Central Administrative Tribunal - Ernakulam
K C Premakumari vs The General Manager Southern Railway ... on 18 October, 2023
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Central Administrative Tribunal
Ernakulam Bench
O.A No.180/00426/2018
Tuesday, this the 18th day of October, 2023
CORAM:
Hon'ble Mr. Justice K.Haripal, Judicial Member
K.C.Premakumari, aged 56 years
W/o.Kochappan
Track Maintainer-II/Southern Railway
Kollengode RS & P.O,
Residing at : Alampadi, Kozhinjampara
Palakkad District - 678 555 - Applicant
(By Advocate: Mr.T.C.Govindaswamy, Ms.Kala T.Gopi)
Versus
1. Union of India, represented by the General Manager
Southern Railway
Head Quarters Office, Park Town P.O
Chennai - 600 003
2. The Divisional Railway Manager
Southern Railway, Palakkad Division
Palakkad - 678 002
3. The Divisional Personnel Officer
Southern Railway, Palakkad Division
Palakkad - 678 002 - Respondents
(By Advocates : Mr.Sreejith.N, ACGSC)
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The O.A having been heard on 21st August, 2023, this Tribunal on
18.10.2023 passed the following :
O R D E R (ORAL)
In this second round of litigation, the applicant who is a retrenched Casual Labourer wants her appointment ante-dated prior to 1.1.2004 with the idea of getting the benefits of the old Pension Scheme. Admittedly, the applicant is a retrenched Casual Labourer. Earlier, when she was asked to appear before the Screening Committee with relevant documents, she could not produce the original labour card. Moreover, there was difference in the name. It is admitted that she is K.C.Premakumari, daughter of Shri.Chippu. The Live Register bore the name as Prema, daughter of Shri.Thippan. On these grounds, her claim for regularisation was rejected. Aggrieved by the same, she approached this Tribunal with O.A 827/2006. After considering the rival contentions, this Tribunal directed the parties, in the light of the identity crisis, to compare her finger print with the finger print found in the Live Register. Ultimately, it 3 tallied and by Annexure A-1 order dated 24.10.2007, directions were issued on the following lines.
"4. In the above facts and circumstances of the case, particularly in view of the fact that the identity of the applicant has been established conclusively, I direct that the respondents shall treat the name "Prema" appearing at Sl.No.1140 in the Live Casual Labour Register as the abbreviated name of the applicant, namely, K.C.PremaKumari and treat her full name as correct name in all other further records. She shall, therefore, be subjected to screening within one month from the date of receipt of this order and on clearnace from the Committee, the applicant shall be absorbed as a Group 'D' employee with all consequential benefits such as fixation of pay with reference to the date of appointment of her junior, seniority etc. However, the applicant will not be entitled for any arrears of pay and allowances. The respondents shall implement this order within two months from the date of receipt of this order. In case the respondents fails to implement this order within the aforesaid time limit, the applicant will be entitled to full pay all allowances at the rate notionally arrived at, from the date after the expiry of the aforesaid time limit. There shall be no order as to costs."
2. Thus, by Annexure A-2 order dated 7.1.2008, she was appointed as Track Woman and she joined duty on 8.1.2008. Apparently, that being the period after the commencement of the new pension scheme, she was not entitled to get the benefits of the old Pension Scheme. Now contending that she understood that several of her juniors in the divisional seniority list were absorbed during 2003, she was denied consideration on account of the lapses on the part of the respondent department, that she had 4 acquired temporary status on completion of 120 days prior to 1.1.2004. she is entitled to get the benefit of the old Pension Scheme, she moved Annexure A-3 representation before the third respondent. Aggrieved by the non-feasance on the part of the respondents in considering the representation, she has approached the Tribunal for a direction to grant her regularisation from the date of regularisation of her junior in the seniority list of retrenched Casual Labourers and thereby, for extending the benefit of the old pension scheme.
3. According to the applicant, she understands that while granting her regularisation, she was compared with Shri.Asokan who is junior in the Kollengode Section. But such a comparison is impossible since Palakkad Division is divided into several Permanent Way sections, that the common seniority list in the Live Register should have been considered for regularisation. So the applicant wanted to say that seniority has been wrongly reckoned, if it was correctly done, she would have got notional regularisation prior to 1.1.2004 and would have obtained the benefit of 5 the old pension scheme.
4. The respondents have strongly opposed the contentions of the applicant. According to them, she has approached the Tribunal on experimental basis, after long lapse of time and the application is liable to be dismissed as barred by limitation, acquiescence and estoppel.
5. According to them, following the order of the Tribunal in Annexure A-1 order dated 24.1.2007, she was offered appointment by Annexure R-1 on 28.12.2007 and thus Annexure A-2 order of appointment was issued on 7.1.2008. Later, under Annexure R-2, her notional appointment was made with effect from 24.7.2004 reckoning the appointment of her former junior Shri.P.S.Sundaram at serial no1158 in the Live Register. Annexures R 4 and 5 are also relied upon to prove the contention. Annexure R-6 is the seniority list of Track Maintainers in the Division. According to the respondents, the serial number of the applicant in the Live Register was 1140, the immediate junior was the said P.S.Sundaram at serial no.1158. 6 They denied the claim that she was compared with the said Asokan. In fact Sri.Asokan was given appointment from 6.8.2004. If she was compared with that of Asokan, she would have been given notional appointment only from 6.8.2004.
