Central Administrative Tribunal - Delhi
Shyam Pyare Yadav vs Union Of India on 25 May, 2015
Central Administrative Tribunal Principal Bench, New Delhi OA No.1697 of 2014 This the 25th day of May, 2015 Honble Mr. G.George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Shyam Pyare Yadav, s/o late Sh. Munni Ram, working as Khalasi under Senior Section Officer (Signal), Tuglakabad, New Delhi. Applicant (By Advocate: Shri R.K. Shukla) Versus 1. Union of India, Through the General Manager, Northern Railway, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railway, Delhi Division, Paharganj, New Delhi. 3. The Assistant Personnel Officer, DRM Office, Northern Railway, Delhi Division, Paharganj, New Delhi. Respondents [[[[(By Advocate: Shri S.M. Arif) ORDER (ORAL) SHRI G. GEORGE PARACKEN, MEMBER (J) :
Heard learned counsel for the parties.
2. The prayers made by the applicants in this Original Application are for issuance of direction to the respondents to grant the benefits under the LARSGESS Scheme and also issuance of direction to the respondents to count 50% of service rendered by him as casual labourer and 100% as temporary status with regular service as qualifying service for all purposes.
3. So far as the prayer for grant of benefits under the LARSGESS is concerned, the same has since been declared unconstitutional by this Tribunal in OA No.2424/2013 Hari Singh Vs. Union of India through the General Manager, North Western Railway, Jaipur & Others decided on 13.1.2015. The operative part of the said order reads as under:
10. We have heard learned counsel for the Applicants Shri Yogesh Sharma in OA Nos.2424/2013, 1196/2014 and 1259/2014, Shri Tapas Tyagi in OA No.4272/2013, learned counsel for the Respondents Shri Kirpa Shanker in OA Nos. 2424/2013 and 1259/2014, Shri Shailender Tiwary in OA No.1196/2014 and Shri Rajinder Khatter in OA No.4272/2013. As observed in the facts of these cases, the relief claimed by all the Applicants in their respective OAs is for the grant of the benefits of LARSGESS. Before we adjudicate upon the claims of the Applicants, we may go into the origin and purpose of the Scheme itself. It is seen that it was initially introduced by the Respondent-Railways vide RBE No.4/2004 [No.E(P&A)/I-2001/RT-2(KW) dated 2.1.2004] by the name Safety Related Retirement Scheme (SRSS for short) applicable to Drivers and Gangmen and it was based on the deliberations of a workshop on safety related issues in the Indian Railway. According to the said Scheme, the Railway employees working in the categories of Drivers (excluding shunters) and Gangmen has a critical bearing on safety of train operations and track maintenance. With the advancing of age, the physical fitness and reflexes of staff of those categories deteriorate and causes safety hazard. Therefore, the Railways have decided that the Drivers and Gangmen in the age group of 50 to 57 years and who have completed 33 years of service may seek retirement and in their place, to consider their eligible wards for appointment in the lowest recruitment grade of the respective category from which the employee seeks retirement. The other conditions were that the request of the employee for retirement will be on a voluntary basis and there is no element of compulsion on the part of the administration. The discretion to accept the request of retirement also depended upon the administration, depending upon the shortage of staff, physical fitness and the suitability of the ward for appointment in the category of Driver/Gangmen. The condition of eligibility in the case of wards, being considered for appointment would be the same as prescribed for direct recruitment from open market. A copy of the said Scheme is reproduced as under:-RBE No.04/2004
Sub: Safety Related Retirement Scheme-Drivers and Gangmen.
[No.E(P&A)I/2001/RT-2(KW) dated 2.1.2004] Arising out of deliberations in the Workshop on Safety on Indian Railways conducted on 12th and 13th of July, 2003 the Ministry of Railways have decided to introduce a Safety Related Retirement Scheme for the categories of Gangmen and Drivers.
2. The main features of the Scheme are as follows:-
(i)The Scheme may be called Safety Related Retirement Scheme. The Scheme will cover two safety categories viz., Drivers (excluding shunters) and Gangmen whose working has a critical bearing on safety of train operations and track maintenance. The scheme has been framed on the consideration that with advancing age, the physical fitness and reflexes of staff of these categories deteriorate, thereby causing a safety hazard.
Drivers: This category is directly responsible for the running of trains. Running duties demand continued attention and alertness. The element of stress combined with uncertain hours of work entailed in the performance of running duties over long periods of time tend to have a deleterious psychosomatic effect on their health. There is a slowing down of reflexes with the passage of time making them vulnerable to operational lapses.
Gangmen: This category is responsible for the proper maintenance of tracks. Their duties involve heavy manual labour in the laying of tracks, repair of tracks, patrolling etc. Unlike Workshops/locosheds, all this labour is performed in the open environment, they are subjected to the vagaries of extreme weather conditions, non-availability of fork lifts, EOT cranes, wheel barrow etc. As a result the infirmities associated with the aging processes and spinal and back problems catches up quite early in life.
These categories, work in conditions, in which fatigue sets in earlier, than in the case of staff who work indoors or within station limits or in depots and workshops. Although the other categories nomenclatured as safety categories also have a vital role to play in ensuring operational safety, the nature of their duties, is less arduous. Therefore no other category other than Gangmen and Drivers is included in the Scheme. For the same reason, shunters who perform less strenuous, shift wise, duties within station yards, will also not be included in the scheme.
(ii)Under the Scheme, Drivers and Gangmen in the age group of 50 to 57 years may seek retirement.
(iii)Employment to a suitable ward of the employee, whose application for retirement under the scheme is accepted, will be considered.
