Central Administrative Tribunal - Hyderabad
Gandham Satya Murthy vs M/O Railways on 11 January, 2024
1
OA.No.761/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATION NO.021/00761/2018
ORDER RESERVED ON 18.10.2023
DATE OF ORDER: 11.01.2024
CORAM:
HON'BLE MR. SUDHI RANJAN MISHRA, JUDICIAL MEMBER
HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
Gandham Satya Murthy
S/o G.Venkatarao, aged about 60 years
Occupation: Ex-Safaiwala/ZRTI/Moulali
R/o.H.No.1-149
Madipally, Uppal
Hyderabad. .....Applicant
(By Advocate Sri V.Venkateswara Rao)
Vs.
1. The Union of India
General Manager
South Central Railway
Rail Nilayam
Secunderabad - 500371.
2. The Chief Personnel Officer
South Central Railway
Rail Nilayam
Secunderabad - 500371.
3. The Chief Safety Officer
South Central Railway
Rail Nilayam
Secunderabad -500371.
4. The Principal
Zonal Railway, Training Institute
South Central Railway
Moula-Ali, Hyderabad - 500 040. ....Respondents
(By Advocate Sri V.Vinod Kumar, Senior Panel Counsel for Central
Government)
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OA.No.761/2018
ORDER
PER: HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
1. The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking therein the following relief:
"To declare that the applicant is entitled for appointment as regular Gr- D employee w.e.f. 1.8.1998 or 2.11.2000 instead of 3.12.2005 and direct the respondents to grant the same with all consequential benefits such as admitting him to pension/family pension scheme in accordance with the Railway Servants (Pension) Rules counting 50% of his total casual labour service for the purpose of retirement benefits such as gratuity, pension etc and pass any other order or orders as deemed fit, proper, necessary and expedient in the circumstance of the case."
2. The brief facts of the case as pleaded by the applicant are as follows:
I. The applicant was initially appointed as casual labour in Zonal Training School, South Central Railway, Moulali, Hyderabad in Aug 1978 and continued till July 1979 without any break. Thereafter he was disengaged for want of work and he was reengaged w.e.f. 15.03.1983 in the SCR, Zonal Training School mess. Thus he is in continuous service of SCR, ZTS but for the break as mentioned above between in Aug 1979 to 14th March 1983 for want of work. The staff of Railway ZTS Mess are treated on par with the regular staff of the Railways in the matter of grant of privilege passes/OTOs and also the wages/scales of pay. There is a provision for absorption of the mess workers in the vacancies available in the initial recruitment grade of Rs.750-940 by subjecting to them screening test as per note 1 & 2 appended to the avenue chart for Group- D and C categories of Zonal Training School, Moulali.3
OA.No.761/2018 II. Accordingly, the applicant and other mess workers are eligible for absorption in initial recruitment grade mentioned above as per the above avenue chart on regular basis. Accordingly, 31 mess workers who are seniors to the applicant were absorbed in Group D vacancies on regular basis against the vacancies that arose up to the year 1997. Two vacancies arose thereafter due to death of incumbents in Group D category in 1998 & 1999. Even though the applicant was the next eligible candidate to be absorbed, he was not absorbed against the said vacancies. However a proposal was made by the Principal of the ZTC, Moulali vide letter dated 29.07.2000 to absorb the applicant against another vacancy after screening. In response to the said letter, approval was given by the CPO for the screening committee to be held on 14.09.2000 vide letter dated 8.9.2000. But the screening committee was held on 18.9.2000 for which six candidates including the applicant were directed to attend the same vide letter dated 12.9.2000. Thereafter the other mess workers who are junior to the applicant were appointed against the Group D post on regular basis vide proceedings dated 22.9.2000. But the applicant was not appointed on the ground that he was overaged.
