Judgment:
1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR W.P. No.4501/2003 RAM PRATAP SINGH VS. UNION OF INDIA & OTHERS Present: Hon’ble Shri Justice Rajendra Menon. Shri Atul Choudhary, learned counsel for the petitioner. Shri Ashok Sinha, learned counsel for the respondents . Whether approved for reporting: Yes/ No ORDER
( -11-2012 ) Challenging the action of the respondents in not regularizing the period of service from 7.11.97 to 9.7.2001, refusing to grant pay fixation after counting the aforesaid period and rejection of his claim for granting the benefit of Assured Career Progression (ACP) Scheme, petitioner has filed this writ petition.
2. Petitioner was initially recruited as a Constable in the establishment of the Divisional Security Commissioner, RPF, Jabalpur. He was appointed in the year 1987. While so working in November 1997 on medical examination he was 2 found to be medically unfit to perform duties of a Constable and his case was classified in medical category B1. As he was unfit to perform the duties of Constable, the Chief Medical Superintendent vide his communication dated 7.11.97 indicated that the petitioner's case may be considered for grant of secondary or alternate job. However, nothing was done and the matter was kept pending. Finally a Circular was issued by the Railway Board vide Annexure P/2 on 29.4.99 by which Rules 1301 to 1308 of the Indian Railway Establishment Manual was amended and a scheme for absorption of medically disabled and decategorized persons was formulated under the Scheme. The scheme contemplate creation of supernumerary post, absorption of medically decategorized persons in such category and on such decategorization grant of continuity of service. According to the petitioner when this Circular came into force, he represented on 7.5.99, 22.6.99 and 28.10.99 vide Annexures P/3, P/4 and P/5. He was subjected to personal interview and various other formalities were completed and against a supernumerary post created on 9.7.2001 he was appointed in a Clerical cadre at Jabalpur. Documents evidencing these facts are Annexure P/6 and P/7. After the petitioner was appointed on 9.7.2001 petitioner joined on the post and after joining it seems that vide Annexure P/8 and P/9 representations were submitted by the petitioner in the year 2002 i.e. after more than one year, claiming the benefit of salary and continuity of service for the period from Aprial 99 to 8.7.2001 and counting the period from 7.11.97 to 8.7.2001 for payment of salary, fixation of pay and grant of benefit of ACP Scheme. When this was not done and the representations 3 were not considered, this writ petition has been filed.
3. Shri Atul Choudhary, learned counsel for the petitioner invited my attention to the ACP Scheme Annexure P/ 1 dated 1.10.99 and argued that an employee is entitled to the promotion in accordance to the aforesaid scheme on completing 12 years and 24 years of service and as from his initial date of appointment in the year 1987 petitioner has completed more than 12 years of service, he was entitled to promotion in accordance to the aforesaid scheme. It is further submitted by him by referring to Annexure P/2 the amendment incorporated in the Indian Railway Establishment Manual w.e.f. 29.4.99 that under Clause 1309 of the aforesaid manual a disabled or medically decategorized railway servant who is absorbed in an alternate post is entitled to have his past service also counted. Accordingly, contending that service benefits accruing to the petitioner by virtue of this Circulars are not being extended, this writ petition has been filed.
4. Respondents have filed a detailed reply and it is contended by the respondents that when the petitioner was declared as medically decategorized on 7.11.97, neither the Assured Career Progression Scheme dated 1.10.99 was applicable not was the amendment to the Railway Establishment Code Annexure P/2 brought into force. ACP Scheme came into force on 1.10.1999 and amendment to the Railway Establishment Code particularly Clause 1309 was made effective from 29.4.99. That being so, it is stated that petitioner who was medically decategorized on 7.11.97 cannot get the benefit of this Scheme as in both these documents Annexure P/1 and P/2 it is clearly stipulated that they will have 4 prospective effect and will not have retrospective application. Accordingly, it is stated that when the petitioner was decategorized, the old scheme i.e. the scheme contained in Chapter 30 of the unamended Railway Establishment Manual Code was in force and under Clause 1304 of the said scheme as is filed as Annexure R/V, there was no provision for grant of alternate appointment. On the contrary the said provision contemplated if the posts were not available the employee was to be granted leave for 6 months and thereafter his services brought to an end. It is stated that the petitioner's case was considered and for the period in question i.e. for a period of 6 months he was granted leave in accordance to this Rule. It is stated that after being medically declared unfit on 7.11.97 as per Rule petitioner was granted leave on average pay from 8.11.97 to 1.1.98. Thereafter from 2.1.98 to 21.1.98 he was granted half average pay leave and from 22.1.98 to 21.7.98 he was granted extra ordinary leave and during this period search for alternate job was made and documents R/I, R/II and R/III are filed to show that as no alternate job was available, his services were terminated and therefore, much before coming into force of Railway Establishment Manual Code on 29.4.99 as petitioner's services were terminated. It is stated that petitioner cannot claim the benefit of amended provision of the Code which came into force on 29.4.99. As far as reinstatement and re-engagement of the petitioner with effect from 8.7.2001 vide order Annexure P/7 is concerned, it is stated by the respondents that when the petitioner represented after the amendment incorporated in the Code on 29.4.99, a sympathetic view was taken and after granting him the benefit 5 of sympathetic consideration, he was reinstated and all benefits of regularization of service for this period has been granted to him as recommended by the Screening Committee and thereafter on completing 12 years of service the benefit under the ACP Scheme has also been granted to him from 15.3.2003. It is stated that for the period when the petitioner was out of employment i.e. from 7.11.99 to 8.7.2001 petitioner's services have been regularized by treating it for particular period as leave under the old scheme and thereafter a supernumerary post has been created and he has been appointed with all benefits of service as he had not completed 12 years of service as on 8.7.2001 his case for ACP Scheme was not considered but after completing 12 years of service in the year 2003 it was considered and granted to him. Accordingly, respondents submits that not no benefit can be granted to the petitioner.
