Central Administrative Tribunal - Ahmedabad
Manhar T vs Western Railway on 5 April, 2024
:: 1 :: OA No.477/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O.A. No.477/2021
Dated this the 05th day of April , 2024
Shri Manhar T.
S/o. Thakorbhai
Aged 52 years,
Redt. as Loco Pilot (Goods)
Resident : D-406, Shriji Flats, Vadsar
Vadodara - 390 010. ..................... Applicant
(By Advocate : Ms.S.S.Chaturvedi)
Versus
1. Union of India
Notice to be served through:
General Manager, Western Railway,
Churchgate, Mumbai 400 020.
2. Divisional Railway Manager (E)
Western Railway, Pratapnagar,
Baroda 390 004. .................. Respondents
(By Advocate : Ms. R.R.Patel )
ORDER
Per : Hon'ble Mr. Umesh Gajankush, Member (J)
In the present OA, the applicant is challenging the impugned communication dated 29.09.2021 (Annexure A/1) by which the claim of the applicant's son for appointment on compassionate ground has been rejected.
2. The brief facts as stated in the Original Application are that the applicant had worked as D/Mech. Grade-III and was promoted to the post of D/Mech. Grade-II in the pay scale of Rs.4000-6000/- vide order dated 31.10.2003. Further, he was promoted on the post of Loco Pilot (Goods) vide order dated 03.01.2013. Thereafter, he was posted as Loco Pilot (Goods) vide memo dated 05.12.2013. It was stated that the applicant was working as Loco Pilot (Goods) and time to time, he :: 2 :: OA No.477/2021 was sent for periodical medical checkup. The respondents issued sick memo on 13.04.2018 for fifteen days. While the applicant was working under PME and furthermore, sick memo was extended w.e.f. 28.04.2018 to 15.05.2018. Again vide order dated 28.05.2018, the respondents directed the applicant for medical examination at BCT (Bombay Hospital). On 29.06.2018, the respondents again sent the applicant to SSG Hospital for hearing test. The SSG Hospital declared him normal. The applicant was declared fit vide memo dated 04.07.2018 by CMS, Vadodara. It was further stated that the respondents issued memo for periodical medical examination (PME) on 5.7.2018 and send for medical examination. Again while memo dated 19.7.2018, the respondents directed the applicant to appear before BCT J.J.Hospital (Mumbai Hospital) for special medical examination. The said hospital referred the applicant to NAIR Hospital. Further, as per the facts stated in the OA, the applicant was sent for medical examination, time to time and shunted from one hospital to another and finally vide order dated 14.11.2019 the applicant was declared unfit from his original post as Loco Pilot and recommended for alternative job.
3. Thereafter, the respondents relieved the applicant for alternative appointment post in Electrical/ MEMU department, but the office of the Divisional Electrical Engineer (DEE) sent back the applicant on the ground that his working knowledge differs from MEMU working vide letter dated 25.01.2020 (Annexure A/14). Thereafter, vide order dated 08.02.2020 (Annexure A/15), the said authority i.e. DRM(E) BRC returned back the applicant on the ground that not suitable for the said post. In these circumstances, the applicant had submitted application dated 14.02.2020 (Annexure A/16) for voluntary retirement with additional representation on the same dated i.e. on 14.02.2020 for compassionate appointment to his son, Vijay M. Solanki as he has been declared "medical de-categorisation' for the original post. Vide communication dated 11.05.2020 (Annexure A/18), the competent authority accepted the prayer of the applicant in :: 3 :: OA No.477/2021 respect of voluntary retirement. However, no decision has been taken on the issue of appointment of his son on the compassionate ground, therefore, he has made representation dated 08.03.2021 (Annexure A/19) to the competent authority.
4. Earlier, the applicant approached this Tribunal by filing of the OA No.280/2021 requesting to the competent authority to consider his son for appointment on compassionate appointment as he was declared medical de-categorized and since his application for voluntary retirement was accepted by the department. The aforesaid OA was disposed of vide order dated 26.07.2021. Thereafter, it is the case of the applicant that his son is eligible and entitled for appointment on compassionate ground as per RBE No.78/2006. Thereafter, the present OA is being submitted with a prayer for quashment of the impugned communication dated 29.09.2021 with other reliefs.
