Central Administrative Tribunal - Jaipur
Sanjeev Kumar vs M/O Railways on 24 September, 2021
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OA No. 291/699/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 291/699/2019
Order reserved on 17.09.2021
DATE OF ORDER: 24.09.2021
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Sanjeev Kumar S/o Shri Kanwar Singh, aged about 32
years, r/o village - Chandawas & Post Rewari, District
Rewari (Haryana) (Group-C) Mob. 9466090034.
....Applicant
Shri M.S. Raghav, counsel for applicant.
VERSUS
1. Union of India through Secretary to the
Government of India, Ministry of Railway, rail
Bhawan, New Delhi - 110001.
2. Director General (Railway Health Services),
Ministry of Railway, Railway Board, New Delhi-
110001.
3. General Manager, North Western Railway, Jaipur-
302017.
4. Divisional Rail Manager, Divisional Office, North
Western Railway, Bikaner - 334001.
.... Respondents
Shri Indresh Sharma, counsel for respondents.
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OA No. 291/699/2019
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"1) The impugned office order dated 10.7.2019 (Ann-1) be quashed and set aside and the official respondents be directed to give appointment to the applicant on the post of Assistant Loco Pilot. All service benefits shall be released to him from date of similar situated persons had given joining along with all consequential benefits.
2) Any other appropriate order or direction which the Hon'ble tribunal thinks just and proper in the facts and circumstances of the case even the same has not been specifically prayed for but which is necessary to secure ends of justice may also be passed in favour of the applicant." "
2. (a). The brief facts of the case, as stated by the applicant, are that the father of the applicant was working as Loco Pilot, Bikaner Division, North Western Railway and in pursuance to NWR, HQ letter dated 23.09.2013, the Senior Divisional Personnel Officer, NWR, Bikaner issued a Circular dated 24.09.2013 relating to appointment under 'Liberalised Active Retirement Scheme for Guaranteed Employment for 3 OA No. 291/699/2019 Safety Staff', (LARSGESS). As per the said Circular, the applicant was found suitable in written test conducted by respondents and also found qualified in the Psychological test. He was then subjected for Medical examination in A-one category. Though, he was fit but as per the findings of the Medical Board, he was declared unfit on account of defective colour vision and sub-standard distant vision. The applicant was shocked and surprised vide letter dated 20.11.2013 received from Divisional Railway Manager (Personnel), Bikaner advising him that he has been declared unfit by Sr. D.M.O., Bikaner. He thereafter submitted an Appeal to Chief Medical Director, North Western Railway, who directed the applicant to report to Central Railway Hospital, Jaipur for re-medical examination. Though, the applicant was found to be normal on re-evaluation as per letter dated 03.03.2014, but still he was referred to Dr. B.A.M. Central Hospital, Central Railway, Byculla (Mumbai for some specialized tests, where he was declared as normal. Thereafter, he was again asked to appear before a Medical Board, where several tests were conducted and found his distant vision to be normal, but was declared as 'unfit' vide report dated 4 OA No. 291/699/2019 25.04.2014 due to defective colour vision on ishihara. Thereafter, he served a legal notice dated 14.09.2014 to the respondents but no reply was given to the same. But he was referred to Chief Medical Director, NWR, Jaipur for constituting a Medical Board wherein there were three eye specialists and they had to submit a report regarding fitness of the applicant. Vide report dated 10.11.2014, the applicant was again declared 'unfit'.
(b). Being aggrieved by the order dated 10.11.2014, the applicant approached this Tribunal by way of filing OA No. 163/2015, which was disposed of vide order dated 29.03.2016 to constitute a Medical Board to re-examine the applicant and in pursuance of the said order, the applicant was subjected to Medical Board for appointment to the post of ALP, but despite Medical Board report being in his favour, he was not given appointment. The respondents filed MA No. 291/384/2016 for extension of time for implementing the order dated 29.03.2016 and this Tribunal vide order dated 05.10.2016, the respondents were granted extension of time till 25th August, 2016. In the meanwhile, the father of the applicant retired on attaining the age of superannuation. Thereafter, he 5 OA No. 291/699/2019 served a legal notice again on 19.10.2016 seeking compliance of order dated 05.10.2016, but as no reply was given, he filed contempt proceedings being C.P. No. 45/16, wherein the Tribunal vide order dated 06.01.2017 granted liberty to file fresh O.A. He then filed OA No. 17/2017 before this Tribunal seeking directions to respondents that he be given appointment on the post of Assistant Loco Pilot and all service benefits to be released as given to similarly situated persons along with consequential benefits. The said O.A. was disposed of vide order dated 27.04.2018. Thereafter, the applicant filed DBCWP No. 26295/2018 before the Hon'ble High Court of Rajasthan at Jaipur and said Writ Petition was disposed of vide order dated 16.04.2019. Accordingly, applicant filed a detailed representation dated 13.05.2019 which was disposed of by the respondents vide order dated 10.07.2019, (Annexure A/1).
