OA 180- Decategorised Running staff elegible for 55% benefits

CENTRAL ADMINISTRATIVE TRIBUNAL      ERNAKULAM BENCH

Original Application No.180/00272/2014                               Wednesday this the 1^st October 2014.

CORAM:

HON’BLE Mr. U.SARATHCHANDRAN, JUDICIAL MEMBER

K.S.Gopalakrishnan                                                                                          ......Applicant

Versus

Union of India & 6 others                                                                                 .......Respondents

            This application having been heard on 17^th September, 2014 the Tribunal on 1^st October 2014 delivered the following:-

O R D E R

HON’BLE Mr. U.SARATHCHANDRAN, JUDICIAL MEMBER

            Applicant is a voluntary retired Loco Pilot (Mail) working under the 7^th respondent.  He is aggrieved by the alleged erroneous and arbitrary fixation of his pension as per Annexure A1 Pension Payment Advice.  While he was working as a Loco Pilot within the category of “running staff”, during the periodical medical examination for adjudging fitness, he was found to be in ‘Bee-one’ and below classification, though the classification required for Loco Pilot (Mail) is Aye-one.  On reporting this matter to the 6^th respondent, he issued Annexure A-2 communication stating that the applicant is unfit in Aye-one category and that he is fit in Bee-one and below categories for alternate employment on medical grounds.  Thereafter he was stated to have been charged against a supernumerary post pending grant of an alternative appointment.  As on the date of Annexure A-2 communication he had already put in 38 years of service.  He sent Annexure A-3 representation for permitting him to retire as running staff and requesting for waiving the period of notice.

2.         Applicant’s voluntary retirement was accepted vide Annexure A-4 with effect from 1.12.2012.  He submitted a representation to 3^rd respondent requesting for fixing his pension as running staff as no alternative employment was given to him and as he continued to be a Loco Pilot (Mail).  He further expressed his option under Rule 17 (ii) of the Railway Services (Pension) Rules 1993 as he was medically invalidated.  As per Rule 49 Railway Service (Pension) Rules 1993 the emoluments of running staff on retirement is reckoned as basic pay plus 55% basic pay.  This benefit has not been granted to the applicant.  He sent representations again through the Union vide Annexure A-7 and Annexure A-8.  As no positive result came out, he has come up with this O.A.

3.         Contention of the respondents Railway is that as the applicant was medically decategorized on 22.9.2012 he cannot consider himself as a running staff and that accordingly he is not entitled to any benefits applicable to running staff.  Applicant was given 30% if pay as pay element of running allowance as in the case of running staff posted on stationary post.  But he is not entitled to be granted weightage of 55% of basic pay for finalization of pension as on 22.9.2012 since he is no longer a running staff.  Respondents rely on Annexure R-1 and Annexure R-2 Railway Board Instructions in this regard.

4.         The short question to be considered in this case is whether at the time of accepting applicant’s voluntary retirement he continued to hold the post of Loco Pilot (Mail) entitling him to the benefit of 55% basic pay to be reckoned as running allowance for the purpose of pension?

5.         Rule 17 Railway Services (Pension) Rules, 1993 and a Railway Board instruction and a clarification thereto consist of the extant regime governing pensionary benefits for medically unfit Railway servants.

            17. Pensionary benefits to staff declared unfit.

            If a railway servant is medically unfit for his post but is retained in service in an alternative appointment under the provisions of the Code and subsequently becomes entitled to receive retirement gratuity or pension, he shall be given the option of accepting either of the following whichever he may prefer-

(i)                the gratuity or pension he would normally be granted with reference to his total service in both the spells of his service taken together.

(ii)              The sum of –

(a)   gratuity or pension which he would have been granted if he had been medically invalidated out of service instead of being retained in an alternative appointment at the end of the first spell of his service, and

(b)   the retirement gratuity or pension which he would normally have been granted for the second spell of this service rendered in the alternative appointment.

Provided that if total qualifying service of the railway servant in both the spells of the service taken together exceeds 33 years, the qualifying service in the second spell shall be reduced by the number of years by which total qualifying service in both the spells taken together exceeds 33 years and his ordinary gratuity or pension and death-cum-gratuity for the second spells of service shall be calculated with reference to the reduced qualifying service so calculated.

