Central Administrative Tribunal - Gauhati
Shri Baijnath Mali vs M/O Railways on 31 January, 2020
CENTRAL ADMINISTRATIVE TRIBUNAL GUWAHATI BENCH -
Original Appl .) Bron No. 040/00444/2019 THE HON'BLE MRS. MAN A DAS, JUDICIAL MEMBER THE HON'BLE MR. N. NEIH AL, ADMINISTRATIVE MEMBER Shri Baijnath Mali :
Son of Late Rajeswar Malt Working as Kralashi Helper Office of the Sr. Section Engineer (Con) _ NLP. Railway, near Guwahati.
_Guwahaii Railway Station, Guwahati -- 781001, . Applicant y Advocate: Sr M, Chanda & Sri Kumar Abhinaba
-VERSUS-
. Union of India Represented by Secretary to the Government of India Ministry of Railway, New Delhi.
. The General Manader iConstuction| N. F. Railway, Maligoan Guwahati 781011.
. The Divisional Railway Manage (P} N.F. Railway, Lumding -
P.O. Lumeding, Dist. -- ie Assam.
. The Sr. Section Engineer {Con} :
N.F. Railway, Guwahati, Near Guwahati Railway Station Guwahati ~ 781001.
. The Deputy Chief Signal and Telecommunication Engineer {Con} Maligaon, Guwahati -- 781011.
» Respondents By Advocote: Ms U, Das, Rl ly SC oo Date of hearing: 24.01 2020 Date of order: 31.01.2020 Being shee a the speaking arden daied 24.12.2019 by which the applicant's cae for appointment : Tor his ward under LARGESS was rejected, the applicant approached before this Tnbunal under Section 1° of the Administrative Tribunal Act, 1985 with the following reliefs: "8.1 That the Hon'ble Tribunal be pleased to set aside and. quash the impugned speaking order bearing leffer dated 24.12.2019 (Annexure Al} 8.2. That the Hon'ble Tibunal be pleased Geciared that the son of the applicant Shr Viiay Kumar @ Shi Viiay Kumar Bhandari is entitled to Bat employment under the LARSGESS Scheme. 8.3 That th e respondent be direct to consider the application submited by fhe applicant and give appointment to the son of the applicant under fhe said LARSGESS scheme forthwith If necessary by adjusting the pensionary benefit of the applicant as per the norms of the LARSGESS Scheme.
8.4 Casts of ihe application.
8.5 Any. other reliet(s}) fo which the applicant! is entifled to, as the Hon' bie Tribunal may deem fit and proper. :
2. As directed vide bce dated 01,0) 2020, the original relevant records in regards fo the instant case have been produced by the learned Rly. SC before the court.
3. Heard Sri M. Chanda, learned counsel for the applicant and Ms U. Das, Rly SC for the respondents.
4. The brief facts of the case is that the applicant was inifially appeinicd Qs Khalosi in the year 1983 on regular So eee LLL EEE EEE EEE basis under Respondent No. 4 and was s placed under the | : respondent No. 5, Thereafter, he wos promoted to he post Khalashi Heloer and working | in the said post Till now.
2. The Railway department, bAinistey of Railway, Govt. Of India introduced Q Safety Retirement Scheme for the Safety Category Staff called as 'Liberaiized Active Retirement Scheme for Guaranieed Empl oyien! for Safely Staff' (for short LARSGESS) vide No.E/ (P&A)-2010/RT-2 dated 11.0?.2010. Under the sal id scheme employment fo sul fable ward of the Railway Employees working in the safety Category is admissible. The categories of staff coveted under the Scheme are those who are working in Operating Department, Civil Engineering Department, Signal and Telecommunication Deparimen, Mechanical Department and Electrical Department.
