Central Administrative Tribunal - Ernakulam
R Ramesh vs M/O Railways on 14 November, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00916/2015
Thursday, this the 14th day of November, 2019
Hon'ble Mr.E.K.Bharat Bhushan, Administrative Member
Hon'ble Mr.Ashish Kalia, Judicial Member
R.Ramesh, aged 41 years
S/o.K.P.Raghavan Nair
Sr.Dresser/Railway Hospital/
Southern Railway/Palakkad
Residing at: Railway Quarter No.148/A
South Railway Colony, Hemambika Nagar
Kallekulangara P.O, Palakkad - 678 009 ..... Applicant
(By Advocate Mr.T.C.G Swamy)
Versus
1. Union of India, represented by the
General Manager, Southern Railway
Headquarters Office, Park Town P.O
Chennai - 600 003
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2. The Chief Personnel Officer
Southern Railway, Head Quarters Office
Park Town P.O, Chennai- 600 003
3. The Sr.Divisional Personnel Officer
Southern Railway, Palghat Division
Palghat - 678 002
4. The Secretary to the Government of India
Ministry of Railways, Railway Board
Rail Bhavan, New Delhi - 110 001
5. The Commanding Officer, 8th Battalion
Railway Protection Special Force
Chitranjan - 713 331
West Bengal ..... Respondents
(By Advocate - Mr.Sunil Jacob Jose)
This Original Application having been heard on 11.11.2019, the Tribunal
on 14.11.2019 delivered the following:
ORDER
Per: Mr.E.K.Bharat Bhushan, Administrative Member Original Application No.180/00916/2015 is filed by Mr.R.Ramesh, at present working as Senior Dresser, Railway Hospital, Palakkad Division in PB- 3 1 plus Grade Pay of Rs.2400/-, aggrieved by the failure on the part of the 2 nd respondent to consider and grant the applicant the benefit of absorption on medical de-categorisation in an equivalent grade. The reliefs sought for in the Original Application are as follows:
" (i) Declare that the respondents are bound to deem the applicant to have been charged against a supernumerary post of Railway Protection Special Force Constable for the period from 09.01.1997 to 07.01.1998.
(ii) Direct the respondents to deem the applicant to have been charged against a supernumerary post of Railway Protection Special Force Constable for the period from 09.01.1997 to 07.01.1998 and direct further to treat the said period as on duty;
(iii) Direct the respondents to grant the applicant the pay and allowances for the period from 09.01.1997 to 03.12.1997 in the scale of pay of Rs.2750-4400 and for the period from 04.12.1997 to 07.01.1998 in the scale of pay of Rs.3050-4590.
(iv) Declare that the applicant is entitled to be considered and granted an alternative appointment in a ministerial/clerical cadre in the scale of pay of Rs.3050-4590 with effect from 26.12.1997/07.01.1998 and direct the respondents accordingly
(v) Direct the respondents to consider and grant the applicant the benefit of absorption in the scale of pay of Rs.3050-4590 with effect from 26.12.1997/04.01.1998 in a ministerial/clerical cadre with all consequential benefits arising there from;
(vi) Award costs of and incidental to this application;
(vii) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case. "4
2. The applicant had joined the Railway Protection Special Force (RPSF) on 17.5.1992 and had been posted with 8 BN, Chittaranjan. Later, while posted at Ludhiana, he had suffered an injury while on duty. He was subsequently medically de-categorised and allowed to be on leave pending grant of alternative appointment with effect from 9.1.1997. At that time, the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was yet to be implemented in the Railways and the same came to be implemented by the Railway Board Order bearing RBE No.89/1999 dated 29.4.1999, a copy of which is produced as Annexure A-1. In terms of the revision of pay structure of the RPF/RPSF combatised staff as per Railway Board Order bearing no.171/1997 dated 4.12.1997 (Annexure A-2), the applicant became entitled to be granted the benefit of the scale of pay of Rs.3050-4590 with effect from 4.12.1997. Prior to the revision, the post was carrying a scale of pay of Rs.2750-4400. But the applicant, when granted alternative appointment in Palakkad Division, was allowed only a lower scale of pay of Rs.2650-4000 as per orders dated 26.12.1997 (Annexure A-3). The intervening period was treated as leave due/leave without pay.
