Central Administrative Tribunal - Mumbai
Sumanbai Hullar Singh Uikey And Anr vs South East Central Railway on 23 June, 2023
1 | | ~ OANo.2095/2021_ CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, CAMP AT NAGPUR | ORIGINAL APPLICATION NO.2095/2021 Dated this Friday, the 23" day of June, 2023 CORAM: MRS. HARVINDER KAUR OBEROI, MEMBER (J} MR. SHRI KRISHNA, MEMBER (A) 1. Sumanbai Hullar Singh Uikey, Aged 57 years, Occupation: Trackwoman, South East Central Railway, Kamptee. 2. Sunil Hullar Singh Uikey, Aged 38 years, Occupation: Nil Both Applicant Nos.1 and 2 are residing at Railway Quarter No.151/1 - New Building, Near P.W.I. Kamptee Road, (Kamptee), Nagpur Maharashtra 441 001, (M) 8956694278. _ - Applicants (By Advocate Shri Rahul D. Dhande) Versus 1. The Union of India through its General Manager, having office at RTS Colony, Bilaspur, Chhattisgarh 495 004. 2. The Senior Divisional Personnel Officer, South East Central Railway, Divisional Office, Personnel Department, Kingsway, Nagpur 440 001. - Respondents (By Advocate Ms. Renuka Puranik Nalamwar) Order reserved on 21.06.2023 Order pronounced on 23.06.2023 ORDER Per : Shri Krishna, Member (A)
This is the second round of litigation. The applicants are aggrieved by the impugned order dated 25.02.2021 rejecting the representation of the applicants for appointment on regular basis under (AS , 2 OA No.2095/2021 the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) on the ground that the said scheme was terminated | with effect from 27.10.2017 and that applicant No.2 had not completed ail the formalities including medical examination under scheme prior to 27.10.2017. Therefore, they have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 and seeking the following reliefs :
1"8(i). Quash and set aside the Order dated 25.02.2021 (Annexure A-1) passed by the Senior Divisional Personnel -- Officer, South East Central Railway, Nagpur thereby, rejecting/disposing the Original Application dated 8.10.2020 cum representation dated 23.10.2019 on the ground that the said Order is illegal, arbitrary and contrary to law and further direct the Respondent to appoint the Applicant No.2 on regular basis as in accordance with the liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) Scheme issued by the Divisional Personnel Officer, S.E.C. Nagpur (Respondent No.1) vide. letter- dated 2.1.2017 (Annexure A-2) within a stipulated time frame and this Hon'ble Court may deem fit and proper;
8(ii). Grant such further and other reliefs that this Hon'ble Tribunal may deem fit and proper;
8fiii). Costs of the Application be provided for; and
2. The brief facts of the case are that the applicant No.1 was appointed as "Waterman" on 30.05.1992 and the applicant No.2 is the son of applicant No.1. The post/designation of waterman was scrapped by the Railway authorities in the year 2006 and the designation was changed to "Ttackman'. However, the designation of Trackman was not 3 - OA No.2095/2021. entered/created in the service record of the applicant No.1. The Railway Board had issued various communication including RBE No.101/2015 (Est.