é. Hon the relevant railway records produced by the Railway SC it appeared that the apelean Sri Baijnath Mat did make application form in the month of August' 2015 for voluntary retirement under the LARSGESS (for the 2r¢ half of 2015}. The said applica lon form was duly cell fled and verified from the service record and found saree! and according y, Senior section Engineer (Sig} Con NF. Railway Who is competent has put as signature on 18.08.201 § in the & form itself. Similarly, the concerned gazetied officer ASTE/CON/LMG NF, Railway also pul his signature on 22,08.2015. in. the said form, the applicant opted for voluntary retirement under LARSGESS against appointment of his ward Sri Vijay Kumar Mal. All the requisite formatities have been done by the applicant,
7. From the records it revealed that the railway vide letter dated 24.05.2016 had done the medical examination af the ward of the applicant Le. Sr Vijay Kumar Mali. The candidature for the appainiment of Group 'Dp' where competent medical officer certified as hereunder: | sees: x aS
-- = SESE ES RSS .
= -- ' Pes ~~ RR : Soy SES Sauce Ses ES .
A a 8 This is the second round of tigation. In the first round of Itgation the applicant had approached before this Tdbunal vide O.A. No. 0077/201 7 WIA the following prayer:
"81 That the Hon' ble Tri ibunal be pleased declared that. the son of the applicant Shi Viiay Kumar @ sh. Vijay Kumar Bhandari is entitled fo get employment under the LARSGESS Scheme.
8.2 That the respondents be direct to consider the application submitted by the applicant and give appoiniment fo the son of the applicant under the said scheme forthwith."
9, This Tribunal after hearing the learned counsel for the applicant as well as learned Rly SC, disposed of the said O.A. vide order dated 30.10.2019 with the following direction:
2 1Q. Be that as jt may, since the representation of the can dated 21.07.2017 fs sill pending, as such, without gal ing into fhe merit of the case as well as in the ends of justice, we direct the respondent authority to dispose of the representation filed by the applicant dated 21 07, 2017 within a period of one months from the date of Hee! of this order,"
10. In compliance of the said ae dated 30.10.2019, the depariment passed the impugned speaking order dated 24.12,201 ? by rejecting the case of the applicant for appointment of his ward uhaee LARGESS. Hence, this Original Application before this Tribunal. ice The ground for rejection of the case of fhe applicant set forth by the ral iway authority was that in the case of the applicant. all the form lities were not completed including screening before 27.10.2017. Therefore, his prayer for appointment of his ward could not be considered.
12. Sri M. Chanda, learned counsel for fhe applicant vociferously argued and submitted that all the formalities for appainiment of the ward of the applicant had been done in the year 2016 leading fo the Medical examination where the applicant's son was found fit.
13. On the other hand, the main contention raised by Ms U. Das, learned railway S.C. for the roilway authority is that the ward of the applicant was not eligible for ceehng fest as differences in ihe name of father and son was found in the school cerfificate, service record and family declaration.
14, TT was further submitted by the learned Rly SC that _ the applicant's ward has passed matriculation examination in the year 200? but in the family declaration for the year 2015 the name of ward is stil recorded as Viloy Kumar Mall. He could have been rectified the same earlier before 2015 as per procedure in vogue for éhanging the surname, but nis formalities for changing the surnames were concluded in the year 2018 i.e. after the LARSGESS was put on hold on 27.10.2017 as per RBE letter No. E(P&A)|-2015/RT-43 date 27.10.2017 and subsequently terminated vide RB's letter No. E(P&A)I-2015/RT-43 dated 05.03.2019. As per LARSGESS the applicant has already crossed the age limit for Voluntary Retirement.
15. To counter the arguments advanced by Ms. Das, learned Rly. SC, Si M. Chanda vehemently argued and IN submitted that 'Mali' is the 'Caste' of the applicant and his Se} surname is Bhandari. But somehow at the time of his : person. Similarly, Vijay. Kumar Mali ie, the son of the | appoiniment as Khalashi, the applicant was enrolled as
- Baijnath Mali instead of Bhandari, which remained in his ~ official records. in contrast, the name of his son Vijay was recorded as Sri Vilay 'Kumar Bhandari Le. with his original surname in his Admit Card, Mark sheet etc. of his HSLC Exanination, As such, the applicant and his son Vijay in spite of thelr surnames in two different stage each Le. 'Mall' and 'Bhandari' are fact the one and the same persons but the said dichotomy of surname continued to be used in a loose manner.
