Central Administrative Tribunal - Ernakulam
K.A.Moideen vs The General Manager on 18 January, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION No. 180/00553/2014
MONDAY, this the 18th day of January, 2016
CORAM:
HON'BLE MR.U.SARATHCHANDRAN, JUDICIAL MEMBER
K.A.Moideen, aged 59 years, s/o Aboobacker,
working as Gangman, O/o Sr.Section Engineer,
Trichur, Southern Railway, Trivandrum Divsion,
residing at Kunnath Peedikayil House,
Irunilam Kode p.o., Trichur. . . . . . Applicant
(By Advocates M/s Varkey & Martin)
versus
1. The General Manager, Southern Railway,
Park Town P.O., Chennai -3.
2 The Senior Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum -14. . . . . . Respondents
(By Advocate Mr. Sunil Jacob Jose)
This Original Application having been heard and reserved for orders
on 04.01.2016, this Tribunal on 18-01-2016 delivered the following:
ORDER
Per HON'BLE MR.U.SARATHCHANDRAN, JUDICIAL MEMBER Applicant is aggrieved by the inaction of the Respondents in considering his son for appointment under Liberalised Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) scheme. Applicant is a Senior Gangman who, according to him, is entitled to the LARSGESS scheme. He states that he had submitted Annexure A/2 application for voluntary retirement and simultaneous consideration of his son Ashraf for appointment in the initial recruitment group through proper channel. Even prior to Annexure A/2 he had submitted an application for voluntary retirement and simultaneous consideraton of his younger son, the same was returned stating that applicant's son was not having the SSLC qualification. Therefore the applicant submitted Annexure A/2 for consideration of his eldest son who is having qualification of SSLC. The grievance of the applicant is that A/2 representaiton he submitted has not been considered so far and hence he prays for releief as under :
i) Declare that the applicant is eligible to get the benefit of Annexure A1 scheme and to direct the respondent to consider the applicant's son for appointment on the basis of the said declaration.
ii) Award costs of and incidental to this application.
iii) Grant such other relief, which this Honourable Tribunal may deem fit and proper in the circumstances of the case.
2. Respondents contend that Annexure A/2 application was not received by them at all. They further contend that the date of Annexure A/2 appliction is 30.6.2011 and hence the OA filed on 30.07.2014 is bad for inordinate delay. It is fruther pointed out that applicant has not filed any Miscellaneous application for condonation of delay stating the reasons for such delay. Respondents state that if the applicant had actually submitted A/2 in 2011 he was willingly kept quiet and remained inactive during the intervening period 2011 to 2014. It is further stated by the Repondents that the Railway had completed recruitments under the LARSGESS - two in 2012 and two in 2013. Applicant has not responded to any of such recruitment. It was pointed out that applicant had already retired on superannuation on 31.8.2014.
3. According to Railways, Annexure A/2 is not in the proper format and R1(4) is the format prescribed. Respondents state that the applicant had submitted an application dt 05.05.2011 vide R/2 seeking appointment in favour of his younger son Shamsudeen. At that time R/2 application was returned to the applicant as he was not having the minimum required 20 years of qualifying service. Applicant got temporary status on 01.01.82 and was empanelled for absorption against regular post on 08.01.1992 and accordingly, as on 30.06.2011, counting of 50% to the aforesaid period and after excluding 1910 days of non-qualifying service, the applicant had put in only 19 years' qualifying service and therefore he was not considered for the LARSGESS scheme.
4. In the rejoinder, the applicant states that Annexure A/2 application was submitted by him and it bears the seal of his superior officer for having received the same. According to him R/2 application was returned for the reasons stated in Annexure A/3 which states that the ward of the applicant did not have the qualification of 10th pass. Regarding the contention of the respondents that applicant did not have 20 years of service on 30.06.2011, applicant states that by virtue of A/4 order of this Tribunal in OA 206/87 it was ordered that applicant should be deemed to have been reinstated in service with effect from 16.12.85 with consequential benefits. Therefore according to applicant the calculation of his period of service mentoned in the reply statement is not correct.
