Union Of India Rep. By The Secretary vs S.Abdul Salam on 3 August, 2009

[Cites 0, Cited by 3]

Kerala High Court

Union Of India Rep. By The Secretary vs S.Abdul Salam on 3 August, 2009

The respondents in the O.A.No.93 of 2009 are the writ petitioners before this Court. Challenge is against Ext.P5 order passed by the Tribunal in the said O.A., whereby the O.A. was allowed and relief was granted to the applicant, directing the respondents/Railways to absorb the service of the applicant with notional pay fixation, after ascertaining the vacancy position prior to November, 2007 and enabling him to continue in service till attainment of age of 60 years, in terms of Annexure A1 Scheme.

2. The main ground of challenge is that the applicant was not on the Rolls of the concerned Quasi-administrative office (Society concerned) of the Railways as on the date of consideration and appointment, having already attained the age of superannuation by 31.10.2007 and hence he was not entitled W.P.(C)No.28259 OF 2009 2 to have the benefit of Annexure A1 Scheme. A vague plea is also stated as raised in paragraph '4' of the writ petition with reference to the additional reply statement filed before the Tribunal, to the effect that the applicant was medically unfit to be absorbed.

3. The applicant joined service as an employee in the Southern Railway Employee's Consumer Co-operative Society in the year 1969 and was continuing as a Salesman. While so, taking note of the submissions/representations made by various service organisations, a policy decision was taken by the Railway Board to absorb the employees, who were working in Quasi administrative offices of the Railways all over India, subject to fulfillment of certain conditions. It was accordingly that Annexure A1 scheme was notified on 30.05.2000, stipulating that the benefits will be given to those employees of such Quasi- administrative offices, who were having prior continuous service of three years as on 10.06.1997 and were still on the rolls of W.P.(C)No.28259 OF 2009 3 the establishment. The applicant satisfied all the requirements as envisaged under the Scheme and was being considered accordingly.

4. It is pointed out that the exercise pursuant to Annexure A1 was being done by the Railways in the concerned Divisions in Kerala only much belatedly and it was only in the year 2006, that Annexure A2 communication was issued by the 4th respondent to the Society/Employer of the applicant, giving necessary instructions for conducting verification of the relevant certificates, for which the employees were required to be present on 24 .02.2006. The name of the applicant was shown at Sl.No.1 in the said proceedings. Thereafter, the 4th respondent issued Annexure A3 on 14.02.2006, also giving the particulars of various documents to be produced for verification. Here again, the applicant was enlisted, but at Sl.No2. In the course of further proceedings, it took more than '2 =' years for the authorities of the Railways for calling the beneficiaries concerned for medical W.P.(C)No.28259 OF 2009 4 examination as discernible from Annexure A4 dated17.10.2008, issued by the 4th respondent to the applicant to appear for the medical examination scheduled on 28.10.2008. Annexure A5 was issued by the 4th respondent on 20.10.2008 to the concerned Society, where again the name of the applicant was shown at Sl.No.1 in this regard.

5. Despite the steps taken by the appellant to be medically examined, the 4th respondent refused to conduct the medical examination of the applicant for the reason that, as on the date of medical examination, he had already attained the age of superannuation and had gone out of the rolls of the Society/Employer on 31.10.2007. This really shocked the appellant, when he submitted Annexure-A6 application then and there i.e., on 28.10.2008, but there was no response. Later, the Railways absorbed the employees of the Quasi administrative establishments including the juniors of the applicant and appointment orders were issued to them. A copy of the W.P.(C)No.28259 OF 2009 5 appointment order dated 30.12.2008 issued to the person by name P.V.Ramanan as 'peon' in the concerned scale of pay, who was very much junior to the applicant having lesser traits especially with regard to vision standard, has been produced as Annexure A7. At the same time there was no communication to the applicant at any point of time that his candidature was rejected on any ground. This made the applicant to approach the Tribunal by filing the O.A. with the following prayers:

"i) Direct the respondents to regularly absorb the applicant as a Group 'D' employee in the Railways, at par with those who were included in Annexure A3 and direct further to grant all consequential benefits including arrears of pay and allowances arising there from;

ii) Award costs of and incidental to this Application;

iii) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."