(iv)The employee should have completed 33 years of qualifying service in order to be eligible for seeking retirement under this scheme.
(v)The request for retirement will be on a voluntary basis and there will be no element of compulsion on the part of the Administration.
(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.
(vii)Applications from those who propose to retire under this scheme will be taken once in a year. The cut off date for reckoning the eligibility of employees for seeking retirement under this scheme will be 30th June of the respective year. All conditions of appointment for the ward of such retires such as age limits, educational qualifications etc. will also be determined with reference to that date.
(viii)The last date for submission of requests for retirement and consideration of a ward for appointment under the scheme, will be the 31st of July of the respective year.
(ix)Employees who desire to withdraw their requests for retirement may be allowed to do so, not later than 30th September of the respective year. No request for withdrawal of request will be entertained thereafter.
(x)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.
(xi)Those who have completed 33 years of qualifying service and are in the age group of 55 to 57 years would be considered in the first phase of the scheme to be followed by those in the age group of 53 years onwards but less than 55 years.
(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.
(xiii)Suitability of the wards will be assessed in the same manner as is being done in the case of direct recruitment. The assessment will be done through respective Railway Recruitment Boards. The request of the employee for retirement under this scheme would be considered only if the ward is considered suitable for appointment in all respects, including medical fitness.
(xiv)Since the Safety Related Retirement Scheme is a package having no nexus with any of the existing scheme, no weightage towards qualifying service will be admissible to the employee who seeks retirement under this scheme. The wards appointed under this scheme will not be allowed to change their category, except as is being allowed under the already existing rules.
(xv)For the purpose of reckoning eligibility for residential accommodation, wards appointed under this scheme will be treated at par, with those appointed through direct recruitment, from the open market; the terms of regularisation of accommodation as applicable to the wards of employees appointed on compassionate basis, will not be applicable in their case.
3. After the successful implementation of the first phase of the scheme, the implementation of the second phase covering employees with less than 33 years of qualifying service would be considered for clearance by the Railway Board.
4. The Scheme will come into force from the date of issue of this letter.
5. This issues with the concurrence of the Finance Directorate of the Ministry of Railways.
11. Later on, vide RBE No.131/2010 [No.E(P&A)I-2010/RT-2 dated 11.09.2010, the Railway Board modified the SRRC with the nomenclature Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARGSESS) and extended the benefits to other safety categories of the staff with Grade Pay of Rs.1800 per month. The qualifying service has also been reduced from 33 years to 20 years and the eligible age group has been reduced from 55-57 years to 50-57 years. However, the condition of qualifying service (i.e. 33 years and age group (i.e. 55-57) for drivers remained unchanged. The said order is also reproduced as under:-
RBE No.131/2010Subject: Safety Related Retirement Scheme covering safety categories with Grade Pay Rs.1800/-.
[No.E9P&A)1-2010/RT-2 dated 11.09.2010) Please refer to Boards letter No.E(P&A)I-2001/RT-2 (KW) dated 02.01.2004 (Bahris RBO 4/2002, p-5) regarding introduction of Safety related retirement scheme (SRRS) for Drivers and Gangmen.
2. It has now been decided to extend the benefit of scheme to other safety categories of staff with a grade pay of Rs.1800/-pm. The qualifying service has been reduced from 33 years to 20 years and the eligible age group of 55-57 years to 50-57 years for seeking retirement under the scheme in the case of safety categories with grade pay of Rs.1800. The list of safety categories covered under the scheme is enclosed as Annexure.
3. It has also been decided to modify the nomenclature of the scheme as Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) with grade pay of Rs.1800. However, the employment under the scheme would be guaranteed only to those found eligible/suitable and finally selected as per procedure.
3. The condition of qualifying service (i.e. 33 years and age group (i.e. 55-57) for drivers will remain unchanged.
4. It is also reiterated that the retirement of the employee be considered only if the ward is found suitable in all respects. Retirement of the employee and appointment of the ward should take place simultaneously.
5. The other terms and conditions of the Scheme will remain unchanged.
6. This issues with the concurrence of the Finance Directorate of the Ministry of Railways.
12. The Jaipur Bench of this Tribunal had the occasion to consider the question whether the preferential employment under the LARSGESS Scheme was constitutionally valid or not, in OA No.654/2013 Shri Ganni Khan and Another Vs. U.O.I. and Others decided on 24.09.2013. According to them, appointment under the said Scheme is a hereditary in nature and as a result, the meritorious candidates are denied employment and their livelihood, in violation of Article 13 and 14 of the Constitution of India. They have also held that such appointments are backdoor entries and different from appointments on compassionate grounds. They have, therefore, held that the said Scheme is arbitrary, illegal, formed out of unreasonable confusion, ultra virus and unconstitutional. They have also ordered the Railway Board to stop such appointments in future. The relevant part of the said order reads as under:-
2. The factor of compassionate appointment is different. The factor which led the liberalised retirement Scheme for guaranteed employment for safety staff (LARGESSE) scheme is that the employee of the Railway took voluntary retirement and then suggests/proposed his son/daughter for giving appointment in his/her place. This scheme solely defeats Article 14 & 16 of the Constitution of India that a government appointment should be given on competitive merit amongst the candidates. The scheme is also against the credence of equality amongst all the citizens of India prevailing for the last sixty years. It is not reflected in the present case. Nobody can claim such appointment as a matter of right as it is squarely against constitutional .matrix and devoid of any nectarism to prevent fraud.