5. After notice, the official respondents have filed their reply and justified their action. It was stated that while working as Loco Pilot (Goods) under CCTS-BRYC, he was working in AYE-ONE medical category. He was unfit for discharging his duties as Loco Pilot in AYE-ONE category, but he was declared fit for AYE-ONE and below glasses (Annexure R/1). It was submitted that he was recommended for suitable alternative employment on physical ground. Therefore, the applicant cannot be treated as medically decategorized. Moreover, in terms of the Policy dated 28.04.2007 (Annexure R/3), change of category cannot be treated as medically decategorized. Merely because the applicant opted for voluntary retirement at his own, though he was recommended for alternative job, he cannot be treated as medical decategorized. Resultantly, he is stopped from asking for compassionate appointment for his son. Compassionate appointment is not a vested right, would be extended only to the deserving candidate. Compassionate appointment is also not a right accrued by way of succession.
:: 4 :: OA No.477/20216. Thereafter, rejoinder has been filed by the applicant reiterating and explaining his stand. The applicant also relied upon the order passed by the Hyderabad Bench of this Tribunal in OA No.664/2019 decided on 31.12.2020, the order passed by the Ernakulam Bench of this Tribunal in OA No.16/2012 decided on 21.03.2013, the order passed by the Hon'ble High Court of Kerala dated 18.7.2013 and order passed by the High Court of Rajasthan on 16.07.2021 and on that basis, it is submitted that the applicant is entitled for relief claim.
7. Learned counsel for the applicant vehemently, argued that after sending the applicant time to time for medical examination, finally on 14.11.2019, Vadodara Division of the Western Railway declared the applicant unfit for duty from his original post as Loco Pilot and recommended for suitable alternative employment on the physical ground of the applicant. Thereafter, as per recommendation, the applicant approached to the concerned department. However, the department returned back to the applicant vide letter dated 25.01.2020 and 08.02.2020. Under these circumstances, the applicant had submitted an application for voluntary retirement and also for appointment on compassionate ground to his son as applicant was declared medically decategorized as per RBE. However at one hand, the official respondents have accepted voluntary retirement of the applicant vide communication dated 11.05.2020, and on the otherand, not deciding the question of appointment on compassionate ground for his son and therefore, representation was submitted which was rejected by the impugned communication on the ground that since the authority has recommended for suitable alternative job. Therefore, the applicant cannot be called as 'medically decategorized' as per extant rules on the subject. It is contended by the applicant that impugned communication is arbitrary and in view of the orders passed by the coordinate bench of this Tribunal at Hyderabad and Ernakulam Benches and Hon'ble High Court of Kerala and Hon'ble High Court of Rajasthan the applicant is entitled for relief.
:: 5 :: OA No.477/20218. On the otherhand, while supporting the impugned order, the learned counsel for the respondents submitted that since alternative job was offered to the applicant and therefore, he cannot be treated as medical decategorised and in the result, the applicant has been stopped for asking appointment on compassionate ground for his son.
9. After hearing learned counsel for the parties and on perusal of the record, at the outset, it is necessary to take note of RBE No.78/2006 dated 14.06. 2006 (Annexure A/22) of which relevant para 4 is reproduced as below :
"4. Pursuant to the demand raised by staff side the issue has been deliberated upon at length in the full Board Meeting and it has been decided that compassionate ground appointment to the wife/wards/dependants of partially medically de-categorised staff who seeks voluntary retirement may be given subject to the following provisions:
(a) The appointment will be given only in the eligible Group 'D' categories. 'Eligible' would mean that in case Group 'D' recruitment is banned for any particular category, the same would also apply for the compassionate ground appointments.
(b) Such an appointment should only be given in case of employees who are declared partially decategorised at a time when they have atleast 5 years or more service life.
(c) CMD of the Railways should keep a watch over the trend of de-categorisation so that the present figure do not get inflated. CMD should also get 10% partially categorized cases re-examined by another medical Board not belonging Divisional Hospital which initially declared them unfit."
10. The aforesaid clause 4 was subject to the judicial scrutiny in view of the OA No.664/2019 decided on 31.12.2020 by the Hyderabad Bench of this Tribunal in the case of G.S.Krishna & Ors. v/s. Union of India & Ors.. The relevant para 7 of the said judgment is reproduced as below :
"7. I. Applicant was medically found unfit to work as Loco Pilot, but found in A-1 category on 31.7.2014 with NV glasses as admitted by the OA No.664/2019 respondents. In other words, the 1st applicant was having the adequate vision with the aid of glasses, but did not possess the physical parameters to work as Loco Pilot. Therefore, it has to be construed that he has been partially de-categorised. It is an undeniable fact that the 1 st applicant because of the disability he suffered could not do his original job of Loco Pilot. Consequently, :: 6 :: OA No.477/2021 respondents accommodated the applicant against a supernumerary post till he went on VR on 10.2.2018. In respect of partially de- categorised employees, para 4 of the Railway Board letter dated 14.6.2006 states as under:
"4. Pursuant to the demand raised by staff side the issue has been deliberated upon at length in the full Board Meeting and it has been decided that compassionate ground appointment to the wife/ wards/ dependents of partially medically de- categorised staff who seeks voluntary retirement may be given subject to the following provisions:
(a) The appointment will be given only in the eligible Group D categories. "Eligible‟ would mean that in case Group "D" recruitment is banned for any particular category, the same would also apply for the compassionate ground appointments.
