Central Administrative Tribunal - Jaipur
Ram Karan R S vs M/O Railways on 22 November, 2024
1
OA No. 215/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No.215/2016
Order reserved on :08.11.2024
Date of order: 22.11.2024
CORAM:
HON'BLE SHRI LOK RANJAN, MEMBER (A)
Ram Karan R.S. S/o Shri Ram Sahaya aged about 58
years R/o Infront of Rajesh Pilot Mahavidhalaya,
Bandikui Dausa, Presently working on the post of Loco
Pilot (Passenger), Bandikui.
...Applicant
(By Adv: Shri Rakesh Kumar Sharma)
Versus
1. Union of India through the General Manager,
North Western Railway, Head Quarter Officer
Near Jawahar Circle, Jagatpura.
2. Divisional Railway Manager, North Western
Railway Power House Road Jaipur
3. Senior Divisional Personal Officer, Office of
D.R.M Office, North-Western Railway Power
House Road Jaipur
4. Senior Divisional Mechanical Engineer (Power),
Officer of D.R.M Office, North-Western Railway,
Power House Road Jaipur.
...Respondents.
(By Adv: Shri Rajendra Vaish)
2
OA No. 215/2016
ORDER
The present Original Application has been filed by the Applicant upon being aggrieved by the impugned Order dated 10.03.2016 vide which he had been inter alia denied voluntary retirement from the post of Loco Pilot (Passenger), on the ground that he had not applied for the voluntary retirement within a period of two months from the date of his medical de- categorization ; and consequently being denied the retiral benefits from the post of Loco Pilot.
2. On the basis of the pleadings of the parties and the Rules / circulars submitted, the matrix of relevant facts in the present case had emerged as follows briefly. The Applicant was working on the running post of Loco Pilot (Passenger), when based upon the periodical medical check-up dated 24.08.2015 by the Medical Department of North-Western Railway (NWR), he was found to be 'Unfit' for his original post in A-1 Medical Category on account of Vision as per Para-512 of Indian Railway Medical Manual (IRMM)-2000 ; hence he was recommended for Alternative Employment on Medical Ground (AEMG) in medical category A-2 and below, with glasses for distant and near vision for both eyes. The Applicant had submitted an application dated 31.10.2015 to the Respondent No.4 - Senior Divisional Mechanical Engineer (Sr.DME) (Power/Estt), praying for voluntary retirement for himself as he was not interested in appointment on any alternative post ; and further that his son, 3 OA No. 215/2016 Avinash Kumar, be considered for appointment under the LARSGESS Scheme of the Department.
3. However, the Applicant was asked to appear before the Screening Committee for AEMG for employees decategorized due to Vision, which was held on 05.11.2015. The Applicant had submitted that apart from his request for VRS dated 31.10.2015 to Respondent No.4, he had also prayed before the Screening Committee to be allowed VRS. However, vide Office Order dated 30.11.2015 of the Respondent No.2 - i.e. the Divisional Railway Manager (DRM) (Establishment), Jaipur, NWR - the recommendation of the Screening Committee dated 05.11.2015, inter alia for Applicant as suitable for the alternative post of CCR/PCR, was noted together with the direction that the employees should be relieved with immediate effect to be posted in the alternative post. Subsequently, vide the Order dated 15.12.2015 of the Respondent No.4, the Applicant was posted as CCR Bandikui. However, he had again submitted an application on 31.12.2015 for voluntary retirement from the post from which he had been medically decategorized, i.e. of Loco Pilot (Passenger). Vide the Office Order dated 15.02.2016 of the Respondent No.2 it had been communicated with reference to the prayer dated 31.12.2015 inter alia that the Applicant's requests for his own VRS and appointment of his son under LARSGESS were not admissible as per Rules ; and that if the Applicant did not join the post of CCR Bandikui, the payment of his salary be 4 OA No. 215/2016 stopped. The Applicant had further submitted vide his letter dated 24.02.2016 to the Respondent No.4 that he was unable to work on the alternative post of CCR as he had no knowledge of Computer C.M.S. and also only a limited knowledge of English ; and had thus sought to be allowed voluntary retirement as per the option admissible for medically decategorized employees ; and followed that up with reminders dated 26.02.2016 and 02.03.2016. However, vide the impugned Letter dated 10.03.2016 of Respondent No.4, the Applicant had been denied voluntary retirement on the ground that he had applied for it after more than two months from his medical decategorization.
4. It was the Applicant's case that one Shri Ratan Lal had been given voluntary retirement more than six years from being medically decategorized ; and hence denial of the same to him on the grounds of it having been applied for just over two months from the date of his medical decategorization was discriminatory and unjustified. Further, the impugned Orders dated 10.03.2016, 15.02.2016 and 15.12.2015 of the Respondents were contrary to the provisions of the Indian Railway Manual and also the relevant regulations/instructions issued by the Railway Board. Aggrieved by the said action on part of the Respondents, the Applicant had filed the present O.A. No.215/2016 on 30.03.2016 inter alia seeking the relief for quashing and setting aside of the impugned Orders dated 10.03.2016, 15.02.2016 and 15.12.2015 of the Respondents ; 5 OA No. 215/2016 and for the Respondents to be directed to accept the voluntary retirement of the Applicant from the running post of Loco Pilot (Passenger) with effect from 24.02.2016 with all consequential benefits including pensionary benefits.
