Central Administrative Tribunal - Ernakulam
S. Singarayan vs Union Of India on 28 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/01010/2014
&
Miscellaneous Application No. 180/01249/2014
in
Original Application No. 180/01010/2014
Tuesday, this the 28th day of March, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
S. Singarayan, aged 54 years, S/o. Swamiadiyan,
Trackman, Section Engineer, P. Way, Nagercoil,
Southern Railway, Trivandrum Division,
Residing at Elanthayadi Vila, Agasteeswaram PO,
Kanyakumari (District), Tamil Nadu. ... Applicant
(By Advocate : M/s. Varkey & Martin)
Versus
1. Union of India, represented by the General Manager,
Southern Railway, Headquarters Office, Chennai - 3.
2. The Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum - 14. . . . Respondents
(By Advocate : Mr. Thomas Mathew Nellimoottil)
This application having been heard on 20.03.2017, the Tribunal on
28.03.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
As per the pleadings in the amended OA the grievance of the applicant is the denial of regular pay band and Grade Pay attached to the post of Trackman in which he is working under the respondent Railway. He was initially engaged as a casual labour in the Trivandrum Division of Southern Railway. He was retrenched from such engagement while he was having more than 450 days of casual service. As per the live register prepared by the Trivandrum Division of the Railway in terms of the judgment of the Supreme Court of India in Inderpal Yadav v. Union of India & Ors. (1985) 2 SCC 648 his name was also included in the live register. However, overlooking his position in the live register several other persons juniors to him have been absorbed from 1996. Aggrieved by this he approached this Tribunal by filing OA No. 739 of 2010 which was allowed vide Annexure A1 order directing the respondents to consider him for absorption subject to the requisite medical fitness etc. With regard to the seniority and other matters it was directed in Annexure A1 order that the applicant shall be treated in the same manner as in the case of other similarly placed persons who have been absorbed on the basis of the order of this Tribunal in OA No. 271 of 2006 and connected cases which was upheld by the High Court of Kerala in WP No. 3246 of 2008. In pursuance of Annexure A1 order applicant was appointed as Trackman vide Annexure A2 order dated 26.3.2012 without assigning seniority anterior to 1.1.2004 and without giving him a regular pay attached to the post. Though he had submitted Annexure A3 representation dated 26.7.2012 no reply was given to Annexure A3 but he was informed that in view of Annexure A4 Railway Board orders the regular pay attached to the post i.e. PB-1 Rs. 5,200- 20,200/- plus Grade Pay of Rs. 1,800/- will be granted only on acquiring the minimum educational qualification prescribed under the Recruitment Rules. According to the applicant Annexure A4 Railway Board instructions is not applicable in his case. Therefore, he seeks relief as under:
'i) Call for the records leading to the issuance of Annexure A2 to the extent it lays down that the applicant will not be placed in regular pay band-1 with the corresponding grade pay and the period spend on IS pay band will not be counted for any purpose, as stated in condition no. 10 in Annexure A2.
ii) Direct the respondents to grant the applicant the benefit of absorption as Trackman from the date of such absorption of persons with lesser number of days of service than that of the applicant and direct further to grant all consequential benefits arising therefrom including arrears of pay and allowances, leave due and as qualifying service.
Iii) Declare that the applicant is entitled to be placed in Pay Band Rs. 5200-
20200+GP 1800 w.e.f. his initial appointment and direct the respondents to grant the same with consequential benefits.
iv) Award costs of and incidental to this application.
v) Grant such other relief, which this Honourable tribunal may deem fit and proper in the circumstances of the case.'
2. Respondents resisted this OA mainly on the ground of belated nature of this OA and on the ground of acquiescence and estoppel because he had accepted Annexure A2 order and hence he cannot dispute the contents of Annexure A2 having accepted the same without any demur. According to the respondents in terms of Annexures R1, R2 and R3 Railway Board orders the employee in the pay band-1 of Rs. 5,200-20,200/- with Grade Pay of Rs. 1,800/- should have the educational qualification of class Xth pass or ITI or equivalent. In the case of the applicant he is having only VIIIth class pass and therefore, he is not entitled to claim the pay in the pay band-1with grade pay of Rs. 1800/-.
3. In the rejoinder, refuting the contentions of the respondents the applicant relies on the orders passed by this Tribunal in OA No. 590 of 2009 and OA No. 784 of 2012, copies of which are produced as Annexures A5 & A6.
