Anoop Mohanan vs Union Of India & Ors.

Justice K.Haripal, Judicial Member

Applicant is an Assistant under the Senior Section Engineer, C&W, Irumpanam. He had started service in Railways as Track Maintainer in Trichy Division on 18.06.2014 as advised by the Railway Recruitment Cell. He continued as such in Trichy Division till 11.12.2015 and then joined as Helper, C&W in Trivandrum Division on 14.12.2015. He was selected as Helper by the Railway Recruitment Cell while working as Track Maintainer in Trichy. According to him, he had applied for the post of Helper prior to joining in Trichy Division.

According to the applicant, after having cleared written test for the post of Helper, he appeared for document verification with the NOC obtained from the parent division and thus offer of appointment was given from the Trivandrum Division. On getting the offer, he submitted technical resignation from the post of Track Maintainer. After accepting resignation he was relieved from Trichy from 11.12.2015 AN.

On completion of formalities he joined as Helper, C&W/IPN in Trivandrum Division on 15.12.2015. Thus his pay was fixed in the minimum of pay band + grade pay provisionally subjected to verification of certain records. In the service book, his date of appointment is shown as 15.12.2015 despite the fact that the service book maintained at Trichy Division was brought to Trivandrum Division. It is complained that despite the assurance given by the office of the 3^rd respondent, his service from 18.06.2014 has not been reckoned. Referring to Annexure-A4 it is submitted that the 3^rd respondent had addressed his counter part at Trichy and sought 'advice whether the applicant had applied for the post of Helper through proper channel and technical resignation had been accepted at his division in order to reckon the past service rendered by the employee for granting him increment and seniority'. According to the applicant, despite reminders submitted, no reply has been received from the 4^th respondent and that made him to approach this Tribunal seeking a declaration that he is entitled to reckon his service in Trichy Division from 18.06.2014 till joining Trivandrum Division as qualifying for all purpose and to direct the respondents to fix the pay by reckoning the annual increment earned by him in Trichy Division and to treat his date of initial appointment as 18.06.2014 with all consequential benefits.

According to the applicant, he was relieved from Trichy Division after putting in about 18 months service as Track Maintainer, that service is entitled to be reckoned as qualifying service on joining Trivandrum Division. Non-reckoning of such period as qualifying service is causing him substantial prejudice. He is entitled to reckon the period from 18.06.2014 till the date of joining Trivandrum Division for all purposes like fixation of pay in the post of Assistant.

The 3^rd respondent filed reply on behalf of all the respondents. It is admitted that the applicant was initially appointed as Track Maintainer-IV in the scale of Rs.5200-20200 with grade pay of Rs.1800/- in Thiruchirappally Division of Southern Railway on 18.06.2014. Later, the Railway Recruitment Cell selected him in Group-D post in the same pay band and was allotted to Trivandrum Division by order dated 11.12.2015, thus he was appointed as temporary Helper in the Mechanical Department. He was relieved from Trichy Division on 11.12.2015 and joined Trivandrum Division and posted to Irumpanam station with effect from 15.12.2015.

Further, it is submitted that 'the applicant himself tendered technical resignation from the post he held at Thiruchirappally Division to join Trivandrum Division in a post having same pay scale and grade pay'. At the same time, it is submitted that 'there is no material evidence in the O.A. to prove his contention that he had resigned from previous post for administrative reasons, on selection'. Referring to Annexure-R3(1)/2 O.M. dated 17.08.2016 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, it is submitted that benefit of past service will be available if the applicant had resigned to take up another appointment from parent department. This has been endorsed by the Railway Board. Copy of extract of Rule 1405 of IREM Volume-I also is produced as Annexure-R3(2).

According to the respondents, from the service records received from Thiruchirappally Division no entry is made to confirm whether he had resigned on selection from the previous post. Further, it is submitted that, as per Annexure-R3(1)/2 dated 17.08.2016, the Government servant at the time of resignation should specifically make a request, indicating that he is resigning to take up another appointment under the Government for which he applied before joining the Government service. Even if the application was not routed through proper channel, the benefit of past service will be extended on the conditions provided in paragraph 2.1.2.

Therefore, documents relating to technical resignation is relevant to determine the admissibility of past service as qualifying service for the new job. Referring to clause 2.4 of the O.M. dated 17.08.2016 it is submitted that guidelines of the said O.M. does not apply to the applicant, that it is applicable only to Government servants, who is specifically making a request for resignation to take up another appointment in the same or some other department. Thus the O.A. is sought to be dismissed.

The applicant filed a rejoinder reiterating that he had submitted technical resignation in order to take up appointment as Helper in Trivandrum Division, which was accepted. He had also intimated the 4^th respondent about the submission of the application pursuant to RRC selection and also had informed every step of selection. He had appeared for document verification with NOC issued by the 4^th respondent. It is for the 4^th respondent to explain as to why his resignation from the previous post was not entered in the service register.