3. There is great distinction/difference between compassionate appointment and these types of appointment. It can also be said that in some cases it will be open for the railway to grant compassionate appointment to the dependents of the Railway servant who has been injured in or during government job, duty or retired due to illness caused solely by the effect of the date. But in the present case appointment cannot be claimed as a matter of right. The whole scheme is now available unconstitutional as it takes away the competitive spirit to grant a government job and is only the backdoor entry to get a government job.
4. The Railway Board seems to have decided at one stage to provide an employment to the wards of medically decategorised employees under but which power or from which Statutory provision that this can be done is not indicated. It is to be remembered that the Railways being the largest employment body of the Government and being its agency can not be seen to indiscriminately and without supportive power and requirement of Public interest to issue such prejudicial schemes as the Railway Board will be powerless to issue such orders even though generally it is to be assumed that at least it to have all normal power, normally regulating employment regarding its servants.
5. The Hon'ble Apex Court in Uma Devi's case had come down heavily on such back door entries, now it seems that against the soul and spirit of that judgment and many other judgments are equally violated. The Railway Board had devised one Scheme and thereafter amended the Scheme and even thereafter vide another Scheme excluded some class in other Scheme whereby only a person belonging to the medically decategorised of the time frame of 2001 to 2006 would be excluded but thereafter people who are medically decategorised will be covered under the earlier pre amended Rules with reference to decision taken. But the scheme itself is against the constitutional mandate.
6. It is noted that whenever strong Unions demands one thing the administration crumple as if it is powerless to take any decision. Union demands some thing and this will be again amended if another strong Union make another demand to suit its recommendations which is pertinent to that and their time frame alone. The Railways and Railway Board thus cause Public interest a great harm and prejudice as all these schemes seems to emanate from union pressure alone.
7. While the Railways is a largest employer under the Government, it is necessary to have fair labour relations and it is a welcome step but then others must not be prejudiced, the ordinary citizen must also be allowed to earn a livelihood in Railways. The Railways must offer a focus on Public good and public interest. Public interest may not always be with the individual employees causes or their strong Unions causes. The scheme thus militates against the interest of the competent common man by promoting the incompetent.
8. This is a case wherein an employee who had been medically de categorised just prior to his retirement requests that following the Rule and the Circulars requires that his son may be appointed in the Railways. This is clearly a back door entry and the Railways do not have the power to create opportunities for back door entry without significant reasons present in it as it is against public interest without any redeeming features. The Scheme for compassionate appointment is promulgated as an exception with the intention to provide immediate help to those family who are in penury after the Government employee suddenly passed away leaving his family in penury and hardship. There is also sufficient safeguards which are working for it to ensure that only 5% of direct quota goes to a most eligible among them all and in a pragmatic manner so that there can not be any complaints or violation of public interest at any stage. But this Scheme of medically decategorised, being without any competitive analysis will lead to hereditary employment through back door and can be manipulated by one Railway employee so that he can engineer himself to be medically decategorised and the Railways have found it necessary to set apart this medically decategorised post recommendations subject to scrutiny as well in other words whereby an employee at the verge of retirement can claim medical decategorisation and then claim appointment for his son or daughter. This will definitely take away the rights which are available to the unemployed young men and women of this Country who are competitively more meritorious to get that particular job. Therefore without any doubt the action of the Railways in issuing these Circulars is ultra virus , un constitutional and also against the provisions of the Constitution besides being arbitrary, illegal and against reason and logic.
9. The learned counsel for the applicant submits that under Article 309 of the Constitution the Government and its functionaries have the power to frame the Rules for its functioning. This is another aspect reflecting the lacunae in the governance to be urgently redressed by the Government. Under Article 309 of the Constitution it is envisaged only as a as a temporary situation so in the interregnum of administrative process proper statutory formations would be laid down. But un knowingly even after 66 years of independence and the formation of the Republic such has not been done and administration and government have been acquainted of Rules which are contrary to each other. It appears that some of this strategy is being adopted herein wherein contrary circulars are issued by the Railway Board . All the Circulars against principles of fairness and reasonableness must be held to be invalid under law. Further if a retiring employee, can, on the verge of retirement seek employment for his son or daughter it would provide for a hereditary Government employment and in that case there will be hereditary continuation in governance and as such in any case it is not the intention of the Constitution. Such adventures must be treated as unconstitutional and ultra virus. Any Circular which deals with stipulations for hereditary employment, whether provided in this case or not is thus held to be unconstitutional and invalid.
10. Article 13 of the Constitution of India makes it clear that laws inconsistent with fundamental rights be void and that State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause been held to be void. Therefore by dint of this constitutional provision the Railway Board do not have the power vested within it to create a Rule or Circular whereby back door entry can be encouraged but then compassionate appointment process can be appropriate as a reasonable classification emerges out of it which is significantly absent in this case.
11. Article 14 of the Constitution of India specially stipulate that the State or its functionaries shall not deny any person equality before the law which means that equality shall not also be denied to him. Therefore if such employment is to be granted to applicant's son, surely it will defeat the claims of the competent persons who would fare better in competitive examination than the applicant's son. The learned counsel for the applicant would submit that the applicant forms himself in to a separate class of already existing employees and therefore it will not be applicable to a stranger, the benefit of circulars are to be given to a particular group of employees who are medically de categorized but then employees whether present or future or even past are put in to as one class in classification in adjudicating their merits or demerits in the true sense. Since the applicant is not seeking protection for himself but a benefit for his son who is not yet an employee he can only be equated with a person standing out side and denied opportunity, if this would be continued it will be ultra virus and un constitutional. This is especially so since the alleged classification is artificial and against the stream of constitutionality.