(c). As per Railway Board's letter dated 27.04.2018, there was a decision to impart natural justice to the staff who retired under the LARSGESS prior to 27.07.2017, but have not naturally superannuated. But as the applicant was denied natural justice and denied appointment on the 6 OA No. 291/699/2019 grounds of medical unfitness and later on the grounds that his father has retired on superannuation, he was left with no other alternative except to invoke the jurisdiction of this Tribunal for setting aside the order dated 10.07.2019, (Annexure A/1), and that he be given appointment on the post of Assistant Loco Pilot with all consequential benefits.
3. (a). After issue of notices, respondents have filed their reply stating that the father of the applicant while working as LPG/Rewari had applied for retirement under the LARSGESS Scheme and for appointment of the applicant during the first phase of 2013. The applicant was directed for prescribed medical examination in Aye-one medical category for the post of Assistant Loco Pilot on 03.10.2013 after qualifying the written test, wherein he was declared unfit in Aye-one category vide Sr. DMO/Lalgarh Certificate No. 10612 dated 18.10.2013. On his Appeal, he was again re-examined by Medical Board and was again declared medically unfit in Aye-one category vide its letter dated 30.04.2014 and he was informed accordingly. The unfit medical report was conveyed vide letters dated 30.04.2014 and 09.07.2014. The applicant's father was informed 7 OA No. 291/699/2019 through CCR-NWR-RE Jaipur Division vide letter dated 12.09.2014, (Annexure R/1). The said order was challenged by the applicant in OA No. 163/2015 for quashing the medical report and for appointment on the post of ALP. As per order dated 29.03.2016, this Tribunal directed for one more medical examination by Medical Board. Accordingly, the applicant was directed to appear before Medical Board for re-medical examination wherein he was declared medically fit in Aye-one category as informed vide letter dated 25.08.2016. Meanwhile, the father of the applicant whose date of birth was 20.03.1956 retired on superannuation, on attaining the age of 60 years, on 31.03.2016 by availing all retirement benefits which were due to him. In reply to applicant's letter, he was replied vide letters dated 10.10.2016 and 02.01.2017, the applicant filed OA No. 17/2017 before this Tribunal seeking appointment on the post of ALP. The said OA was disposed of vide order dated 27.04.2018 which was challenged before the Hon'ble High Court of Rajasthan, Jaipur in DBCWP No. 26295/2018. The said Writ Petition was disposed of by the Hon'ble High Court vide order dated 16.04.2019 and, accordingly, the applicant filed representation and the same was 8 OA No. 291/699/2019 disposed of vide order dated 10.07.2019, (Annexure A/1), which is self explanatory.
(b). As per RBE No. 39/2019 in view of directions of Hon'ble High Court of Punjab and Haryana and order of Hon'ble Supreme Court in SLP (C) No. 508/2018 dated 08.01.2018, the LARSGESS Scheme was already terminated w.e.f. 27.10.2017. To avail the benefits under the LARSGESS scheme, the age of the employee must be in age group 55- 57 years with 33 years qualifying service. As per letter dated 04.05.2016 issued by GM (P) NWR, Jaipur, it was directed that the age of the applicant employee shall not be more than 57 years 06 months at the time of final appointment of the candidate. As seen, the father of the applicant availed all retirement benefits on attaining the age of superannuation on 31.03.2016, whereas the applicant was declared medically fit in re- medical examination only on 25.08.2016, so the applicant could not be appointed under the LARSGESS Scheme. It is further submitted that the candidates who were eligible were only appointed under the LARSGESS Scheme. Thus, as there is no illegality in the action of the respondents, present Original 9 OA No. 291/699/2019 Application deserves no merits and is liable to be dismissed.