Rule 157/2015) and letter dated 01.12.2015 (Est. Rule No.230/2015) thereby introducing a scheme from willing and eligible staff belonging to certain categories including "Trackman" who are seeking voluntary retirement and employment to a suitable ward under the scheme during the January to June, 2017 (1st cycle). |
3. The Divisional Office, Personne! Department, Nagpur through the Divisional Personnel Officer, S.E.C. Railway, Nagpur issued a letter dated 02.01.2017 to all concerned departments of the South East Central Railways thereby calling upon its staff to submit their applications under the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) for appointment on regular basis from January to June, 2017 (1st cycle}. On submitting the form by the applicant No.1 under the LARSGESS for appointment on regular basis in the above first cycle, the said form along with all names of all eligible candidates were forwarded by the Senior Engineer (P.Way), S.E.C. Railway, Kamptee to the office of Senior Assistant Divisional Engineer's Office at Nagpur. In the said letter, the applicants were listed at Serial No.7. The Divisional Railway Manager (DRM), S.E.C. Nagpur (respondent No.2) did not consider the application of the applicants on the ground that the service record of the applicant No.1 contained/mentioned the designation of the applicant No.1 as "Waterman" and not as a "Trackman", 4, The applicant No.1 on being informed about the said objection of the respondent No.2 made a grievance application to the office of the 4... OANo.2095/2021 Senior Section Engineer (P.Way), S.E.C. Railway, Kamptee seeking directions for correction of the service record of the applicant No.1 wherein -the designation of the applicant No.1 was inadvertently mentioned as "Waterman" inspite of the said designation having been scrapped in the year 2006 and the applicant's designation was changed to "Trackman'".
5. | _ On the basis of the instructions of the Railway Board, the Divisional Personnel Officer, S.E.C, Railway, Nagpur (respondent No.1) | issued letter dated 04.07.2017 to all: concerned departments of the South East Central Railways thereby calling upon staff to submit their applications under the LARSGESS Scheme from July to December, 2017 (2nd cycle).
6. The Senior Section Engineer (P.Way), S.E.C, Railway, Kamptee sent a letter to the respondent No.1 informing the said office that the designation of "Trackman" working under the Senior Section Engineer (P.Way), S.E.C. Railway, Kamptee is still shown as "Waterman" instead of "Trackman" inspite of the fact that the designation of the "Waterman" has been changed to "Trackman" in the year. 2006 itself. The letter further Stated that the office of the Senior Section Engineer (P.Way), S.E.C Railway, Kamptee came across the case of the applicant No.1 wherein the said . mistake has been seen in the service record of the applicant and thus, requested the respondent No.1 to carry Out necessary corrections in the service record of the applicant No.1 by showing her designation as "Trackman"., On the basis of the above letter dated 07.07.2017, the said mistake in the service record of the applicant No.1 was duly corrected and the designation was changed from "Waterman" to "Trackman".
CHS 5 OA No.2095/2021 7, | It is submitted that in spite of the correction in the service record, the respondents did not consider the case of the applicant under the LARSGESS Scheme from January to June 2017 (1st cycle) and did not call the applicant No.2 for medical examination. _
8. Being aggrieved by the inaction on behalf of the respondents, the applicant No.1 made a representation to the respondent No.2 on 23.10.2019 and also sent a letter a copy of the said representation to the office of the respondent No.1 thereby calling upon the respondent No.2 to consider the case of the applicants under the LARSGESS Scheme from January to June, 2017 (1st cycle) dated. 02.01.2017 by allowing the applicant No.2 to undergo medical examination and made a request that his name to be added to the list on contenders for appointment. However, the respondents did not decide the said representation. The applicant No.1 sent another representation dated 08.10.2020 to the applicant No.2 and copy to the respondent No.1 requesting the respondents to consider the case of the applicant No.2 for the LARSGESS Scheme dated 04.07.2017. _
9. Aggrieved by the inaction on behalf of the respondents, the applicant filed OA No. 211/2144/2020 before Central Administrative Tribunal, Mumbai Bench, Mumbai. The OA was disposed at the admission Stage itself with the directions to the respondents to treat the present OA | as the representation of the applicants and decide the same with a reasoned order within two months from receipt of the order.
10. The Senior Divisional Personne! Officer, Nagpur disposed of the said representation vide his order dated 25.02.2021 rejecting the claim of the applicant No.2 for appointment on regular basis under the LARSGESS 6 OA No.2095/2021 - Scheme on the ground that the said scheme was. terminated with effect from 27.10.2017. |
11. It has been submitted that the designation of the applicant No.1 in the service record was inadvertently recorded as Waterman and not as a Trackman by the mistake of the office of the respondents. The said defect was a technical defect committed by the respondents which was curable and it was duly cured also at the time when first cycle was still in existence i.e. before issuance: of 2nd cycle on 04.07.2017 by the respondents, when they called upon the candidates to submit their applications under the LARSGESS scheme for the and cycle from July to
- December 2017. Therefore, because of the mistake committed by the respondents in not including the name in the list of eligible candidates and not sending the applicant No.2 for medical examination. Therefore, applicants cannot be made to suffer for no mistake on their behalf.
