Railway Board Vs. Rakesh Kumar Saxena - Court Judgment

1 ® IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE10H DAY OF DECEMBER2014PRESENT THE HON’BLE MR. JUSTICE N.K. PATIL AND THE HON’BLE MRS. JUSTICE RATHNAKALA WRIT PETITION NO.33172 OF2014(S-CAT) BETWEEN:

1. RAILWAY BOARD, MINISTRY OF RAILWAYS, RAILWAY BHAWAN, NEW DELHI – 110 001 BY ITS CHAIRMAN.

2.

3. THE GENERAL MANAGER, NORTH WESTERN RAILWAY, JAWAHAR CIRCLE, JAIPUR. THE DIVISIONAL RAILWAY MANAGER, NORTH WESTERN RAILWAY, NEAR RAILWAY STATION, JAIPUR. …PETITIONERS (BY SRI N.S.PRASAD, ADV.) AND: RAKESH KUMAR SAXENA, S/O RAMESH CHAND SAXENA, AGED ABOUT63YEARS, RETIRED TRAINED GRADUATE TEACHER, NORTH WESTERN RAILWAY RAILWAY SENIOR SECONDARY, BANDIKUI, RAJASTHAN, 2 ...RESPONDENT RESIDING AT NO.693, “SADBHAVAN KUTEER” ADARSH NAGAR, ARSINAKUNTE, NELAMANGALA TALUK, OPP.BALAMURI VINAYAKA TEMPLE, BANGALORE – 562 123. (BY SRI RAKESH KUMAR SEXENA - PARTY IN PERSON) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER

DATED:20.02.2014 PASSED IN ORIGINAL APPLICATION NO.556/2012 TITLED AS RAKESH KUMAR SAXENA VERSUS RAILWAY BOARD AND OTHERS, BY THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL/BANGALORE AND SET ASIDE THE ORDER

IN O.A.NO.556/2012 VIDE ANN-A, ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER

S ON0112/2014 AND COMING ON FOR RATHNAKALA J., MADE THE FOLLOWING:- PRONOUNCEMENT OF ORDER

S ORDER

The order dated 20.2.2014 passed in Original Application No.556/2012 by the Central Administrative Tribunal, Bangalore (hereinafter referred to as ‘the Tribunal’ for short), is sought to be quashed in the present writ petition.

2. As the facts unfold, the respondent herein was working as Assistant Research Officer in ICMR/NMEP Project at Daboi (Baroda, Gujarat); his services were THIS DAY, 3 terminated by giving one month’s notice; he worked as District Epidemiologist (Entomology) at Orissa from 19.4.1984 to 18.12.1984 on daily wages. On applying for direct recruitment, he was selected as Assistant Teacher in Railway School in Ratlam Division. As on the date of superannuation on 31.10.2011, he had completed 17 years 9 months and 19 days of qualifying service; he was not extended the medical benefit under “Retired Employees’ Liberalized Health Scheme (RELHS- 97)” and also post retirement complementary pass. Since he had not completed 20 years of qualifying service, on 12.7.2010, he submitted a representation to the Senior Divisional Personnel Officer to consider his past service in other Central Government Organization prior to joining the railways. But the railways refuted to grant any relief as requested by him. After his retirement, he submitted another representation on 17.1.2012. In response to the same, the authorities informed him vide letter dated 23.2.2012 / Annexure-13 4 that reply given in the earlier letter dt.28.12.2010 holds good. His further persuasion with the railways did not yield any result and he approached the Tribunal in Original Application No.556/2012. The Tribunal in accordance with Rule 28 Clause-2 of the Railway Services (Pension) Rules, 1993 (for short ‘the Rules’) allowed his prayer and directed the authorities to consider the past service rendered by him in the Central Government before joining the railways and directed the railways to fix his pay and grant appropriate benefits as permissible under the Rules.

3. Sri.N.S.Prasad, learned Counsel appearing for the petitioner submits, after a long gap of 9 years, the petitioner applied for fresh appointment on a different post of teacher without disclosing his earlier services or getting his application forwarded through the Authority under whom he worked for the project. The past services rendered by him was purely on temporary basis 5 for two different projects. Since there was a long break, his services are not admissible for pensionary benefit under the Rules as he has not served in any State or Central Government nor regular/substantive post. Provident fund was not deducted from his salary during the said period, since he was employed in a scheme temporarily and was terminated at the end of the scheme. Said service was co-terminus with the project, it was not a qualifying service to be counted for pension. The service rendered does not fall within the category of service enumerated under the Rules. Without considering the definition of the “qualifying service”, the Tribunal has erroneously given direction to consider his past services in other organization, which has resulted in miscarriage of justice and the same is liable to be quashed by invoking the writ jurisdiction of this Court.

4. Respondent in reply submits that the Tribunal rightly has considered his case in the light of Rule 28 of 6 the Rules; he is suffering from multiple ailments like prostrate problem reflux oesophagitis and diabetes. Off late, medical benefits under RELHS-97 and post retirement complementary pass is accorded to the employees, who have completed 10 years of qualifying service on or before 1.1.2006 and they are eligible for pension equal to 50% of emoluments or average emoluments, whichever is higher in view of the circular issued by the Railways dated 12.8.2010. That being so, having served the Central Government for more than 20 years, though the service was not continuous, he may not be deprived of the said rights. The State is not justified in refuting the benefits in violation of the directive principles of the State policy and also the fundamental rights assured by the Constitution to a citizen of this country. Hence, this appeal may be rejected and the benefits granted by the order of the Tribunal may not be disturbed. 7 5. It is an admitted fact, before joining Railways, the third respondent had served for the Central Government for short term in two projects on temporary basis. During the said period, there was no statutory deductions from his salary. For the benefits of Railways free pass and medical support available to a pensioner, who has completed 20 years of service, he is short of about two years three months. Rule 28 of the Rules contemplates counting of temporary service under the State and Central Government and allocation of the pensionary liability.