III. The applicant was called for screening on 25.10.2002 along with two others. He was again called for screening test on 1.8.2003 along with two others vide letter dated 22.7.2003. The said screening was postponed to 4.8.2003. He was again called for screening along with five others on 22.3.2004 vide letter dated 19.3.2004 against the existing vacancies. Even though he was fully eligible and entitled he was not absorbed on the 4 OA.No.761/2018 ground that he was overaged. All others who were juniors to him were absorbed. Aggrieved by the same, he filed OA.No.1309 of 2004 which was allowed by this Tribunal vide order dated 14.9.2005 holding that the applicant at the time of entry in to Zonal Training Institute Mess was 25 years and that his name was approved by the Railway Board for absorption which was conveyed by CPO on 1.11.2001. He was eligible for absorption against the vacancy which arose on 1.8.1998. Admittedly the screening test and the appointment of the applicant was delayed only due to administrative reasons. The Tribunal further observed that the respondents cannot reject the absorption of the applicant who had fulfilled all the conditions stipulated in the Sr.Circular No.154/2000 as well as in the letter of CPO dated 23.4.2001 on the ground that he has become over aged. Therefore the respondents are directed to absorb the applicant duly conducting medical test and pass appropriate order within a period of one month from the date of communication of the order. As per the said direction of this Tribunal, the applicant is entitled to be appointed by absorption in Group D vacancy which arose from 1.8.1998 with all consequential benefits. But unfortunately he was appointed as safaiwala-2 in the scale of Rs.2550-3200 vide office order dated 2.12.2005 with prospective effect only i.e. from the date of the said order dated 2.12.2005 even though his name was approved for absorption after screening on 1.11.2001 itself. All his juniors were appointed from much earlier dates i.e between 1.8.1998 to 2.12.2005. His case was delayed due to rejection on illegal ground of overage. The applicant cannot be deprived of his right to be absorbed on regular basis with effect from the 5 OA.No.761/2018 date on which he was eligible or the vacancy was available i.e. 1.8.1998 or at least on 2.11.2001 when the Railway Board approved his case for absorption.
IV. The applicant submitted a representation on10.3.2016 requesting the respondents to count his service from Aug 1978 for the purpose of service benefits on attaining the age of superannuation. Since there was no reply, he submitted reminders on 24.5.2016 and 16.6.2017 which are also not considered. Thereafter he was retired from service on 31.01.2018 on reaching the age of superannuation. Since his appointment on regular basis was given only from 3.12.2005, he was not admitted to the Railway Pension Scheme. He would have been the eligible for the Railway Pension Scheme, if his regular appointment date was made from 1.8.1998 or at least on 2.11.2001 against the vacancy for which he was screened but was not appointed for the administrative reasons. Many of his juniors viz. A.Srinivasaraju, K,Ramesh, R.Ravindera shown at Sl.Nos. 14, 15 and 17 who were absorbed as regular employees earlier to him are enjoying the benefits, as per the provisions of railway servants (Pension) rules. But, in its place, a private pension scheme was introduced on 01.01.2004. Many of his juniors in the mess who were appointed as regular Gr.D employees prior to 1.1.2004 were admitted as per the provisions of Railway Servants (Pension) Rules. The applicant is deprived of the same only due to the delay caused by the administrative in appointing him as Gr.D employee on regular basis. After retirement even the benefits due to him were not properly calculated and disbursed 6 OA.No.761/2018 to him. As such, he submitted representation dated 11.2.2018 asking for the statement of details of his retirement benefits. Even to that also there is no reply from the respondents. That apart, the applicant further submits that as per full bench judgment of the Hon'ble High Court of Telangana and Andhra Pradesh reported in 2015(6)ALT315(FB) in the case of R.Ramarao vs. Railway Board, the applicant is entitled to count 50% of the casual service rendered by him prior to 3.12.2005 for the purpose of his retirement benefits on reaching the age of his superannuation. Admittedly he started his continuous service in Railways from 15.3.1983 and as such 50% of his service from 15.3.1983 till the date of regular appointment is to be added to his total length of qualifying service in Railways for the purpose of his retirement benefits.