3. Subsequently, the Railway Board by its order bearing RBE No.98/2005 dated 31.05.2005 directed that Annexure A-1 Railway Board order would be 5 given effect to from 7.2.1996, the date on which the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 came into force (Annexure A-4). This was followed by yet another order of the Railway Board bearing RBE No.104/2006 dated 1.7.2006 which vested the General Manager with the powers of granting the benefits of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with effect from 7.2.1996 or thereafter when the claim became due (Annexure A-5).
4. In the meanwhile, the applicant was promoted as Dresser Gr.III and Dresser Gr.II, but he was not granted the benefit of the initial absorption in the scale of pay of Rs.3050-4590 which was the scale of pay of the post held by the applicant at the time of grant of alternative appointment. This deprived him to be granted an alternative appointment in a sedentary job eligible as per the communication dated 5.2.1997 issued by the Commanding Officer, 8 BN/RPSF, Chittaranjan (Annexure A-6). The applicant submits that the facilities which have been denied to him, have been allowed to some of his colleagues who were working as Constables of RPF, having been granted an alternative appointment in Group C scale of pay of Rs.3050-4590. He filed representations before the 2nd respondent from 2014 onwards, but those were of no avail. 6
5. Aggrieved by the action on the part of the respondents, applicant approached this Tribunal by filing O.A 647/2015. The said O.A was disposed of by order dated 18.8.2015 directing the second respondent to dispose of Annexure A-8 representation by a speaking order within two months from the date of receipt of a copy of that order. In purported compliance with the directions in Annexure A-10 order, an order has been passed rejecting the applicant's representation which is impugned at Annexure A-11.
6. As grounds, the applicant submits that denial of the benefit of Annexure A- 1 order amounts to discrimination against the applicant. The respondents are bound to consider the entire period from 09.01.1997 to 07.01.1998 to be treated as duty, deemed to have been charged against a supernumerary post of Railway Protection Special Force Constable and allowed a scale of pay of Rs.2750-4400 for the period from 09.1.1997 to 3.12.1997 and in the scale of pay of Rs.3050- 4590 with effect from 4.12.1997 to 7.1.1998. Thereafter, the applicant ought to be allowed to continue to get the scale of pay of Rs.3050-4590 in an alternative post carrying an identical scale of pay. Refusal on the part of the respondents to grant the benefits is violation of Section 47 of the Persons with Disabilities (Equal opportunities, Protection of Rights & Full Participation) Act, 1995. As he 7 possessed requisite educational qualification to be appointed as a clerk in the ministerial cadre and the applicant could have been granted appointment in the said cadre with effect from 26.12.1997/07.01.1998, the date on which the alternative appointment was granted to the applicant.
7. In the light of Annexure A-5 Railway Board Order, the respondent authorities - the 2nd respondent or the 1st respondent General Manager as the case may be - ought to have considered Annexure A-8 representation and granted the applicant the benefit of absorption in a ministerial cadre with effect from 9.1.1997 with all consequential benefits arising there from. The facility denied to him had been allowed to other claimants and the applicant has been singled out for differential treatment and was absorbed only against a Group 'D' post which is against the law and contrary to the statutory provisions.
8. The respondents have filed a reply statement disputing all contentions made by the applicant other than the facts and dates referred to in the Original Application. It is admitted that the applicant had suffered an accident while on duty which led to his medical de-categorisation. He was found fit only in C-I medical classification on 9.1.1997 and from available records, it is seen that he was granted leave. He had sought an alternate appointment. As per the then 8 extant provisions, the request of the applicant was considered and he was offered the post of Hospital Attendant at Railway Hospital, Palakkad on 26.12.1997 in scale Rs.800-1150 (IVth CPC) /Rs.2650-4000 (Vth CPC) against an existing vacancy as alternate employment. The applicant had accepted the offer and joined the post of Hospital Attendant on 7.1.1998. He thereafter earned two promotions, i.e., Dresser - Gr.III in scale Rs.3050-4590 and Dresser- Gr.II in scale Rs.4000-6000. Having accepted the offer of alternate appointment way back in the year 1997/1998 and having also achieved progression by way of a couple of promotions, the applicant is now estopped from claiming the scale of pay of Rs.950-1500/3050-4590 at this distant point of time. He is seeking more than one single relief in the Original Application, which are not consequential to one another and therefore is hit by Rule 10 of Central Administrative Tribunal Procedure Rules and the Original Application is liable to be summarily rejected.