12. It is submitted that the respondents ought to have considered the case of the applicants under LARSGESS Scheme i.e. 1st cycle from January to June 2017 and thus, should have included the name of the applicant No.2 in the said list and' also allowed the applicant No.2-to | undergone medical examination. It is further submitted that the applicant No.1 has three years of service left and wishes to voluntary reitre under the said scheme in order to provide employment to her ward i.e. applicant No.2 under the said scheme. It is further submitted that the applicants have completed all the formalities during the existence of the LARSGESS Scheme under ist cycle and prior to notice dated 04.07.2017 issued by -the respondents. The facts that the applicant No.1 was shown as "Waterman"
a Co fb HE 7 OA No.2095/2021 instead of "Trackman" was a mistake of the Railway Administration and, therefore, the applicant cannot be made to suffer for the mistake committed by the respondents office.
| 13. On notice, the respondents have filed their reply and contested the OA. It is submitted that the Hon'ble High Court of Punjab and Haryana in the case of Kala Singh Vs. Union of India has held as the LARSGESS Scheme was a device evolved by the Railways to make back door entries in public employment and that it brazenly militated against equality in public employment. It was submitted that the Hon'ble High Court was directed the Railway Authorities to revisit the validity of the scheme before making any appointments bearing in mind the principles of equal opportunity and the elimination of monopoly in public employment.
14, lt was submitted that the SLP against the judgment of Punjab and Haryana High Court was dismissed by the Hon'ble Apex Court on 08.01.2018. It was further submitted that the three Judges Bench of the
- Hon'ble Apex Court in the case of Manjit and others Vs. Union of India reported in AIR 2021 SC 944 declined to entertain a petition under Article 32 on the ground that decision had been taken by the Union of India to terminate the scheme. The Hon'ble Supreme Court observed in the above judgment that the scheme was fundamentally contrary to the principles of equality of opportunity in public employment under Article 16 of the Constitution. Noting that the decision of the Union Government to discontinue the scheme was justified as the Court observed that all claims based on the scheme must now be closed. In view of the above judgment of the Hon'ble Supreme Court in the case of Manjit and others (supra), the § OA No.2095/2021 instant OA filed by the applicant seeking appointment under LARSGESS Scheme is nothing but an abuse of process of law and same is, therefore, liable to be dismissed with exemplary costs.
15. It was further submitted that in view of the aforesaid judgment of the Hon'ble Supreme Court, no para-wise reply is being required in this matter. It was submitted that the Railway Board have introduced Safety Related Retirement Scheme in the year 2004 vide Estt. Rule No.43/2004. Under the said scheme Drivers and Gangman in the age group of 50 to 57 years may seek retirement. Employment to a suitable ward of the employee whose application for retirement under the scheme is accepted will be.considered. The employee should have completed 33 years: of qualifying service in order to be eligible for seeking retirement under this scheme. The request for retirement will be on a voluntary basis and there is no compulsion on the part of the administration.
16. It was further submitted that the Railway has decided to extend the benefit of the scheme to other safety categories of staff in addition to Drivers and Gangman with a Grade Pay of Rs.1,800/- per month. The Railway has decided to modify the nomenclature of the scheme as Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS). However, the employment under the scheme would be guaranteed only to those found eligible and suitable and finally selected as per the procedure. The retirement of the employee was to be considered only if the ward is found suitable in all respect. The retirement of the employee and appointment of the ward should take place simultaneously.
