P.T. Balakrishnan Vs. Union of India Represented by the General Manager, Southern Railway, Chennai and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/938758
CourtCentral Administrative Tribunal CAT Ernakulam
Decided OnOct-26-2010
Case NumberO.A. NO.656 of 2009
JudgeTHE HONOURABLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER & THE HONOURABLE DR. K.B. SURESH, JUDICIAL MEMBER
AppellantP.T. Balakrishnan
RespondentUnion of India Represented by the General Manager, Southern Railway, Chennai and Another
Advocates:For the Applicant: M.P. Varkey, Advocate. For the Respondents: Thomas Mathew Nellimoottil, Advocate.
Excerpt:
hon'ble mrs. k. noorjehan, administrative member 1. the applicant challenges rejection of his appeal filed against denial of voluntary retirement and compassionate appointment to his ward on medical decategorisation. 2. the applicant was initially appointed as a khalasi on 1.8.1980. while working as loco box boy at ernakulam, in the scale of rs. 2650-4000, he was injured while on duty on 10.1.1998, was under prolonged treatment and underwent surgery at railway hospital, perambur. finally, he was medically decategorised from class b-1 to c-1/c-2 w.e.f. 29.12.1998. on medical decategorisation, he was absorbed as a peon in the scale of rs. 2550-3200. he sought for placement in an equal scale under railway boards letter dated 31.5.2005 (a-3). accordingly, he was placed in a supernumerary post of loco khalasi helper(a-4). thereafter, he sought voluntary retirement and sought compassionate appointment for his son (a-6). annexure a-6 was rejected upon which he filed an appeal (a-7) as there was no response he filed o.a. 227/2009 before the tribunal which was disposed of directing the respondents to consider the representation within two months. (a-8) finally it was rejected (a-9). hence he filed this o.a for a declaration that a-9 is unjust, illegal without jurisdiction and to qush the same, and that he is eligible to considered for voluntary retirement and compassionate appointment of his son. the main grounds urged are that the railways had not implemented the disabilities act with effect from 7.2.1996 and that a-5 envisages extension of the facility of vr/compassionate appointment to the wards of those who were denied the same. 3. the respondents filed reply statement denying the averments in the o.a. it is stated that the compassionate appointment to medically decategorised employees applies only to those employees who are medically de-categorised /declared unfit while in service and that the applicant is not covered by the same. as per the instructions issued in consonance with the act, no medically de-categorised employee is liable to be dispensed with or reduced in rank, status or pay but should be shifted to some other post with the same pay scale and service benefits. they submitted that on amendment of chapter xiii of irem as per acs no.77 from 29.4.99 later effected from 7.2.96, the provision of compassionate appointment in the case of medically decategorised employees has been de-linked. they further stated that grant of compassionate appointment to the wards of the employees who were unfit in all classes is a policy decision taken by the railway board as a benevolent act and for the first time introduced as per railway board's letter dated 18.1.2000 and that it is not envisaged in the disabilities act. 4. the applicant filed rejoinder reiterating the averments in the o.a. 5. the respondents filed additional reply statement reiterating that all the employees medically decategorised after issuance of board's letter dated 18.1.2000 are covered, while the applicant was decategorised in 29.12.1998. 6. the main contention of the applicant is that the railway administration did not implement the disabilities act w.e.f. 7.2.1996 and that the benefit of para 5 of annexure a-5 was not extended to him. the railways stated that the applicant is not legally eligible to get benefits of the same. 7. as regards the first contention of the applicant, the railway board vide rbe no. 98/2005 issued instructions on 31.5.2005. the relevant portion is extracted below: "2 the scheme so revised is being implemented in the railways from the date of issue of the relevant instructions viz. 29.4.99. representations have been received to the effect that since the act came in to force with effect from the date on which it was notified in the govt. of india gazette viz 7.2.96, the benefit of revised scheme should be made available from 7.2.96. the matter has been considered carefully by this ministry. it has now been decided that the scheme contained in this ministry's letter of 29.4.99 as modified may be made effective from 7.2.96. accordingly in respect of cases in which the disabled/medically decategrised employees on or after 7.2.96 and upto 28..4.99 were absorbed in alternative employment in accordance with the earlier scheme in grade(s) lower than the grade(s) held by them on regular basis at the time of disablement/medical decategorisation may be reviewed on representations received in this regard and decided at the level of general manager as per the revised scheme. in other type of cases wherein disabled/medically decategorised employees had opted to retire asking for appointment of eligible ward on compassionate ground, the question of review does not arise." from the above, it is clear that even though the railways implemented the scheme under disabilities act, 1995 only w.e.f. 29.4.1999, the benefit of the revised scheme was made available w.e.f. 7.2.1996 and that in respect of those who were absorbed in alternative employment in a lower grade would have to be reviewed by the general manager as per the revised scheme and that cases wherein disabled / medically decategorised employees had opted to retire asking for appointment of eligible ward on compassionate ground, the question of review does not arise. though the applicant was medically decategorisesd on 29.12.1998 he sought voluntary retirement only on 2.8.2008. 8. as regards appointment on compassionate grounds of ward/spouse of medically decategorised staff instructions were issued by the railway board laying down that in case where an employee has been medically invalidated/decategorised where the administration cannot find alternative posts for such an employee, he may be kept on a supernumerary post in the grade in which he was working on regular basis till such time suitable post can be identified or till his retirement whichever is earlier. in such cases the appointment on compassionate ground of an eligible ward would not arise. even if the employee chooses to retire voluntarily on his being declared medically decategorised, he could be permitted but without the benefit of appointment on compassionate ground to a ward. but in cases where the employee is totally incapacitated and is not in a position to continue in any post because of his medical condition, he may be allowed to opt for retirement and in such cases request for appointment on compassionate ground to an eligible ward may be considered if the employee chooses to do so. however, pursuant to the demand raised by staff side, this was revised as follows: "4(b) such an appointment should only be given in case of employees who are declared partially decategorised at a time when they have at least 5 years or more service left. x x x x x x x 5. all those employees medically decategorised after issuance of board's letter no.e(ng)ii/95/rc-1/94 dated 18.1.2000 will also be covered under these instructions. however, such cases which have already been finalised in terms of board's letters no. e(ng)ii/95/rc-1/94 dated 18.1.2000, 10.11.2000 and n.e(ng)ii/2000/ rc-1/genl./17 dated 6.3.2002 and 26.5.2004 need not be reopened. 9. that apart, we find that the order no.e(ng)ii/95/rc-1/94 dated 14.6.2006 (annexure a-5) issued by the railway board stipulates that the employee who seeks compassionate appointment to the ward / wife/ dependents on medical de-categorisation, should have 5 years of service left for retirement. the applicant having applied for voluntary retirement/compassionate appointment only on 2.8.2008, his case will not come within the scope of a-5. 10. in this view of the matter, we do not find any merit in the contentions raised in the o.a. it is accordingly dismissed. no costs.
Judgment:

HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER

1. The applicant challenges rejection of his appeal filed against denial of voluntary retirement and compassionate appointment to his ward on medical decategorisation.

2. The applicant was initially appointed as a Khalasi on 1.8.1980. While working as Loco Box Boy at Ernakulam, in the scale of Rs. 2650-4000, he was injured while on duty on 10.1.1998, was under prolonged treatment and underwent surgery at Railway Hospital, Perambur. Finally, he was medically decategorised from Class B-1 to C-1/C-2 w.e.f. 29.12.1998. On medical decategorisation, he was absorbed as a Peon in the scale of Rs. 2550-3200. He sought for placement in an equal scale under Railway Boards letter dated 31.5.2005 (A-3). Accordingly, he was placed in a supernumerary post of Loco Khalasi helper(A-4). Thereafter, he sought voluntary retirement and sought compassionate appointment for his son (A-6). Annexure A-6 was rejected upon which he filed an appeal (A-7) As there was no response he filed O.A. 227/2009 before the Tribunal which was disposed of directing the respondents to consider the representation within two months. (A-8) Finally it was rejected (A-9). Hence he filed this O.A for a declaration that A-9 is unjust, illegal without jurisdiction and to qush the same, and that he is eligible to considered for voluntary retirement and compassionate appointment of his son. The main grounds urged are that the Railways had not implemented the Disabilities Act with effect from 7.2.1996 and that A-5 envisages extension of the facility of VR/Compassionate appointment to the wards of those who were denied the same.

3. The respondents filed reply statement denying the averments in the O.A. It is stated that the compassionate appointment to medically decategorised employees applies only to those employees who are medically de-categorised /declared unfit while in service and that the applicant is not covered by the same. As per the instructions issued in consonance with the Act, no medically de-categorised employee is liable to be dispensed with or reduced in rank, status or pay but should be shifted to some other post with the same pay scale and service benefits. They submitted that on amendment of Chapter XIII of IREM as per ACS No.77 from 29.4.99 later effected from 7.2.96, the provision of compassionate appointment in the case of medically decategorised employees has been de-linked. They further stated that grant of compassionate appointment to the wards of the employees who were unfit in all classes is a policy decision taken by the Railway Board as a benevolent act and for the first time introduced as per Railway Board's letter dated 18.1.2000 and that it is not envisaged in the Disabilities Act.

