Central Administrative Tribunal - Ernakulam
R.Pushpangadan vs Union Of India Represented By General ... on 21 June, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.817/09
Tuesday this the 21st day of June 2011
C O R A M :
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER
HON'BLE Mr.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
R.Pushpangadan,
Retd.Naik/RPF (SNP) - Lascar,
S/o.K.Raghava Kurup,
Residing at Sinivihar,
Thoduvey Road, Varkala PO,
Thiruvananthapuram - 695 151. ...Applicant
(By Advocate Mr.M.P.Varkey)
V e r s u s
1. Union of India represented by General Manager,
Southern Railway, Chennai - 600 003.
2. Chief Personnel Officer,
Southern Railway, Chennai - 600 003.
3. Chief Security Commissioner,
Southern Railway, Chennai - 600 003.
4. Sr. Divisional Personnel Officer,
Southern Railway, Trivandrum - 695 014.
5. Divisional Security Commissioner,
Southern Railway, Trivandrum - 695 014. ...Respondents
(By Advocate Mr.K.M.Anthru)
This application having been heard on 21st June 2011 this Tribunal
on the same day delivered the following :-
O R D E R
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER The applicant while working as a Constable in the Railway Protection Force fell ill and acquired disability with effect from 30.10.1996 due to disc problem and lateral paralysis. He was under treatment for long and was medically decategorised to Class B-2 and below with effect from 16.7.1997, and was absorbed as Lascar/TS/Kerala Express/Trivandrum in the scale of Rs.2550-3200 on a pay of Rs.3200/- with effect from 31.12.1997. He filed O.A.657/01 before this Tribunal raising grievance against the denial of equal pay and seeking for protection of his grade. That was finally disposed of directing the respondents to pay an amount of Rs.600/- more. He retired on 31.5.2009.
2. By Annexure A-1 memorandum dated 11.12.2006 issued by the Southern Railway, the benefits of the Railway Board's letter dated 31.5.2005 was extended to the employees mentioned thereunder who had been medically decategorised during the period from 7.2.1996 to 28.4.1999 and absorbed in the alternative posts with scale of pay lower than that of the posts they held at the time of their medical decategorisation. Accordingly, those employees mentioned thereunder were placed against supernumerary posts having same scale of pay as that of the posts they were holding at the time of medical decategorisation, with effect from the dates show against each, pending alternative appointment in the posts with same scales of pay. It was further ordered that they will be entitled to draw the pay they were drawing at the time of medical decategorisation as shown in column 6 thereunder in the scale of pay of the supernumerary posts against which they are deemed to have been fitted with effect from the date of medical decategorisation and further increments. Accordingly, the applicant (Sl.No.13 of Annexure A-1) was absorbed for sedentary job carrying the same scale of pay of Rs.3050-4590 with effect from 16.7.1997, the date on which he was medically decategorised. Thus, though the applicant was initially absorbed in a Lascar post which carried a lesser scale of pay, the Railway themselves by Annexure A-1 protected his scale and grade as Naik, the post which he was holding at the time of medical decategorisation by creating a supernumerary post. But the applicant was not considered for any further benefits like promotion, payment of washing allowance, ration money etc. According to him, Section 47 of "the Persons with Disabilities (Equal opportunities, Protection of rights and Full participation) Act, 1995" herein after referred to as PWD Act, protects the interest of the employee who acquired the disability while in service against any discrimination in Government employment. As per Section 47 no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service and as per the proviso 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. As per Sub-section (2) of Section 47 no promotion shall be denied to a person merely on the ground of his disability. There is a proviso to Sub-section (2) enabling the Government having due 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. According to the applicant, similarly situated employees who are medically decategorised and who are juniors to the applicant had been given the benefits of higher scale of pay. He places reliance on Annexure A-6 dated 14.2.2008, a memorandum issued by the office of the Chief Security Commissioner, by which sanction was accorded for the creation of supernumerary posts to accommodate the medically decategorised RPF staff mentioned thereunder from the date noted against each. It is his contention that Sl.No.2, Shri.S.Gangadharan, who was a Head Constable, had been given the scale of pay of Rs.4000-6000 (ACP) with effect from 21.8.2007. It is his specific contention that all those in Annexure A-6 from Sl.No.2 to Sl.No.13 are his juniors. He contends that he cannot be discriminated in the matter of payment of higher scale of pay as was given to his immediate juniors who are also similarly situated and medically decategorised. Raising his grievance representations were submitted but were not answered. Hence he filed this O.A seeking the following reliefs :-
1. Declare that the applicant is entitled to have the sick leave credited back to his leave account from the date of acquiring a disability on 30.10.1996 and encash the same; to be placed in scale Rs.3050-4590 with effect from 16.7.1997; in scale Rs.3200-
4900 of Head Constable with effect from 10.10.1997 and in scale Rs.4000-6000 of ASI on par with his juniors at Sl.No.4 or 11 or 13 in Annexure A-6 or under the ACP scheme, whichever is earlier with all arrears and consequential benefits; to be paid arrears of ration money and washing allowance with effect from 16.7.1997 to 31.5.2009; and direct the respondents accordingly.