9 OA No,2095/2021
17. It has been submitted that the applicant when applied' for voluntary retirement under LARSGESS Scheme, she has not completed last ten years of her service in safety category of "Track Maintainer-lll" as certified by the concerned Engineering Staff and Bills Section which has certified that she is working as "Track Maintainer-lll" with effect from 15.10.2012. Therefore, she was not considered for LARSGESS Scheme and the said post is identified as one of the Safety Category posts in Railway and as per instructions issued by Railway Board under RBE No.131/2014 which came to be circulated by CPO/BSP as Estt. Rule No.224/2014 under compedium of Establishment Circulars issued during the year 2014 for determining: the eligibility under the LARSGESS Scheme, the employee should have rendered at least last ten years in the concerned safety _ category i.e. Track Maintainer IIL. Therefore, the respondents railways have rightly not considered her case under the LARSGESS Scheme as she has not fulfilled the main criteria of rendering last ten years of qualifying service in the concerned safety category i.e. Track Maintainer [il for acceptance of voluntary retirement under LARSGESS Scheme.
18. The respondents denied the fact that the applicant has more than three more years to retire on superannuation but actually she is only left with two years service to finally retire from Railways as her date. of birth is 05.08.1963 as recorded in the service record. It has been submitted that now she is 58 years of age which is over and above the age group of 52-57 years and as such she is' not eligible for consideration under LARSGESS Scheme, in view of the fact that the scheme itself is terminated by the Railways vide Order No.E(P&A)1-2015/RT-43 dated 05.03.2019 and ae ae _--
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10 OA No.2095/2021also not fulfilling the main age criteria for LARSGESS. The respondents have denied that the corrections in the designation was carried out during the subsistence of the scheme (1st cycle of 2017) which was an afterthought and was actually done after the' issue of notification of 2nd cycle (04.07.2017). The correction was carried out after the issue of letter of SSE (P.Way)/KP on 07.07.2017. The applicant had also applied for 2nd.cycle of 2017 in which only notification was issued and applications/options were . received from eligible and willing employees, but before initiating any recruitment process further, the scheme was put on hold from 27.10.2017 by the Railway Board vide No.E(P&A) |-2015/RT-43 dated 27.10.2017 and finally terminated the LARSGESS Scheme vide No.E(P&A)I-2015/RT-43 dated 26.09.2018. oo | :
19. it was submitted that in pursuance of this Tribunal!s order dated 21.12.2020, the respondents have issued a detailed, reasoned and speaking order dated 25.02.2021 duly disposing the representation dated 08.10.2020 and 23.10.2019. It has been submitted that the applicant was not considered eligible for scheme (1st cycle of 2017) as she has not completed last ten years of her service in safety category of Track Maintainer HI. It is further submitted that the applicant had also applied for second cycle under the LARSGESS Scheme j in response to notification dated 04.07.2017 in which only notification was issued and applications/options were received from eligible and willing employees. But before initiating any recruitment process further, the scheme was put on hold w.e.f. 27.10.2017 by the Railway Board vide No. E(P&A)I-2015/RT-43 dated 27.10.2017 and the Railway Board finally terminated the LARSGESS Scheme Wo OA No.2095/2021 vide No.E(P&A)I-2015/RT-43 dated 26.09.2018. it has been submitted that in view of the Hon'ble Supreme Court judgment in the case of Manjeet and others (supra), the claim of the applicant cannot be entertained and, therefore, the OA deserves to be dismissed with costs.
20. The learned counsel for the applicant in his rejoinder has denied the submissions made by the respondents. It has been submitted that the designation of "Waterman" was scrapped by the Railway authorities in 2006 and substituted by. designation of "Trackman". Thus, the applicant No.1 was a Trackman since 2006 and had duly fulfilled the eligibility criteria for qualifying the services of the said scheme. This fact was corroborated by the letter issued by the Senior Section Engineer (P.Way)}, S.E.C. Railway, Kamptee on 07.07.2017 to the respondents thereby informing the said office that the designation of Trackman working under the Senior Section Engineer (P.Way), S.E.C. Railway, Kamptee is still shown as "Waterman" instead of "Trackman" inspite of the fact that 'the designation of Waterman has been scrapped in the year 2006 itself.