6. Ext.P2 reply statement was filed by the Department/Railways mainly contending that the reason for non- W.P.(C)No.28259 OF 2009 6 consideration of the applicant was that he was not on the rolls of the Society/Employer as on date and by virtue of the specific terms in Annexure A1 Scheme, the employee concerned had to be on the rolls as on date, which according to the Department/Railways was the date of final consideration/date of appointment. It was also pointed out that it was never the 'date of the Scheme' as sought to be contended by the applicant. Reliance was sought to be placed on a Board Order dated 16.01.2002, a copy of which was produced as Annexure R1. The Department also produced a copy of the order of absorption dated 15.10.2008( Annexure R2 ) showing the list of persons and the conditions to be satisfied. Eventhough name of the applicant was given at Sl.No.2 and traits in respect of the conditions (i) to

(iii) were stated as already verified, it was contended that the appellant was not absorbed as he was not continuing as on date as per condition No.5, however subject to further condition (under conditions No.6) that he should be found medically fit as W.P.(C)No.28259 OF 2009 7 per the relevant medical classification. An additional reply statement was filed by the Department on 25.06.2009, produced as Ext.P3, wherein it was stated that the applicant was found 'medically unfit' in respect of 'Aye Two' medical classification, though he was found as fit with glasses in respect of 'Aye Three'. The medical certificate, which was kept in a sealed cover, was opened pursuant to the order passed by the Tribunal in on 29.05.2009. At the same time, the Department/Railways did not mention anything with regard to the class of medical level and appointment was offered to the junior person by name P.V.Ramanan as per Annexure A7, who was found fit in C1 with glass (appointment as peon). It appears from the proceedings that the medical fitness was never sought to be asserted any further as having found medically unfit only in respect of 'Aye Two' medical level, while finding him fit in respect of 'Aye Three' with glasses and further since even the junior by name P.V. Ramanan was offered appointment vide Annexure A7 having W.P.(C)No.28259 OF 2009 8 found him fit in respect of 'C1 with glass'. To say the least, this aspect was never stated as argued before the Tribunal and since the Tribunal was never addressed in this regard, no further discussion was there in Ext.P5. No grievance in this regard is projected in this writ petition by raising any specific ground that the said aspect was actually argued before the Tribunal, but was omitted to be considered or wrongly decided. As such we find it not necessary to go into this aspect and we proceed with the presumption that the case projected by the Department/Railways was only with reference to the eligibility of the applicant to have the benefit of Annexure A1, subject to the condition that he was to be there on the rolls of the establishment as on date. In other words, the terminology used in Annexure A1' as 'still on the rolls' was sought to be interpreted by the Department as on date, i.e., as on the date of consideration/date of passing the order of appointment.

7. A rejoinder was filed by the applicant asserting the W.P.(C)No.28259 OF 2009 9 rights to be considered for regularisation/absorption in terms of Annexure A1, pointing out that he was qualified in all respects as on date of the Scheme and that the date of qualification had to be reckoned as on the said date. After hearing both the sides, the Tribunal found force in the submissions made from the part of the applicant and it was accordingly, that the O.A. was allowed, to have extended the benefits to the applicant, subject to the condition that necessary vacancies existed prior to 31.10.2007, i.e., before attaining the age of superannuation by the applicant. The operative portion of the judgment as contained in penultimate and last paragraphs of Ext.P5 order are in the following terms:

