Central Administrative Tribunal - Delhi
Ishwari Prasad vs Secretary on 30 August, 2012
Central Administrative Tribunal Principal Bench OA No.1951/2010 With OA No.1198/2011 MA No.0859/2011 Orders Reserved on 28.08.2012. Pronounced on: 30.08.2012 Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) OA No.1951/2010 1. Ishwari Prasad, S/o Charan Dass 2. Rajbir Singh S/o Pratap Singh [Both working as Driver Grade A [Spl] At Railway Station Tundla, [North Central Railway] --Applicants (By Advocate Ms. Meenu Mainee) -Versus- 1. Secretary, Railway Board, Ministry of Railways, Rail Bhawan, New Delhi. 2. General Manager, North Central Railway, Subedarganj, Allahabad. 3. Divisional Railway Manager, North Central Railway, Allahabad. -Respondents (By Advocate Shri R.L. Dhawan) OA No.1198/2011 Puran Chandra, S/o Shri Hoti Lal, Driver (Spl), North Central Railway, Tundla. -Applicant (By Advocate Ms. Meenu Mainee) -Versus- 1. Secretary, Railway Board, Ministry of Railways, Rail Bhawan, New Delhi. 2. General Manager, North Central Railway, Subedarganj, Allahabad. 3. Divisional Railway Manager, North Central Railway, Allahabad. -Respondents (By Advocate Shri A.K. Srivastava) O R D E R Mr. M.L. Chauhan, Member (J):
By this common order we propose to dispose of both these OAs, as common question of law and facts are involved. However, for the purpose of disposal of these OAs, the facts, as stated in OA-1951/2010 Ishwar Prasad & Another v. Union of India & Others, may be noticed.
2. Applicants, two in number, have earlier filed OA-2176/2008, praying for a direction to the respondents to consider their case for acceptance of voluntary retirement and to offer appointment to their sons on suitable posts as per the Scheme of Railway Board dated 02.01.2004 in terms of which it has been decided by the Railway Board that Driver and Gangman in the age group of 50-57 years may seek retirement from service and the wards of such employees will be considered for appointment on suitable posts provided they have completed 33 years of service and put up their application for voluntary retirement as per the Scheme. It may be stated here that the date of birth of applicant No.1 is 04.07.1950, whereas date of birth of applicant No.2 is 13.03.1950. As can be seen from para 4.6 of the OA applicant No.1 submitted an application on 03.05.2007 whereas applicant No.2 submitted his application on 05.11.2007. Be that as it may, this Tribunal disposed of the aforesaid OA of the applicants vide order dated 04.05.2009, without entering into the merits of the OA, with a direction to the respondents to consider the claim of wards of applicants under the safety related retirement scheme on the post of Electric Khallasi/Electrical Loco Cleaner by a speaking order to be passed within a period of three months from the date of receipt of a copy of that order. It may be stated here that such direction to consider the claim of the applicants under the aforesaid Scheme on the post of Electric Khallasi/Electrical Loco Cleaner was given on the basis of the contention raised by the learned counsel of applicants that the lowest post in the Electrical Loco Department is Electric Khallasi and Electrical Loco Cleaner and the Tribunal has not gone into the question whether the lowest recruitment grade in the category of Driver is Diesel/Electric Cleaners, as contended by the applicants or it was Assistant Loco Pilot. Pursuant to the direction given by this Tribunal the respondents passed a speaking order dated 12.08.2009, thereby stating that recruitment to the wards of applicants has to be done in the category of Assistant Loco Pilot and since the wards of the applicants do not possess the minimum educational qualification for the post of Assistant Loco Pilot, which is high school plus ITI or diploma in the respective trade, whereas the sons of the applicants possess intermediate only and they were not having qualification of diploma or ITI, as such as per the extant instructions their cases could not be considered. Thereafter, applicants filed another OA-1951/2010, challenging the validity of the order dated 12.08.2009, rejecting the request of the applicant on the reasoning given above and the said OA was disposed of vide order dated 26.08.2011. At this stage, it will be useful to quote the operative portion of the judgment dated 26.08.2011 passed in OA-1951/2010, which thus reads:
9. In view of the above position, we allow this OA following the Order of the Coordinate Bench of this Tribunal in OA-2431/2009 (supra) and direct the respondents to accept the voluntary retirement of the applicants as per rules and then offer suitable posts to their sons as per Clause 2 (vi) of the Boards letter dated 2.1.2004, immediately, subject to the outcome of RA in OA-2431/2009 (supra) filed by the respondents. There shall be no order as to costs.
