Central Administrative Tribunal - Cuttack
Shiba Shankar Nayak vs M/O Railways on 25 July, 2019
1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 248 of 2015 Present: Hon'ble Mr. Gokul Chandra Pati, Member (A) Hon'ble Mr. Swarup Kumar Mishra, Member (J) Shiba Shankar Nayak, aged about 48 years, S/o Late Jugal Kishore Nayak, Gopal Mall, Post -0 Budha Raja, Sambalpur.
......Applicant VERSUS
1. Union of India represented through its General Manager, East Coast Railways, Chandrasekhapur, Rail Vihar, Bhubaneswar, Dist. - Khurda.
2. The Divisional Railway Manager (P), East Coast Railway, Sambalpur Division, Sambalpur, Odisha.
3. The Senior Divisional Personnel Officer, E.Co. Railway, Sambalpur.
......Respondents.
For the applicant : Mr.G.Rath, counsel
For the respondents: Mr.R.S.Behera, counsel
Heard & reserved on : 1.7.2019 Order on : 25.7.2019
O R D E R
Per Mr.Gokul Chandra Pati, Member (J)
In this OA, the applicant who was initially appointed as a Loco Pilot under the respondents, was given an alternative posting vide order dated 9.4.2015 (Annexure-A/5 of the OA) after his medical decategorisation. The applicant is aggrieved with this alternative posting as he feels that it is an ex- cadre post with no facility for subsequent promotion. In the OA, it is stated that as per the existing provisions of the Indian Railway Establishment Manual, Volume-I (in short IREM-I), he is entitled for the alternative post after medical de-categorization, in which he would be able to get similar benefits as that of his original post of the Loco Pilot. Being aggrieved by the order at A/5, the applicant seeks the following reliefs in this OA (vide para 8 of the OA):-
"(i) To quash the order under Annexure A/5;
(ii) To direct the respondents to give alternative posting in a post
where promotional avenues are available;
(iii) To pass any other order/orders as deemed fit and proper."
2. Per contra, the respondents in their Counter, have argued that the alternative posting of the applicant to the post of Crew Controller/Power Controller (in short CC/PC) has been decided by the authorities in accordance with the provision of the para 1304 of the IREM-I read with the circular Estt.
2Srl. No. 38/98 (Annexure-A/8) and have denied the contentions made in the OA. It is submitted in the counter that the OA, therefore, lacks merit.
3. Learned counsel for the applicant was heard. In addition to the grounds mentioned in the OA, he submitted a copy of the common order dated 3.1.2008 of this Bench of the Tribunal passed in the OA No. 715/06 (along with the OA No. 911/06) in the case of Sri Aditya Kumar Mohanty vs. Union of India & anr. He argued that the applicant, being similarly situated as the applicant in above order, is also entitled for a similar relief allowed by the Tribunal in OA No. 715/2006.
4. Learned counsel for the respondents was heard. He reiterated the averments in the Counter and stressed on the point that the applicant's present post will have adequate promotional facilities. He also submitted that the alternative post in which the applicant has been adjusted is a part of the running cadre as stated in the Counter and denied that it was an ex-cadre post with no facilities for promotion.
5. The applicant's apprehension that he will be deprived of the benefit of promotion in the alternative post has been stated in para 4 (xvii) of the OA as under:-
"That the power/crew controller are ex-cadre post having no promotional avenue at all which is evident from Establishment Sl. No.38/98. In para (2) L of the aforesaid circular, it is stated that the driver drafted to perform the duties either to, being performed by power/crew controller, will not be eligible to be posted as loco inspectors or to any benefits specifically admissible to the loco inspector/power controller or crew controllers under the scheme on 25.11.92. Copy of the Establishment Sl. No. 38/98 is made Annexure A/8 to this original application."
6. In reply, it is stated in para 12 of the Counter as under:-
"It was also envisaged in para 1306(3) of IREM-I that it will be the responsibility of the controlling officer to find suitable alternative appointment in own units/Divisions etc. In the instant case the applicant was working as Loco Pilot-II (Goods) which is running category post and after unfit he has been posted as Power Controller in the same GP of Rs.4200/- which is an integral part of the running cadre. By the posting applicant in the same posts his previous background and experience could be better utilized. Further it is stated that cadre of Power Controller/Crew Controller has been merged with the cadre of running staff i.e. in drivers category s per the Estt. Srl. No. 38/98. Hence in order to perform the duty assigned to PC/CC, eligible and suitable Loci pilots will be drafted and the so drafted suitable Loco Pilots will continue to progress in the running cadre. It has been further mentioned at 2(g) of Estt. Srl. No. 38/98 that 'Medically decategorized drivers will be eligible to be drafted to perform the duty of power/crew controllers. In their case, the tenure rule of three years under para (F) will not be applicable. However, it their performance is not found satisfactory, in addition to action under D&A are as they cannot go back to running duties, they will be considered for alternative jobs following the rule applicable to the medically decategorized employees'.
That the above instruction is strictly followed and there is no violation of rule and regulation prescribed by the Rly. Board."
7. It is seen that the Estt. Circular No. 38/98 (Annexure-A/8 of the OA) states the following in para 2:-
"From the reports received from some of Zonal Railways, it was observed that certain difficulties are being faced by them in filling up the said posts as 3 the selected drivers have to initially work as Crew Controllers/Power Controllers causing drop in emoluments. The matter was raised by the Staff sided also in the PNM & JCM fora. In the light of the above, Railway Board have further considered the matter in consultation with the recognised Federations viz. AIRF & NFIR and have decided to modify the scheme dt. 25.11.92 as under:
(a) The cadre of Power/Crew Controllers with distinct scales of pay will be abolished. Thus Loco Running Supervisors will consist of only Loco Inspectors. The number of posts, as existing on the date of issue of these orders, in the cadre of Power Controllers and Crew Controllers including posts of Chief Power/Crew Controllers, will be added to the cadre of Drivers (Para (K) below may also be referred to).