"7. Arguments were heard and documents perused. Annexure A-1 order is of 1998 and aim of that order was to absorb the Consumer Co-operative Society Employees/Workers on fulfillment of the two conditions specified above. In addition availability of vacancies after exhausting of the Casual Labours enlisted in the live casual labour register, 50 posts have been stated to be W.P.(C)No.28259 OF 2009 10 identified and it is not known whether these 50 posts were identified at one go or in phases. If the post wherein the applicant could be accommodated was identified prior to his superannuation then for the time taken to process the case, the applicant cannot be penalized; if his case for absorption is rejected on account of such superannuation, that will amount to miscarriage of justice. If, on the other hand, the very identification of vacancy against which the applicant would have been absorbed has been made after the date of superannuation of the applicant from the Co-operative Society, the applicant cannot claim absorption, though he fulfill the two conditions. For, the mere fulfillment of twin conditions of three years service and still on roll as on 10.6.1997 alone would not suffice. There must be vacancy available to absorb the applicant. Records do not reflect as to the period to which the vacancies pertained. It is for the department to verify the same and see that the identification of vacancies could be made prior to November, 2007 when the applicant superannuated ,, the applicant shall be considered for absorption subject to fulfillment of medical standards, educational qualification, etc, notwithstanding the fact that he has superannuated from Co-operative society. If on the other hand the identification of posts itself was taken after the W.P.(C)No.28259 OF 2009 11 retirement of the applicant, the applicant's case has to be rejected.

8. In view of the above, the respondents are directed to undertake an exercise of ascertaining the date of availability of the vacancy against which the applicant could have been absorbed and if that vacancy pertains to the period anterior to the date of retirement of the applicant, then the respondents shall pass suitable orders for absorption of the applicant. In that case he would be entitled to notional pay fixation, actual being only from the date he assumes higher responsibilities, as age of retirement then be 60 years as per other Railway employees. If on the other hand the identification of the vacancy is posterior to the superannuation of the applicant, he may be accordingly informed rejecting his claim for absorption. This drill may be performed within a period of two months so that the applicant could serve a least for a month in case he is entitled for absorption. No costs."

8. The basic question to be considered is whether the terms used as still on date in Annexure A1 scheme could be interpreted as ' as on date', i.e., as on the date of consideration W.P.(C)No.28259 OF 2009 12 or date of granting appointment, as sought to be contended by the Department/Railways. On going through the contents of Annexure-A1 Scheme, as mentioned already, there were demands from various corners to consider the service being rendered by the employees for several years in the Quasi Administrative Department of the Railways and there is no dispute to the fact that the Employees Co-operative Society of the Railways is one such Quasi Administrative institution. The relevant portion of Annexure A1 scheme is extracted below for the convenience of reference.

"The matter has been considered by the Board It has now been decided that, as a one time relaxation, the Railways may consider absorption of only those staff of quasi- administrative offices/organizations who were on roll continuously for a period of at least three years as on 10.06.1997, and are still on roll, subject to fulfillment of prescribed educational qualification required for recruitment to Group 'D' posts. Such staff should have been engaged within the prescribed age limit. Such absorption should be resorted to only after exhausting the list of ex-Casual labour borne on the Live Casual W.P.(C)No.28259 OF 2009 13 Labour Registers/Supplementary Live Casual Labour Registers. The Units/Bodies whose staff are proposed to be absorbed in this manner and their total number should however be first intimated to the Board and the process should be undertaken only after Board's clearance. Proposals sent to the Board for such clearance should have the personal approval of the General Manager."

The requirements for extending the benefits under A1 scheme are that :

i. The workers should be on roll for a period of at least 3 years as on 10.06.1997 and are still on roll ii. They should fulfill the prescribed minimum educational qualification, which is at present class VIII pass.

Iii. They should have been engaged within the prescribed age limit.

9. The applicant having joined the service of the Society and was working from 1969, was of course having the requisite continuous service of 'three years' as on 10.06.1997, the crucial date mentioned in Annexure A1 dated 30.05.2000. The said W.P.(C)No.28259 OF 2009 14 document further stipulates that the employees concerned, to have the benefit under the Scheme, should be still on the rolls and they are also to be within the age limit. The only question is whether the term 'still on the rolls' as given in Annexure A1 could be stretched to any extent, to mean that it will be at the whims and fancies of the departmental authorities, who were taking rest on 'arm chair', without taking timely steps to absorb the employees concerned for several years. In other words, if at all there was any delay on the part of the Railways in giving effect to Annexure A1 Scheme, could it be taken as against the rights and interests of the employees concerned, who are otherwise eligible to get the benefit of the said Scheme.