6. The Tribunal has pressed into action Clause 2 of the said Rule, which reads as under: “(2) The Government servants eligible to claim the benefits of combined service in accordance with sub-rule (1) shall be of the following categories:- (a) those who having been retrenched from the service of the Central Government or a 8 State Government under a State or the Central Government either with or without interruption between the date of retrenchment and date of new appointment; (b) those who while holding temporary posts under the Central Government or a State Government apply for posts under the Central Government or a State Government through proper channel with proper permission of the administrative authority concerned: Provided that where an employee is required for administrative reasons, for satisfying a technical requirement, to tender from the temporary post held by him before joining the new appointment, a certificate to the effect that such resignation had been tendered for administrative reasons or to satisfy a technical requirement to join, with proper permission the new posts, may be issued by authority accepting the resignation. A record of this certificate may also be made in his service book under proper attestation to 9 enable him to get this benefit at the time of retirement.” 7. Per contra, the petitioners/Railways have drawn our attention towards the definition of “service” contemplated, which would read from Rule 21(1) of the Rules, thus: “The expression “service” means service under the Government and paid by that document from the consolidated fund of India or local fund administered by the Government but also not included service in a non- pensionable establishment unless such service is treated as qualifying service by the Government. If at the time of transfer it was decided that such service would count for special contribution to provident fund. . .” 8. On a reading of the entire Rule 28, it is evident that while holding temporary post under the Central or State Government, if the employee applies for new post under the Central or State Government he was to submit a certificate or mention that he has come with 10 proper permission of the administrative authority concerned. The condition precedent is that the employee must hold a temporary post at the time of applying to a post in Central or State Government and secondly he should submit a record of certificate.

9. In the given facts and circumstances of the case, we are not testing the impugned order in the strict sense of the Rules for the present, we have taken note of the fact that the respondent before us is a ailing person aged 62 years. The Tribunal without making much out of the Rule 28 has observed at para-2 of its order: “2. That being so all the element required is to be satisfied. He was retrenched from the service of the Central Government. But then in accordance to clause (a) of Rule 2 had they given the employment on their own and the clause in the rule which says that with or without interruption covers his case also. Therefore, there cannot be any ground to oppose tacking on of his period of service. In 11 the government which is already rendered to count for benefits. The directive principles of State Policy which is a nodal guide for formulation of government policy indicate very clearly and specifically that human labour shall not be exploited. The efforts he has made on behalf of the government for those years prior to his employment with Railways cannot be wiped off and held to be of no relevance. Such a contention would be against the Constitutional matrix”.

10. The administrative Tribunal being a creature of Article 323-A of the Constitution of India, subordinate to the High Court, is amenable to the supervisory jurisdiction of the High Court by virtue of Article 226 of the Constitution of India. An error apparent on the face of the record can be corrected by way of Writ of Certiorari under Article 226 of the Constitution of India. Where there are conceivably two opinions, it cannot be called a patent error. Though this court may quash the proceedings of the Tribunal, the authority of the court 12 may not substitute its own finding or direction in lieu of one given in the proceedings forming the subject matter of Certiorari. The Certiorari jurisdiction is not exercised as a matter of course. If no failure of justice is occasioned, it is not a case for issue of Certiorari jurisdiction. While exercising supervisory jurisdiction under Article 227 of the Constitution of India, the power will be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts, within the bounds of their authority and not for correcting mere errors. The superintendence power may be exercised in cases occasioning grave injustice or failure of justice such as

1) Court or the Tribunal has assumed a jurisdiction which it does not have;

2) has failed to exercise a jurisdiction which it does not have

3) the jurisdiction though available is being exercised in a manner, which tantamounts to overstepping of the limbs of jurisdiction. The law in this regard pronounced and well defined in the case of Surya Dev Rai –vs- Ram 13 Chander Rai & Ors. reported in 2003(6) SCC765 Here is the case where a senior citizen, who has rendered more than 20 years of service under the Central Government, though with intermittent breaks and who is ailing with multiple medical problems, has approached the Tribunal seeking for the facility of free pass and medical assistance and the Tribunal has granted the relief inspired by the directive principles of State policy. Old age and sickness are two issues among others required to be addressed by the Government under Article 41 of the Constitution of India under the head ‘Directive Principles of State Policy’. It was the observation in the judgment Bandhua Mukti Morcha Vs. Union of India (1991) 4 SCC177 has held - ‘right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the 14 health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government has any right to take any action which will deprive a person of the enjoyment of these basic essentials.’ 11. Coming back to the case on hand, the relief prayed by the petitioner is medical benefit, which is the basic essential to sustain himself and a free railway pass which is neither luxury nor basic amenity but a requirement for free travel. 15 In that view of the matter, we decline to interfere with the order of the Tribunal without going into the provisions of the Rules meticulously. Accordingly, the Writ Petition is dismissed. However, it is made clear that the observation made in this case shall not be a precedent to other cases. KNM/- Sd/- JUDGE Sd/- JUDGE