12. No reason is apparent on the face of records to establish that this is not an arbitrary measure and for welfare in general of those who are appearing for the examination for appointment this itself is clear from the fact that the Board acted as a pendulum by force of compulsion and not on the basis of fair application of mind. Hon'ble Supreme Court in AJAY HASIA KALIF AND OTHERS reported in 1981 1 SCC 722 had held that whenever there is an arbitrary State action , Article 14 brings in to action and strike down such State action. The Hon'ble Apex Court in BACHAN SINGH vs. STATE OF PUNJAB .reported in 1982 (3) SCC 24 have held that under our Constitution, law can not be arbitrary or irrational and if it is, it would be clearly be invalid whether under Article 14 or Article 19 or Article 21.
13. Besides by virtue of Article 21 if the applicant's son has to be allowed to enter through the back door it will definitely undermine, diminish and curtail the livelihood and the right to live of the more competent persons and therefore would be a violation of constitutional provisions. Hon'ble Justice Bhagawathi in BANDHUA MUKTI MORCHA reported in 1984 3 SCC 161 has held that on a fair route to directive principles of State Policy and Article 21 held that there must be stipulated in any State action certain minimum requirements of fairness under law or else arbitrary decisions arise which will deprive and will be violative of the constitutional provisions.
14. Article 39 of the Constitution of India clause (a) stipulate that all citizens, men and women equally, must have the right to an adequate means of livelihood. It says that operation of the system must see to it that it does not result in the concentration of wealth to common detriment. Therefore any back door entry to be provided to applicant's son would defeat the finer solution principles because if when equality of right in employment is present such right is to be guarded by competence itself and when competition is suppressed by discriminating methodology that itself is against the constitutional provisions. The system shall not be so operated so that there will be a concentration of wealth as such hereditary employment facility are not therefore in the constitutional interest.
15. Whether be of compulsion or irrational application of mind such Circulars have been issued and apparently, made use of by interested parties by denying rightful protection to competitively meritorious persons and therefore we find that there was no rhyme or reason apparent in the records, pleadings and submissions to indicate that principles of fair governance have been followed. In short all these schemes are bereft of legality.
But then the complexity and complicity of the Railways can not be over looked, wherein even after Uma Devi's judgment back door entry in Government employment can flourish thereby denying opportunity to competitive, meritorious persons and any adjudicative authority will have to have an appropriate approach complaint to constitution. Therefore all such back door entry schemes, except the compassionate appointment scheme are hereby declared to be arbitrary, illegal, formed out of unreasonable confusion, ultra virus and unconstitutional and are all quashed enmasse. All such Schemes shall be immediately stopped.
All necessary steps to be taken by the Railway Board on an all India basis within two months of the receipt of a copy of this order.
Being devoid of merits, OA is dismissed. No costs.
13. The Applicants challenged the aforesaid order before the High Court of Judicature of Rajasthan, Jaipur Bench, Jaipur vide D.B. Civil Writ Petition No.2279/2014. The Respondent-Railways have also challenged the same vide DB Civil Writ Petition No.2452/2014. Vide order dated 03.03.2014 in Writ Petition No.2452/2014 (supra), the High Court stayed the aforesaid order on the ground that no opportunity was given to the Respondents/Writ Petitioners before those observations were made therein. Later on, the High Court disposed of both the Writ Petitions on 16.04.2014 holding that the procedure followed by the tribunal in recording the finding in respect of the preferential scheme introduced by the Railways seeking employment without affording reasonable opportunity to the UOI cannot be approved by this Court and that is also not in conformity with the basic tenets of law where the parties to be afforded with the reasonable opportunity of hearing before any adverse order being passed, indisputably in the instant case the finding which has been recorded by the tribunal certainly adversely affects rights of Union of India to whom opportunity was not afforded to comply with basic requirement of law. The relevant part of the said judgment reads as under:-
These cross petitions by both the parties have been filed being aggrieved by order of the Tribunal impugned in the instant proceedings dt.24.09.2013.
It reveals from the record that the original application no.654/2013 was filed by the petitioner applicant Ganni & another seeking preferential employment under the scheme introduced by the respondent Railways in replacement of employee who took voluntary retirement for his personal reasons and the learned Tribunal after hearing counsel for petitioners-applicant took note of scheme of preferential employment introduced by the Railways and had not confined to the rights of the petitioner applicant as to whether it is valid & justified and he is entitled to claim preferential employment under the scheme introduced but the tribunal has exceeded in its jurisdiction in examining validity of the scheme and finally held that the scheme is invalid & unconstitutional in law.
Counsel submits that it was never prayed and his grievance was to seek preferential employment under the scheme and not beyond it. According to him rejection of OA on the ground which was never prayed for and that too without affording notice to the respondent was not valid in the eye of law and requires interference by this Court.
Apart from the petition filed by the petitioners-applicant, there is another petition filed by Union of India also being aggrieved by the order of the tribunal & rightly so since without affording opportunity of hearing and calling upon respondent Union of India for the object for which the scheme was introduced and the reason behind it to provide such preferential employment the tribunal interfered in the same and held to be unconstitutional certainly Union of India was required to be heard and the finding which has been recorded regarding preferential employment introduced by the Union of India by the Tribunal certainly cannot be upheld by this Court.
We have heard counsel for the parties. As both the parties are aggrieved by the order of the tribunal, in our considered view the procedure followed by the tribunal in recording the finding in respect of the preferential scheme introduced by the Railways seeking employment without affording reasonable opportunity to the UOI cannot be approved by this Court and that is also not in conformity with the basic tenets of law where the parties to be afforded with the reasonable opportunity of hearing before any adverse order being passed, indisputably in the instant case the finding which has been recorded by the tribunal certainly adversely affects rights of Union of India to whom opportunity was not afforded to comply with basic requirement of law.