(b) To perform the duties hitherto being performed by Power/Crew Controllers in the Control Office or ion the place where the Crew Controllers were headquartered, eligible and suitable Mail/Express Drivers, Sr. Passenger/Passenger Drivers and Sr.Goods/Goods Drivers will be drafted.
(c) Such drafting, as stated in (b) above, will be done from those Drivers who apply for the same in response to notification on the basis of a screening to be done by the Officer controlling the motive power of the Division,. Seniority will not be the criteria for such drafting.
(d) Drivers drafted to perform such duties will be eligible for payment of allowance in lieu of kilometreage of 120 kms per day at the rates applicable to them, even if posted at their Headquarters. Such staff would not be eligible to claim TA/DA and Special Pay.
(e) Drivers so drafted will continue to progress in the Running cadre and will be subjected to all the terms and conditions of service as applicable to Running Staff, including pay and allowances, periodical medical examination, selections/suitability tests, etc.
(f) The tenure of posting of such Running Staff drafted to perform the duties of Power/Crew Controllers will be three years with a cooling off period of equal duration.
(g) Medically decategorized 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 decategorized employees.
(h) Suitable and senior drivers drafted will be designated as Chief Power Crew Controllers.
(i) The existing regularly selected Power Controllers and Crew Controllers under the scheme dt. 25.11.92, effective from 1.1.93 will continue to be in the existing pay scales and will progressively be posted as Loco Inspectors in accordance with the scheme contained in the letter dt. 25.11.92.
(j) When a driver is drafted to work in the Control Office, the vacancy caused will be filled up in the appropriate grade.
(k) As and when an existing regularly selected Power/Crew Controller vacates his post, the same will be added with the cadre of Drivers, as outlined in para (a) above.
(l) The Drivers drafted to perform the duties hitherto being performed by Power/Crew Controllers will not be eligible to be posted as Loco Inspectors or to any benefit specifically admissible to the Loco Inspectors, Power Controllers or Crew Controllers under the scheme of 25.11.92.
(m) There will be no change either in the eligibility conditions or any other benefit etc. in regard to the Loco Inspectors who will continue to be governed by the extant orders.
(n) The leave reserve for the number of posts of drivers equal to the existing number of Power/Crew Controllers will be worked out as per normal percentages and not at the higher percentage applicable to Drivers."
8. It is noticed that the said circular states in para 2(h) that senior drivers will be designated as Chief Power Crew Controller and that the posts of CC/PC will be added to the cadre of Drivers. It is stated in para 2(e) of the circular No. 4 38/98 (A/8) that the Drivers so drafted to the post of CC/PC will be continuing to progress in the running cadre and will be subject to all terms and conditions of service as applicable to Running Staff including pay and allowances, selection cum suitability test etc. Para 2(g) of the said circular provides for posting of medically de-categorised staff, but for them the tenure provision will not apply. This implies that the applicant while working in the post of CC/PC will be entitled to the terms and conditions of service as applicable to running staff. However, the said circular is silent about promotional facility to be allowed to the medically decategorized staffs like the applicant.
9. Learned counsel for the applicant has cited the order dated 3.1.2008 passed in the case of Aditya Kumar Mohanty (supra) by this Bench of the Tribunal in OA No. 715/2006 and OA No. 911/2006. In that case the applicant Aditya Kumar Mohanty was a Running Staff who was medically decategorized and the Screening Committee while examining the alternative posting for him had posted him as CTI-II in the pay scale of Rs.5500-9000/. The applicant had joined in the said post on 5.10.2006. But the dispute arose subsequently when the respondents reviewed that order and changed the alternative posting to the post of CC/PC, which was challenged by the applicant in OA No. 715/2006 stating that he did not apply for the said post of CC/PC when it was notified by the respondents. In the said order it was found by the Tribunal that no reason was mentioned for alternative posting of the applicant in that case and principles of natural justice has also been violated for which the impugned order was not found to be legally sustainable and was quashed passing the following direction :
"Accordingly, we quash the impugned order dated 16.10.2006 at Annexure A-4 in OA No. 715/06 and we further direct the competent authority, i.e. respondents to delete the name of the applicant from the panel list dated 30.11.2006 (Annexure A-2 in OA No. 911/06) and post the applicant in suitable alternative post, if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol.I and Section 47 of Act 1 of 1996."
10. It is seen that the facts and circumstances of the case of Aditya Kumar Mohanty (supra) cited by the learned counsel for the applicant are not same as the facts of the case of the present applicant, who has been posted right from the beginning in the cadre of CC/PC. However, undisputedly the cadre of CC/PC has been merged with the running cadre of Loco Pilots/Drivers as per the Estt. Circular No. 38/98 as extracted in para 7 above. There is no specific provision in the said circular for promotion of the medically decategorized staffs posted s CC/PC. Although the applicant has been found to be medically unfit for the post of Loco Pilot, but by posting him as CC/PC which is a post in the cadre of Loco Pilot, he has been given a post within the running cadre as alternative posting. It is also not clear from the documents produced before us 5 if posting the applicant as CC/PC, he will have the similar promotional facilities to which he is entitled as per rules. Hence, we are of the view that the claims of the applicant for a posting other than CC/PC deserve consideration by the competent authority.
11. In the circumstances, the respondents are directed to re-consider the issue of the alternative posting of the applicant after medical decategorisation and take an appropriate decision in this matter as per the provisions of law as per provisions of law and inform the applicant within four months from the date of receipt of a copy of this order.
12. The OA is allowed in part as above with no order as to costs.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI) MEMBER (J) MEMBER (A) I.Nath