4. The applicant has filed rejoinder denying the contention of the respondents. He further stated that the Railways have granted appointment to the wards even after the parents attained the quoted age of more than 57 years and 06 months and the LARSGESS Scheme is still in force as per office orders dated 20.01.2020, 23.10.2020 & 29.10.2020. If the applicant was properly examined by Medical Board at the relevant time, he would not have to go for re- medical examination and for wrongfully subjecting him for several medical tests, he is entitled for appointment to the post of ALP at all benefits at par as given to similarly situated employees with consequential benefits.
5. Heard learned counsels for the parties and perused the material available on record.
6. The applicant besides reiterating the facts stated earlier has raised several grounds and the main grounds in challenge is that as per medical report dated 04.10.2013, the applicant was initially found 'fit' vide medical report dated 04.10.2013 and subsequent 10 OA No. 291/699/2019 by medical board constituted in consonance with the directions of this Tribunal, then there was no occasion for the respondents to deny appointment to the applicant to the post of ALP, which is highly unjust and illegal. As the applicant was re-examined by medical board on 25.07.2016 and was recommended as fit in Aye-one medical category, at that time, father of the applicant was in service and also he was eligible for appointment under the scheme, therefore, subsequent retirement of father cannot curtail the right of the applicant to get appointment. As the applicant was found fit in all examinations declaring him medically unfit without proper examination is illegal. Despite, he being medically fit, yet he was unnecessarily dragged into litigation due to inaction/omission on the part of respondents. Thus, being deprived from his rightful claim of appointment, the impugned inaction of the respondents to provide appointment to the applicant is wholly erroneous, illegal and perverse. Therefore, the action of the respondents in not allowing the benefits of the LARSGESS Scheme is nowhere justified and, thus, liable to be quashed and set aside.
7. The respondents also besides reiterating the facts stated that there is no illegality in the medical board 11 OA No. 291/699/2019 report when the applicant was directed for prescribed medical examination in Aye-one medical category for the post of ALP on 03.10.2013 after qualifying the written test, wherein he was declared medically unfit in Aye-one medical category vide DMO/Lalgarh certificate dated 18.10.2013. On his Appeal, for re- medical examination, he was re-examined by Medical Board and was again declared medically unfit in Aye- one medical category by the Medical Board vide its letter dated 30.04.2014 and, therefore, the applicant was not found eligible. As far as medical report dated 25.08.2016, the applicant was found medically fit, but the father of the applicant had already retired on superannuation on 31.03.2016, therefore, as per RBE Circular No. 131/2014, the applicant was not entitled for appointment under the LARSGESS Scheme and on retirement, the father of the applicant had already availed all the retirement benefits due to him. As per the extent rules, the benefit under the LARSGESS Scheme has been given to the eligible employees and as per the letter dated 04.05.2016 issued by GM (P) NWR, Jaipur, the age of the applicant employee was decided as not to be more than 57 years 06 months at the time of final appointment of the candidate. As 12 OA No. 291/699/2019 such, no person has been given appointment beyond the said age after issuance of the policy letter dated 04.05.2016. Thus, as the impugned order in challenge is self explanatory, the action of respondents is justified.
8. The only point which requires our consideration is whether case of the applicant can be re-opened in the light of Railway Board letter dated 27.10.2017 and the Hon'ble Apex Court orders dated 06.03.2019, 26.03.2019 and 22.04.2019 and further such orders.
9. The factual matrix of the case is that as the applicant being eligible and as his father had completed qualifying service in Railways, he applied for availing benefits of LARSGESS Scheme by way of retirement of his father and further providing appointment to him being his ward in the first phase of 2013. He was directed for medical examination in Aye-one medical category for the post of Assistant Loco Pilot on 03.10.2013 after qualifying the written test, wherein he was declared as 'unfit' vide Sr. DMO/Lalgarh Certificate No. 10612 dated 18.10.2013. On Appeal for re-examination, he was again re- examined by Medical Board and was again declared as 13 OA No. 291/699/2019 medically 'unfit' in Aye-one medical category by Medical Board vide letter dated 30.04.2014 with the following recommendations:
"The Medical Board after careful examination finds that Shri Sanjeev Kumar S/o Sh. Kanwar Singh, Male is unfit for appointment in Medical category Aye-one as ALP vide Para of IRMM-2000 Vol.-I Para 512(2)(i) Pg. 61."