6. It is also stated that seniority of Trackman/Track Maintainer is maintained section wise. Referring to paragraph 2005(b) of Chapter XX of IREM-Vol.II, it has pointed out that what is important is the date of regular appointment and not the date of acquiring temporary status. The applicant was given regular appointment only from 25.4.2004. The Annexure A-3 representation was given long after a lapse of 10 years and that the applicant has not approached the Tribunal in time.
7. I heard Smt. Kala T Gopai for the applicant and Shri.N.Sreejith, ACGSC for the respondents.
8. According to learned counsel for the applicant, in such cases, as held 7 by the Hon'ble High Court in numerous decisions, the contention of bar under limitation is not applicable, it is a continuing wrong. The applicant should have been absorbed before 1.1.2004, it is very apparent that she was granted temporary status before 1.1.2004; if the common list was followed, she would have got absorption before 1.1.2004, the lapses on the part of the respondents in properly appreciating the case of the applicant should not reflect on her. The learned counsel also relied on the decision in State of Punjab and Others v. Bawa Singh Harijan [(1995) 31 Administrative Tribunals Cases 199].
9. On the other hand, according to the learned Standing Counsel, it is apparent from the records that even though she was actually appointed only on 7.1.2008 and joined duty on 8.10.2008, was granted notional appointment from 24.7.2004 reckoning the appointment of Shri.P.S.Sundaram which is evident from various documents produced by the respondents. He reiterated that seniority of Track Maintainer is maintained section wise. The specific contention raised by the 8 respondents as to how her seniority was reckoned vis-a-vis that of Shri.P.S.Sundaram has not been tried to be rebutted through a rejoinder. Non-filing of rejoinder is conspicuous. Filing of a representation, after a lapse of 10 years in service cannot be appreciated. The learned counsel also relied on the decisions in B.S.Bajwa and Another v. State of Punjab and Others [(1998) SCC L&S 611], Surjeet Singh Sahni v. State of U.P and Others [MANU/SC/0260/2022] and the judgment of the Hon'ble Delhi High Court in Writ Petition(C) 6525/2016 etc. dated 11.09.2017 to buttress his contentions.
10 The applicant was admittedly a retrenched Casual Labourer whose case was considered by the Screening Committee on 9.10.2003. As she did not produce original casual labour card and since the name in the Live Register did not tally with the documents produced, she was not considered for regularisation and that paved the way for filing O.A 827/06. This Tribunal considered her case and directed for making a comparison of her finger prints with the impression found in the Live Register with the 9 help of Finger Print expert and found that the applicant is the said Smt.Prema referred in the Live Register and directed the respondents to consider her case for regularisation. That led to passing of Annexure R-1 order following which she was appointed as a Track Maintainer on 7.1.2008. She joined service on 8.1.2008. Later, by Annexure R-2 order dated 29.1.2008, her notional date of appointment was effected from 24.7.2004, reckoning the date of appointment of her junior Shri.P.S.Sundaram at serial no.1158 in the Live Register. It is also evident from Annexure R-4 that after serial no.1130, only the said Sundaram was regularised on 24.7.2004.
11. The applicant joined duty accepting the conditions in Annexure R-1. Clause 14 of Annexure R-1 reads thus:
" Your appointment is on the condition that you will be governed by the new restructured defined contribution pension system which has been introduced to take effect in mandatory for those appointed from 1.1.2004, issued vide rly.Board's Letter No.F(E)III/2003/PNI/24 dated 31.12.2003. The above pension system replaces the existing system for those entering to service on and after 1.1.2004. The main provision of the pension scheme is that you have to contribute 10% of the salary and DA which will be matched by the Central Govt. on all other conditions specified in Board's letter dated 31.12.2003 referred above. "10
The applicant accepted all the conditions.
12. Annexure R-2 also is very clear that her notional seniority has been fixed based on the appointment of the said Shri.P.S.Sundaram at serial no.1158 in the Live Register. Sri.P.S.Sundaram was regularised on 24.07.2004. Annexure R-4 further suggests that casual labourers between serial numbers 1044 and 1159 were regularised on 24.07.2004.
13. Despite all this, after long lapse of time, by Annexure A-3 representation dated 9.4.2017, the applicant wanted the respondents to give retrospective effect to her appointment prior to 1.1.2004.