3. On notice, the respondents have filed their reply statement wherein they submit that the applicant initially joined as a trainee co-operative mess worker at Zonal Training School which has been renamed as Zonal Railway Training Institute in short ZRTI. As per available records, he has joined on 15.3.1983 as a trainee co-operative mess worker governed by A.P.Shops and Establishment act. Subsequently, he requested for absorption as a Gr.D employee into ZRTI. In this regard, based on the instructions of CPO vide their letter dated 01.11.2001, a screening committee was constituted with Vice Principal (optg), Vice Principal (Commercial) and Assistant Personal Officer/(T)/HQ. The screening committee had verified the certificates of six candidates including the applicant and advised on 26.5.2004 that, out of six candidates, three candidates including the applicant were overaged and needs age relaxation by competent authority. 7 OA.No.761/2018 Competent authority has not agreed for age relaxation. As such the applicant filed OA.No.1309 of 2004 before this Tribunal for treating him as within the age limit of 25 years by taking the date of his entry into service as casual labour in the month of August 1978. This Tribunal vide order dated 14.9.2005 allowed the case directing the respondents to absorb the applicant duly conducting the medical test. Accordingly, the Tribunal's orders have been implemented duly absorbing the applicant as Group 'D' employee as Safaiwala-II in Zonal Railway Training Institute w.e.f. 03.12.2005. The applicant has retired from service on 31.1.2018 and his settlement of dues was done on 31.1.2018 itself. All details of his retirement benefits were available in his service certificate and other pension papers were given to him in original and no benefits were pending to the applicant. Further, the averment made by the applicant that he was initially appointed as a casual labour in Zonal Training School, South Central Railway, Moula-ali, Hyderabad in August 1978 and continued till July 1979 without any break and thereafter he was disengaged for want of work and was reengaged w.e.f. 15.03.1983 in the Zonal Railway Training Mess is not tenable as there was no record available at ZRTI showing his engagement and disengagement as casual labour. Further no case of disengagement of Mess Workers has come into light except this case. The claim of applicant stating that he has been appointed as casual labour is not tenable since he joined as co- operative mess worker on daily wages in the Zonal Training School Mess which used to be run by the trainees and governed under AP shop and establishment Act. The ZTS mess workers on daily wages cannot be treated on par with regular employees of ZTS, since the mess workers are neither substitutes nor casual labour as per extent rules and they are governed by A.P.Shops and 8 OA.No.761/2018 Establishment Act and not governed by Central Government establishment rules as in the case of ZTS regular employees. He was granted Privilege Pass/Privilege Ticket Order and wages on par with regular staff is not tenable since Privilege pass and Privilege Ticket Order is only a privilege to perform the train journey. The wages were never paid to them on par with regular ZTS railway employees. As per avenue chart and with the approval of Railway Board, the applicant was subjected for screening test on 28.09.2000 for absorption into railways on quasi administrative office account. The averment of the applicant that there were two Group 'D' vacancies arose during 1998 and 1999 against which he was not absorbed even though he was the next eligible candidate to be absorbed, is not tenable as these two group D vacancies arose due to demise of regular Group 'D' employees of ZRTI were filled with compassionate appointments to the wards of the deceased employees at ZRTI itself, since compassionate appointment to the wards of deceased is equally important for the livelihood of deceased family. The outcome of the screening committee on 25.10.2002, 01.08.2003 and 23.03.2004 stated that out of six mess workers whose documents were verified by screening committee, he along with two other mess workers were identified as overaged. As per the Serial Circular No.154/2000 dated 02.08.2000, the Railway may consider for absorption of staff of Quasi Administrative Offices/Organisations who were on role continuously for a period of at least three years as on 10.06.1997 and are still on role, subject to fulfilment of prescribed educational qualification for Group 'D' staff and such staff have been engaged within prescribed age limit (25 yrs). But as per records, the applicant was appointed on 15.03.1983 and his date of birth is 06.01.1958. Thus he was overaged by 2 months 9 days. However 9 OA.No.761/2018 in compliance to the Tribunal's orders, the applicant was absorbed from 03.12.2005. The applicant's version that his juniors were promoted is not tenable as out of six mess workers who have been identified for screening, three Trainee Co-operative Mess workers including the applicant were not absorbed