The short question that raised for consideration is whether the period of service rendered by the applicant as Track Maintainer at Trichy during the period from 18.06.2014 to 11.12.2015 is liable to be tagged to the service in Trivandrum Division for future career like grant of increment, reckoning total length of service etc. The applicant has a specific case that he had applied for the post of Helper in Trivandrum Division before getting appointment as Track Maintainer in Trichy. When he had cleared written test conducted by the Railway Recruitment Cell for the post of Helper and was called for document verification, he had obtained NOC from the competent authority in Trichy. Thereafter, on getting the offer of appointment, it is clearly averred that he had submitted technical resignation and accepting the same only he was relieved on 11.12.2025. These are not disputed by the respondents. As already mentioned in paragraph 4 of the reply statement it is stated that the applicant had tendered technical resignation. It is not a disputed fact. At the same breath, it is stated in paragraph that the applicant has not produced any document to substantiate his claim of technical resignation before Thiruchirappally Division for claiming past service benefits. That means, the version of the respondents is not definite and vague. At the first place, it is to be stated that the respondents have not disputed the claim of the applicant that he had tendered technical resignation at Thiruchirappally before relieving. Secondly, it is clear that such an aspect is not reflected in the service records forwarded from Thiruchirappally Division. The reason for not recording the same is not clear.

In all probability, the documents proving technical resignation must be available in Thiruchirappally office and reasons for not incorporating the same in the service records has to be explained by the 4^th respondent; that has not been done. In other words, without disputing the claim of the applicant that he had tendered technical resignation the contention of the respondents that he has not produced material evidence to prove the contention of such a resignation does not stand to rhyme or reason. Such materials are available in Thiruchirappally office and that should have been produced by them. They have not denied the positive averments of the applicant. Putting the applicant to strict proof should be taken as an admission, of the contention of the applicant.

In other words, it has come out that the applicant had worked as Track Maintainer in Trichy Division of the Southern Railway from 18.06.2014 to 11.12.2015, he had appeared for document verification for the post of Helper with NOC issued by the 4^th respondent. Had the 4^th respondent any objection in the applicant taking up a new employment in another division, he would not have issued the NOC and would have raised objections, which has not been done. Similarly, the contention that he had left Trichy Division on 11.12.2015 after tendering technical resignation is not in dispute. Thirdly, he had joined Trivandrum Division on 15.12.2015 and the respondents have no case that there is any break in service. In these circumstances, the claim of the applicant is liable to be allowed.

In this connection, we have come across a decision of a Division Bench of the Hon'ble High Court in Sreejesh K v. Union of India and others [ILR 2017(1) Kerala 1], where a similar question was considered by the High Court in the backdrop of Section 26(2) of the CCS(Pension) Rules, 1972, where this Tribunal had considered the case of a person worked in the Department of Posts. On joining the new department, this Tribunal had rejected the plea for reckoning the past service. Against that decision, the applicant moved OP(CAT) 153/2016. Reversing the decision of the Tribunal, the High Court allowed the plea. In this connection, Rules 26(1) and (2) of CCS(Pension) Rules read thus:

Here, the applicant is a Railway employee. Rule 41 of the Railway Services (Pension) Rules is pari materia. Rule 41 (1) and (2) of Railway Services (Pension) Rules, 1993 reads thus:

In the said decision, Hon'ble High Court had made a comparison of sub-rule (2) of Rule 26 of the CCS(Pension) Rules with clause (b) of the Article 418 of the Civil Service Regulation and said that such a regulation was published on 01.05.1889 by the Government of India as a composite code intended to define the conditions under which salary, leave, pension and other allowances are earned by service in Civil Departments,and in what manner they are calculated. Articles 418 under Part IV, Chapter XVII of the Civil Service Regulations deals with resignation. Clause (b) of Article 418 of the Civil Service Regulations reads thus:

Ultimately, it is observed that the order accepting the regulation should clearly indicate that the employee is resigning to join another appointment with proper permission and that the benefits under the said clause of Article 418 will be admissible to him. The contents of the above order should also be noted in the service book of the individual concerned under proper attestation. But this is not seen done. In this connection, it is only apposite to quote the following observations of the Hon'ble High Court:

To sum up, though the applicant does not have the coverage of CCS(Pension) Rules or the Railway Services (Pension) Rules, since he had entered service after 01.01.2004, still, for collateral purposes, for counting the total qualifying service, reckoning other benefits and grant of increment etc., the prior service from 18.06.2014 to 11.12.2015 is countable in the latter service. These matters do not warrant strict interpretation.

The claim of the applicant that he had submitted technical resignation is not disputed. Both the posts carry same pay and grade pay. Even though that aspect is not entered in the service book, as there is no dispute on the claim and since there is no break of service, the applicant is entitled to succeed. Therefore, the respondents are directed to reckon his service in Trichy Division from 18.06.2014 till joining Trivandrum Division and extend him all consequential benefits. Orders on this aspect shall be passed within 60 days from the date of receipt of a copy of this order.

Original Application is allowed as above. No costs.