Central Administrative Tribunal - Madras
S Sridhar vs M/O Railways on 7 July, 2020
CENTRAL ADMINISTRATIVE TRIBUNAL MADRAS BENCH OAT OOLOSS 2018 Dated J, thelU"HAVof Judy, 2020 "PRESENT Hon'ble Mr Edaenh , Member{A) es ¥ i, 8. Sridhar (Ex. Clerk.Conv ROMAS} ee : Sa. Shanmugam, No. 6), 3° Crass Street, e Vasugi Nagar, Rocungayiur, Chennal - 118.
a. Viney, S'o Sridhar, No. 61, 3° Cross Street, Vasugi Nagar, Radungayur, HP ge Chennai ~ 118. aw depplicants (By Advorste M'S DLS Ramesh} i. Ministry of Raliways, Rep by its Secretary, Railway Board, Rail Bhavan, New Delhi.
2. The General Manager, Integral C Coach Factory (ICP), Chennai ~ 600 G38.
3. The Chief Personnel Ofcer, integral Coach Factory (CF), Chenmal -- 600 O38.
=. The General Manager, Southern Railway, Head Quarter ORee, Chennal-3.CAs per order dated TSS 2018 amended In M.PNo.366 of 2018) .. Respondents (By Advocate Me. R-Sathyabama} OA 208 QRDER (Pronounced by Hon'ble Mr. T. Jacob, Member iAy The apphicant has Bled this QA onder Sectien 19 of the Administrative relints:
"Te set aside the order af the 3° "respondent dated [9.072078 in No. PRIRR39/Rep and quash the same and to direct the reapondents 1, 2, nd dispose the 1° applicant's sang Yor compassionate appoimiinent and apmaint the 2° applicant on compassionate g rear:
and paas such other onder ar orders as this Non'hle THbunal m ray deem ht and proper in the clrcunistances of the cage,
2. The brief {hots of the cage as submitied by the apnllicanis are as follows:
The PY applicant was selected in Sports Quote and he v Sappainted i the year n Southem Railway at Moor Market Complex, He was © as a (ierk at Operating Branch, GM Bhalding, al and then was sent fo Rallway Hospital for further treatment. In the year 2008, his jolned service, bat was Iaking trestment continuously for § years is Railway Hogpital. The reenondents informed him thet he was medically untit to continue tus job and he woe advised to seek Vilunlary retirement and if he opts fir the same, his som could be employed an compassionate grounds. Accordingly, the applicant felt farced to avek veluntary retinement and he was relleved from service from 01.09. 2011. Tha 28 agnlicant hac xs & completed Higher Secondary Edueation in the year D012 and has compiated his © got severs Nesd-ache, Neck pain, tence posturing af 3 & representation on AQOS.2015 for "Degree course alsa. The f° applicant sent appointment of 2" applicant on compaasionate ground explaining the penary and the stressful condition of the applicants' family, The first applicant sent another represenistion on JO.E2.2015. Respondent No.3 rejected the representation slang thal the rules did not permit his praver alt hough in other cases, ihe sems and daughters we of medically unfit employees were appointed in the same respondent office on compassionate grounds. The applicants submit that the Ratlwey Board circular permits such appointments and, henees, the getion of the respondents no. 3 in mejecting the case of the applicants is in violation of the rules and circulars af the Raihy ay a Board. Agerieved by the above, the applicants have led this GAA seeking the shove relie!, inter-alla, on the following srounds:-
i The respondents have acted in gross violation of principles of natural justice ge they have net disposed the representation made ts them.
i. "The respondents have erred in not considering thet the Raiheay Board has issued necessary circulars to make APPOINGMER! an compassionate grounds and also for the medioully unfit eases, it, "The respondents have etred in not considering the Get that the first applicant, an emplovee of Southern Rail way has pone by VRS, since he is medically unfit and, hence, he SOURAL for appointment on _ compassionate grounds.