5. Moreover, vide the M.A. No.448/2023 dated 17.08.2023 the Applicant had also updated that during the pendency of the present O.A., he had retired on attaining the age of superannuation w.e.f. 31.07.2018 ; and further that the Railway Board had meanwhile issued the RBE No.137/2016 dated 29.11.2016 for the Pensionary benefits of medically decategorized running staff who opt for voluntary retirement, clarifying further the Board's Letter dated 05.10.2011 that had been relied upon by the Respondents. The Applicant had also submitted thereby the Rule-17 of the Railway Service (Pension) Rules-1993 (RSP Rules-1993), specially pointing out the provision for option of pensionary benefit to staff declared medically unfit but retained in service in alternative appointment - as was the case of the Applicant eventually - in the manner provided therein.
6. In reply the Respondents have stated that after the Applicant was medically de-categorized from the post of Loco Pilot (Passenger) - since the Applicant was seeking appointment of his son under the LARSGESS Scheme together with his own voluntary retirement ; and since his son was already declared unfit for the post of ALP/Mech(Loco) by the 6 OA No. 215/2016 Medical Committee vide order dated 05.12.2014 - his application for voluntary retirement could not be processed. He was thus screened through the Screening Committee for alternative appointment in a non-running post ; and was eventually offered the post of CCR, Bandikui. Further, the Respondents submitted that as per guidelines dated 17.03.2009, a medically decategorized employee may seek voluntary retirement within two months from the date of order of medical decategorization, but the Applicant had submitted his option form for voluntary retirement on medical grounds on 02.03.2016 after two months having elapsed from his medical decategorization on 24.08.2015. The Respondents also contended that the case of Ratan Lal was different from the Applicant as the said Ratan Lal was posted against the vacant post of SSE/Loco on temporary basis, whereas the Applicant was posted against a regular vacant post of CCR, Bandikui vide letter dated 15.12.2015.
7. We have gone through the pleadings as available on records. The arguments of the parties were also heard, wherein it had been mentioned by the learned counsels for both the parties, that during the pendency of the present O.A., the Applicant had retired from the post of CCR, Bandikui upon retirement on superannuation w.e.f. 31.07.2018, hence prayer for acceptance of his voluntary retirement was not possible to be considered or acceded to now. Therefore, the issue to be decided had now remained limited to the fixation of his pension 7 OA No. 215/2016 post-retirement.
8. In this specific regard, it was noted that there were no substantive differences on the basic facts between the parties - viz. that the Applicant was working as Loco Pilot (Passenger) when on 24.08.2015 he was found to be unfit for Medical Category A-1 ; that he had been screened for alternative employment by the Screening Committee on 05.11.2015 and on their recommendation the Applicant was deemed as suitable for the post of CCR/PCR vide the Office Order dated 30.11.2015 of Respondent No.2 ; and that the Applicant had eventually worked as CCR Bandikui till his retirement on superannuation w.e.f. 31.07.2018.
9. Moreover, it emerged from the pleadings and the arguments of the parties that the main dispute that remained was regarding the pension admissible to the Applicant. Whereas vide the prayer in the present O.A., the Applicant had at first prayed for acceptance of his voluntary retirement based on his application dated 24.02.2016, at the stage of arguments in the case, the learned counsel for the Applicant had claimed that his case was squarely covered by the Order of this Tribunal Bench dated 30.04.2024 in the O.A. No.571/2015 in the case of Kalyan Sahay Sharma Vs. Union of India and Ors. ; and had prayed for the present O.A. to be also decided in light of the ratio of the same and in same terms. The learned counsel for the Respondents had opposed the same on the ground that there 8 OA No. 215/2016 was a difference in the two cases - the present Applicant had been recommended by the Screening Committee for the alternative non-running post of CCR and had continued to work in that alternative post from his medical decategorization till his retirement on superannuation ; whereas the Applicant in the O.A. No.571/2015 had been recommended eventually for voluntary retirement by the concerned Screening Committee itself as he could not be provided a suitable non-running post. Hence, he had argued that the ratio of the case of Kalyan Sahay Sharma cannot be extended to the present Applicant and pension for him had to be fixed as per the non-running post of CCR from which he eventually retired.
10. The RBE No.137/2016 dated 29.11.2016 on the subject of Pensionary benefits of medically decategorized running staff who opt for voluntary retirement, as was filed vide the M.A. No.448/2023 by the Applicant had been perused. It was seen to provide as follows :
" Vide DC/JCM item no.25/2004, PNM/NFIR Item No. 8/2015 and PNM/AIRF Item No.46/2012, recognized staff Federations have demanded that 55% of Pay Element be reckoned for computing retirement benefit for those running staff who have been medically decategorized and decided to take Voluntary Retirement instead of opting for redeployment in an alternative stationary post.