due to the reason of overage. The remaining three were absorbed as they have fulfilled all the conditions without any dispute. However, out of the three over aged workers, two workers including applicant was absorbed afterwards on clearance of age dispute and the remaining one was not absorbed. The averment that his juniors who were absorbed as regular employees earlier to him are enjoying benefits of pension scheme is not tenable as the said employees were not enjoying the old pension benefits since they were absorbed in August 2004 when new pension scheme was implemented w.e.f. 1.1.2004 and the employees absorbed along with him were covered under New Pension Scheme. The representation submitted by the applicant on 11.2.2018 was disposed of to his satisfaction duly explaining all the details in regard to retirement benefits and pension. He was given all the retiral benefits on 31.1.2018 itself i.e. on the date of retirement. No benefits were pending to the applicant. Further the averment of the applicant that he is entitled to count 50% of the casual service rendered by him prior to 3.12.2005 for the purpose of his retirement benefits is not tenable since he was a trainee co-operative mess worker and his service is neither governed by casual labour rules nor substitute rules of Central Government. He has been granted absorption on the basis of staff working in quasi-administrative offices/organizations connected with railways with the approval of Railway Board and his service / other aspects were considered on par with other co-operative mess workers absorbed along with him. The 10 OA.No.761/2018 contention of the applicant about denial of regular appointment as Group-D employee w.e.f. 1.8.1998/2.11.2001 is not tenable since the vacancy arose during 1998 was due to demise of regular Group D employee of ZRTI and the same was filled with compassionate appointment of the ward of the deceased as compassionate appointment is to be given on priority for the livelihood of deceased employee's family. Further he could not be given appointment order during 2001 as his name was approved for absorption duly following all the laid down conditions/procedures in vogue by Railway Board vide CPO/SC letter dated 1.11.2001, since the applicant was working for quasi administrative office and Railway Board's approval is required for absorption of such workers into Railways. Accordingly he was screened by a screening committee and was found medically fit on 1.12.2005 and appointment orders were therefore given on 2.12.2005 as Safaiwala-II in the then scale of Rs.2550-3200 on pay of Rs.2550. The applicant submitted three representations on 10.03.2016, 24.05.2016 and 16.06.2017 wherein he requested for considering his service from August 1978 which could not be considered as he has been appointed by trainee co-op mess authorities and not by railway authorities and the applicant not covered by substitute/casual labour rules of Central Government. Further no evidence towards his date of appointment during August 1978 has been submitted by him along with his representation. It is settled law as laid down in the case of C.Jacob vs. Director of Geology and Mining decided on 03.10.2008 that 'grant of an innocuous prayer to consider a representation relating to a state issue, is impermissible. Further there was no challenge of the seniority list published on 14.11.2008 and circulated to all the staff of ZRTI MLY in which the applicant's appointment date was shown as 03.12.2005. No objection was 11 OA.No.761/2018 raised by the applicant during that time and seeking the relief in 2018 i.e. after his retirement from his service asking for treating his regular Group-D employment with effect from1998 or 2001 i.e. after a lapse of 10 years is not tenable.
4. The Railway Board vide letter RBE No.103/2000 dated 30.05.2000 has decided as one time relaxation to absorb the staff working in Quasi Administrative office in Group 'D' posts in the Railways subject to their fulfilling the conditions laid down in Railway Board's letter dated 30.05.2000 circulated under Chief Personnel Office Serial Circular No.154/2000. It is stated by the respondents that since the applicant was fulfilling the educational qualification in terms of Circular No.270/1999, he was called for screening test, which was completed in year 2004. Along with the applicant, five others were also screened. Three candidates along with the applicant were found over aged by screening committee for absorbing in Railway Service and relaxation of Upper age limit was not agreed to by the Competent Authority. The rest 3 candidates, who were junior to him and fulfilled the required parameters in terms of the said Circular, were appointed in Group 'D' posts on 26.8.2004 and their date of appointment was considered as 26.08.2004 under New Pension Scheme (NPS). However, out of three overaged candidates two were absorbed on 28.12.2005 based on the Tribunal's orders in an earlier OA and the left over one was not absorbed due to overage. In view of the above position, the OA is liable to be dismissed.