3. It may be stated that subsequently respondents filed Review Application No.161/2012, thereby seeking review of the order on the ground that the aforesaid order has been passed following an earlier order of the Coordinate Bench of this Tribunal in OA NO.2431/2009 Union of India v. Ram v. Ram Kishan Verma, decided on 11.11.2010, which order itself was reviewed by this Tribunal vide order dated 17.01.2012 and the Original Application was restored for further hearing. It is on the basis of these facts that this OA has been listed for further hearing. It may be stated here that basis for seeking the relief by the applicants in these OAs is the judgment rendered by this Tribunal in the case of Ram Kishan Verma (supra), which judgment has been recalled by this Tribunal, as such the said judgment cannot form basis to grant relief to the applicants and the matter has to be decided in accordance with the Scheme of the Railway Board dated 02.01.2004.
4. Applicant in OA-1198/2011 (Puran Chand), who was working as Driver Grade-I (Special) under the respondents, his date of birth is 15.01.1950, whereas he submitted his application in the prescribed proforma for voluntary retirement on 26.04.2007, when he had already crossed the age of 57 years, thus not eligible to be considered for voluntary retirement, as he was not in the age group of 50-57 years. He has also earlier filed OA-492/2010 before this Tribunal for seeking retirement from service and to give employment to his ward, which OA was decided vide order dated 11.02.2010 with a direction to decide the representation of the applicant. In compliance of the order dated 11.02.2010 passed in the earlier OA respondents passed the impugned speaking order dated 27.04.2010, thereby rejecting the claim of the applicant on the same grounds, as in the case of applicants in OA-1951/2010, viz. that the wards of the applicant does not possess the qualification of diploma or ITI, thus not eligible for consideration for employment on the post of Assistant Loco Pilot, which is the lowest category of Driver. It is the validity of these orders, which is under challenge.
5. We have heard learned counsel of the parties. We are of the view that the matter on this point is no more res integra and the issue stands already decided by the decision of the Coordinate Bench in OA No.4194/2010 Shri Bhuri Singh v. Union of India & Others, decided on 04.04.2012. At this stage, it will be relevant to quote paras 7-10 of the judgment, which thus read:
7. Since applicant is basing his claim on the basis of Safety Related Retirement Scheme, it would be relevant to refer to the relevant extracts of the said Scheme. Perusal of the same shows this Scheme was introduced for the categories of Gangman and Drivers. Clauses (vi), (x) and (xii) are relevant, which for ready reference read as under:-
(vi) The ward will be considered for appointment only in the lowest recruitment grade of the respective category from which the employee seeks retirement, depending upon his/her eligibility and suitability, but not in any other category.
The discretion to accept the request for retirement will vest with the administration depending upon the shortage of staff, physical fitness and the suitability of the ward for appointment in the category of Driver/Gangmen as the case may be.
(xii) The conditions of eligibility, in the case of wards, being considered for appointment would be the same as prescribed for direct recruitment from the open market.
8. From above, it is clear that the ward can be considered only in the lowest recruitment grade of the respective category from which the employee seeks retirement, depending upon his/her eligibility. It is not disputed that the applicant was working as a Driver, therefore, we have to find out what is the lowest recruitment grade in the category of Drivers. According to the applicant, the lowest recruitment grade in the category of Driver is Diesel/Electric Cleaners whereas, as per respondents, it is Assistant Loco Pilot. In order to decide the issue, it would be relevant to see the relevant rules which for ready reference read as under:-
137. (1) The vacancies in the category of Diesel Assistant /Electric Assistant in pay scale Rs. 3050-4590 will befilled as under :-
(i) 50% from amongst the volunteering Diesel/ Electric Loco Fitters of Diesel/ Electric loco sheds with three years service failing which Diesel/ Electric Loco Fitters with less than three years service but total service of six years and Diesel/ Electric Loco Group 'D' staff of Diesel/ Electric Loco sheds with a total service of six years in Diesel/ Electric Loco Sheds having the qualification of course completed Act Apprenticeship in Mechanical/ Electrical/ Electronics Engineering trade or Matriculation with ITI as an additional preferable qualification with upper age limit of 35 years (40 years in the case of SC/ST).
(ii) 50% plus the shortfall, if any, against (i) above by direct recruitment through the Railway Recruitment Boards.
(2) Qualifications etc. for direct recruitment will be as under:-
(i) Educational: Matriculation pass plus ((a) ITI in specified trades/Act Apprenticeship, OR
(b) Diploma in Mechanical/ Electrical/ Electronics/Automobile Engineering in lieu of ITI Note: Specified trades for the purpose of (a) above are as follows:-
A. Fitter B. Electrician C. Instrument Mechanic D. Mill wright/ Maintenance Mechanic E. Mechanic (Radio & TV) F. Electronics Mechanic G. Mechanic (Motor Vehicle) H. Wireman I. Tractor Mechanic J. Armature & Coil Winder K. Mechanic (Diesel) L. Heat Engine
(ii) Age: Between 18 to 27 years
(iii) Training: 39 weeks (3)Diesel/ Electric Assistants have avenue of promotion to the posts of Shunters/ Engine Turners, Goods Drivers and so on as per procedure in force for filling up posts in these categories.