21. It has been submitted that on the basis of said letter dated 07.07.2017, the said mistake in the service record of the applicant No.1 was duly corrected and the designation of the applicant No.1 was duly corrected and the designation of the applicant No.1 states "Trackman" with effect from 2006: It establishes the fact that the applicant No, 1 was designated as a Trackman w.e.f. 2006 and thus, had duly qualified under thé said scheme. The respondents themselves admit to the fact that there was a mistake in the service record of the applicant No.1 and that they also admit that the designation of the "Waterman" "was changed to "Trackman"
t 2 OA No.2095/2021 in 2006 itself. In view of the above, it has been prayed that the applicant was very much eligible for appointment under the scheme.
22, We have heard the learned counsels for the parties at length and perused the pleadings submitted on record.
23. lt is an admitted fact that the applicant No.1 was appointed as book is 05.08.1963. It is also an admitted fact that the post/designation of Waterman has scrapped by the Railway authorities in the year 2006 and the same was redesignated as Trackman. {tis not in dispute that the "Trackman" and that she was not in the age group of 50-57 and was not left with three years of residual service. .
24, However, on perusal' of the 'pleadings, we find that the respondents in their letter No.E/1/LARSGESS dated 30.01.2017 (Annexure A-3, page 25 of the OA) issued by the office of SSE/P.Way/Kamptee have recommended seven names to the Sr. ADEN/Tr/NGP, S.E.C. Railway and the name of the applicant appears at SI.No.7. The said letter has been written in reference to _ letter dated 02:01.2017 of Sr. DPO/NGP's
130. OA NN L/No.P/NGP/Adm/2016/09. Therefore, it is 'evident from the record that the applicant had applied in the first cycle itself requesting for employment of her | son. We further find that out of the above seven names recommended in letter dated 30.01.2017, the applicants appearing at SI.No.1, 3 and 6 have been covered in the scheme and their sons have been given appointment vide letter No.P-HQ/RCT/LARSGESS/152 dated 30.03.2020 (Annexure A-13, page 43 of OA). The said letter has been issued by Sr. Personnel Officer (Headquarters) in the office of: Principal Chief Personne! Officer to Sr. DPO/Nagpur, S.E.C. Railway. The names of.these three applicants appears at Serial Nos.28, 29 and 30, It is further seen that 33 candidates have been appointed on 30.03.2020. We further find that this designation of "Waterman" was changed to "Trackman" in the year 2006 itself which is a post of Safety Category. The applicant has been working in Safety Category from 2006 itself. Thus, she has completed more than 11 years in Safety Category on cut off date. We further find that she was in age bracket of 50- 57 as her date of birth is 05.08.1963. Thus, she was having more than five years of residual service left when she made the application in 2017, Therefore, the contention of the railways that the claim of the applicant could not be considered because of the judgment of the Hon'ble Apex Court and that the scheme was put on hold is not correct and is not supported by the evidence on record. |
25. We agree with the contention of the applicant that she has applied in the first cycle itself and name of her son was recommended by the office of the Senior Section Engineer, P.Way, Kamptee vide his letter dated 30.01.2017. He has recommended seven names out of which appointment has been given to sons of three applicants. Therefore, the 14 OA No.2095/2021 case of the applicant is similarly placed and she cannot be denied the benefits of the scheme. |
26. In view of the above facts, we quash the impugned order and direct the respondents to consider the case of the applicant as has been done in the case of other 33 candidates mentioned in the letter dated 30.03.2020 (Annexure A-13) and issue appointment order to the son of the applicant after completing the required formalities within two months from the date of receipt of a certified copy of this order.
27. in the result, the OA is allowed. There shall be no order as to cosis. | | _ (SHRFKRISHNAY | tani KAUR OBERO)) MEMBER {A) MEMBER (J) .
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