Before parting with the order we may clarify that what has been observed by us is only for disposal of the writ petitions and the Tribunal may not be influenced/inhibited by the observations made and decide the O.A. afresh in accordance with law.
The order of the tribunal impugned in the petitions dt.24.09.2013 is not legally sustainable and accordingly quashed & set aside. The Original Application stands restored and the parties are directed to appear before the tribunal on 12.05.2014 and it is expected from the tribunal to decide the OA after the reply being filed expeditiously in accordance with law.
Both the petitions stands disposed of. No costs.
14. We do not find any reasons to disagree with the findings of the Jaipur Bench of this Tribunal that LARSGESS is unconstitutional and ultra vires. The Apex Court in a catena of judgments repeatedly held that Recruitment to public services should be made strictly in accordance with the terms deciding the source from which recruitment is to be made after fixing the qualification in the advertisements and the relevant Recruitment Rules. As held in its judgment in the case of Union of India & Anr v. International Trading Co. and Another AIR 2003 SCC 3983 it was held that it is trite law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. The Apex Court at the outset of its judgment in the case of Secretary, State of Karnataka and Others Vs. Uma Devi and Others 2006 (4) SCC 1:2006(4) SCALE 197 has reminded once again that Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme. The Apex Court has also reiterated that the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment.
15. Further, the Government of India has already enacted The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 to safeguard the interests of any employee who acquires disability during his service. The said act is equally applicable for the employees of the Railways. Section 47 of the said Act reads as under:-
47. Non-discrimination in Government Employment - (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
16. Moreover, the Railways themselves have their separate statutory rules to protect the disabled/medically decategorised employees of any particular post. They are given alternative employments. The relevant rules in Chapter XIII of the Indian Railway Establishment Manual Volume-I are reproduced as under:-
CHAPTER XIII Absorption of disabled/medically decategorised staff in Alternative Employment 1301. A Railway servant who fails in a vision test or otherwise by virtue of disability acquired during service becomes physically incapable of performing the duties of the post which he occupies should not be dispensed with or reduced in rank, but should be shifted to some other post with the same pay scale and service benefits.
1302. Classification of Railway Servants declared medically unfit - Railway servants acquiring disability during service and declared medically unfit are divisible into two groups:-
i. Those completely disabled for further service in any post in the Railway, i.e. those who cannot be declared fit even in the 'C' medical category; and ii. Those disabled/incapacitated for further service in the post they are holding but declared fit in a lower medical category and eligible for retention in service in posts corresponding to this lower medical category.
1303. The railway servants both in group(i) and group(ii) of Para 1302 cease to perform the duties of the posts they are holding from the date they are declared medically unfit for the present post. No officer has the authority to permit the Railway Servant concerned to perform the duties in the post beyond that date. If such a Railway Servant cannot be immediately adjusted against or absorbed in any suitable alternative post he may be kept on a special supernumerary post in the grade in which the employee concerned was working on regular basis before being declared medically unfit pending location of suitable alternative employment for him with the same pay scale and service benefits, efforts to locate suitable alternative employment starting immediately. The special supernumerary post so created will stand abolished as soon as the alternative employment is located.
(Authority: Ministry of Railway?s letter No. E(NG)I-2004/RE-3/9 dt. 7.12.2005.) 1304. Disabled Medically decategorised staff to be absorbed in posts they can adequately fill: - In the matter of absorption of disabled/medically decategorised staff in alternative posts, Railway administrations should take care to ensure that the alternative employment offered is only in posts which the staff can adequately fill and as far as possible should broadly be in allied categories where their background and experience in earlier posts could be utilised. While finding alternative posts for absorption of disabled/medically decategorised staff, the Railway Administration should ensure that the interests of other staff in service are not adversely affected and no reversion of any officiating Railway servant is made to absorb the disabled/medically decategorised staff. For this purpose, attempts should be made to absorb the disabled/medically decategorised Railway servant not only within the Unit/Division or Department, but in other Unit/Division or Department.
1305. Absorption in posts identified for employment of physically handicapped persons/creation of supernumerary posts. The Railway servants falling in group (i) mentioned in para 1302 i.e. those who are declared unfit even for the lowest medically category, may be absorbed in a post/category identified as suitable for employment of physically handicapped persons and fresh recruitment to that post/category from open market from amongst physically handicapped withheld. In case the alternative post is not carrying the requisite pay scale, a supernumerary post may be created in appropriate scale of pay and the employee adjusted against the same keeping the lower grade post vacant by withholding fresh recruitment thereto. The supernumerary post so created to accommodate a disabled/medically incapacitated employee shall stand abolished as soon as a suitable post in the appropriate scale is found for the Railway servant concerned or the post is vacated by him for other reasons, whichever is earlier.
(Authority: Ministry of Railway?s letter No. E(NG)I-2004/RE-3/9 dt. 7.12.2005.) 1306. Steps to be taken for finding alternative employment :-
1. With a view to determine the categories in which the disabled/medically decategorised Railway servant is suitable for absorption, a committee should examine him. The committee may consist of two or three officers posted at the headquarters of the officer under whom the disabled/medically decategorised Railway servant was working, the Railway servant's immediate officer being one of the members of the committee. After the committee has examined the Railway servant and determined his suitability for certain categories of posts, the officer under whom the Railway servant was working will proceed to take further action to find suitable alternative employment for him.
2. The officer concerned will prepare a list of vacancies within his jurisdiction in the categories for which the disabled/medically incapacitated Railway servant has been found suitable and a post with same scale of pay as was attached to the post he was holding on regular basis before being declared medically unfit, will be offered to him.
