
3.1 The applicant was re-engaged and appointed as Trainee Gangman in minimum pay of 4440-7440, as applicant is not fulfilling requisite qualification of 10th pass in terms of Railway Board's letter dated 09.10.2011 and clarification thereon dated 29.10.2014 i.e RBE No.122/2014 issued by Railway Board (Annexure A/7 referred). As per the said RBE, for appointment/engagement and recruitment to posts in PB-1 of Rs.5200-20200 (Grade Pay: Rs.1800/-), possession of qualification as prescribed in terms of Board's letter dated 09.12.2013 is mandatory. Further, persons engaged with relaxed qualification in terms of Board's letter dated 27.04.2011 may be kept in -1S pay band (CAT/AHMEDABAD BENCH/OA/79/2017) 5 of Rs.4440-7440 (Grade pay: Rs.1300) till they also are imparted requisite training as per instructions contained in Board's letter dated 24.09.2008. Further it is stipulated in the said RBE that persons engaged with relaxed qualification in terms of Board's letter dated 09.12.2011 will remain in grade pay Rs.1300/- and continue to be governed under the provision contained in para-2 of letter issued under RBE No.166/2011 dated 09.12.2011 till they acquire the prescribed qualification and all those not covered under the instructions contained in the RBE No.122/2014 will have to possess the prescribed qualification for appointment to the post in the Railways. Therefore, the respondent has followed the extant rules and instructions to fix the pay accordingly.
4 The applicant has filed rejoinder and denied the contention of the respondents as also reiterated the contentions raised by the applicant in the OA. Additionally, Ms Kalwani, counsel for the applicant has filed written submissions wherein it is pointed out that orders passed in OA No.360/2008, OA No.315/2004 and EA No.23/2007 have attained finality as they are not challenged by respondents in superior court. It is submitted that in the order dated 23/24.11.2010 passed by this Tribunal in OA 360/2008 wherein it was clearly observed that applicant may be granted the same benefit as are granted to the applicant in EA 23/2007. It is submitted that this Tribunal vide its last order dated 23.11.2010 in OA 360/2008 in categorical terms held that "the applicant was eligible to be considered for the vacancies that occurred after the direction of this Tribunal in OA 596/1997." It is contended that the cut off date for the purpose of determining the age limit cannot be fixed as 1.1.2006 but it should be fixed on the basis of previous notification issued on 10.07.2002 and 09.07.2003 as relied on in the case of Smt. Lilaben Ravji (supra). Further, it is submitted that in an identical case the CAT, Ernakulam Bench in OA 1010/2014 vide order dated 28th March, 2017 directed the respondents to fix the pay of Gangman with grade pay. Therefore, once the respondents had accepted the order passed in case of identically placed employee, the applicant in the present OA being similarly placed and requires to be treated equally.
(CAT/AHMEDABAD BENCH/OA/79/2017) 65 Heard the learned counsel for both the parties. Perused the materials placed on record.
6 It can be seen that this is the third round of litigation. This Tribunal in the last proceeding filed by the applicant i.e. OA 360/2008 decided on 23.11.2010, passed an order as under:-
"7 .......perused the order of this Tribunal in OA 315/04 which is available at page-126. It is seen from the said order that Smt. Lilaben Ravjibhai had also sought re-engagement as casual labour in the same Rajkot Division. She had filed OA No.299/05 which was disposed of on 19.07.1995 with a direction to place her name in the Live Register and officer re-engagement according to her turn. Since she had not been re-engaged she filed OA No.584.99. That OA was partly allowed with appropriate seniority to the applicant. The applicant thereafter approached the Tribunal in OA 315/04 stating that inspite of her name being in the Live Register, she has not been offered re-engagement and Rajkot Division is now moving for recruiting staff from open market. The aforesaid facts in OA 315/04 are identical to the facts of this case. In OA 315/04, the Tribunal had directed the respondents to adopt the directions given in OA 108/04. Thereafter, the request of Smt. Lilaben Ravji was rejected by the respondents on the ground that she had completed 44 years six months and therefore was over aged as on 1.1.2006 which was prescribed as the cut off date. Subsequent to the aforesaid decision of the respondents, the applicant filed EA No.23/07. In the EA 23/07, the Tribunal had directed that the respondents should consider the eligibility of the applicant in respect of age with reference to notification issued on 10.07.2002 and 9.7.2003 instead of 1.1.2006. The said order of this Tribunal has been complied by the respondents. In the present case also the respondents have rejected the claim of applicant on the ground that he has crossed the age limit of 43 years as on 1.1.2006. However, from the facts it is found that he was eligible for consideration in respect of the vacancies that were notified prior to 1.1.2006. Therefore, in view of the aforesaid discussion I am unable to accept the contention of the respondents that the applicant is not similarly placed as the applicant in EA 23/07. The applicant was eligible to be considered for the vacancies that occurred after the direction of this Tribunal in OA 596/1997. The cut off date for the purpose of determining the age limit cannot be fixed at 1.1.2006 but it should be on the basis of previous notification relied on in the case of Smt. Lilaben Ravji namely 10.07.2002 and 09.07.2003."(CAT/AHMEDABAD BENCH/OA/79/2017) 7
7 In view of the above observations, the applicant was required to be offered employment with a condition as like applicant of OA No.315/04 & EA No.23/07.