10. Heard Smt. Sreekala, the learned counsel appearing for the respondent, who submits that the Scheme itself was evolved by the Government/Railway Board as a policy matter to give benefit to the concerned employees and that the departmental authorities could not have watered down the terms of the W.P.(C)No.28259 OF 2009 15 Scheme in any manner, so as to cause prejudice to the employees concerned, who were to be the beneficiaries of Annexure- A1 Scheme. It is added that Annexure-A1 Scheme obviously does not stipulate satisfaction of the requirements as on date of consideration/as on date of giving appointment, but it says 'still on rolls'. These words, 'still on rolls' is subject to satisfaction of three years' continuous service as on 10.06.1997 and were still continuing on the rolls of the Quasi Administrative offices on the date of issuance of Annexure A1 Scheme i.e. 30.05.2000 and nothing more. We find considerable force in the said submission.

11. Another aspect to be considered is that the Department/Railways sought to explain in the writ petition that there was no fault on the part of the Railways in giving effect to Annexure A1 scheme and the crucial date to be considered is as on date, i.e., date of consideration, which is sought to be strengthened with reference to Annexure R1 order of the Railway W.P.(C)No.28259 OF 2009 16 Board dated 16.01.2002. The petitioner/Railways have added in Ground 'C' that the Railway Board's clearance was given only on 26.10.2005 and that everything has done in Palakkad Division in 2006 itself, followed by Annexure-R2 general order dated 15.10.2008, issued from the Headquarters pertaining to all Divisions.

12. On going through the contents of the said document, it is seen that Annexure-R2 is only in respect of the Southern Railways; whereas Annexure-R1 dated 16.01.2002 has been issued by the Railway Board, addressed to all Zonal Railways, including the Southern Railways. Annexure-R1 is relevant, which, hence is extracted below:

"Attention is invited to Board's letter dated 30.05.2000 whereby the Railways were advised that as a one time relaxation, the railways may consider absorption of only those staff of quasi-administrative offices/organizations who were on roll continuously for a period of at least three years as on 10.06.97, and are still on roll, subject to fulfillment of prescribed educational W.P.(C)No.28259 OF 2009 17 qualification required for recruitment to Group 'D' posts. Such staff should have been engaged within the prescribed age limit.

It is seen that some of the Railways are sending supplementary lists once the original list is approved by the Board. Since this was only a one time relaxation, the Railways should not ordinarily send supplementary lists. In case sending of Supplementary lists becomes inescapable , the specific reasons for non-inclusion of the names in the original list should be indicated alongwith the steps taken to ensure that no further names will crop up in future. The proposals should have the personal approval of the General Manager and should be signed by an officer not below the level of SAG."

13. From the above, it is seen that immediately after issuance of Annexure-R1 Scheme in the year 2002, steps were pursued by several Zonal Railways and original list was submitted before the Railway Board, which were duly approved by the Board as well. After approval of the 'Original List' by the Board, some of the Railways were sending 'Supplementary Lists', which was sought to be deprecated. At the same time, the benefit was W.P.(C)No.28259 OF 2009 18 still extended by the Railway Board as per Annexure R1, making it clear that, in case of sending 'Supplementary List' as an inevitable instance, specific reasons for non-inclusion of the names in the Original List should be indicated along with the steps taken to ensure that no further names will crop up in future; also adding that such proposal should have personal approval of the General Manager and should be signed by an officer not below the level of 'SAG'. This by itself is a pointer to the fact that, after issuance of Annexure A1 Scheme in 2000, several Zonal Railways had already submitted the Original List and got approved. What made the Southern Railways to wait till 2005 or 2006 is not discernible from the pleadings before the Tribunal or before this Court. Annexure R1 only deals with 'Supplementary List' and nothing else (Original List). In any of the view of the matter, this lapse cannot be shifted to the shoulders of the persons like respondent/beneficiary of Annexure A1 Scheme.