2. Set aside Annexure A-9 and Annexure A-10 to the above extent and direct the respondents to revise them accordingly with arrears.
3. Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.
3. In the reply statement filed by the respondents they raise a preliminary objection regarding jurisdiction of this Tribunal to entertain this application. It is contended that the applicant being a member of the RPF is barred in approaching this Tribunal for redressing his grievances. It is their contention that as per Section 3 of Railway Protection Force Act, 1957 which deals with Constitution of the Force holds that, "there shall be constituted and maintained by the Central Government, an armed Force of the Union to be called Railway Protection Force for the better protection and security of the Railway Property". Section 2 of the Administrative Tribunals Act, 1985 holds that the provisions of the Act shall not apply to any member of the Naval, Military or Air Forces or of any other armed force of the Union. Thus, according to them, the Central Administrative Tribunal lacks jurisdiction in adjudicating the grievances of the RPF staff.
4. On merits it is contended that by Annexure R-1 notification under date 3.1.2005 the Railway Board has issued a letter exempting Railway Protection Force/Railway Protection Special Force from the purview of Sections 33 and 47 of the PWD Act. As regards the applicability of MACP Scheme the same is not available to staff who are medically unfit and kept on supernumerary post pending absorption in alternative post. They place reliance on Annexure R-2 Circular No.93/2005 in support of their contention. However, it is admitted that whatever that is available to a medically decategorised person had been extended to the applicant by Annexure A-1 whereby the applicant was deemed to have been placed against supernumerary post having the same scale of pay as that of the post which he was holding at the time of medical decategorisation with effect from 16.7.1997. It is also stated that he was allowed to continue in the post of Lascar with the pay of Naik/RPF, pending alternative appointment in a suitable post. He has thus been paid in the scale of Rs.3050-4590 with effect from 16.7.1997 and arrears were also paid. As regards his claim for placing him in the scale of Rs.3200-4900 with effect from 10.10.1997, it is contended that though as per Annexure A-3 Naik was designated as Head Constable and the pay was revised, those orders being effected only from the date of issue and that change of designation and revision of pay scales was only for the Combatised Staff (Fighting Staff) as on 4.12.1997. The applicant ceased to be a Combatised Staff from the date on which he was medically decategorised. His claim for further higher grade of Rs.4000-6000 on par with his juniors is also not tenable for the same reason. ACP Scheme is also not applicable to the medically decategorised staff. However, as regards his claim for sick leave credited back to his leave account from 30.10.1996 and to encash the same, it is submitted that the respondents are willing to credit back the leave to his leave account and allow him to encash it as per existing rules on the subject. His claim for ration money and washing allowance can also be complied with as per existing rules. As regards grant of ration money and washing allowance supernumerary staff are also now eligible and they may be extended with the benefits as per Railway Board's order. Thus, they justify the issuance of Annexure A-9 and Annexure A-10 and contentions contrary made in the OA is denied.
5. A rejoinder is filed by the applicant reiterating his contentions raised in the OA and further placing reliance on the decision of the Apex Court in the case of Union of India Vs. Sanjay Kumar Jain (2004 SCC (L&S) 869) for the position that MACP Scheme is available to medically unfit staff as they are entitled to same treatment and they cannot be denied any promotion as is ordinarily available to them, had they not been medically decategorised by virtue of Section 47 (2) of the Disabilities Act.