(iii) ELECTRIC ASSISTANT:- DELETED
9. Perusal of above shows that matriculation pass plus is essential whereas (a) ITI in specified trades/Act Apprenticeship, OR (b) Diploma in Mechanical/ Electrical/ Electronics/Automobile Engineering in lieu of ITI. Counsel for the respondents has also produced Railway Boards letter dated 3.8.2001 which clearly shows the educational qualification for direct recruitment would be matriculation pass and ITI in specific trade/Act Apprenticeship Diploma in Mechanical/Electrical/Electronics/Automobile Engineering in lieu of ITI which is quoted above. He has also shown us the Amendment Slip No.110 dated 4.6.2007 wherein under para 5 (d) it is mentioned as follows:-
(d) In sub-rule (1) of GR 4.20 for the words the Assistant Driver or the Firemen the words the Assistant Loco Pilot shall be substituted.
Similarly in clause (f) of para 5 it has been mentioned that in sub clause (b) of sub-rule (2) of GR 4.21 for the words the Assistant Driver the words the Assistant Loco Pilot shall be substituted.
10. From above, it is clear that recruitment has to be done at the level of Assistant Loco Pilot, that too against 50% of vacancies plus the shortfall against the vacancies as stipulated above that too with the approval of Railway Recruitment Board. In the counter affidavit respondents have specifically stated that minimum educational qualification for direct recruitment of Assistant Loco Pilot is High School Plus ITI or Diploma in the respective trade which is not possessed by the son of the applicant which point has not been disputed by the applicant in his rejoinder. Respondents have specifically submitted that the applicants son does not fulfill the educational qualification for the post of Assistant Loco Pilot. We have already quoted above the conditions of the Scheme on the basis of which applicant is seeking appointment of his son in which it is clearly mentioned that the ward will be considered for appointment in the lowest grade from which the employee seeks retirement depending upon his/her eligibility and suitability and the conditions of eligibility in the case of wards would be same as prescribed for direct recruitment from open market. We are thus satisfied that there is no illegality in the reply given by the respondents. Since applicants son does not fulfill the educational qualification at the level of direct recruitment, the relief, as claimed by the applicant cannot be granted.
6. The reasoning given by the Coordinate Bench in the case of Bhuri Singh (supra), as reproduced above, is squarely applicable in the facts and circumstances of these cases. Thus, we are of the view that the applicants who belong to Driver category, employment to their wards has to be given in the lowest grade of this category, which is not Electric Khallasi/Electrical Loco Cleaner, as contended by the applicants but Assistant Loco Pilot. Since the wards of applicants did not fulfill the minimum educational qualification for direct recruitment of Assistant Loco Pilot we see no infirmity in the action of the respondents whereby the claim of the applicants was rejected.
7. That apart, applicants have already retried from service after attaining the age of superannuation in the year 2010. The prayer of the applicants that direction may be given to the respondents to accept voluntary retirement and to give employment to their sons cannot be considered in view of this subsequent development.
8. Insofar as the contention raised by the leaned counsel of applicants that applicants may be granted relief on the basis of the judgment rendered by this Tribunal in OA-2431/2009, which judgment has been subsequently recalled, as the High Court has granted a limited liberty to the respondents to approach this Tribunal by way of Review Petition, seeking recalling of the judgment and it was not permissible for this Tribunal to recall the judgment and rehear the matter again is concerned, suffice it to say that in case applicants have any grievance regarding the order dated 17.01.2012 passed in RA, thereby recalling judgment dated 11.11.2010 passed in the case of Ram Kishan Verma (supra) on the ground that this Tribunal has exceeded the jurisdiction to recall the entire order, it was open for him to agitate the matter before the higher forum and certainly it is not permissible for this Tribunal to comment upon the order passed by the Coordinate Bench in Review Application, recalling its earlier order. That apart, as already stated above, since the Coordinate Bench has already decided the issue in the case of Bhuri Singh (supra) after noticing the relevant provisions and held that the wards of the applicants can be given employment on the posts of Assistant Loco Pilot, as such the contention of applicants that their wards should be given employment on the post of Electrical Khallasi/Electrical Loco Cleaner cannot be accepted.
9. In the result, for the foregoing reasons, both the OAs are found bereft of merit, which are accordingly dismissed, with no order as to costs.
10. Let a copy of this order be also kept in OA No.1198/2011.
(Smt. Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.