5. Heard both sides, learned counsel Mr. Martin J.Thottan for the applicant and Mr.Sunil Jacob Jose for the respondents.
6. The issue to be considered in this case is whether the applicant is entitled to get Annxure A/2 request considered for his voluntary retirement and consideration of his ward Ashraf for initial recruitment. According to respondents, Annexure A/2 application for appointment under LARSGESS was not received by the respondents. Applicant points out the seal of his superior officer on Annexure A/2 to indicate that the same had been sent by him on 30.6.11. According to respondents, if the applicant had in fact submitted Annexure A/2 applicaiton under the LARSGESS scheme he is not stating the reason for keeping quite till the filing of this OA. It is also pointed out by the respondents that the OA is bad for delay and that there is no application for condonation of delay.
7. True, as per section 21 of the Administrative Tribunals Act,1985, the Original Application should be made before this Tribunal within one year from the date on which a final order has been made and in the case of a representation or appeal, a period of 6 months have elapsed thereafter without any such final order having been made, within one year from the date of expiry of six months.
8. Applicant has not explained the reasons for delay in approaching this Tribunal. True, therefore the OA is bad by limitation. Nevertheless, going by the facts of this case, since the applicant is seeking a voluntary retirement under LARSGESS scheme and for simultaneous consideration of his son for employment this Tribunal is inclined to take a liberal view and consider the matter on the basis of the facts of this case.
9. Applicant is a Gangman who is entitled to be considered under the LARSGESS scheme. The aforesaid scheme is intended for giving the facility for early retirement of railway staff on account of their arduous nature of work and the diminishing physical capacity they are likely to suffer from as their age progresses ,thereby affecting the safety of the running of the trains. It is in fact a safety related measure and at the same time a benefit given to those employees by facilitating the consideration of their wards for employment in the initial recruitment grade.
10. Applicant had admittedly made an application under LARSGESS scheme vide Annexure R/2 seeking employment of his younger son. According to applicant, Annexure R/2 was rejected as his ward did not have the requisite educational qualification. However, respondents contend that it was on account of the fact that applicant had not reached the required minimum period of service i.e. 20 years under the LARSGESS scheme Annexure R/2 was rejected. Whatever may be the true reason, Annexure R/2 remains rejected and it is a foregone conclusion.
11. The controversy in this case is the non-consideration of Annexure A/ 2 application which was made by applicant subsequent to rejection of the earlier application of R/2, for the same purpose but for a different son who has SSLC qualification. According to Railway, they have not received Annexure A/2 application. Applicant points out that Annexure A/2 bears the seal of his superior officer, an Engineer indicating that the same was forwarded to the Respondents. Even if it is a case that he had submitted Annexure A/2 application to the respondents, the applicant remained inactive and silent thereafter till the filing of this OA in 2014. According to respondents, in the meantime the applicant had already retired from service on attaining the age of supernnuation. Though the receipt of A/2 application by the respondents is a contentious issue, the fact that the applicant did not pursue that matter neither till the filing of this OA nor till his retirement which took place on 31.8.2014, is a matter which goes to the very root of this OA. It is trite that one who sleeps over his right is not entitled to get any legal remedy. Vigilantibus et non dormientibus jura subveniunt. The laws aid those who are vigilant, not those who sleep upon their rights.
12. Shri Martin, learned ounsel for the applicant produced a copy of the judgment of Kerala Hgh Court in OP(CAT) No. 45/14 wherein a similarly situted person submitted an application belatedly was allowed and directed the Railway to consider the applcation for the reason that the notification relating to LARSGESS was circulated in the Division where the applicant was working only later than the date prescribed as per the scheme. However, it was made clear in the judgment that such relief is granted to in that case as an 'isolated' case without treating anything stated therein in any other case.
13. In the result, the O.A. is dismissed. No order as to costs.
(U.SARATHCHANDRAN) JUDICIAL MEMBER jm