M.

Velayudhan vs 3 The Divisional Railway Manager on 2 August, 2010

Central Administrative Tribunal - Ernakulam

M. Velayudhan vs 3 The Divisional Railway Manager on 2 August, 2010

CENTRAL ADMINISTRATIVE TRIBUNAL

ERNAKULAM BENCH

O.A. NO.855/2009

Dated this the 2nd day of August, 2010

C O R A M

HON'BLE MR.JUSTICE K. THANKAPPAN, JUDICIAL MEMBER

HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER

M. Velayudhan S/o Arayan

Caretaker, Office of the
Chief Crew Controller
Southern Railway/Ernakulam Junction
residing at Railway Quarter No. 122-A/ERS
Ernakulam Junction RS,Ernakulam
Cochin-682 016 .. Applicant

By Advocate Mr. T.C. Govindaswamy

Vs

1 Union of India represented by the

General Manager, Southern Railway
Headquarters Office, Park Town PO
Chennai-3

2 The Divisional Personnel Officer

Southern Railway,Trivandrum Division
Trivandrum

3 The Divisional Railway Manager

Southern Railway,Trivandrum Division
Trivandrum Respondents

By Advocate Mr. Thomas Mathew Nellimoottil

The Application having been heard on 15.7.2010, the Tribunal

delivered the following:

O R D E R

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 M. Velayudhan vs 3 The Divisional Railway Manager on 2 August, 2010

HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant who was regularly
working as a Technician Gr. II in the scale of Rs. 1200-18000/Rs. 4000-6000 met with an accident
and on medical decategorisation appointed as Care Taker in the office of the Chief Crew Controller,
Southern Railway, Ernakulam Junction, is aggrieved by the discrimination in the matter of granting
an equivalent alternative appointment on medical de-categorisation. 2 According to the applicant,
he was initially appointed as a Khalasi in the Diesel Loco Shed Erode on 11.2.1977 and was promoted
as Skilled Fitter Gr. III on 3.6.1982 and transferred to Ernakulam Loco Shed. While so, on 8.12.1985
he met with an accident while falling from a running train. He was under treatment for a period of
over one year. He joined duty on 25.7.1987. Meanwhile, he was promoted as Technician Gr. II in the
scale of Rs. 1200-1888 w.e.f. 25.7.1987. However, he took frequent leave due to sickness being
directly related to the accident. Therefore he was finally declared fit only for a job in Category B-1
which does not involve lifting of weights and climbing the ladder. However,on medical
decategorisation he was offered a post in the scale of scale of Rs . 950- 1500 (A-3) The applicant
expressed his inability to accept the offer but expressed willingness if he was posted to his native
place Calicut in Palghat Division. He submitted a representation to that effect. But it was not
acceded to. He was advised to seek inter divisional transfer, with the assurance that he would be
considered for posting in Clerical cadre. He has also pointed out that two of his juniors who were
medically decategorised were absorbed as Commercial Clerks as demanded by them. The applicant
submitted a series of representations to which he received no reply. He has a further grievance that
he has not been granted financial upgradations under the ACP Scheme. Hence, he filed this O.A for
a declaration that he is entitled to be granted an alternative appointment in the Clerical cadre or in
the Ticket Checking Cadre w.e.f. 11.6.1992 and that he is entitled to all consequential benefits arising
therefrom and for grant of 2nd financial upgradation under the ACP Scheme and 3rd upgradation
under the MACP Scheme. He has raised the grounds that under Para 1308 and 1309 of the IREM
Vol. I the respondents are bound to consider the case of the applicant for absorption in a post
carrying equivalent scale, the respondents are bound to absorb medically de- categorised employees,
give preference in case of promotion, his seniors and juniors were considered for alternative
appointments as commercial clerks, the respondents ought to have considered him for
inter-divisional inter cadre transfer under para 311 of the IREM Vol.I read with Rule 229 and the
note below rule 226 of IREC Vol.1, relying on the judgment of the Apex Court in Narendra Kumar
Chanda Vs. State of Haryanaa (1994 SCC(L&S) 882) the pay scale of the applicant should have been
protected, none of the representations sent by the applicant have been responded to the applicant
was subjected to recurring monthly losses. The applicant filed M.A. 489/2010 to condone the delay
of 5967 days in filing the O.A.