4. An additional reply statement also was filed by the respondents contending that applicant had not sought for appointment with retrospective effect. They reiterate their contention that without the minimum requisite educational qualification applicant cannot claim the pay in the pay band of Rs. 5,200-20,200/- plus Grade Pay of Rs. 1,800/-.
5. The applicant filed Annexure A7 copy of the RBE No. 42/2001 dated 28.2.2001 wherein it was decided by the Railway Board that the case of casual labour borne on live/supplementary live casual labour registers who fulfill minimum education qualificatin of class VIIIth pass would be conisdered for direct appointment against Group-D post.
6. Heard Mr. Martin G. Thottan, learned counsel for the applicant and learned standing counsel for the respondents. Perused the record.
7. We have heard both sides on the aspect of delay. Applicant in this case is seeking relief on the quantum of his pay challenging the provision relating to it in Annexure A2. Since the subject matter of this OA being the pay and allowances of the applicant, the cause of action is recurring in nature. It is settled position in M.R. Gupta v. Union of India - (1995) 5 SCC 628, Union of India v. Tarsem Singh - (2008) 8 SCC 648 and State of M.P. & Ors. v. Yogendra Shrivastava - (2010) 12 SCC 538 that no bar of limitation can be attributed to such cases. Therefore, we are inclined to allow MA No. 180/1249/2014 for condoning delay.
8. It is worth noticing that the applicant was a beneficiary of apex court judgment in Inderpal Yadav's case (supra) which gave a special dispensation to the retrenched casual labourers as per the scheme of the Government of India which was given endorsement by the apex court with some changes.. We note that though the applicant undisputedly was having more than 450 days of casual service at the time of his retrenchment, several other persons who were juniors to him were absorbed into regular service from 1996 onwards but the applicant was not granted absorption despite being included at serial No. 2267 in the live register. This has compelled him to approach this Tribunal with OA No. 739 of 2010 culminating in Annexure A1 order directing the respondents to consider him for appointment in terms of the earlier decision of this Tribunal in OA No. 271 of 2016 which has been upheld by the Kerala High Court in WP No. 3246/2008. Therefore, we note that the applicant had been fighting his way out against the odds. only quite later. Undoubtedly, when he got the order of regularisation later, he was entitled to get all the benefits the apex court had envisaged in Inderpal Yadav's case (supra). We note that respondents have been putting obstacles in one manner or the other for granting regularisation. Of late, on being compelled by Annexure A2 order of this Tribunal to give the applicant appointment in Group-D the respondents caused yet another stifling impediment in paragrah 10 of appointment order (Anneuxre A2) which reads:
'10. As per RBE No. 166/2011 dated 9.12.2011, he will be given the regular pay band and grade pay only on acquiring the minimum educational qualification prescribed under the recruitment rules. His emoluments will be governed by the minimum of the -IS pay band without any grade pay. The period spend in the -IS pay band will not be counted as service for any purpose as regular service will start only after he is placed in the pay band PB-1 of Rs. 5200-20200 along with grade pay of Rs. 1800/-'.
9. We are of the view that the requirement of minimum educational qualification was not at all in the ratio or objective of the Inderpal Yadav judgment (supra). On the other hand we feel that such onerous condition has been imposed purposefully with a view to vex the applicant who had secured his right under the Inderpal Yadav (supra) by fighting out a litigation in this Tribunal.
10. On a perusal of RBE 161/11 mentioned in the aforequoted paragraph of Annexure A2 (Annexure A4 is the original of the said RBE) it can be seen that the aforesaid RBE is in relation to the candidates belonging to the appoinments such as compassionate appointment, land loser, accident victims, LARSGESS and substitutes in line. The aforeaid RBE never mentions the retrenched casual labourers who were given regularisation to Group-D as per the Inderpal Yadav judgment (supra).
11. Therefore, it must be perceived that paragraph 10 in Annexure A2 has been mischeviously inserted as there was no stipulation in the Inderpal Yadav judgment (supra) that the retrenched casual labourers should have the educational qualifications prescribed by the Railways. Such a direction will indeed defeat the objective of the Inderpal Yadav decision (supra) which was intended to give benefit to the multitude of hapless casual labourers who spilled their blood and sweat for the Railways. They had worked as casual labourers unchecked for any educational qualifications except their physical caliber.
12. In the above circumtances and in view of the above discussion we are of the view that the OA is only to be allowed. We order accordingly. There will be no order as to costs.
(E.K. BHARAT BHUSHAN) (U. SARATHCHANDRAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER ''SA''