i The respondents have ered ie not considering that the 2° upplicant is eligible to be appointed in compassinnate creands. ¥. When the father of the applicant was declared medically unfit and has retired from service with effect fram 1-9-2011, the respondent Safis CLA LOSS AR should have piven appointment an compassionate ground, vl The respondents have erred in not consi dering the {Set that the (" applicant was the only bread winner of the family and after his sohirement fas he beeane unfit in all classes}, the family of the appheunt has put to ineparable loss and hardship financially. vi. When the respomdsnts have not considered the representations for compussionaie appointment, ihe respondents orred in not considering the fact that the 2° applicant is eligible to be appointed on sompassionate grounds as per the Roard Circulars, waa. The Petitioner submits thar the act of the respondent clearly shows the malafide intestion and colourable exercise of Bower of the ix. The Petitioner submits that, the act covered by ane law sor by any Act.
gk yeh oes MB £ fe = "oS Sie ants' have relied on the decision of the Hon'ble Sepreme Court in the sage of Bhawan Prasad Sankar V's. Union of India and Others 2011) SCC 209 in supreat of their submissions,
4. 'The respondents have Aled detailed reply statement. It is submitted that, the 1° applicant, an ex-employse of Southern Railway, had voluntarily retired from service on his own volition and was sot Yas retired' frorn aervice as claimed by the applicants in the Original Application. The 1° applicant aanmer he equated with employees who bad been declared medically incapacitated afer being subjected to > BN a5 oo ation hy the medics] board constituted for the specific purpose. No ee any Raikvay employee to go on voluntary retirement Poe wt eh Earns SS ~ "and also gives an assurance for appoiniment on compassionate grounds. Hence the plea is merely an aconsation without any valid proof. The respondents have taken the Goew stand that employees, who are declarad medically unfir for all categories by the Medical Board constituted for examining the medical fitiess of Railway employees, x are retired from service and requests fir compassionate appointment of their wands x are considered by the Railway, sulvect fo their falling certain conditions laid dawn by the Railway Board. The 1° applicant has taken voluntary retirement fom Railway service, and, therefore, the request for providing the 2 applicant appointment to a mast on compassionate ground cannot be oansidered under the extent rules and instructions Issued by the Railway Board. Ib is submitted thet the services of 1° applicant was terminated solely based on Ris request for voluntary retrament. Js terms of extant provisions, all eligible settlement benefits, including pension has already been arranged | in faveur of the pensioner. It has alse been ascertained that subseanent ta the demise of the applicant, his widow has been wranged Enhanced Family Pension of Re 15, 100s. + Deomess Relief. The applicants are not entitled ts any additional benefit from the respondents. Jt ig submitted that an ondeted representation made by the [* gpplicant received by the Homble Minister for Railways, and afier detailed examination was digesed vide letter no. SOMOMiss2013 dated G6.03.2014. Ibis submitted dua Southern Rally ay and Integral Coach Pactery are ve distinct organisations functioning under the Ministry of Railways. The 1S applicant belongs te Southern Railway and his FECUESE for appoiniment af his sox on compasaionate grounds cannot be decided by the D8 8 OA TESROTS oe > or 4" respondents, whe are officials of Integesl Coach Factors, Henes, it is submitted that his prayer for appeintment un compassionate ground on per with medically unfit & 3 mmlovega may be declared untenable and due Griginal Application may be Pg ate:
S - Heard the learned counsel for the respective parties and perused the pleadings and siscuihenis on tecand, ay Aig cae walition and was wh the 18 applicant hed entitlement. The representations made by the 1S anplicant to consider the 2° applicant for appointment Qn compassionate prounds had already been examined and disposed by the = e ondents. According to the respondents there is no provision of compassionate ground appointment in cases where germployess have taken voluntary reitrement fram Railway Service and hence thelr reqaest for aypointment on compassionate grounds cannot be cansnlered as per extant rules.