3 The respondents in their reply statement contended that the Application is hit by limitation under
Section 21(2) of the AT Act, 1985.. The applicant is praying for the benefits from 1992 onwards, the
O.A is filed only in 2009 without assigning any reason for the delay. They further submitted that the
applicant has not impleaded proper and necessary parties. They submited that the appalicant has
not challenged the alternative appointment offered to him in 20.3.1992 in the post of Caretaker at
Calicut. The prayer in the O.A for appointment in a post other than the Caretaker is hit by estoppel
and res judicata.

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 M. Velayudhan vs 3 The Divisional Railway Manager on 2 August, 2010

They submitted that the accident of the applciant did not happen when the applicant was on duty,
he was declared medically fit only for a job in category B-1 and below for a sedentary job which does
not involve lifting of weights and climbing the ladder. Therefore, he was posted as Caretaker after
being found suitable for the post by the Committee prescribed for the purpose of provision of
alternative appointment. They denied the alleged assurance for posting in the category of Office
Clerk. The applicant was holding a Group-C post and he was offered a Group C post. As such, there
is no reduction in status. The pay of the applicant was protected while appointing him to the post of
Caretaker. The applicant was drawing the pay of Rs. 1320 in the scale of Rs. 1200-1800, his pay in
the post of Caretaker was fixed at Rs. 1300 plus Rs. 20/-personal pay in the scale of Rs. 950-1500/-
the pay scale of LDC at the relevant point of time. The railway employee is free to choose whether he
should accept the offer or reject it. Inter-divisional transfer is resorted to get one's choice station.
Regarding grant of ACP/MACP, they submitted that the same are under examination. 4 We have
heard learned counsel for the parties and have gone through the records produced before us.

5 The main contentions of the applicant is that as per Para 1309 of the IREM Vol. I, the respondents
are bound to consider him for absorption in a post carrying equivalent scale of pay and that
similarly placed persons were granted appointment as Commercial Clerks. Let us examine each
point raised by the applicant.

6 The respondents prima facie have raised delay and latches on the applicant and contended that
the application is hit by Limitation in terms of Section 21(2) of the CAT Act. However, the applicant
has explained the delay of 5967 days in agitating the matter in M.A. 489/2010 and stated that it is a
continuing cause of action, that he has submitted a number of representations and that he was
informed that his name has been registered for a change of category, he is also suffering from
serious ailment and his family is in acute penury. We are not convinced with the explanation in the
M.A which is filed only on 24.6.2010 while the Application was filed on 11.12.2009. However, in the
circumstances of the case, we allow the M.A. and condone the delay in filing the Application with
respect to grant of financial upgradations under ACP/MACP Schemes alone.

7 Finding of alternative employment to a medically decategorissed employee is stipulated in Para 1

306 of the Indian Railway Establishment Manual Vol. 1. The relevant portion is extracted below:

Para 1306: Steps to be taken for finding alternative employment:-

(1) With a view to determine the categories in which a medically incapacitated railway servant is
suitable for absorptioin, a Committee should examine him. The Committee may consist of two or
three officers posted at the headquarters of the officer under whom the medically incpapacitiated
railway servant was working, the railway servant's immediate officer being one ofthe members of the
Committee. After the Committee has examined the railway servant and determined his suitability
for certain cagtegories of posts, the officer under whom the railway servant was working will
proceed to take further action to find suitable alternative employment for him. (2) The officer
concerned will prepare a list of vacancies within his jurisdiction in the categories for which the
medically incapacited railway servant has been found suitable and a post with emoluments as near
as possible to his earlier emoluments will be offered to him.

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 M. Velayudhan vs 3 The Divisional Railway Manager on 2 August, 2010

(3) It will be the responsibility primarily of the officer under whom the railway servant is directly
serving to find suitable alternative employment for him. This willl be done first by trying to find
alternative employment in the officer's own district, sub district, sub division, office workshop & a
register vide sub paragraph (7) below will be maintained for this purpose.

(4) If there is no immediate prosepct of employment in his own district, sub- division office & c, the
name of the Railway servant with particulars is given in sub paragraph (7) below will be circulated to
all the offices orestablilshmentswheresuitableemployiment is;liklelytolbefound. (5) The names of
railway servants likely to be suitable for clerical appoaintments should be intimated to the
Divisional Office as well as to Headquarters' office. (6) Nothing in the previous sub paragraphs
debars a railway servant from applying for a particular post for which he is likely to be deemed
suitable and which is known to be vacant under any officer. Such application must be addressed
through the immediate officer of the railway servant concerned and must contain full particulars of
his service and must be forwarded to the officer to whom addressed or to the authority competent to
make the appointment. The result of the application must be communicated to the railway servant.