10. Thereafter, he filed OA No. 163/2015 for quashing medical reports and to direct the respondents to give appointment to the applicant to the post of ALP. This Tribunal vide its order dated 29.03.2016 directed for one more medical examination of the applicant by a Medical Board. Again Medical Board was conducted in compliance of orders of this Tribunal at Northern Railway Central Hospital, New Delhi vide letter dated 21.07.2016 and the applicant was subjected to re- medical examination, wherein he was declared medically 'fit' in Aye-one medical category as per letter of CMD, NWR, Jaipur dated 25.08.2016. But in the meanwhile, the father of the applicant got retired on attaining the age of superannuation on 31.03.2016 as his date of birth was 20.03.1956 after availing all retirement benefits due to him.
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11. As seen for availing the benefits under the LARSGESS Scheme, only those wards who are eligible/suitable in all respects for the post and the qualifying service of the employee is 33 years and age group is 55-57 years are considered. Thereafter, as per letter No. 818-E/R&T/LARSGESS/Vividh dated 04.05.2016 issued by GM (P) NWR, Jaipur, it was held that at the time of finalization of panel for appointment of wards of the employee under the LARSGESS Scheme, the age of the employee must not be more than 57 years 06 months.
12. It is to be noted that mere eligibility is of no substance unless the candidate is found suitable in all respects under the scheme. Coming to the grounds raised by the applicant that he is found medically fit and the same has been done before 27.10.2017, therefore, he is entitled for appointment cannot be accepted. It is relevant to state that in the meantime this Tribunal has quashed the Scheme vide its order dated 13.12.2016 i.e. prior to the date of the closure of the cycle. Hence, no action could be taken by the respondents in the intervening period and, therefore, they cannot be put to fault. Thus, it is clear that as in case of the applicant all the formalities are not 15 OA No. 291/699/2019 completed and, hence, was not entitled for benefit of the Scheme and for which the action of the respondents is just and proper. Also with regard to plea of discrimination that appointments in similar circumstances have been given, cannot be a ground to seek appointment in view of several circulars of Railway Board and orders of the Hon'ble Apex Court. Therefore, considering the grounds raised by the applicant, none of them are sustainable in the eyes of law nor there is violation of any Article of the Constitution of India.
13. It is clear that as per letter of Railway Board letter dated 27.10.2017, the Railways were directed to keep the scheme on hold till further orders. On 08.01.2018, the Hon'ble Apex Court in SLP (C) No. 508/2018 declined to interfere with the directions of the Hon'ble High Court. On 26.09.2018, the Railway Board in compliance of the above directions, terminated the LARSGESS Scheme w.e.f. 27.10.2017 i.e. the date from which it was put on hold, directing that no further appointments should be made under the Scheme except in cases where employees have already retired under the LARSGESS Scheme before 27.10.2017 (but not normally superannuated) and 16 OA No. 291/699/2019 their wards could not be appointed due to the Scheme having been put on hold in terms of Railway Board's letter dated 27.10.2017 though they had successfully completed the entire process and were found medically fit. On 28.09.2018, the Railway Board in supersession of its earlier orders dated 26.09.2018 issued order whereby it was directed that who have already retired under the LARSGESS Scheme before 27.10.2017 (but not naturally superannuated) and appointment of whose wards were not made due to various formalities, appointments of such wards can be made with the approval of the competent authority. Thereafter, vide RBE No. 39/2019 dated 05.03.2019, the LARSGESS Scheme stood terminated w.e.f. 27.10.2017. It clearly observed that:
"... the cases where the wards had completed all formalities including Medical Examination under LARSGESS Scheme prior to 27.10.2017 and were found fit, but the employees are yet to retire, the matter is pending consideration before the Hon'ble Supreme Court and further instructions would be issued as per the directions of the Hon'ble Court.
