Central Administrative Tribunal - Allahabad
Rakesh Mishra vs General Manager C Rly on 23 December, 2022
O.A. No. 1280/2019
(Reserved on 22.12.2022)
Central Administrative Tribunal, Allahabad Bench
Allahabad
****
Original Application No. 1280/2019
Pronounced on 23rd day of December, 2022.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Rakesh Mishra son of late Ram Pratap Mishra, resident of
House No. 5/39, Mohalla Chhakka, Nazir Kuncha,
Railway Road, Farrukhabad.
Applicant
By Advocate: Sri Vinod Kumar
Versus
1. Union of India through General Manager
(Chhatrapati Shivaji Maharaj Terminus), Central
Railway, Mumbai.
2. Divisional Railway Manager (P), (Chhatrapati
Shivaji Maharaj Terminus), Central Railway,
Mumbai.
3. Senior Divisional Manager (Finance)
(Chhatrapati Shivaji Maharaj Terminus), Central
Railway, Mumbai.
4. Senior Personnel Officer (Commercial) Mumbai
V.T. Now (Chhatrapati Shivaji Maharaj
Terminus), Central Railway, Mumbai.
Respondent
By Advocate: Sri M.K.Sharma
ORDER
Hon'ble Mr. Justice Om Prakash VII, Member (J) The present O.A. has been filed under Section 19 of the AT Act, with the following reliefs:-
i) To issue an order or direction in the suitable nature quashing the order impugned dated 21.1.2019 passed by respondent No.1 (Annexure No. A-1 to the compilation No.1).
ii) To issue an order or direction in the suitable nature, directing the respondents authorities to regularise the service period of the applicant Page 1 of 7 O.A. No. 1280/2019 form 30.8.1991 to 17.5.2018 for the purpose of computation of pensionary benefits.
iii) To issue an order or direction in the suitable nature directing the respondent department to release the entire post retiral benefits along with pension with arrears thereof with the market rate of interest.
iv) To issue any other order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
v) To award costs.
2. The brief facts giving rise to the O.A. are that the applicant was initially appointed as Constable (Fire) in Railway Protection Force. In the year 1986, he was medically decategorised. Medical Board found the applicant fit in category C-1 as such he was referred for alternative job as per Railway Rules. Vide letter dated 28.10.1987, applicant was offered the job of Hamal in Central Railway, Mumbai. Applicant worked as Hamal since 19.11.1987 to 16.6.1988. Attendance sheet is available. Applicant was also provided travelling pass during this period but the respondents department did not pay salary to the applicant for this period and even after completion of 7 months continuous service, it was informed that since your service is temporary in nature because no sanctioned post of Hamal is available, hence no regular salary can be released for the intervening period. Applicant filed O.A. No. 68 of 1989 before CAT, Mumbai Bench which was disposed off vide judgment dated 8.5.1991 with direction to the respondents to provide suitable appointment to the applicant as and when vacancies occur. However, the entire period will be treated as Extra Ordinarily leave but the applicant will be entitled for the other benefits excluding salary for the intervening period. Applicant was again medically Page 2 of 7 O.A. No. 1280/2019 examined and he was found fit under the category of C-2 for alternative job but no appointment was given to the applicant. Applicant reached his date of superannuation in May, 2018, he submitted a representation on 17.5.2018 for calculating the retiral benefits but vide letter dated 21.1.2019, respondents have rejected the claim of the applicant by assigning reason that since applicant has not completed ten years qualifying service, hence he is not entitled to receive the post retiral benefits along with pension.
3. Per contra, Counter Affidavit has been filed by the learned counsel for the respondents, in which it is stated that applicant was appointed in R.P.F on 15.4.1983. After medically unfit, he was offered the post of Hamal vide letter dated 28.10.1987. Applicant worked as Hamal since 19.11.1987 to 15.6.1988. He was again sent for medical examination and found medically fit in C-2, but no appointment was provided to the applicant. It is further stated that he served the Railway from 15.4.1983 to 17.6.1986 i.e. for 3 years and 2 months.. After medically decategorisation, he worked as Hamal from 19.11.1987 to 15.6.1988 for about 7 months. Thus he has not fulfilled the condition of 10 years of minimum service, hence he is not entitled for pensionary benefits.
4. Heard learned counsel for the parties.
5. Learned counsel for the applicant argued that applicant was appointed in RPF on 16.4.1983 and worked till the year 1986. After medically unfit, he worked Hamal from 19.11.1987 to 15.6.1988 after again medically decategorised he was not offered any appointment hence the period from 30.8.1991 (the date when he was found fit for C-2 category) till the date of his retirement 17.5.2018 has not been regularized by the respondents, which should be required to be regularized by the respondents department for the purpose of pensionary benefits.
Page 3 of 7 O.A. No. 1280/2019Learned counsel for applicant has also placed reliance of the judgment of Hon'ble Supreme Court in the case of Bhawani Prasad Sonkar Vs. Union of India and others reported in (2011) 4 Supreme Court Cases, 209.