2. The issue has been examined in Board's office, and it is observed that the issue is governed under the provisions contained in Board's letter referred to above. To address the specific aspect brought out by Federations, it has been decided that whenever a medically decategorized running staff governed by RS(PR) 1993, who 9 OA No. 215/2016 has rendered the prescribed qualifying service opts for Voluntary Retirement either on his own or within a period of one month from the date of offer of the first alternative post, his pension may be computed with addition of 55% Pay Element. This 55% benefit will be reckoned after deducting the 30% Pay Element fixation benefit if granted already as per Board's letter dated 05-10-2011 referred to above.
3. In case such staff does not give option of Voluntary Retirement within the outer limit period of one month specified herein above, it will be deemed that the staff has accepted the alternative appointment offered and in this case, retirement benefits will be governed by extant instructions on the issue whenever he superannuates or opts for Voluntary Retirement thereafter.
4. The period of one month to opt for Voluntary Retirement for those medically decategorised running staff, who have already been offered the alternative posts, will start from the date of issue of this letter."
It was not found to have been either applied or examined for its non-applicability to the pensionary benefits in the case of the Applicant in the present O.A No.215/2016.
11. Further, in course of the arguments, the learned Counsel for the Applicant had specifically adverted to the Rule-17 of the Railway Services Pension Rules, 1993, which provided as under:
"17. Pensionary benefits to staff declared unfit. - If a railway servant is unfit for his post but is retained in service in an alternative appointment under the provision of the code and subsequently becomes entitled to receive retirement gratuity or pension, he shall be given the option of accepting either of following, whichever he may, prefer-
(i) the gratuity or pension which he would normally be granted 10 OA No. 215/2016 with reference to his total service in both the spells of his service taken together ;
(ii) the sum of -
(a) gratuity or pension which he would have been granted if he had been medically invalidated out of service instead of being retained in an alternative appointment at the end of the first spell ofhis service ; and
(b) the retirement gratuity or pension which he would normally have been granted for the second spell of this servicerendered in the alternative appointment :-
Provided that if the total qualifying service of the railway servant in both the spells of service taken together exceeds 33 years, the qualifying service in the second spell shall be reduced by the number of years by which total qualifying service in both the spells taken together exceeds 33 years and ordinary gratuity or pension and death-cum-retirement gratuity for the second spells of service shall be calculated with reference to the reduced qualifying service so calculated."
12. From these, it became clear that the extant Rule provisions prescribed for handling cases as that of the Applicant presently. The same had not been contested by the learned Counsel for the Respondents ; nor any alternative Rule position cited or presented that may have formed the basis of the fixation of pension of the Applicant. Order. It emerged from the Respondents' own Rules / circulars that even if the Applicant, upon being deemed as medically unfit, was to be treated as retained in service in an alternative appointment and subsequently became entitled to receive retirement gratuity and pension, he had to be given the option of accepting one of the two prescribed ways - under Rule 17(i) or Rule 17(ii) of the RSP Rules-1993 - for determining the payable gratuity or pension at 11 OA No. 215/2016 his preference. That such an option had never been afforded to him had not been controverted by the Respondents.
13. Moreover, very importantly, it also does not stand to reason that a long spell of running service of the Applicant will get totally superseded by a relatively short spell of non- running service as CCR, Bandikui. Importantly further, the law in regard to the retiral benefits - pension and others - has been laid down by the Hon'ble Apex Court very clearly in a catena of judgments, that the grant of pensionary benefits to an employee is not an act of bounty but a bounden duty upon the employer.
14. In the conspectus of the foregoing examination and analysis of the relevant pleadings covering the related facts and Rules position as well as the arguments, this Tribunal has found that the settlement of the retiral benefits including the pension and the gratuity of the Applicant, suitably considering the running service of the Applicant in the Respondent organization in accordance with the applicable RSP Rules-1993 and the RBE No.137/2016 dated 29.11.2016 of the Respondents themselves.
15. The present retiral / pension payment order for the Applicant is not presented before this Tribunal by either of the parties. Nonetheless, the fixation of the pension/retiral benefits as done presently had been contested between the Applicant 12 OA No. 215/2016 and the Respondent as incorrect or otherwise respectively - possibly as the same may have come to be issued well after the completion of the pleadings in the present O.A. Therefore, it is deemed that in the interest of justice, the position of the Respondents' own Rules in this regard and the ratio thereof to the extent it has a bearing on the present case be determined as hereinabove.
16. Further, the Applicant shall have the liberty to apply to the Respondents for determination of his retiral / pensionary benefits in light of the above within a period of two weeks from the date of receipt of this Order, if so advised. In case the same is done by the Applicant within the time mentioned, the Respondents shall proceed to decide upon the same as per their own Rules / circulars as cited herein above, within a period of forty-five days thereafter.
17. Also further, we direct the Respondents to ensure payment of any amount that may become payable to the Applicant thereupon, within forty-five days further from the date of such finalization of retiral benefits by the Respondents.
18. Therefore, the O.A. is disposed of accordingly, with directions as foregoing. No order as to costs.
(Lok Ranjan) Member (A) /ysm/