(b) Such an appointment should only be given in case of employees who are declared partially decategorised a time when they have at least 5 years or more service left.
(c) CMD of the Railways should keep a watch over the trend of decategorisation so that the present figure do not get inflated. CMD should also get 10% partially de-categorised cases re-examined by another Medical Board not belonging to Divisional Hospital which initially declared them unfit."
1st Applicant had more than 5 years of service left to retire as is required to seek compassionate appointment to his ward. Therefore, based on the above order of the Railway Board, the 2nd applicant is entitled for compassionate appointment. The 3rd respondent has relied only on para 2 of the cited letter and ignored the para 4 relevant to the applicant.
II. The same issue and in particular para 4 cited supra, fell for consideration by the Hon'ble Ernakulam Bench in OA 16/12 which was allowed on 21.3.2013 and the same was upheld by the Hon'ble High court of Kerala in OP (CAT) No. 2424 of 2013 (Z). The observation of the Hon'ble High Court are reproduced here under:
"2. The employee was de-categorised to B1 level by visual standards and therefore, found unfit to work as Trackman by physical standard. He was noted to be fit only to do sedentary jobs. Accordingly, he was parked as against a supernumerary post for the last about eight years. On the strength of Railway Board's letter dated 14/6/2006, the applicability of which is not in dispute, the applicant sought intervention of the Tribunal to permit him to go on voluntary retirement and get his ward into service on compassionate grounds.
3. Having bestowed our anxious consideration to the clear terms of the letter of the Railway Board, which is Annexure - A4 to Ext. P1 original application filed before the Tribunal, :: 7 :: OA No.477/2021 we see that there is no illegality or jurisdictional infirmity in the Tribunal having concluded that the employee who was partially medically de-categorised is eligible to voluntary retirement and for compassionate appointment of his dependent ward in terms of the directions in the said letter of the Railway Board. The clear terms of paragraph 4 of that letter are to the aid of the employee before us and the Tribunal was fully justified in passing the impugned order. We, therefore, do not find any ground to interfere under Article 227 of the Constitution of India at the instance of the establishment. In the result, this original petition is dismissed."
11. Further, in the case of Union of India v/s. Aspak, son of Late Shri Noor Mohammad in Civil (W) Petition No.6828/2021, the Division Bench of the Hon'ble High Court of Rajasthan had occasioned to consider the clause 4 of the said RBE No.78/2006 dated 14.06.2006. The relevant portion of the said order is reproduced as below :
"There is another important aspect of the matter. The request of the applicant for voluntary retirement under para 4(b) of the Circular dated 14.06.2000 was conditional as its acceptance entitled his ward for appointment in his place; otherwise, a service tenure of about 11 years and 7 months was still left before he was to attain the age of superannuation. Instead of rejecting the conditional request of the applicant, the appellants accepted the request vide letter dated 30.11.2011 specifically mentioning therein that he was medically decategorised and has opted for voluntary retirement seeking appointment of his ward which was approved by the competent authority and hence, the appellants could not deny appointment of his ward on the principle of promissory estoppels."
12. So far reliance placed by the official respondents on communication dated 24.07.2007 (Annexure R/3) is concerned, the same is not applicable in view of the judgment referred above which had categorically held that if a person is declared unfit to work at his original post, the same can be treated as partially medically decategorised and in the present case also, the applicant was declared unfit for his original post as Loco Pilot.
13. In the present case also, the applicant had left his services for more than five years as on 11.05.2020, and therefore, in view of the :: 8 :: OA No.477/2021 clause 4 of RBE No.78/2006 dated 14.06.2006 and preposition of law laid down by the Hon'ble High Court of Rajasthan as well as decision of the coordinate benches of this Tribunal, the impugned order dated 29.09.2021 is not sustainable in the eye of law and is hereby quashed and set aside. The respondents are directed to re-consider the case of the son of the applicant for appointment on compassionate ground as per rules within a period of 90 days from the date of receipt of a copy of this order.
14. With the above direction, the OA stands disposed of. No order as to costs.
(Umesh Gajankush) Member (J) nk