16. Learned counsel for the applicant submitted that fhe applicant did make affidavit on 29.07.2015 by declaring that Baijnath Bhandari and Baijnath Mali is one and same 8 applicant also declared on 27.09.2015 before the Judicial Magistrate first class of Kamrup that Vilay Kumar Bhandari and Vilay Kumar Mai one and same person and similarly his father namely Baiknath Bhandari and Bajnath Mall is also one person. The same was aiso published in two daily Newspaper namely, "The Assam Tribune" and "Asomiya Pratidin' on 3] 07.2015 as weil as in the gazetie notification dated 11.05.2018, 17, fo the sumame, we have gone through the original records ana found that one affidavit dated 29.07.2015 which has been produced by the applicant with a declaration which reads as hereunder: | "That in all the relevant cocuments of my son, my name has been recorded as Baljnath Bhandari instead of Bajjnath Mali.
That i do hereby declared thal Balinath Bhandari and Baiinaih Mall is one and the same person Le. my name
18. Another affidavit dated 29.07.2015 has also been found from the original record sworn by the ward of applicant Vilay Kumor Mall who declared before the Judicial Magistrate First Class that his actual name is Vilay
-- Kumar Mali, However, in his HSLC admit card, Mark sheet To ascerfain the veracity of disputed fact in regards 9 and certificate etc. his name was recorded as Vijay Kumar Bhandarl instead of Vijay Kumar Mall.
Further declared in said affidavit by the son of the applicant which extracted as hereunder:
"That in my all relevant documents father's name has diso been recorded as Biajnath Bhandari instead of Baljnath Mali.
That | do hereby declared that Vilay Kumar Bhandart and Viiay Kumar Mali is one and the same person Le. my name and Baljnath Bhandarl and Baljnath Mall is also one and same person i.e. my father's name."
1%, The applicant also submitted the paper publication a | in the esteemed daily Newspaper "The Assam Tribune"
: dated 31.07.2015 where it is published as hereunder:
"| Vijay Kumar Bhandari, Son of Balinath mall change my name Vilay Kumar Bhandari to Vijay Kumar Mall by affidavit before the Judicial Magistrate of Kamrup Guwahati, date 2907.2015. Therefore | will be known as Vijay Kumar Mail for all fhe future activities. | Balinath Mali son of Late Rajeswar Mali made an affidavit before the Judicial Magistrate of Kamrup date 29.07.2015. That my name recoreded as Baijnath Bhandari in my son Vilay Kumar Bhandari dacument will be known as Bainath Mail for all fulure activilies."
--- 20. Similarly in daily Newspaper "Asomiya Pratidin"
"dated 29.07.2015 the declaration was made by the 2 applicant as well as son of the applicant which js extracted | below: |
21. In the present case we have noted that sole ground for objection for considering the cose of the applicant for appoiniment of ward nos LARSGESS is for not matching the documenis and difference of surnames of father and son in the schoo! certificate and venice records. Af the same fime. we are unable fo close our eyes that the respondent authority. processed the matter fil stage of Medical examination after through scrutiny of decument and paper submitted by the applicant as well as by the ward of the applicant. Vide affidavit dated 29.07.2015, the applicant as well as his son declared that Balinath Mali is father of Vijay Kumar Mali and Vijay Kumar Bhandari is one and same person. They had also published if in "The Assam "Tribune" and " Asomiya Praticin" which are the esteemed daily Newspapers on 31.07.2015 declaring that Vijay Kumar shandar and Vijay Kumar Mati is one and the same person and also that Ballnath Mali and Baljnath Bhandari is one and "stags, _ the same person for all future activities.
» } Similarly Baljnath Mall son of late Rajeswer Mali made an affidavit before the "Judicial Magistrate of Kamrup on 29.07.2015 and his name was recorded as Baijnath Bhandari and in Ais son Vijay Kumar Bhandari's documents will be : known as Baiinath Mali for all future activities.
| 22. We further noted that the raiwoy authority also permitted the change in name under chapter XIl para 12.01 & 12.02 of Indian Railway Establishment Manual Volume --- | and DOPT OM dated 12.03.1987.