5. The applicant has filed rejoinder and additional rejoinder reiterating the contentions already made in the OA. He further submitted that the argument of 12 OA.No.761/2018 the 4th respondent that no records are available about his initial appointment as casual labour in August 1978 is wholly misconceived. The Service Certificate issued by the Secretary, SCR/ZTSM disproves the said plea of the 4th respondent. If necessary, the officer who issued this certificate may be summoned along with the 4th respondent to record their evidence. Even the salary slips issued to the applicant right from 1978 may be directed to be produced before this Tribunal. Nowhere in the records of the 4th respondent Establishment, the applicant's position was described as Trainee Cooperative Mess Worker. For the first time the 4th respondent has invented this argument without any evidence. However the fact of his working as casual labour in the SCR ZTSM was admitted. This Tribunal in OA.No.1309 of 2004 had categorically held that the applicant should be treated as within the age limit as such the question of his becoming overaged does not arise. Even though the applicant was the senior most employee and the vacancies were available, the respondents delayed the absorption of the applicant for administrative reasons up to 2004 illegally and arbitrarily, while regularizing his juniors. The delay occurred in giving regular appointment to the applicant after the judgment dated 14.9.2005 cannot be attributed to the applicant. At this juncture, it is pertinent to note that the Hon'ble Supreme Court in its recent judgment of 2023 in Raman Kumar vs. Union of India & Ors., wherein the chief Commissioner of Income Tax has himself found 65 persons were entitled to be regularized for Group D services, only 35 people were regularized and the act of not regularizing others' service was held to be bad in law and discriminatory. The respondents therein were directed to regularise all the applicants therein from the date on which the services of other 35 employees were regularized along with backwages and 13 OA.No.761/2018 other consequential benefits. Similarly, the applicant herein also entitled for regular appointment with all consequential benefits from 1998 or 2000 on the dates when his juniors were regularized. The applicant further argued that he was also denied the benefits of the then pension scheme prevailing at that time since his regular service was counted only from 3.12.2005 in the mean time, Old Pension Scheme(GPF) was replaced by introducing National Pension Scheme (NPS) w.e.f. 01.01.2004. After retirement of the applicant, he was put in the NPS which is detrimental to him causing huge financial loss and affecting the livelihood of himself and his family. Eventually, he would have been the beneficiary of old pension scheme if his services were regularized prior to 3.12.2005 by counting the entire period of around 30 years. Recently, the Railway Board on realising that the denial of Old Pension Scheme to the employees appointed against the vacancies/posts available to be filled in prior to the notification of NPS from 01.01.2004 is not correct, had issued a circular dated 10.03.2023 vide which it decided to give one time option to be exercised before 31.08.2023 to all the concerned employees to be covered under CCS Pension Rules 1972. The applicant submits that in terms of the said circular, he is also entitled to the extended benefits under CCS pension rules 1972 in as much as his regular appointment was given w.e.f. 03.12.2005 i.e. after the cut- off date of 01.01.2004 against the vacancy available prior to 22.12.203 which fact is born on the record. Therefore, the respondents should treat him as eligible for pension under Old Pension Scheme and give him a chance to get into Old Pension Scheme 1972 by permitting him to exercise one time option. 14 OA.No.761/2018
6. Heard Sri V.Venkateswara Rao, learned counsel for the applicant and Sri V.Vinod Kumar, learned Senior Panel Counsel for the respondents and perused the materials placed on record.