red The Ratway Board Circular No EONGHPOS/RC-1LAM dated 14.08 2006 issued Ge in RBE No.?ev2006 with regard to "appontment on compassionate ereund of medically de-categorized staff™ is reproduced below:-
"Sub. Appomtment on compassionate grounds of oe wards/spuse of medically de-catevorised stsff on Be yor i. Parsnant te the notification of the Persons with Disstilines Gaus! Qoportunities, Protection af Rights and a ee ss mS Pafid Qa} Full Participation) Act1995 instructions were issued by Ministry of Railways (Rellway Board} laying down that in case where oan employee has been -- mauiically mvahdated/decategorised where the administration cannot find alternative poste for such an employee, he may be kept Of G supernumerary post in the grade iq which he was working on tegular basis, HU auch time suitable post can be identified or tll bis retinsnent, whichever is earlien As these a instructions provided far continuation of service of 4 medically Invalidated decategorised employee, there would 2 be no ecgsion to the employes to be revived from services an medical grounds, Therefore, accanding to the instructions, in such eases the occasion fo consider a request. for appointment on campassionate ground of an eligible ward would not arise {Board's letter dated 29.04.1999 refers).
2. Even ifthe employes chooses to retire voluntarily on his * being declared medically decategarised, If he so desires he 2 may be permitted Gut without extending the benefit of appaintment on Compassionate ground to a ward {para 4 OF Board's letter of even number dated 18.01.2000 refers}
3. Board Aad earlier decided ghar in cages where an smployee is totally incapacitated and is not in 4 nasiian fo continue in any post because of hie medical condition, he o may be allowed to opt for retirement, In such cages, Teguest for appointment on rnpRicnate ground to an eligible ward may be considered & the sai emplovee chagae to retire voluntarily (para 3 of Board's letter of even number dated 18.0).2000), y 4, Pursuant to the demand raised by salt side the issue SARS pass 3 328 Borty OA TSS 6 been deliberated upon at length in the fall Boand 10 OA u has been decided that he wilefwarda' dependants of pattially medically deoategorised stalf who secks voluntary ruirament mey be given subiect to the following x %
(a) The appointment will be given only in the eligible Group 'D' categories. Eligible' would mean that in case Greap 'EY recruitment is banned for any particular category, the sante would also apply for the compasaionste -- ground.
appokmiments,
(b) Such an appointment shoukd ond employees who are declared partlalhy deéstenorised | al 2 tums when they have atleast 5 years or more servics left, (cq) CMD of the Railways should keep = watch over the trend of de-categorlzation so that the present fleure do not get inflated. CMD should alse get 108) partially decategorised cases re-ecarni her medion! Board . Al those emplovees medically decategorised afer issuance of Board's letter NOY NGHUBOSRC-LGd dared TRL2000 wil alsa be covered under these instractions. However, suck csaea which Save already bean Gnalised fa terms af Board's letters No. EINC UGS RC-1d Dated 1.2000; LOT 1.2000 and No. EINGYLQ00GRO Geni? dated 63.2002 & 265.2004 need not be reopened, 6 While considering such requests for compassionate ground appoinimenr the Foris GA LSBs x himself on the basis af s balanced and objective sasesamant oe of the financial & other conditions of the Gumily, that the grounds for compassionate ground appointment is each such vase, fs justified (Board's letter No BONG ING RC Td dated 28.7 2000 refers)"
8. The applicants are not covered by any of the provisions made fbr compassionate ground appointment and their re epreseniations made have ei disposed by the respondents only afer examining their request according te the estant rules and provisions. The question of extending appointment on cOMIpAsSONate grounds for 2" applicant on humanitarian basis does mot arise since the Compassionate Ground appointment is extended anly to the widow/wards ¢ af the family of employees who either died ar was Gund medically unfit while in Railway service. The 2" applicant is not eligible to be considered for appoininent an compassionate ground as ger any of the Baily ay Boand Circulara. Further the 1°
-- applicant was the only bread winner of the fam ily is of mo consequence as the decision to reitre was solely mken by the [" applicant himself and not thrast upon Ain by the respondents.
a, Further, there are certain enacted provisions in Railway Medieal Menual for declaring an employee medically unfit in all medical classifications, for which the Powers are vested with the Medical Board constituted by the Competent Authority, more specifically fo analyse and assess the health condition of the employes subjected by the Medical Boan', fs the instant QA, the applicant did not undergo ay such procedure in order to get appointment on compassionate grounds, contrarily, the a 'applicant had tendered application dated 24.08.2011 for voluntary retirement with waiver af notice period, which was eventually accepted and necessitated the gdminiatvation to issue office anler dated 26.08.2011, Further, the voluntary retirement tendered by the 1. anplicant on own valifian canned be equated with thet af the amplovees who had sted to Medical examination by Boani specially set up for this purpose and declared as medically Incanaciteted 1D. Ih the instant case, admittedly, the 1" applicant was never examined by the ke Medical Board constituted un see the relevant rules for the purpose of assessing a.
