Central Administrative Tribunal - Jaipur
Kalyan Sahay Sharma vs M/O Railways on 30 April, 2024
1
OA No. 571/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 571/2015
Order reserved on :22.03.2024
Date of order: 30.04.2024
CORAM:
HON'BLE MS. RANJANA SHAHI, MEMBER (J)
HON'BLE SHRI LOK RANJAN, MEMBER (A)
Kalyan Sahay Sharma S/o Shri Bhonrelal Sharma,
Aged about 59 years, R/o Gram Agawali, Post
Karnavar, Tehsil Baswa, District Dausa, Retired
Assistant Loco Pilot Bandikui
...Applicant
(By Adv: Shri Rakesh Sharma)
Versus
1. Union of India through the General Manager,
North Western Zone, North Western Railway,
Jaipur
2. Divisional Railway Manager, North Western
Railway Power House Road, Jaipur
3. Senior Divisional Personal Officer, Office of
D.R.M Office, North-Western Railway, Power
House Road, Jaipur
4. Senior Divisional Finance Manager, Office of
D.R.M Office, North-Western Railway, Power
House Road Jaipur
...Respondents.
(By Adv: Shri Abhishek Sharma)
ORDER
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OA No. 571/2015
Per : Hon'ble Shri Lok Ranjan, Member (A)
The present Original Application has been filed by the Applicant upon being aggrieved by the impugned Order dated 21.01.2015 for determination of his retiral settlement / payments not as per the running post of Assistant Loco Pilot, on which he was working when he was medically decategorized and further allowed to retire voluntarily from; but as per the non- running post of Lower Division Clerk (LDC).
2. On the basis of the pleadings of the parties and the relevant Rules / circulars submitted, the matrix of facts in the present case had emerged as follows briefly. Based upon the periodical medical checkup while working on the running post of Assistant Loco Pilot (ALP) in the Pay Scale of Rs. (3050-4590)/- in Bandikui in 2001, the Applicant was declared medically unfit to hold the said running post. As per the policy of the Respondents related to the medically decategorized staff, the Applicant was initially appointed to the supernumerary post created vide order dated 02.04.2002. Later on 25.09.2002, he was recommended by the Screening Committee to be 3 OA No. 571/2015 adjusted by posting in the alternative non-running post of Fitter Grade-II in the Pay Scale of Rs. (4000- 6000)/-(as that was deemed equivalent to the running post of ALP), subject to passing of the trade test ; and he was accordingly posted as Pipe Fitter Grade-II at Bandikui vide Order dated 10.01.2003. However, since the Applicant had failed in trade test after job training, he was asked on 07.04.2005 to appear before the Screening Committee again, whereafter it was recommended that he be adjusted on the post of L.D.C. in the pay scale Rs. (3050-4590)/- and accordingly he was relieved vide order dated 10.08.2005 to join at the office of Senior Section Engineer (Loco) Jaipur. As thereby, the Applicant had been adjusted in a non-running post carrying the pay scale Rs. (3050-4590)/- that was lower than Rs. (4000-6000)/- deemed equivalent to the running post of ALP from which he was medically decategorized - his case was reviewed upon representation by the Applicant, and he was called again before the Screening Committee vide communication dated 07.02.2007. Since he could not be permanently adjusted against an equivalent non-running post, the 4 OA No. 571/2015 Applicant submitted an application for voluntary retirement in terms of the circular dated 14.06.2006 issued by the Railway Board, which was accepted by the competent authority and notified with immediate effect vide Notification dated 17.05.2007,that had shown the designation of the post from which he was allowed to retire voluntarily as Assistant Loco Pilot, i.e. the post that he was medically decategorized from.