The said directions were upheld by the Hon'ble Apex Court and vide order dated 06.03.2019 observed that the said scheme stands terminated and is no longer in existence. Accordingly, Railway Board relying 17 OA No. 291/699/2019 upon the order of Hon'ble Supreme Court dated 12.07.2019 in CW (C) No. 219/2019 and 448/2019 directed the Railway Board that "if individual representations are received should be examined and disposed off based on factual matrix of the case".
14. The other aspect of the said LARSGESS Scheme is that when the said scheme is no more in existence since 06.03.2019 and when the applicant was already declared ineligible as on 10.07.2019 for whatsoever reasons, it is clear that his case cannot be re-opened as the same was not covered by the Hon'ble Apex Court's order. Also as per the latest judgment of the Hon'ble Apex Court in Writ Petition (Civil) No. 1407/2019 in the case of Abhishek Kumar Jha & Ors. vs. Union of India & Anr., vide order dated 28.01.2021, the Hon'ble Apex Court has observed that "once the Scheme itself was withdrawn, no benefit whatsoever including one of consideration of representation could be afforded to any of the persons". Accordingly Writ Petition was dismissed. In another Writ Petition being Writ Petition (Civil) No. 78 of 2021 in the case of Manjit & Ors. vs. Union of India & Anr., vide order dated 29.01.20121, the Hon'ble Supreme Court has been categorically held that "the 18 OA No. 291/699/2019 Union Government has with justification discontinued the scheme. The petitioners can claim neither a vested right nor a legitimate expectation under such a Scheme. All claims based on the Scheme must now be closed". It was also observed that "the grant of reliefs to the petitioners would only enable them to seek a back door entry contrary to the orders of this Court. The Union of India has correctly terminated the Scheme and that decision continues to stand".
15. In spite of all these facts, in compliance of the directions of the Hon'ble High Court of Rajasthan at Jaipur vide its order dated 16.04.2019 passed in DBCWP No. 26295/2018, the representation of the applicant dated 13.05.2019, (received by the respondents on 22.05.2019), has been disposed of by the respondents by way of passing a detailed speaking order dated 10.07.2019, (Annexure A/1), and the respondents have categorically dealt with the case of the applicant and have arrived at the following conclusion:-
"After going through the entire facts and record of the case it is concluded that -
(i) The ward of the employee viz. Shri Sanjeev Kumar was medically examined twice and found unfit.19
OA No. 291/699/2019
(ii) He was medically examined third time in compliance of order's dated 29.03.2016 passed by Hon'ble CAT, wherein he was found fit, vide medical report dated 25.08.2016, but meanwhile his father, employee of Railway got superannuated by reaching the age of 60 years availing all the retirement benefits on 31.03.2016.
(iii) That father of the applicant, employee of Railway Shri Kanwar Singh had already crossed the required age criteria to be satisfied to avail the benefit of the LARSGESS.
(iv) That the LARSGESS Scheme was put on hold w.e.f. 27.10.2017 and the benefit under this is available to - "those employees who have already retired under the LARSGESS Scheme before 27.10.2017 but not normally superannuated", while Shri Kanwar Singh was not retired under the LARSGESS Scheme, but was normally superannuated reaching the age of 60 years availing all the retirement benefits.
(v) That it is not a case in which the ward could not be appointed due to the scheme having been put on hold.
(vi) That the time taken in the exercise is not attributable to the Railway administration, but due to the fact of his being not found medically fit.
(vii) That he has got no indefeasible right by merely calling for the medical examination.
(viii) That terms & conditions of the LARSGESS Scheme has not been fulfilled."
16. Thus, in our considered view, from what has been discussed by us in the above paras, it is clear that the 20 OA No. 291/699/2019 applicant, on several occasions for one reason or the other, has mainly prayed for appointment on the post of Assistant Loco Pilot with all consequential benefits given to similar situated persons and, therefore, on the principle of res-judicata also he is barred from praying the same relief, which was prayed by him in previous Original Applications. Also the impugned order dated 10.07.2019, (Annexure A/1), does not deserve any interference as the same is just and proper and the Original Application filed by the applicant being devoid of merits deserves to be dismissed. Accordingly, the Original Application is dismissed. No order as to costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/