8 It is noticed that respondents took six years thereafter to appoint and re- engage the applicant only by granting pay of Rs.4440-7440 that too without granting any Grade Pay and tried to justify their decision based on Railway Board's RBE No.166/2011 dated 09.12.2011 reads as under:-
"Accordingly, it has now been decided by the Ministry of Railways (Railway Board) that in exceptional circumstances whenever grant of appointment is considered to any of the persons in category mentioned above, not in position of prescribed educational qualification for the post, such persons will be recruited/engaged as "Trainee" who will be given the regular pay band and grade pay only on acquiring the minimum educational qualification prescribed under the recruitment rules. The emoluments of these trainees during the period of their training and before they are absorbed in the government as employees will be governed by the minimum of the i.e.-1S pay band without any grade pay. The period spent in the pay band by the future recruits will not be counted as service for any purpose & their regular service will start only after they are placed in the pay band PB-1 of Rs.5200-20200 along with grade pay of Rs.1800/-. This should be included in the appointment/letter being given to the candidates in case such appointments are made."
8 The reason assigned by the respondents for not granting the Grade Pay is not tenable for the reason that this Tribunal had already held in OA 360/2008 that applicant was eligible to be considered for the vacancies that occurred after the direction of this Tribunal dated 17.03.1998 in OA 596/1997. Though there was a recommendation for grant of grade pay by granting training as provided in the RBE, however, same has also been given a go-by in the present case by the respondents.
At this stage we also take note of order passed by Ernakulam Bench in OA 1010/2014 (supra) which is identical in nature wherein the respondents had denied the grant of Pay Band - 1 with Grade Pay to the Gangman on his re-engagement. By rejecting the objections of respondents about need of minimum education qualification of Xth pass or ITI or equivalent, in light of dictum laid down by Hon'ble Apex Court in Inderpal Yadav v/s Union of India & Ors reported in 1985 (2) SCC 648, the Tribunal observed therein that "there was no stipulation in Inderpal Yadav judgment whether retrenched casual labourers should have the educational qualification (CAT/AHMEDABAD BENCH/OA/79/2017) 8 prescribed by the Railways. Such a direction will indeed defeat the objective of the Inderpal Yadav decision which was intended to give benefit to the multitude of hapless casual labourers who spilled their blood and sweat for the Railways. They had worked as casual labourers unchecked for any educational qualification except their physical calibre." It was further held therein that "when the applicant got the order of regularisation later, he was entitled to get all the benefits the Apex Court had envisaged in Inderpal Yadav case (supra)." Accordingly, the said OA was allowed including the prayer for grant of Pay Band alongwith Grade Pay vide order dated 28th March, 2017. The challenge to the said order before Hon'ble High Court was also turned down and the Writ Petition dismissed. The respondents had implemented the said order and granted the benefit of grant of Pay alongwith Grade Pay. In the present case, as noted herein above, undisputedly the applicant was re-engaged as per the scheme framed by the Railway Board in accordance with directions issued by Hon'ble Supreme Court in the case of Inderpal Yadav (supra), as also directions issued from time to time by this Tribunal in the various OAs filed by applicant herein, i.e OA 596/1997 decided on 17.03.1998, OA 360/2008 decided on 23.11.2010 (supra). However, he was granted minimum pay band (Rs.4440-7440 excluding grade pay) in the category of Gangman in Engineering department only on the ground of not possessing the qualification of Xth pass or equivalent. It can be seen that in the identical case referred herein above passed by CAT, Ernakulam Bench (supra), the action of respondents in denying the grant of grade pay was not approved and subsequently the respondents had implemented the said order and granted the benefit of pay and Grade Pay to such employee. Under the circumstances, the order passed by Ernakulam Bench (supra) has been rightly relied upon by the counsel for applicant to claim equal treatment. It is apt to mention that order passed by this Tribunal in OA 360/2008 dated 23.11.2010 has attained finality as there is no challenge of same before any higher authority. Respondents are under obligation to fix the pay with Grade Pay to applicant on his appointment as granted to the applicant in OA 315/04 and EA 23/07 as also order passed by CAT, Ernakulam Bench (supra).
(CAT/AHMEDABAD BENCH/OA/79/2017) 99 In view of above factual matrix, we find that applicant has made out a case for grant of Grade Pay. OA is partly allowed and the respondents are directed to grant the grade pay Rs.1300/- to the applicant from the date of his appointment with all consequential benefits excluding interest within three months from the date of receipt of copy of this order. There shall be no order as to costs.
(A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
abp