7. As can be seen from the pleadings, the Railway Board vide their letter RBE No.103/2000 dated 30.5.2000 has decided as one time relaxation to absorb the staff working in Quasi Administrative office where the applicant was working before absorption, in Group 'D' posts in the Railways subject to their fulfilling the conditions laid down in Railway Board's letter dated 30.05.2000. Since the applicant fulfilled the educational qualification in terms of Circular No.270/1999, he requested for absorption as a Gr.D employee into Zonal Railway Training Institute(ZRTI). A screening committee constituted for this purpose had verified the certificates of the applicant along with 5 others wherein the applicant was found overaged and needs age relaxation by the competent authority. When the competent authority not agreed for age relaxation, the applicant filed OA.No.1309/2004 for treating him as within the age limit of 25 years by taking the date of his entry into service as casual labour in 1978. The Tribunal while allowing the said OA gave direction to the respondents to absorb the applicant in Group 'D' post duly conducting medical test as he fulfilled the conditions stipulated in Sr.Circular No.154/2000 as well as in CPO's letter dated 1.11.2001. It is clear from the order of this Tribunal that there was no direction given to the respondents to absorb the applicant in Gr.D post retrospectively. As such in compliance to the order of this Tribunal, the respondents had considered the case of the applicant and absorbed him in Group 'D' as Safaiwala-II w.e.f. 03.12.2005 duly following all the recruitment 15 OA.No.761/2018 procedures. As such the contention of the applicant that he is entitled for absorption retrospectively as regular Gr.D employee against a vacancy which arose on 1.8.1998 or from 02.11.2001 is not maintainable since he was absorbed against Gr.D Safaiwala-II post w.e.f 03.12.2005 only.
8. In regard to the contention of the applicant for counting of 50% of his total casual labour service for the purpose of retirement benefits, it is seen as has been contended by the respondents that the applicant has joined on 15.03.1983 as a trainee co-operative mess worker governed by A.P.Shops and Establishment Act. When the applicant requested for absorption as a Gr.D employee into Zonal Railway Training Institute(ZRTI), the competent authority not agreed for as he was overaged. Being aggrieved, the applicant filed OA.No.1309/2004 for treating him as within the age limit of 25 years by taking the date of his entry into service as casual labour in 1978. On indulgence of this Tribunal, the respondents have absorbed him in Group 'D' in ZRTI w.e.f. 03.12.2005. As discussed in earlier para, there was no direction by this Tribunal for absorption of the applicant with retrospective effect. As stated by the respondents, the ZRTI mess workers on daily wages cannot be treated on par with regular employees of ZRTI since the mess workers are neither substitutes nor casual labour as per extent rules and they are governed by A.P.Shops and Establishment Act only and not governed by Central Government establishment rules as in the case of ZRTI regular employees. He is neither governed by casual labour rules nor substitute rules of Central Government. He has been granted absorption on the basis of staff working in quasi-administrative offices/organisations connected with Railways with the approval of Railway 16 OA.No.761/2018 Board and his service and other aspects were considered on par with other co- operative mess workers absorbed along with him. And hence, he is not entitled for counting of 50% of the casual service rendered by him prior to 03.12.2005 for the purpose of retirement benefits such as gratuity, pension etc. The contention of the applicant that his juniors who were absorbed as regular employees earlier to him are enjoying the benefits of Old Pension Scheme whereas he was covered under New Pension Scheme as he has been absorbed in to Railways only on 03.12.2005, is unfounded since, as has been stated by the respondents, the juniors who were absorbed as regular employees prior to the applicant were also kept under New Pension Scheme as they were absorbed in August 2004 in to the Railways.
9. In view of the above position, we do not find any force in the contention made by the applicant and therefore, the OA being devoid of any merits is liable to be dismissed.
10. Accordingly, the OA is dismissed. However, there shall be no order as to costs.
(SHALINI MISRA) (SUDHI RANJAN MISHRA) ADMINISTRATIVE MEMBER JUDICIAL MEMBER /ps/