6.         In the instant case the applicant has opted for the provision in Rule 17 (ii).

7.         The Railway Board instruction relating to fixation of pay of medically decategorized persons while kept on supernumerary post ie. RB/ESTT.No.138/2011 dated 5.10.2011 (Annexure R-1) reads as follows:-

          Sub: Fixation of pay of medically decategorized running staff while kept on supernumerary post posts – Granting benefits of running allowance – Regarding.

          The question of fixation of pay of medically decategorized running staff for the period from the date they are declared unfit till their final absorption in alternative appointment i.e. the period during which they are kept on supernumerary posts for want of suitable alternative posts due to which it has not been possible to adjust the employees concerned immediately, has been engaging attention of the Board for quite some time.

2.       The matter has been considered by the Board and it has been decided that the pay of medically decategorized running staff while they are kept on supernumerary posts i.e from the date, they are declared medically unfit till the date they are absorbed in suitable alternative posts, needs to be suitably fixed by addition of the pay element of running allowance as may be in force.  Their pay during this period will be fixed based on their pay in Pay Band and Grade Pay plus pay element of running allowance as may be in force.  As such, supernumerary posts wherever found necessary may be created at appropriate level.  After fixation of pay in such a manner, no allowance in lieu of kilometerage shall be admissible.

3.       However, it is reiterated that there should be minimum delay in redeploying medically decategorized running staff against alternative posts.  Serious efforts should be made to locate suitable alternative posts for such staff immediately and at the most within a period of three months.  Any unreasonable delay must be avoided.  It will be the responsibility primarily of the officer under whom the concerned Railway servant was directly working to find a suitable job for him. 

4.       The instructions for fixation of pay of medically decategorized running staff on their absorption in suitable alternative posts will be issued separately.

5.       This issues with the concurrence of Finance Directorate of Railway Board.

8.         A clarification (Annexure R-2) issued by the Railway Board on 8.10.2013 reads:

            Sub:   Query of WR for 55% pay element benefits to medically decategorized drivers who retire voluntary or on superannuation.

          Ref:   Railway’s letter NO.EM369/8 (LOCO) Vol.1 dt.18.7.2013.

          It may be recalled that WR in their letter dated 17.5.2011 had raised the following queries:

          “It may kindly also be clarified as to how the settlement of medically decategorized running staff is to be done in case of Loco Running Staff.

(a)   If retired (voluntarily or superannuation) while working on special supernumerary post before posting on stationary post.

(b)   If retired (voluntarily or superannuation) while working on special supernumerary post due to non acceptance of offer of posting in a stationary post”

The above queries have already been addressed to by Board’s letter No.E(NG)-I/2009/RE-3/9 dated 5.10.2011.   In this letter it has been stated that the pay of medically decategorized running staff while they are kept on supernumerary posts i.e., from the date, they are declared medically unfit till the date they are absorbed in suitable alternative posts, needs to be suitably fixed by addition of the pay element of running allowance as may be in force.  As per Board’s letter No.E(P&A)-11/2005/RS-34 dated 26.12.2008, the pay element for specified benefits excluding retirement benefits for the running staff is 30%.  After such pay fixation of the erstwhile running staff who are medically decategorized, the question of reckoning of pay element again does not arise.

          Therefore, when a running staff is medically decategorized, he is placed on supernumerary post and his pay is fixed after adding 30% pay element from the date he was medically decategorized.  If such an employee who is no more a running staff retires voluntarily or on superannuation, his settlement should be done without any further reckoning of pay element.

9.       Respondents has now taken a stand that as applicant was medically decategorized on 22.9.2012, he can no longer be treated as a Loco Pilot since that date.

10.     According to applicant, soon after Annexure A-2 medical declassification he was kept in supernumerary post as if he had not been posted on alternative appointment suiting his then medical classification and he continued to remain as Loco Pilot (Mail).  He contends that at the time of his voluntary retirement he retired as Loco Pilot.  In this connection, he referred to Annexure A-1 Pension Payment Advice where his designation is shown as Loco Pilot (Mail).