medical Niness of a Railway servant either ta continge in the post held by himsher or othe normal date of Aisher Gee & curtinae in any other shemative suitable post f retirement, The repert of the prescribed Medical Board declaring a Railway servant as medically unfitdecategorised/incapaciiatadlinvalidated to continua in the post held x ay other alfemative/suitable post with aene emoluments, the ilore dee hiasthee 3 Sy tuan her or in ay re of the Railway to offer any siternative/anitable wast with same emoluments to such Railway servant a! the normal date of his'her retiroment from Rall DWRY Service, and the comaequent retirement of such Railway servent are sine qua nee for consid of a request made by the dependant of such Raulwoy servant for providing aS ao fo the Rdfilmert of the oe B POSE on compassionate ground, subject combtions stipulated In varlous instructions issued by the Raviway Board. fn the representations dated OS.09.2013 and dated 30.12.2075, the 1° applicant did not mention about his hsving ever spproached the competent authority fe get him examined by the prescribed Medical Board. Save and except some medical papers aes, liar ke DA HOSES OTS Parnes ~ showing his treatment at the Rarlway He agpital and some other Hospitals, the applicant has not placed before this Tibunal any material showing that he had made sated requests to the Reilway guthorities for examination by the prescribed Medical Board io assess his medical fitness and that the Railway authorities had not paid any heed to such requests. This apart, the applicant cannot be allowed to relse the issue of medical unfitness, deeategorization, incapacitation, and invalidation and claim compassionate appointment afer several years of his voluntary retirement fom Ti. The Hon'ble Supreme Court in the case of Chief Commissioner, Central Excise & Customs, Lucknow and Ora. Prabhat Singh in CA No 8638 of 2012 decided on SQL E2012 had held thar "Courts and Tribunals should nut fll prey to any sympathy syndrome, S$ BA fo igsae dings Sian for COO passionate appointments, without reference to prescribed norms, Couns até Mot Suppased to carry Senta Clens's big bag on Christmas eve, to dishurss Be compassionate 8 Syyontnent te all those whe seek a Tribunals must uncders ceumpassion and diser nd ba a every St stich 3 act of ay vmpathy.
nN, wherein directions are issued far appointment on compassionate ground, could deprive a really needed family requiring Snancial suppor, and thereby push info penury a truly indigent destinte and impo verisbed fami! (y Diseretion is therefore ruled out: Se are niisplaced sy arpathy and compesaian."
12. In LIC Vs. Asha Ramachandra Ambekar, (1984) 2 SC FER, the Hon'ble a Supreme Court has stressed the need to examine the terms of the rulesic. cheme governing compassionate appointment and ensure that the claim satisfied the requiremenis before directing compassionate appointment. In Food Corporation of fais G8 TOS S34, it has been observed by the Hom'ble < India Vs. Rem Resh Yirdaw, 2007/9) SCC x.
canna be directed to act contrary to the gems af its wrerme Cot that an ony % xs if ree yh SOMA SU ier policy governing compassionate appolumtment aor can com rye zt be directed de hors the policy. In consideration of all the above, the impugned decision ofthe Railway authority cannot be said te be pesve e, Ulegal and arbiirary, jan of India and Cihers ia. The decision In Bhawenl Prasad Spnkar Vs. Ua (Supra), being distinguishable on fkets, dees nat come to the ald of the applicant in ant boing ane of his own vollian and sane a' the pre-requisites specified ip the Ratlway Board circular BRE Neo 78 of 2008 dated 14.08.2006 being fulfilled by the applicant, coupled with the admitted fact of NS 2 Nordinate delay in moving the THbunal, the applicant is not ented to the clain of 2 divcusainons , | have no hesitation by ho idine that the OA be dlemiased. Accordiniy the O.A, is dismissed.
ao Bitsy Cbtettatpiy