14. After hearing counsel on both sides and considering the records, I have no doubt in my mind that there are numerous impediments in allowing the application. First and foremost is the long lapse in highlighting such an issue. From Annexure A-2 followed by Annexure R-2, it is quite clear that she was granted appointment with retrospective effect from 24.7.2004 reckoning the appointment given to 11 Shri.P.S.Sundaram, her immediate junior with serial no.1158 in the Live Register. Then it is not known as to how the name of one Shri.Asokan has cropped up in to her mind. Meeting this contention, it is specifically urged in the reply statement that the said Sri.Asokan was appointed on 6.8.2004, that the case of the applicant was considered vis-a vis her immediate junior Sri.P.S Sundaram and that was how her date of appointment was made effective from 24.7.2004. That means, she has been given a better placement, from a prior date, with effect from 24.7.2004, as against the appointment of Sri.Sundaram which is evident from Annexures R-4 and R-
5. Still, after long lapse of time, she has tried to rake up the issue by giving Annexure A-3 representation which cannot be appreciated in right earnest.
15. In fact, the long lapse of time in approaching this Tribunal gives a clear set back to the applicant. From Annexure R-2 dated 29.1.2008, it is clear that her appointment was made reckoning the date of appointment of Sri.P.S Sundaram and not with Sri.Asokan. Still, such a representation 12 was made only after nearly 9 years. Secondly, it is not known as to how her case could be compared with that of Asokan.
16. As rightly pointed out by the learned Standing Counsel, after accepting Annexure R-2 with open eyes, she cannot be heard to approach the Tribunal beyond reasonable time. Therefore, the enormous delay in moving the Tribunal alone is sufficient to throw the case of the applicant over board. Now the applicant is trying to revive a stale claim through a belated representation which cannot give her a fresh cause of action.
17. It is not known as to how the decision in Bawa Singh Harijan comes in support of the case of the applicant. It has turned up on its own facts. 18 As rightly pointed out by the learned Standing Counsel for the respondents, quoting Surjeet Singh Sahni, a belated representation will not extend the period of limitation.
1319 The respondents could convince the Tribunal that the date of regularisation of the applicant has been done properly taking into account the date of appointment of her junior Sri.P.S.Sundaram. After such a lapse of time, a seniority question cannot be re-opened, as held by the Hon'ble Supreme Court in B.S.Bajwa quoted supra. Such a belated appointment would open up a Pandora's box which is not in the interest of the employees or the organisation.
20. As correctly stated by the respondents, what is important is the date of actual appointment and not the date of conferring temporary status. Here, the applicant has not stated in clear terms as to when she was granted temporary status clearly. For the reason that she might have been granted temporary status after putting in 120 days on continuous engagement, matters cannot be presumed. Even otherwise, date of grant of temporary status cannot be the date of commencement of qualifying service.
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21. Worsening the case of the applicant, after serving the organisation fully knowing that she has been inducted in the service under the new pension regime, she cannot turn round and say that she should be granted the benefit of old pension scheme. Firstly, the contentions of the applicant are vague and lacking in particulars. She does not state as to who are the juniors and who were given appointment before 1.1.2004. The specific case of the respondents is that the said Sri.Asokan was appointed only on 6.8.2004. Thus, there is substance in the contention that the applicant has approached the Tribunal on experimental basis. Moreover, after giving contribution in the new pension scheme following the procedures therein, there is no justification for seeking the benefits under the old pension scheme. There are practical difficulties in accepting and implementing the request. The following observations of the High Court of Delhi in V.Ramana Murthy and Others quoted supra are quite apposite:
"A word of caution on the question of delay and laches is required. The new Pension Scheme is contributory, as the Government also contributes to the pension fund which is maintained by a third party. Belated challenges and claims to be covered under the Old Pension Scheme even after a decade would result in immense prejudice for the positions have changed, and restitution would not be possible. This would be contrary to, and impermissible under the terms of the statutory new pension scheme, which does not specify or fix a 15 stipulated return. It may be important for the Government to retrieve their contribution under the New Pension Scheme. The employees who are also covered under the New Pension Scheme would have to abide by the terms thereof. The retracing of steps or turning back the clock may not be possible. "
22. On an evaluation of the entire facts and circumstances, much research is not necessary to hold that the applicant has approached the Tribunal on experimental basis. The Original Application lacks merit and is dismissed. However, there shall be no order as to costs.
(Dated this the 18th day of October, 2023) Justice K.Haripal Judicial Member sv 16 List of Annexures Annexure A-1 - True copy of the order of this Hon'ble Tribunal in OA No.827/2006 dated 24.10.2007 Annexure A-2 - True copy of the order bearing No.J/P 269/IX/IX/LR/Vol.II dated 7.1.2008 issued by the 3rd respondent Annexure A-3 - True copy of representation dated 09th April, 2017 submitted by the applicant before the 3rd respondent Annexure R1- True copy of offer of appointment dated 28.12.2007 Annexure R2- True copy of Office Order No.J/W.I/02/08, dated 29.1.2008 Annexure R3- True copy of relevant portion of RBE No.225/2003, dated 31.12.2003 Annexure R4- True copy of Office Order No.J/W/1/18/2004, dated 30.07.2004 Annexure R5- True copy of pages 3 & 4 of the Service Register of Shri.P.S.Sundaram Annexure R6- True copy of relevant portion of Seniority List of Track Maintainers in SSE/PW/KLGD Section as on 01.01.2018.
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