3. It will be the responsibility primarily of the officer under whom the concerned Railway servant was directly working to find suitable alternative employment for him. This will be done first by trying to find alternative employment in the officer's own unit/division, office, workshop etc. and a register with the details as mentioned in sub-para (6) below will be maintained for this purpose.
4. If there is no immediate prospect of employment in his own unit/division, office, etc., the name of the Railway servant with particulars as given in sub-para (6) below will be circulated to all other offices or establishments where suitable employment is likely to be found.
5. Nothing in the previous paragraphs, however, debars a Railway servant from applying for a particular post for which he is likely to be deemed suitable and it is known to be vacant under any officer. Such an application must be addressed through the immediate officer of the Railway servant concerned and must contain full particulars of his service and must be forwarded to the officer to whom addressed or to the authority competent to make the appointment. The result of the application must be intimated to the Railway servant.
6. A register containing the names of all Railway servants declared medically unfit and to be absorbed in alternative post will be maintained by Headquarters, Divisional and other extra-Divisional offices. These registers will contain not only the names of the staff of the particular division, etc., but also the names notified to the unit Officer concerned by other unit/offices. This will not, however, absolve officers under whom the Railway servant was last working from continuing their efforts to find suitable employment for the disabled/ medically decategorised employee. The particulars required to be maintained in registers and notified to other officers in accordance with the instructions above are as follows: ?
i. Serial number.
ii. Date on which incapacitated.
iii. Name and Father's name.
iv. Post last held on regular basis with scale of Pay and rate of pay.
v. Educational qualifications ? If no educational qualifications, then general remarks regarding knowledge of English, regional language etc.
vi. Medical category in which placed.
vii. Details of special supernumerary post till absorption in alternative appointment (Para 1303).
viii. Date from which absorbed in alternative appointment.
ix. Nature and category of alternative appointment.
x. Scale of Pay of the alternative post and the pay fixed at.
xi. Details of supernumerary posts, if any after absorption in Alternative appointment (Para 1305).
xii. Remarks.
7. If and when a Railway servant is absorbed in an alternative post, intimation will be sent by the officer under whom he was previously working to all other officers to whom his name was notified. On receipt of such intimation, his name will be deleted from the registers.
8. Before any post is filled or a promotion is ordered, officers concerned will refer to their registers and satisfy themselves that no disabled medically incapacitated Railway servant who is suitable for the post is available. If any such disabled/ medically incapacitated employee is available, he will be given preference over all other categories of staff for appointment.
1307. Reckoning of element of Running Allowance for the purpose of fixation of pay of disabled/medically unfit running staff: While determining pay for the purpose of fixation of pay of medically unfit running staff in an alternative (stationary) post, an amount equal to such percentage of basic pay representing the pay element of running allowance as may be in force from time to time, may be added to the existing pay in Pay Band and the resultant figure (ignoring the fraction of rupee, if any) rounded off to the next multiple of 10 would be the pay in the Pay Band in the alternative post with no change in the Grade Pay of substantive post, in suitable alternative post.
(Authority: Railway Board's letter No.E(NG)l-2008/RE-3/4 dated 30.04.2013)?.ACS No.224 1308. Fixation of Pay (other than Running Staff) : The pay in Pay Band of the disabled/medically unfit Railway servants (other than Running Staff) will be fixed in the alternative post as previously drawn in the post held by them on regular basis before acquiring disability.
(Authority: Railway Board's letter No.E(NG)l-2008/RE-3/4 dated 30.04.2013)?.ACS No.224 1309. Benefit of past service to be allowed : A disabled/medically decategorised Railway servant absorbed in alternative post, will for all purposes, have his past service treated as continuous with that in the alternative post.
1310. Fixation of seniority of disabled/medically decategorised staff absorbed in alternative employment : The disabled/medically decategorised staff absorbed in alternative posts should be allowed seniority in the grade of absorption with reference to the length of service rendered on non-fortuitous basis in the equivalent or corresponding grade before being declared medically unfit. This is subject to the proviso that if a disabled/medically decategorised employee happens to be absorbed in the cadre from which he was originally promoted, he will not be placed above his erstwhile seniors in the grade of absorption.
1311. Other types of cases:-
(1)The staff who get their cases recommended for a change of category on medical grounds will not get the benefit of these rules, but will be treated as staff transferred on their own request.
(2) The staff declared as malingerer in terms of Note (ii) below para 512(2) of Indian Railway Medical Manual will also not be covered by these rules. They will continue to be governed by the provisions in the IRMM ibid.
(Railway Boards letter no. E(NG)1/96/RE3/9(2) Dated 29-04-99, E(NG)I-2000/RE-3/5 Dated 31-07-01, E(NG)I-2000/RE-3/5 Dated 01-07-03 and E(NG)I-2004/RE-3/9 dt. 7.12.2005.)
17. We, in the above facts and circumstances, are of the considered view that LARSGESS Scheme is ultra vires of Article 14 and 16 of the Constitution and any claim of the Applicants under the said Scheme is not sustainable in law. Accordingly, these OAs are dismissed. No costs.
Let a copy of this order be placed in all the files.
4. As far as second prayer of the applicant is concerned, this issue has already been settled by this Tribunal by observing that 50% of casual service and 100% of temporary service followed by regularization shall be counted for the purpose of pensionary benefits.