6. Learned counsel for the respondents argued that since the applicant has served in the Railway only from 15.4.1983 to 17.6.1986 (3 years and 2 months and again from 19.11.1987 to 15.6.1988 (7 months) and he has not completed 10 years of service, hence he will not be entitled for pensionary benefits. It was further argued that at no point of time, applicant approached to the authority concerned, due to this reason, he was not given alternative appointment. No documents said to have been submitted by the applicant are available with the respondents. Applicant has also not approached before the Tribunal for execution of the judgment and order dated 8.5.1991 passed by the Bombay Bench of this Tribunal in O.A. No. 68/89 nor filed any contempt petition. Present O.A. was filed after 27 years.
7. Written arguments have also been filed by both the counsel, by which they have reiterated the facts as stated in the O.A. as well as in the Counter Affidavit. However, along with written submission, learned counsel for applicant has annexed IREM Rules relating to absorption of medical decategorised employee of Railway servant and stated that Rule 1302 (ii), 1305, 1306 (4)(7) are relevant.
8. I have considered the rival submissions of the learned counsel for the parties and have gone through the entire record.
9. Before analysing the submission, it is essential to reproduce the para No. 1302, 1305 and 1306 of IREM Rules.
1302. Classification of Railway Servants declared medically unfit - Railway servants acquiring Page 4 of 7 O.A. No. 1280/2019 disability during service and declared medically unfit are divisible into two groups: --
ii. Those disabled/incapacitated for further service in the post they are holding but declared fit in a lower medical category and eligible for retention in service in posts corresponding to this lower medical category.
1305. Alternative employment must be found in the case of permanent and temporary railway servants Medically decategorised staff may, as far as possible, be absorbed in such alternative posts which should broadly be in allied categories and where their background and experience in earlier posts could be utilised. There should be no difficulty in providing such alternative employment and no reversion of any officiating railway servant for should be necessary. For this purpose attempts should be made to absorb the disabled railway servant not only within the District/Division or Department but in another District/Division or Department.
1306. Steps to be taken for finding alternative employment :-
4. If there is no immediate prospect of employment in his own unit/division, office, etc., the name of the Railway servant with particulars as given in sub-para (6) below will be circulated to all other offices or establishments where suitable employment is likely to be found.
7. If and when a Railway servant is absorbed in an alternative post, intimation will be sent by the officer under whom he was previously working to all other officers to whom his name was notified. On receipt of such intimation, his name will be deleted from the registers.
9. From perusal of the aforesaid rules, it is evident that alternative employment must be found in the case of permanent and temporary railway servants. Railway is a very big department and it was not difficult for them to regularize a medically unfit employee, particularly when Bomaby Bench of this Tribunal vide order dated 25.4.1991 directed the respondents to give suitable appointment to the applicant as and when vacancies occur but respondents have failed to do so even till retirement of the applicant i.e. till 17.5.2018. It is impossible to say that from 1991 to 2018 (in near about 27 years) no vacancies occur in the Railway Department.
Even department has not intimated the applicant about Page 5 of 7 O.A. No. 1280/2019 his non absorption on alternative post and applicant has waited till his retirement for alternative appointment. Respondents in para 18 of their counter reply stated that all the Divisions were asked vide letter dated 26.5.1992 whether applicant can be absorbed in their Division in any Group D post but he has not stated anywhere the result of that letter. It is pertinent to mention here that at no point of time, respondents have informed to the applicant for alternative post. Merely on this ground that relevant documents submitted by the applicant to the authority concerned for his absorption are not available with the department, applicant's claim cannot be defeated. Duty casts upon the department to search the alternative post or post the applicant on any supernumerary post, in case no alternative post is available. Perusal of record including Counter Affidavit reveal that no sincere effort has been made on the part of the respondents. Submissions raised on behalf of the respondent that applicant did not approach any point of time before the authority concerned is not acceptable. Respondents were duty bound to inform the applicant but same has not been done by them. Thus, considering the legal position as quoted hereinabove and also keeping in view the order passed by CAT Bombay Bench on 8.5.1991, the Court is of the opinion that relief claimed by the applicant is liable to be allowed. The applicant's claim cannot be defeated on this ground that applicant did not file contempt petition if the order passed in the aforesaid O.A. by the Bombay Bench has not been complied with. Respondents whose duty was to appoint the applicant after medical decategorisation on any alternative post or on supernumerary post cannot take such type of defence.
10. Case law relied upon by the applicant is of no help because this case relates to compassionate appointment whereas in the present case applicant is a medically unfit Page 6 of 7 O.A. No. 1280/2019 employee and he is requesting for alternative appointment.
11. Considering the facts and circumstances of the case, I am of the view that O.A. deserves to be allowed. Order dated 21.1.2019 is quashed. Respondents are directed to regularize the service of the applicant for the period 30.8.1991 to 17.5.2018 on any supernumerary post and after counting the period of 30.8.1991 to 17.5.2018, fix the pension of the applicant. This exercise shall be completed within a period of 3 months.
12. There shall be no order as to costs.
(Justice Om Prakash-VII) Member (J) HLS/-
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