11.     Annexure A-3 is his request dated 5.10.2012 for voluntary retirement.  Annexure A-4 is the Office Order issued by the Railways accepting his request for voluntary retirement.  It states that his services will stand terminated on 1.12.2012.  It is worth remembering that Annexure A-3 and Annexure A-4 are subsequent to his medical declassification.

12.     Impairment of vision involving low vision comes within the definition of term ‘disability’ under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act).  Medical classification of ‘Aye-one’ category is a standard of visual acuity required of a Loco Pilot for the performance of his job.  ‘Bee-one’ is a classification which makes the Railway servant unfit for the job of Loco Pilot (Mail).  Indian Railway Medical Manual Vol.I deals with different standards of vision and the circumstance when Railway servants are declasssifed on account of visual acuity.  In short, any declassification on the visual standards is attributable to low vision.  If the disability of low vision is acquired by an employee during his service, the railway servant gets the protection of the mandatory provision of Section 47 of PWD Act, 1995.  Section 47 of the PWD Act reads as follows:

47.     Non-discrimination in Government employments-

(1)     No establishment shall dispense with, or reduce in rank an employee who acquires a disability during his service.

            Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits.

            Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2)       No promotion shall be denied to a person merely on the ground of his disability.

            Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.                 (emphasis added)

13.        A reading of the above provision of law makes it clear that if an employee after acquiring disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits.  In the instant case soon after the applicant was medically decategorized, his was posted on a supernumerary post pending absorption into a suitable alternative employment.  The rules in the Railway do enable the employee to be given an alternative employment in the case of medical decategorization.  Nevertheless, if the medical decategorization is on account of a “disability” which was acquired while in service, the mandatory provisions of Section 47 of PWD Act, 1995 has to be followed.  Though this position was not argued by either side, being a pure question of law, this tribunal is obliged to invoke and apply the law in appropriate cases.  Hon. Apex court in Kunal Singh v. Union of India and Anr. (2003) 4 SCC524 has opted the same judicial technique to provide relief to a policeman, whose left leg was amputated on account of gangrene, was invalidated by authorities.  This Tribunal feels that the mandatory provisions of PWD Act have supervening effect on the Pension Rules and the ancilliary Railway Board instructions relating to the medically declassified railway servants.  Therefore, this Tribunal is of the view that in the light of Section 47 of the PWD Act, applicant could not be reduced in rank but could be shifted to some other post with the same pay scale and service benefits or could be kept on a supernumerary post until a suitable post was available or he attained the age of superannuation.

14.        In this O.A, applicant was admittedly decategorized on 22.9.2012 as he was found unfit in ‘Aye-one’ category.  Under Section 47 of the PWD Act, he could be kept on a supernumerary post or some other post without reduction in rank and service benefits.  What Section 47 protects is the rank, pay and the service conditions the employee, who had acquired disability during service, enjoyed prior to this acquiring the disability.  Therefore, this Tribunal is of the view that any Railway Board instructions per contra will be of no effect in view of the mandatory provisions of Section 47 of the PWD Act.  Therefore, it goes without saying that the contention of the Railways that soon after his medical declassification on 2.9.2012 applicant cannot be treated as Loco Pilot (Mail) and cannot be given the benefits enjoyable by him, had he not acquired the disability of low vision is untenable.  Therefore, though the application for voluntary retirement and its acceptance by the Railways took place after medical decategorization, so long as the applicant was on supernumerary post he could not be deprived of the service benefits he would have enjoyed had he not acquired the disability of low vision during his service.

15.        Therefore, this Tribunal is not inclined to accept the contention of the respondents Railway.  The respondents are directed to consider the case of the applicant as if he was a serving Loco Pilot (Mail) with all available service benefits including 55% basic pay to be reckoned as running allowance for the purpose of calculation of his pay for the pension.  Respondents shall consider refixing of his pension in the light of the law as stated above in this order.  This exercise shall be completed within two months from the date of receipt of a copy of this order.  Ordered accordingly.  No order as to costs. 

(Dated this the 1^st day of October 2014)

                                                                                                                        Sd/-

                                                                                                            U.SARATHCHANDRAN

                                                                                                                JUDICIAL MEMBER