4. The applicant filed rejoinder reiterating the averments in the O.A.

5. The respondents filed additional reply statement reiterating that all the employees medically decategorised after issuance of Board's letter dated 18.1.2000 are covered, while the applicant was decategorised in 29.12.1998.

6. The main contention of the applicant is that the Railway Administration did not implement the Disabilities Act w.e.f. 7.2.1996 and that the benefit of para 5 of Annexure A-5 was not extended to him. The railways stated that the applicant is not legally eligible to get benefits of the same.

7. As regards the first contention of the applicant, The Railway Board vide RBE No. 98/2005 issued instructions on 31.5.2005. The relevant portion is extracted below:

"2 The scheme so revised is being implemented in the Railways from the date of issue of the relevant instructions viz. 29.4.99. Representations have been received to the effect that since the Act came in to force with effect from the date on which it was notified in the Govt. Of India Gazette viz 7.2.96, the benefit of revised scheme should be made available from 7.2.96. The matter has been considered carefully by this Ministry. It has now been decided that the scheme contained in this Ministry's letter of 29.4.99 as modified may be made effective from 7.2.96. Accordingly in respect of cases in which the disabled/medically decategrised employees on or after 7.2.96 and upto 28..4.99 were absorbed in alternative employment in accordance with the earlier scheme in grade(s) lower than the grade(s) held by them on regular basis at the time of disablement/medical decategorisation may be reviewed on representations received in this regard and decided at the level of General Manager as per the revised scheme. In other type of cases wherein disabled/medically decategorised employees had opted to retire asking for appointment of eligible ward on compassionate ground, the question of review does not arise."

From the above, it is clear that even though the Railways implemented the scheme under Disabilities Act, 1995 only w.e.f. 29.4.1999, the benefit of the revised scheme was made available w.e.f. 7.2.1996 and that in respect of those who were absorbed in alternative employment in a lower grade would have to be reviewed by the General Manager as per the revised scheme and that cases wherein disabled / medically decategorised employees had opted to retire asking for appointment of eligible ward on compassionate ground, the question of review does not arise.

Though the applicant was medically decategorisesd on 29.12.1998 he sought voluntary retirement only on 2.8.2008.

8. As regards appointment on compassionate grounds of ward/spouse of medically decategorised staff instructions were issued by the Railway Board laying down that in case where an employee has been medically invalidated/decategorised where the administration cannot find alternative posts for such an employee, he may be kept on a supernumerary post in the grade in which he was working on regular basis till such time suitable post can be identified or till his retirement whichever is earlier. In such cases the appointment on compassionate ground of an eligible ward would not arise. Even if the employee chooses to retire voluntarily on his being declared medically decategorised, he could be permitted but without the benefit of appointment on compassionate ground to a ward. But in cases where the employee is totally incapacitated and is not in a position to continue in any post because of his medical condition, he may be allowed to opt for retirement and in such cases request for appointment on compassionate ground to an eligible ward may be considered if the employee chooses to do so. However, pursuant to the demand raised by staff side, this was revised as follows:

"4(b) Such an appointment should only be given in case of employees who are declared partially decategorised at a time when they have at least 5 years or more service left.

X x x x x x x

5. All those employees medically decategorised after issuance of Board's letter No.E(NG)II/95/RC-1/94 dated 18.1.2000 will also be covered under these instructions. However, such cases which have already been finalised in terms of Board's letters No. E(NG)II/95/RC-1/94 dated 18.1.2000, 10.11.2000 and N.E(NG)II/2000/ RC-1/Genl./17 dated 6.3.2002 and 26.5.2004 need not be reopened.

9. That apart, we find that the order No.E(NG)II/95/RC-1/94 dated 14.6.2006 (Annexure A-5) issued by the Railway Board stipulates that the employee who seeks compassionate appointment to the ward / wife/ dependents on medical de-categorisation, should have 5 years of service left for retirement. The applicant having applied for voluntary retirement/compassionate appointment only on 2.8.2008, his case will not come within the scope of A-5.

10. In this view of the matter, we do not find any merit in the contentions raised in the O.A. It is accordingly dismissed. No costs.