Central Administrative Tribunal - Ernakulam
K. Chellappan vs Union Of India on 6 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00346/2015
Monday, this the 6th day of March, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
K. Chellappan, aged 57 years,
S/o. Kuttan nadar, Trackman/Southern Railway/
Office of the Senior Section Engineer/
Permanent Way/Trivandrum Central,
Residing at : Neelathuvila Veedu, Keekolla,
Vathavila PO, Aranmula, Thiruvananthapuram District,
Pin - 689 533. . .. Applicant
(By Advocate : Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by the General Manager,
Southern Railway, Headquarters Office, Park Town PO,
Chennai - 600 003.
2. The Divisional Railway Manager, Southern Railway,
Trivandrum Division, Trivandrum - 695 014.
3. The Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum-695 014. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
This application having been heard on 20.02.2017, the Tribunal on
06.03.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
The applicant is presently working as a Trackman. He is aggrieved by the refusal on the part of the respondents to grant him the benefit of regularisation at par with his juniors who were regularised in 2003. He was initially a retrenched casual labour in the Southern Railway Construction Organisation who had 665 days of casual service at places within the Trivandrum Railway Division before his retrenchment on 1.1.1981. As per the decision of the Apex Court in Inderpal Yadav & Ors. v. Union of India - 1985 SCC (L&S) 526 though a combined list of retrenched casual labourers were prepared by the Southern Railway on the basis of the length of casual service put in by such retrenched casual labourers, the applicant was included in the list and finally in 2003 he was below in the list of retrenched casual labourers of Southern Railway, Trivandrum Division and was directed to appear before the Divisional Authorities with records vide Annexure A1 communication. Though he reported before the authorities he was denied consideration on the ground that he had exceeded the age limit of 43 years fixed for OBC category. He approached this Tribunal by filing OA No. 451 of 2007 which was disposed of vide Annexure A2 common order to consider the cases of the applicants in those OAs disregarding the age limit. Thereafter, the applicant was regularly appointed vide order dated 24.10.2008. According to the applicant the delay in giving regular appointment to him was directly due to the reasons attributable to the respondents. Series of OAs were filed before this Tribunal claiming the benefits given to one Shri Viswanathan who was appointed in the year 2007 with retrospective effect to 1996 from the date of absorption of his junior should be given to the applicants in those OAs. Respondents took the contention that Shri Viswanathan was wrongly given the date of regularisation as 1996 and his correct date of absorption would only be 3.11.2003 and that Shri Viswanathan had only 601 days of service as on the date of his retrenchment. Therefore, the aforesaid OAs were allowed declaring that the applicants therein must be deemed to have been regularised for the purposes of pension and other retiral benefits. Annexure A3 is the copy of the order in one such OA. Though the applicant submitted Annexure A4 representation praying for granting the benefit to him with effect from 3.11.2003 there was no response. Hence the applicant prays for:
'(i) Declare that the refusal on the part of the respondents to grant the applicant the benefit of absorption on par with his juniors in the list of retrenched casual labourers at least with effect from 3.11.2003 is arbitrary, discriminatory, contrary to law and hence, unconstitutional;
(ii) Direct the respondents to grant the applicant the benefit of absorption as Trackman from the date of such absorption of persons with lesser number of days of service than that of the applicant (at least with effect from 03.11.2003) and direct further to grant all consequential benefits arising there from including arrears of pay and allowances, leave due etc.;
(iii) Award costs of and incidental to this application;
(iv) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.'
2. In the reply statement respondents contend that the applicant has not cited any authority/order permitting the benefit of absorption on par with his juniors in the list of retrenched casual labourers at least with effect from 3.11.2003. The applicant's retrenchment was on 1.1.1981 and the consequent inclusion of his name in the list of retrenched casual labourers pursuant to orders/judgments of the court are all relating to earlier periods.
Applicant's name is at serial No. 156 in Annexure A1 list of retrenched casual labourers which was only for the purpose of being considered for absorption after the persons therein fulfill the prescribed conditions. Only after actual appointment against the particular post such labourers are entitled to get all service benefits attached to the post. Annexure A2 order directed only to consider the applicant's case for regularisation and it did not contain any finding that the prescription of upper age limit for the retrenched casual labourers is prima facie arbitrary, discriminatory and unconstitutional. Respondents pray for rejecting the OA.
3. Heard Mr. T.C. Govindaswamy learned counsel appearing for the applicant and Mr. Sunil Jacob Jose, learned Standing counsel appearing for the respondents. Perused the record.
4. When this case came up for consideration it was brought to the notice of this Tribunal that the High Court of Kerala in the common judgment dated 21.12.2016 in WP(C) No. 23757/2010 & OP(CAT) Nos. 138, 170, 185 & 186 of 2014, 39, 94 & 110 of 2015 and 30 & 45 of 2016 had held that the decision in the case of Shri Viswanathan being given absorption into regular service since 1996 was an error occurred to the respondents which cannot be perpetuated in subsequent cases and that no premium can be extended to the wrong doer. The High Court in that common judgment held that the date of regularisation of retrenched casual labourers shall be reckoned as 3.11.2003 for the purpose of reckoning the qualifying service of granting pension and other retiral benefits, without resulting in payment of arrears or other monetary benefits either towards salary or pension or such other heads. The Court further made it clear by that actual pension and terminal benefits payable will depend upon the actual salary drawn by the absorbed employees at the relevant time.
5. Since the applicant is claiming the benefit of absorption as Trackman from the date of absorption of persons with lesser number of days than that of the applicant, at least from 3.11.2003, it appears to this Tribunal that the decision in the aforementioned common judgment dated 21.12.2016 of the High Court can be made applicable to the applicant in this case, if he had the required number of days of casual service prior to retrenchment vis-a- vis persons who have been given regular appointment on 3-11-2003 with lesser number of days of casual engagement than the applicant.
6. The respondents are directed to take into account of the aspects considered by the High Court in the afore said Common judgment and to grant the applicant the date of regularisation notionally with effect from 3.11.2003 for the purpose of pensionary benefits only. It is made clear that this Tribunal has not granted the prayer for arrears of pay and allowances, leave due etc from such notional retrospective date of regularisation. Ordered accordingly.
7. The Original Application is disposed of as above. No order as to costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER ''SA''