(8) A medically incapacitated railway servant who is permanent will be appointed substantively to
the alterntive post subject to his suitability. His further chances of promotion thereafter will be in
accordance with normal channels of promotion, and he will not be entitled to consideration for out
of turn promotions merely because of his absorption in the post as a consequence of medical
incapacitation. 1308 Before any post is filled oral promotion is ordered, officers concerned will refer
to their registers and satisfy themselves that no medially incapacitated railway servant who is
suitable for the post is available. Such medically incapacitated railway servant will under all
circumstances be given preference over surplus retrenched or demoted railway servant and with
shorter service.

1309 Alternative employment to be suiltable

(i) The alternative post to be offered to a railway servant shouldl be the best available for which he is
suited,to ensure that the loss in emolumnts is minimum. The low level of emoluments should
not,however,deter officers concerned from issuing an offer if nothing better is available. The railway
servant must be given an opportunity to choose for himself whether he should accept the offer or
reject it.

Xxxxxxx

(iii) For the purposes of this paragraph an alternative appointment will be considered suitable if the
emoluments of the same are at level not more than about 25 percent below his previous emoluments
in his substantive apointment, or officiating appointment from which he was unlikely to revert. In
the case of running staff, the former emoluments for the purpose of comparison will be basic pay
plus a percentage of such pay in lieu of running allowances as may be in force. The figure of 25 per
cent is in the nature of a guide and not a rigid rule. Each case should be judged on its merits. The
underlying object is to ensure that the appointment offered will be considered suitable if it will not
force the railway servant to adopt a standard of living (as faras the necessaries of life are concerned)

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 M. Velayudhan vs 3 The Divisional Railway Manager on 2 August, 2010

of a drastically lower standard of comfort. A railway servant with a large family and considerable
commitments would merit greater consideration than one without or with few dependents.

From the above it is clear that a Committee should be constituted to examine the case of alternative
employment to a medically incapacitated employee and that it is the responsibility of the officer to
prepare a list of suitable vacancies for him. The Committee which was constituted by the
respondensts for determining the categories in which the applicant is suitable for absorption, found
him fit for the post of Caretaker. Therefore, there is nothing illegal or abitrary in the action of the
respondents.

8 The applicant who was drawing the scale of pay of Rs. 1200- 1800 /Rs. 4000-6000 was granted
alternative appointment in the scale of pay of Rs. 950-1500/Rs. 3050-4590/- However, it is
submitted by the respondents that the pay drawn by him was protected in the new post. The
applicant all along was representing for an alternative appointment as Clerk/Ticket Checking Cadre
w.e.f. 11.6.92. 9 We fully agree with the contention of the respondents that the Railway Board's
letters No. E(NG)I/2004/RE.3/9/1 dated 29.4.99 and 31.5.2006 have no application in the case of
the applicant who was medically decategorised on 20.11.1991.

10 We find that the applicant who was Skilled Fitter Grade-III on 3.6.1982 was promoted as
Technician Grade-II on 25.7.1987 when he joined duty in July, 1987 after his accident in December,
1985. On medical decategorisation, he was granted employment in a Group-C post protecting the
pay drawn by him. We do not find any infirmity in the action of the respondents. However, in the
facts and circumstances of the case, we are of the view that the applicant is entitled to financial
upgradation under the ACP/MACP Schemes.

11 Having heard the rival arguments and after going through the pleadings, we are of the view that
the interest of justice will be met if the applicant is granted ACP/MACP in accordance with the rules.
This O.A can therefore be disposed of with direction to the respondents to do so. Accordingly, we
direct the respondents to grant financial upgradation to the applicant under the ACP Scheme on
completion of 24 years of service. We also declare that he is further eintitled to financial
upgradation under the MACP Scheme on completion of 30 years service. We order accordingly.
Action shall be taken for grant of 2nd ACP to the applicant on completion of 24 years of service and
arrears paid to him, within three months from the date of receipt of a copy of this order. The grant of
MACP on completion of 30 years' service will be considered in accordance with the rules. The
Application is disposd of as above. No costs.

Dated 2nd August, 2010

K. NOORJEHAN JUSTICE K. THANKAPPAN

ADMINISTRATIVE MEMBER JUDICIAL MEMBER

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 M. Velayudhan vs 3 The Divisional Railway Manager on 2 August, 2010

kmn

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