3. It is seen further from the facts emerging from the pleadings of the case that the final settlement of the retiral benefits of the Applicant is still to be done. The Applicant had submitted that as he was allowed to retire voluntarily from the running post of ALP with effect from 17.05.2007, he ought to have been paid the retiral benefits from the post of Assistant Loco Pilot i.e. a running post. However, the matter had been under process and several communications had been exchanged in this regard between the Offices of Departmental authorities, viz. Respondents No. 1, No.2, No.3 and No.4. The case of the Applicant to voluntarily retire from the running post of ALP is seen thereby to had been consistently supported by the 5 OA No. 571/2015 Respondents No.2 and No.3 giving justifications as per guidelines thereof. It is also seen from the communication dated 19.07.2007 of the DRM, Jaipur that adjustment of medically de-categorized A.L.P. from a running post in the scale of Rs. 3050-4590 was required to be done in an equivalent stationary post in the pay scale or Rs. (4000-6000)/- and not in a stationary post of L.D.C. with the Pay Scale of Rs. (3050-4590)/- as was done for the Applicant ; and therefore, he had been called again before the Screening Committee to explore the possibility of adjustment on a stationary post of pay scale of Rs. (4000-6000)/-. Since, the Applicant had prayed for voluntary retirement form service as per Railway Board letter dated 14.06.2006, the same had been considered and the Applicant had been deemed to be retired from the post of A.L.P. w.e.f. 17.05.2007 vide the Order of same date. Through their Order dated 16.04.2008it had also been ordered that as the designation of medically decategorized Applicant was ALP and he was never finally adjusted / absorbed as LDC, his pension case be settled finally as per the pay scale of Rs. (4000-6000)/-.Meanwhile in a similar case 6 OA No. 571/2015 of another Loco Pilot, one Shri Ratan Lal, the pensionary benefits were allowed as per his running category post. The Applicant's case had also been taken up eventually at the Pension Adalat dated 16.12.2013,based on which it was further pursued with Respondents No.1by the Respondents No.2 and No.3. However, eventually, the Respondents had issued an order dated 21.01.2015, wherein it had been mentioned that after his medical decategorization, the Applicant was adjusted on the post of L.D.C. on (Pay + equivalent to R.A.) basis and that the Applicant had worked for a substantial period on the post of L.D.C. ;therefore he cannot be treated as a staff of running category. Thus, in effect the claim of the Applicant for pensionary benefits from the post of Assistant Loco Pilot i.e. running post, had been rejected, upon which the present O.A. had been filed.
3. The Applicant had contended in this regard that the contents mentioned in the impugned Order dated are contrary to their own record as well as against the provision of the Indian Railway Manual and also against the relevant regulation and instructions. It was 7 OA No. 571/2015 the Applicant's case that upon medical decategorization w.e.f. 02.04.2002, his case went to the Screening Committee at various points of time - and pursuant to their recommendations he was posted against various posts, but he was not adjusted permanently on an equivalent non-running post. Eventually he submitted an application for voluntary retirement and accordingly he was allowed to retire from the post of Assistant Loco Pilot ;and therefore he was entitled to get all the retiral benefits from the post of Assistant Loco Pilot - more so when the Respondents had admitted that the case of the applicant is identical to the case of one Shri Ratan Lal, who was allowed the pension and retiral benefits of the running post. The Applicant had therefore prayed that the impugned Order dated 21.01.2015 be quashed and set aside with all consequential monetary benefits ; and the Respondents be directed to pay the interest at the rate of 18% per annum on the arrears to the Applicant.
4. In reply the Respondents have stated that after the Applicant was medically de-categorized from the 8 OA No. 571/2015 post of A.L.P., he was screened through the Screening Committee for absorption in the non-running equivalent post of Pipe Fitter in the pay scale of Rs. (4000-6000)/-. As he could not pass the trade test, the Applicant was screened again and found suitable for absorption in the category of L.D.C. in the pay scale of Rs. (3050-4590)/- that was similar to the pay scale of ALP. Subsequently, as the Applicant's son was given appointment on his prayer, the Applicant himself was retired from service. When the case of the applicant was sent for grant of retirement benefits, it was inter alia decided - that the Applicant was de- categorized from the post of A.L.P. on 19.02.2001 ; that as per Railway Board's Circular dated 26.06.2002, the employee who had been de-categorized after 29.04.1999 had to be alternatively absorbed on a similar post ; that since the Applicant was not absorbed on the equivalent alternative post on de- categorization, his case was reopened and examined in the light of Railway Board's circular and he was again asked to appear before the Screening Committee for absorption in an alternative post ; that the Applicant was considered as per Railway Board's 9 OA No. 571/2015 circular dated 14.06.2006 and his son was given appointment on the prayer of the Applicant and the Applicant was retired from the service. It was further submitted by the Respondents that the case for finalization of retiral benefits to him was sent to accounts department for giving benefit of 55% running mileage as per the relevant rules. However, as per headquarters letter dated 26.10.2007, direction was given to fix the Applicant in the pay scale of Rs. (3050-4590)/- and equivalent to RA be paid to the Applicant. As such, in compliance of the directions and vide letter dated 13.04.2008 the final amount was settled in the scale of Rs. (4000-6000)/- and the running allowance was not given. Thereafter again, upon the clarification being received in respect of the Applicant's claim vide headquarter letter dated 15.01.2015, whereby it had been stated that the Applicant cannot be considered in the running category since he has already been granted the benefit of (Pay+RA) which is equivalent to the equivalent Pay Scale, the claim of the applicant was rejected vide letter dated 21.01.2015. 10 OA No. 571/2015
5. We have gone through the pleadings as available on records and heard the arguments of the learned counsels before us. At the outset, it is noted that while there is no substantive difference on the basic facts, the matter for finalization of the retiral benefits of the Applicant had been kept pending for a long time, only on account of deciding the correct position of Rules / regulations / circulars in this regard. In course of the same, the different authorities had come to different conclusions, without citing the relevant rules or guidelines most of the time, which would have helped decide the case.