W.P.(C)No.28259 OF 2009 19

14. After hearing both the sides and after going through the materials on record, we find that the terms of Annexure A1 Scheme are quite specific, which only contemplates the requirement as on the date of issuance of Scheme, which cannot be stretched to any further to mean that the beneficiaries/employees should have continued on the rolls of Quasi administrative establishments till the matter was being considered by the concerned officer/authorities on their convenience i.e., after several years. Admittedly, the applicant had satisfied all the requirements as on date of Annexure A1 scheme issued on 30.05.2000 and was continuing in service of the Society till he attained the age of superannuation (58 years) on 31.10.2007. It is also evident that the candidature was being considered accordingly causing the certificates verified as per Annexures-A2 and A3 dated 13.02.2006 and 14.02.2006 respectively, where name of the respondent has been included.

15. It is brought to the notice of this Court by the learned W.P.(C)No.28259 OF 2009 20 counsel for the respondent/applicant that, exactly under similar circumstances, where the concerned Society came to be closed down and the employee, who was denied employment by the Department/Railways stating that he was not continuing on the rolls of the Society, had approached the Tribunal by filing O.A.1060 of 2010. After considering the rival submissions, a specific finding was rendered to the effect that the right to get absorbed as a Group D employee, based on Annexure A1 Scheme dated 30.05.2000 (a right had already been accrued to the employee) who satisfied the requirement thereon as on that date, i.e., the date of issuance of the Scheme. It was accordingly, that the O.A. was allowed and it is stated that the issue has become final, the Railways having lost the battle. This Court is also aware of the fact that somewhat similar contentions were raised by the Railway to challenge the order passed by the Tribunal in O.A.367 of 2014. In the said case, the applicant, who was working in the Society, was proceeded against by way of W.P.(C)No.28259 OF 2009 21 disciplinary proceedings and was dismissed from the service finding him guilty. The said finding was subsequently set aside and he was ordered to be reinstated as per judicial pronouncement only on 20.06.2011. By virtue of the turn of events, when the Society forwarded the list of employees concerned to the Railways, the name of the applicant was not included, as he had already been dismissed from the service. But having ordered to be reinstated with continuity of service , the applicant sought for regularisation, which was resisted by the Railways stating that he was not there on the rolls of the Society when the list was forwarded. After considering the rival pleadings, the Tribunal allowed the O.A. granting the benefit, which was sought to be challenged by filing O.P.(CAT)No.154 of 2016. After detailed hearing , this Court found that the verdict passed by the Tribunal was perfectly within the four walls of law and accordingly, interference was declined and the O.P. was dismissed. However, since there was no fault on the part of the W.P.(C)No.28259 OF 2009 22 Railways, this Court made it clear that the pay fixation to be effected by the Railways was to be on a 'notional basis' and no arrears of salary or pension would be paid, but for granting the benefit to the extent payable otherwise, in terms of the Scheme.

16. In the above circumstance this Court find that there is absolutely no merit in this writ petition. No tenable grounds have been raised to call for interference. Accordingly, the writ petition is dismissed. However, considering the fact that there was stay of further proceedings pursuant to Ext.P5 order passed by the Tribunal, the exercise ordered to be finalised as directed by the Tribunal shall be completed and the actual extent of benefits (effecting notional fixation, if there was any vacancy prior to 31.10.2007, i.e. date of age of superannuation of the employee, absorbing the applicant in service and permitting him to continue in service till the age of 60, which is the retirement age of the employees of the Railways) flowing from Ext.P5 shall be extended to the applicant at the earliest, at any rate within a W.P.(C)No.28259 OF 2009 23 period of 'three months' from the date of receipt of a copy of the judgment.

P.R. RAMACHANDRA MENON, JUDGE ANIL K. NARENDRAN, JUDGE lk

Unlock Advanced Research with PRISMAI

Kerala High Court