9. Sufficient grounds have not been submitted by the applicant to explain the inordinate delay in pursuing his case and entertaining the belated claims by the Tribunal will defeat the very object of the Act. With regard to the applicant's claim that he ought to have been accommodated in the ministerial category, it is averred that there was no corresponding pay scale of Rs.825-1200 in any other 9 cadre with C-1 medical classification. He was therefore considered to be accommodated in a post having pay scale of Rs.800-1150 and this he accepted.
10. Heard Mr.T.C.G Swamy, learned counsel for the applicant and Mr.Rajesh representing Mr.Sunil Jacob Jose, learned counsel for the respondents and perused the records.
11. The facts relating to the applicant's service and the applicability of PWD Act in his case is admitted by the respondents. The respondents state that as per the Rules in force at that time, i.e, in 1997, the applicant was allowed leave for the period when he was not in employment. Subsequently, he was accommodated as Hospital Attendant on 7.1.1998. it is also admitted that he was not allowed the scale of pay of the RPSF Constable that he was enjoying at the time of his medical de-categorisation. With the orders of the Railway Board at Annexures A-4 and A-5, this question should have been set at rest. The applicant was eligible for the same emoluments as he was drawing at the time of the medical de-categorisation when he was placed in an alternate employment. 10
12. The main contention raised by the respondents in the reply statement is to the effect that there has been inordinate delay in the applicant pursuing his claim through Annexure A-8 representation dated only 2014. According to them , the applicant's claim has become stale as more than a decade and half has passed by. They further argue that the Railway Board order at Annexure A-5 had made it clear that affected people were to apply through representations in order to get the benefit mentioned therein which the applicant has neglected to do. As an employer who has records of every employee who is placed in alternate employment on account of medical de-categorisation, it is not known why the respondents themselves were not willing to initiate necessary action to grant them equivalent emoluments. It appears to be uncharitable to expect medically de-categorised staff posted in various places of the country to rush to the General Manager of the zone with representations when the facts and records are easily accessible to the General Manager himself.
13. We are of the view that the applicant was clearly entitled to the benefit of the equivalent scale of pay to that he was drawing before medical de- categorisation from the date of the said de-categorisation. We direct the following:
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1. The respondents shall deem the applicant to have been charged against a supernumerary post of Railway Protection Special Force Constable for the period from 9.1.1997 to 7.1.1998.
2. We direct the respondents to grant the applicant the scale of pay as sought. However, the benefits are to be confined to notional basis and the financial benefits restricted to 3 years prior to the filing of the Original Application.
14. The demand of the applicant that he ought to have been considered and granted alternative appointment in a ministerial/clerical cadre is declined as he had willingly agreed to take up the post of Hospital Attendant when the same was offered to him and in any case changing a cadre with retrospective effect several years afterwards would not be a feasible step.
15. The Original Application is allowed to the limited extent described above. No costs.
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(ASHISH KALIA) (E.K BHARAT BHUSHAN)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
sv
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List of Annexures
Annexure A1 - Tru8e copy of Railway Board Order bearing RBE
No.89/1999 dated 29.4.1999
Annexure A2 - True copy of Railway Board order bearing
No.171/1997 dated 4.12.1997
Annexure A3 - True copy of Office Order bearing No.J/MD.34/97
dated 26.12.1997, issued by the 3rd respondent
Annexure A4 - True copy of Railway Board order bearing
No.98/2005 dated 31.5.2005
Annexure A5 - True copy of Railway Board order bearing RBE
No.104/2006 dated 1.7.2006
Annexure A6 - True copy of communication bearing No.8BN/PF/CT-
RR/C/97-468 dated 5 Feb 97 issued by the Commanding
Officer, 8BN/RPSF, Chittaranjan
Annexure A7 - True copy of Discharge Summary issued by the CKJ
Clinic, Tailor Street, Palakkad dated 28.5.2015 in favour of the applicant Annexure A8 - True copy of representation dated 19.11.2014, addressed to the 2nd respondent, Chief Personnel Officer Annexure A9 - True copy of reminder dated 26.2.2015, addressed to rd the 3 respondent 14 Annexure A10 - A true copy of the order in O.A 180/647/2015, dated 18.8.2015 rendered by this Tribunal Annexure M.A1 - Railway Board's letter dated 15.10.1997 Annexure M.A2 - Railway Board's letter dated 17.10.2001 being.
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