6. We have heard learned counsel appearing on either side, considered the plea raised by them and perused the documents produced.
7. We may now deal with the preliminary objection regarding jurisdiction. According to the respondents, RPF is constituted under Section 3 of Railway Protection Force Act, 1957 which is an armed force of the Union and by virtue of Section 2 of the Administrative Tribunals Act, 1985 the provisions of the Act will not apply to any member of the Naval, Military or Air Forces or of any other armed force of the Union.
8. It is true that as per Section 2 of the Administrative Tribunals Act the provisions of the Act will not apply to any member of the Naval, Military or Air Forces or of any other armed force of the Union but the applicant herein though a member of the RPF he was found medically unfit and he was decategorised by the Railway Authorities and absorbed as a Lascar. Even in para 2 of the reply statement the fact that he was medically decategorised and placed in a supernumerary post and utilised as a Lascar in Commercial Department for want of suitable post is admitted. Had he not been medically unfit he would have continued as a member of the RPF. Because of the disability acquired by him he became unfit to continue as a member of the RPF and that is why he was medically decategorised and absorbed in a civil post. It is because of the provisions contained in Section 47 of the PWD Act and by Annexure A-1 that his financial benefits were protected by creating supernumerary post. By Annexure A-1 itself it could be seen that he continued to be in the post of Lascar. Even, according to the respondents, he continued to be Lascar until suitable posts are identified for him. The creation of a supernumerary post is only to protect the scale and grade to which he is entitled had he continued as a member of the RPF. Thus, he ceased to be a member of the RPF and, therefore, this application filed as a medically decategorised person and subsequently retired is certainly within the jurisdiction of this Tribunal and Section 2 of the Administrative Tribunals Act will not apply to such a case.
9. Even though it is contended by the respondents that by Annexure R-1 letter the Railway Protection Force or the Railway Protection Special Force have been exempted from the purview of Sections 33 and 47 of the PWD Act, Annexure R-1 is admittedly only a letter issued by the Railway Board and is not a notification issued by the Government. Secondly, even after the issuance of Annexure R-1 letter dated 3.1.2005 the medically decategorised persons have been given protection of their scale of pay as seen from Annexure A-1. At any rate, insofar as the respondents themselves have created supernumerary post in a higher scale of pay of Rs.4000-6000 (ACP) as in the case of the immediate junior of the applicant by Annexure A-6, there is no reason why the benefit conferred under Annexure A-6 was not extended to the applicant who was also a medically decategorised RPF staff. In the matter of giving a higher scale of pay to a medically decategorised RPF staff as noted under Annexure A-6, it is the specific case of the applicant that Sl.No.2 downwards are the immediate juniors of the applicant. The applicant was also decategorised from 16.7.1997, thus, the applicant has been discriminated in the matter of giving him a higher scale of pay as that was given to his immediate juniors vide Annexure A-6. Thus, it is a clear violation of Article 14 of the Constitution of India insofar as the applicant has been denied similar treatment. Therefore, we hold that the applicant is also entitled to be paid in the scale of pay of Rs.4000-6000 effective from 21.8.2007, the date on which his junior was given the benefits and he will be entitled for difference in the pay till the date of his retirement, namely, 31.5.2009. He will also be entitled for refixation of his last drawn pay for the purpose of pensionary benefits and he will also be entitled for the arrears of difference in the pension amount.
10. The respondents themselves have admitted that they are ready to have the sick leave credited back to his leave account from 30.10.1996 and allow him to encash it as per the existing rules on the subject. Likewise, his claim for ration money and washing allowance also are liable to be extended to which the respondents have agreed. Therefore, the applicant will also be entitled to these benefits as admitted in para 5 of the reply statement. All the above benefits shall be calculated and paid as early as possible, at any rate, within a period of four months from the date of receipt of a copy of this order.
11. In the circumstances, no order as to costs.
(Dated this the 21st day of June 2011)
K.GEORGE JOSEPH JUSTICE P.R.RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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