5. I have heard learned counsel for the parties and perused the record. As far as grant of ACP Scheme is concerned, the Scheme in this regard dated 1.10.99 was enforced prospectively and in clause 8 it is clearly stipulated that the Scheme will be operational from the date of issuance of letter Annexure P/1. Admittedly the scheme became operational after 1.10.99 and when the petitioner was taken back on duty in the year 2001 it is seen that he had not completed 12 years of service to be considered for grant of promotion. He was in employment from 1987 to 7.11.87 and thereafter from 7.11.97 upto 8.7.2001 he was out of employment and this period cannot be counted for grant of ACP Scheme as he was not in employment during this period. 6 He completed 12 years of service sometimes in the year 2002 and thereafter benefit of ACP Scheme has been granted to him in the year 2003. That being so, I see no error in the order passed by the respondents refusing to grant benefit of ACP Scheme immediately after he was re-engaged on creation of supernumerary post in the year 2001. To that extent, no benefit can be granted to the petitioner.
6. The next relief claimed by the petitioner is that continuity of service in accordance to the amendment in Railway Establishment Manual Code brought into effect from 29.4.99 should be extended to him i.e. the benefit accruing under Clause 1309 should be allowed. As far as this aspect of the matter is concerned, the Railway Establishment Code is a statutory code and it becomes effective from the date of its enforcement. Admittedly, the provision of Clause 1309 was brought into force w.e.f. 29.4.99 and when this provision came into force on 29.4.99, the petitioner was not in employment, he had already been declared as medically decategorized and removed from service on such ground on 7.11.97. On 7.11.97 the statutory provision governing grant of alternate employment to the medically decategorized person was governed by Clause 1304 of the unamended Railway Establishment Code contained in Chapter 13 and filed by the respondents as Annexure R/5. Case of the petitioner was considered and all benefit granted to him in accordance to this provision and merely because representation of the petitioner was considered and he has been re-engaged subsequently, that does not mean that he is entitled to a statutory provision which came into force more than two years after his medically 7 decategorization. The claim of the petitioner for grant of benefit has to be considered in accordance to the statutory provisions as was available on 7.11.97 and on said date as the provision of the Code i.e. the old Rules contrary to the amendment as is contained in Annexure R/5 was applicable and all the benefit accruing to the petitioner as per this statutory provisions is granted to him, merely because of sympathetic consideration, subsequently he has been re- engaged, that does not mean that subsequent enactment can be made applicable to him. The provisions of the amended clause 1309 came into force after 21.4.99 and it would be applicable only to such cases where medical decategorization is done after 29.4.99. In the case of the petitioner as he was medically decategorized in the year 1997 and his claim for grant of benefit on such eventuality is granted as per the statutory rules existing on the said date. I see no error in the act of the respondents in denying the benefit to the petitioner as claimed in this petition. Petitioner is claiming benefit of certain statutory provisions and rules formulated by the Railway Board more than two years after his medically decategorization and as these amendments and provisions are having prospective effect and as the claim of the petitioner was already settled in accordance to the rules and provisions as was existing at the time of medical decategorization i.e. in the year 1997, no further indulgence into the matter is called for as petitioner is only entitled for claiming the benefit in accordance to the statutory provisions applicable on the date when cause accrued to him to claim the benefit i.e. when he was medically decategorized and subsequent amendment to the rules canNo.8 be made applicable in the case of the petitioner when much before coming into force of amended provisions, the claim of the petitioner was settled and all benefits as per old amended provisions.
7. Accordingly, finding no case for interference on the grounds raised, this petition is dismissed. (RAJENDRA MENON) JUDGE Mrs.mishra 9 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR W.P. No.4501/2003 ORDER
POST FOR : /11/2012 ( RAJENDRA MENo.) JUDGE /11/2012