5. Recently, this Tribunal has disposed of similar case (OA No.1684/2015 Shri Vijender Kumar and another vs. Union of India and others, decided on 6.5.2015). The relevant part of the said order reads as under:-
2. According to the applicants counsel, their case is squarely covered by the decision of the Honble Andhra Pradesh High Court in the case of General Manager, South Central Railway, Rail Nilayam, Secunderabad, A.P. and another vs. Shaik Abdul Khader, 2004 (2) ATJ 23. The relevant part of the said judgment reads as under:-
4. The arguments and counter arguments can be appreciated only after going through the relevant rules. Rule 31 of the Railway Services (Pension) Rules, 1993 lays down:
31. Counting of service paid from Contingencies:- In respect of a railway servant, in service on or after the 22nd day of August, 1968, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to the following condition, namely:-
(a) the service paid from contingencies has been in a job involving whole-time employment;
(b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned such as posts of malis, chowkidars and khalasis;
(c) the service should have been such for which payment has been made either on monthly rate basis or on daily rates computed and paid scales of pay, Bears some relation in the matter of payment to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;
(d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break;
Provided that the weightage for past service paid from contingencies shall be limited to the period after 1st January 1961 subject to the condition that authentic records of service such as pay bill, leave record or service-book is available. Subject to condition laid down in this rule, in respect of a railway servant half of the service paid from contingencies shall have to be taken into account for calculating pensionary benefits on absorption in regular employment. Now the question is, when a person gets a temporary status whether it could be said that he had been absorbed in terms of Rule 31 because after absorption the service shall have to be counted keeping in view Rule 31.
5. Now different provisions of Master Circular 54 of 1994 shall have to be gone into to which a reference has been made by the Tribunal. Para-20 of the Master Circular No. 54 lays down;
"20. Counting of the period of service of casual labour for pensionary benefits:- Half of the period of service of a casual labour (either than casual labour employed on Projects) after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 1-1-1981, the benefit has also been extended to Project Casual Labour."
Reference has been made to another extract of para-2005 of Indian Railway Establishment Manual, Volume-II. Sub-para-1 of para 2005(a) lays down;
"Casual labour including Project Casual labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits. This benefit will be admissible only after their absorption in regular employment. Such casual labour, who have attained temporary status, will also be entitled to carry forward the leave at their credit to new post on absorption in regular service. Daily rated casual labour will not be entitled to these benefits."
If this sub-para is read with para-20 and also with rule-31, there remains no doubt that on absorption whole of the period for which a casual labour worked after getting temporary status would have to be counted and half of the period has to be counted of the period for which a casual labour worked without being absorbed. Once he is given temporary status that means that he has been absorbed in the department. Even para 2005 (a) has been drafted in the same way because of the fact that even such casual labour who have attained temporary status are allowed to carry forward the leave at their credit in full to the new post on absorption in regular service. Therefore, we have no doubt in our mind that once temporary status is granted to a person who is absorbed later on in regular service caries forward not only the leave to his credit but also carries forward the service in full. Half of the service rendered by him as casual labour before getting the temporary status has to be counted. Therefore, we do not feel that the Tribunal was wrong in coming to the conclusion it has, although we may not agree with the reasons given by the Tribunal. The view taken by us is further strengthened by mandate of rule-20 of Railway Services (Pension) Rules which lays down:
"20. Commencement of Qualifying service - Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity.
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post.
Provided further that-
(a) .... ...
(b) .... ..."
Therefore, we hold that the respondent was entitled to get the service counted in full from 1-1-83. He was also entitled to get half of the service counted before 1-1-83 from the date he had joined in the railways as casual labour.
3. The applicants has also relied upon the Order of this Tribunal in OA No.1502/2005 - Chander Pal and another vs. Union of India and another decided on 16.2.2006 in which this Tribunal has relied upon the aforesaid judgment of the Honble Andhra Pradesh High Court in Shaik Abdul Khaders case. The relevant part of the said Order of this Tribunal in the aforesaid OA is as under:-
8. If one has regard to the above, deeming that on temporary status, one is absorbed in the department, the services rendered as such have to be reckoned in full for qualifying service and earlier period of casual service without having temporary status has to be reckoned in half towards qualifying service for the purpose of pensionary benefits.
9. In the light of the above, the same treatment has to be meted out to the applicants, once the Railway Servants (Pension Rules, 1993 have been interpreted by the Honble Andhra Pradesh High Court (supra), which is the binding precedent on me.
10. In the result, OA is allowed. Respondents are directed to treat services rendered by applicant no.1 and deceased husband of applicant no.2 represented through LR with temporary status in full for qualifying service and half of the service period rendered as casual labour before acquirement of temporary status as qualifying service and accordingly, retiral benefits on the basis of calculation of qualifying service has to be worked out and the arrears would be disbursed to the applicants within a period of three months from the date of receipt of a copy of this order. No costs.
4. Learned counsel for the applicants has also stated that the aforesaid Order of this Tribunal has been upheld by the Honble High Court of Delhi in Writ Petition (Civil) No.6348/2008 decided on 15.1.2009. The said judgment being a short one is reproduced as under:-
The question involved is as to whether service rendered by an employee after the grant of temporary status and before he was regularized should be counted for the purpose of fixing the pension. The learned Tribunal has answered this question in affirmative relying upon the judgment of Central Administrative Tribunal, Hyderabad, passed in the case of Sheikh Abdul Qadir vs. Union of India. Against the judgment, Railway had filed writ petition in the High Court of Andhra Pradesh which writ petition was also dismissed affirming the judgment of the Central Administrative Tribunal. SLP filed by the Railways was also dismissed as withdrawn. Taking note of these facts, this Court has upheld similar view in the Writ Petition No.631-33/2006 and review petition filed therein has also been dismissed by the Division Bench of this Court vide orders dated 23.11.2007.