23. hn our View, the paper publication dated 31.07.2015 is being published for 'the general information fo all. | Moreover, the affidavits sworn by both the applicant as well as son of the applicant are vital documents ere. io establish them that whatever requisite document furnished for appointment of the ward under LARSGESS are sufficient 2 document fo serve 'the purpose fo the extent of fhe appointment under largess.
24, Further, we are. in view that the case of the | applicant Wweas processed in the year 2015 2¢ half, even the medical examination was done and the applicant's ward was found fit. Hence, the circular dated 27.10.2017 by which _ bold the LARSGESS shall not be applicable in the case of the applicant.
28. The circular dated 05.03.2019 Issued by the Railway Board speaks as hereunder:
"As regards the cases where the wards had campletfed all formalities including Medical Examination under LARSGESS Scheme prior to 27.10.2017 and were found fil, but the employees are yet fo retire, the matter is pending consideration before ine Hon'ble Supreme Cour and further instructions would be issued as per directions of fhe Hon'ble Court."
2%. tn the Railway Board circular dated 29.05.2019 circulated to the General Manager, North Eastern and SC Railways which contained that extract of the orders of the Hon'ble Supreme Court in WP(C)}) No. 2199/2019 and 448/2019 are reproduced hereunder:
WR(C) 219/2019 "Since the petitioner are claiming benefit under the scheme which was prevalent when applications were preferred by the pelitioners. we have liberty fo the petitioners to approach the concermed authorifies with appropriate representation, If such representation is made, ihe autharities will do well to consider the matter within two weeks on preferring. of the representations. With these observations, the Writ Petition stands disposed of. Fending appiication{s), if any, shall sland disposed of." | WP(C} 448/2019 "These Writ Petitions are disposed of the aforesaid Order dated 26.03.2019, We have no} expressed and shall not be taken fo have expressed anything on the merits of the submissions, Pending application(s), if any shall stand disposed of"
on dated 05.05.2018 published \ prior fo the above rallwa board scheme dated 29.5.2019. _ 27, In view of the al e foregoing discussions, we are unable to accept the submission made by the railway counsel due fo incomplete formalities prior to 27.10.2017 the | case of the applicant « uld nol be considered. : 28. Noticeably. though the process for consideration of tt e case of the applica or appointment of his ward was examination, however, the | acceptable of the merit of the case. As such, we allow this ane and same person. Thus there is no lapse on the part of the applicant, but lapse in the part of the respondents for delaying the matter for consideration for appoiniment after being made through scrutiny and medical fitness. In case of the State of Maharashtra Vs. Jagannath Achyut Karandikar the Hon'ble Supreme Court held that Employee should not , suffer for the lapse on the part of the Government. We therefore found that offer proper scrutiny of the relevant papers and documents of the ward along with service records of the 'oppicant the respondent authorly, be eing sati sfied had done the medical examination and the : competent medi cal office found him. fit. More so, the declaration by the affidavit dated 29.07.2015 by deciaring both the fother and son ihemselves presenting one and the same person. The pub ication of details s in local esteemed Newspaper "The Asso Tribune" and "Agomiya Pratidin dated 31.072015 clearly supports the case of the applicant. The respondent authority si sifting with the matter SINCE long, | clearly demonstrates their careless and apathy towards the genuine grie ievance of the 'opplicant,
-- 80. By taking info entire conspectus of the case we hold
- the ground set forth and advanced on argument are : .
O. A. by setting dude the = Inpugied speak ing order dated - : 24,12.2019.
| o it is needless to mention that the eduse of the action arose from making the application form in August 2015, the same had been certified and verfied from service records : py the superior officer on 18.08.2015. Hence, the suitability and eligibility criteria as fet LARSGESS had been established aN | for the applicant as wel as son of the applicant within the
-- stipulated criteria. on being found fii by the medical | examination on 24.05.2016, The authority shall allow the applicant go for deem retirement within the eligible period by ignoring the current age of the ward if required and the "ward of the appl cont shall be appoinied under the said LARGESS forthwith.
es With the above observations O.A. stands allowed. No order as to costs.
(N. NEIHSIAL). --- (MANJULA DAS) MEMBER (A) | MEMBER (J) BD