6. Moreover, it is seen from the pleadings and the arguments of the parties that the main dispute is that whether the Applicant was to be deemed voluntarily retired on 17.05.2007 from the post of A.L.P. from which he was medically de-categorized ; or whether he had to be deemed voluntarily retired on 17.05.2007 from the post of L.D.C. where he had been adjusted to work from 10.08.2005 after medical de-categorization, although that was not an equivalent 11 OA No. 571/2015 post ; and the consequential issue related to settlement of retiral benefits to the Applicant.
7. In course of the arguments before us learned counsel for the applicant had presented before us the Railway Services Pension Rules, 1993 which provide in Rule 17 as under:
"17. Pensionary benefits to staff declared unfit. - If a railway servant is unfit for his post but is retained in service in an alternative appointment under the provision of the code and subsequently becomes entitled to receive retirement gratuity or pension, he shall be given the option of accepting either of following, whichever he may, prefer-
(i) the gratuity or pension which he would normally be granted with reference to his total service in both the spells of his service taken together ;
(ii) the sum of-
(a) gratuity or pension which he would
have been granted if he had been
medically invalidated out of service
instead of being retained in an alternative appointment at the end of the first spell of his service; and 12 OA No. 571/2015
(b) the retirement gratuity or pension which he would normally have been granted for the second spell of this service rendered in the alternative appointment:
Provided that if the total qualifying service of the railway servant in both the spells of service taken together exceeds 33 years, the qualifying service in the second spell shall be reduced by the number of years by which total qualifying service in both the spells taken together exceeds 33 years and ordinary gratuity or pension and death-cum-retirement gratuity for the second spells of service shall be calculated with reference to the reduced qualifying service so calculated.
8. From this, it became clear that there is a prescribed Rule for handling cases as that of the Applicant presently. This had not been contested by the learned counsel for the Respondents ; nor any alternative Rule position cited or presented that may have formed the basis of the impugned Order dated 10.01.2015. It emerged from this that even if the Applicant upon being deemed as a medically unfit was 13 OA No. 571/2015 to be treated as retained in service in an alternative appointment and subsequently became entitled to receive retirement gratuity and pension, he should have been given the option of accepting one of the two prescribed ways under Rule 17 (i) or Rule 17(ii) of the Railways own Pension Rules for determining the payable gratuity or pension at his preference. That the same had never been afforded to him had not been controverted by the Respondents.
9. We also note that the other possible source of relevant inputs for coming to a decision in the matter could have been the precedents in this regard. The Applicant had cited the case of a similarly placed employee, one Shri Ratan Lal. The documents related to his case had been placed as part of pleadings, that showed that the Respondents were very much aware of the substantive similarity of Shri Ratan Lal's case to that of the Applicant presently. However, the Respondents had not even covered this as part of their Reply and had thus refrained from explaining the substantive difference, if any, that could justify the difference in their decisions in the two cases. 14 OA No. 571/2015
10. Very importantly, it also does not stand to reason that a long spell of running service of the Applicant will get totally superseded by a relatively short spell of non-running service as L.D.C. - even more so in light of the contest of the Applicant that his service as L.D.C. cannot be deemed regular for him as it was not in an equivalent post. Importantly further, the law in regard to the retiral benefits - pension and others - has been laid down by the Hon'ble Apex Court very clearly in a catena of judgments, that the grant of pensionary benefits to an employee is not an act of bounty but a bounden duty upon the employer.
11. In the conspectus of the foregoing examination and analysis of the relevant pleadings covering the related facts and Rules position as well as the arguments before us, we find that the impugned order dated 10.01.2015 is fit to be interfered with. Accordingly, we proceed to quash and set aside the said impugned Order dated 10.01.2015. We also direct the Respondents to finalize the settlement of the retiral benefits including the pension and the 15 OA No. 571/2015 gratuity of the Applicant, suitably considering the running service of the Applicant in the Respondent organization in accordance with the applicable Rules of the Respondents, within a period of forty-five days from the date of receipt of a certified copy of this Order.
12. Also further, we direct the Respondents to ensure payment of any arrears that may become due to the Applicant thereupon, within forty-five days further from the date of such finalization of retiral benefits by the Respondents. We also direct that in case of delay, in payment of such arrears that may become due to the Applicant, beyond such aggregate period of ninety days from the date of receipt of a certified copy of this Order, the Respondents shall be liable to pay interest on such arrears - for the period of delay beyond the aforesaid aggregate period of ninety days from the date of receipt of a certified copy of this Order till the date of actual payment- at the G.P.F. rate.
13. Therefore, the O.A. is allowed, with directions as foregoing. No order as to costs.
16 OA No. 571/2015 (Lok Ranjan) (Ranjana Shahi) Member (A) Member (J) !Vv