No doubt SLP was dismissed as withdrawn as respondent in the said SLP had died in the meantime. Be as it may, after going through the judgment of the Andhra Pradesh High Court, we agree with the view taken by the Andhra Pradesh High Court in the aforesaid case. We may point out at this stage that relying upon the judgment of the Andhra Pradesh High Court, earlier also a Division Bench of this Court had dismissed Writ Petition (Civil) No.2528/2007 of the Union of India under identical circumstances vide orders dated 12th December, 2007.
Learned counsel for the respondent informs that against that judgment, the petitioner, i.e., Union of India had filed Special Leave to Appeal (Civil) CC 7157/2008, which was, however, dismissed by the Supreme Court vide orders dated 13th May, 2008. Copy of the said orders is produced before us for our perusal.
In view thereof, we do not find any merit in this writ petition, which is accordingly dismissed.
5. This Tribunal again in its Order dated 26.05.2014 in OA No.2639/2013 Ram Saran v. Union of India and Others held as under:-
7. In view of what has been stated above, we are of the view that the applicant herein has made out a case for grant of relief. Accordingly, for parity of reasons given in the judgment of the Andhra Pradesh High Court in the matter of Shaik Abdul Khader (supra), this OA is allowed in the same terms. However, before parting with the matter, it may be observed that the learned counsel for applicant has drawn our attention to Railway Boards circular dated 25.2.2010 based upon another circular dated 4.12.2009, which stipulates that for the purpose of extension of the benefit of MACP Scheme, 50% of temporary status casual labour service on absorption in regular employment may be taken into account. Suffice it to observe that here we are not concerned with the extension of benefits of MACP Scheme but the case of the applicant is regarding taking into consideration the full period of temporary status for counting of qualifying service instead of 50% of the period for the purpose of pensionary benefits and not for the purpose of MACP Scheme.
8. For the foregoing reasons, the OA shall stand disposed of. No costs.
4. In view of the above position, this OA is allowed and the impugned order dated 02.01.2013 is quashed and set aside. Consequently, we direct the respondents to count the entire 100% temporary status casual service and 50% of casual service of the applicant as qualifying service for the purpose of granting the benefits under MACP, pensionary benefits etc. The respondents shall also pass appropriate orders implementing the aforesaid directions within a period of two months from the date of receipt of a copy of this order. There shall be no orders to costs.
9. Pursuant to the notice issued by this Tribunal, the Respondents have filed their reply wherein it has been stated that the applicant was granted the benefit of only 50% of the temporary service rendered by him for the purpose of calculation of pension and pensionary benefits.
10. We have heard the learned counsel for the parties. We have also considered the various orders of the Tribunal and judgments of the High Courts and Apex Court relied upon by the learned counsel for the Applicant. In our considered view, the issue raised by the Applicant in this OA is covered by the settled position in the aforesaid orders/judgments. Accordingly, this OA is allowed. Consequently, we direct the respondents to count the half of the service rendered by the Applicant from 08.11.1979 to 31.12.1982 and entire service rendered by the applicant from 01.01.1983 till retirement for determining his qualifying service for the purpose of grant of 2nd ACP and the MACP benefits from the due dates and for determination of the qualifying service for computation of his pension and other retiral benefits. He shall also be paid up-to-date arrears arising out of such counting of the casual service and temporary status service periods. The Applicant shall also be paid interest at GPF rate for the arrears of pension and other retirement benefits. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a certified copy of this Order.
11. There shall be no order as to costs.
6. In view of the aforesaid submissions made by the learned counsel for the applicants, we dispose of this OA at the admission stage itself and direct the respondents to examine the cases of the applicants in the light of the judgment of the Honble Andhra Pradesh High Court in the case of Sheikh Abdul Qadir (supra) and the order of this Tribunal in the case of Chander Pal and another (supra) as upheld by the Honble High Court of Delhi vide Order dated 15.1.2008 in WP (Civil) No.6348/2008(supra). They shall also consider the order of this Tribunal in Ram Sarans case (supra). If their cases are found to be covered by them, they shall count 50% of the casual service and 100% of temporary status service rendered by them alongwith their regular service. Thereafter, their claim for ACP/MACP benefits shall also be considered and given to them, if they are found eligible. Consequently, their pension shall also be re-calculated and arrears are paid with 9% interest. In any case, they shall pass a reasoned and speaking order under intimation to the applicants.
7. The aforesaid directions shall be complied with within three months from the date of receipt of a certified copy of this Order. No costs.
6. In view of the above position, insofar as the prayer for grant of benefit of LARGESS Scheme is concerned, the same is rejected. However, so far as second prayer is concerned, we direct to the respondents to examine the case of the applicant in the light of the judgment of the Honble Andhra Pradesh High Court in the case of Sheikh Abdul Qadir (supra) and the order of this Tribunal in the case of Chander Pal and another (supra) as upheld by the Honble High Court of Delhi vide Order dated 15.1.2008 in WP (Civil) No.6348/2008(supra). They shall also consider the order of this Tribunal in Ram Sarans case (supra). If his case is found to be covered by them, they shall count 50% of the casual service and 100% of temporary status service rendered by him alongwith his regular service. Thereafter, his claim for ACP/MACP benefits shall also be considered and given to him, if he is found eligible. Consequently, his pension shall also be re-calculated and arrears shall be paid with 9% interest. In any case, they shall pass a reasoned and speaking order under intimation to the applicant.
7. The aforesaid directions shall be complied with within three months from the date of receipt of a certified copy of this Order.
8. In above terms, this OA stands disposed of. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
/ravi/