Babu Lal vs Union Of India Through And Ors

S.N.Terdal, J

We have heard Mr. U.Srivastava, counsel for applicant and Mr. Kripa Shankar Prasad, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"(a) Directing the respondents to place the relevant records pertaining to the present OA before their Lordships for the proper adjudication in the matter, in the interest of justice.

(b) Quash and setting aside the order dt.22.05.13 issued by the respondents though extending the benefits of MAP scheme to the applicant w.e.f. 08.11.11 but reckoning the 50% services of the applicant only after declaring the same as biased, perverse, illegal, unjust, arbitrary, malafide, unconstitutional, against the principles of natural justice violative of articles 14, 16 & 21 of the Constitution of India, in violation of the mandatory provisions of law, discriminatory and contrary to the RBE 36/2010 dt.25.02.10 with all other consequential benefits and thereafter.

(c) Directing the respondents to extend the benefits of Ist & IInd MACP w.e.f. 01.09.99 & 01.09.09 respectively after reckoning the entire services rendered as substitutes in terms of MACP Scheme read with its clarification i.e. RBE No. 36/2010 dt. 25.02.10 with all other consequential benefits namely the arrears of pay differences with interest etc. admissible to the applicant.

(d) Allowing the OA of the applicants with all other consequential benefits and cost.

(e) Any other fit and proper relief may also be granted to the applicants.

The relevant facts of the case are that the applicant was engaged as Fitter/Khallasi in Construction Organization of the respondents. After disengaging him for sometime he was again appointed as unscreened substitute Safaiwala vide order dated 13.02.1989. Thereafter, he was sent for medical examination and on the basis of the medical examination being found fit in medical category C-II, he was appointed as unscreened substitute Safaiwala w.e.f 13.06.1989. The screening was not held for nearly 14 years for no fault of the applicant and when the applicant requested for giving him MACP as per 6th CPC he was sent for screening and he was declared suitable after screening on 6.12.2013 and was regularized w.e.f. 22.02.2013 and thereafter he was given ACP and MACP taking into account 50% of his service from 31.08.1989 to 22.02.1989 and thereafter 100% service from 22.02.2013. The counsel for the applicant vehemently and strenuously contended that he is entitled for counting of 100% of his service from the date of his appointment as Substitute w.e.f. 31.8.1989 and for the fault of the respondents in not holding screening test, he shall not be subjected to disadvantage in granting him ACP and MACP benefits and he further submitted that in view of the Railway Board Circular (R.B.E. No. 36/2010), he is entitled for counting the entire temporary service of Substitute for purposes of MACP. The said RBE No. 36/2010 is extracted below:-

"Sub: Extension of the benefit of MACP Scheme to the reckon of entire Temporary Status service of substitutes.

[No.PC-V//2009/ACP/2, dated 25.2.2010]

Please refer to Board's letter of even number dated 4.12.2009(Bahri's RBO 215/2009, p-289) allowing 50% of Temporary status casual labour service on absorption in regular employment may be taken into account towards the minimum service of 10, 20 and 30 years for the grant of benefit under the MACP Scheme.

Further, on demand from both the federations that the entire service of the substitutes on their absorption in regular service may be reckoned for MACPS purposes, the matter has been carefully considered by the Board. It is found that unlike casual labours whose 50% of temporary status service counts for pensionary benefits, temporary status service in full of the substitutes counts for pensionary benefits. It has, therefore, been decided that the entire temporary status service of substitutes followed by regularization without break may be taken into account towards the minimum service of 10, 20 and 30 years for the purpose of grant of benefit under the MACP Scheme."

The counsel for the respondents equally vehemently and strenuously contended that the applicant was appointed only as unscreened Substitute in 1989 and unless he declared successful in Screening test his services would be counted only at 50%. In support of his contention, he referred to the counter affidavit filed by the respondents, which is extracted below:-

"Tentatively, it was decided that persons with educational qualification matric & above will be considered for appointment as Khalasi/Loco Cleaner, 8th & 9th passed as Safaiwala and all the ITI qualified as Diesel Khalasi/Cleaner for which the written consent of the candidate will be obtained at the time of Screening (Copy Annexed as A-3).

Accordingly, the applicant was sent as offer in Gr.Rs.750-940 for unscreened substitute post on temp./Adhoc basis. It was also mentioned in the letter that priority of appointment will be given to senior person passed in screening on merit basis (Copy annexed A-2). He has submitted the written consent to work unscreened substitute post (copy enclosed as A-5).

Then he was send for Medical Examination as unscreened substitute C&W Safaiwala vide Medical Memo No.88017 dated 13.06.89 (copy annexed as A-4) as he was 7th passed only. But he was found fit in medical category of C-II and belongs to SC community. Therefore, he was appointed as unscreened substitute Khalasi and posted under IOW/NDLS (copy annexed as A-6) in Gr.Rs.750-940/-

Since then his name was never send by his subordinate incharges for screening. Accordingly, when he was demanded for benefit under MACP of 6th CPC it came into notice that he is still working on unscreened sub post as W.Kh. Then his screening was held on 06.12.2013 and 12.02.2013 and he was declared suitable vide this office L.No.220-E/533/Pt-V/Screening /P-4 dated 22.02.2013 at item No.1 ( copy annexed as A-7) and further he was granted Ist MACP benefit in Gr. Rs.5200-20200 +1900 G.P. w.e.f. 08.11.2011 (copy annexed as A-8).

Until the staff is not screened against the regular post, no benefit of the past service is given. After regularized date consequential benefits are admissible.

From the perusal of the counter reply it is clear that applicant never refused to appear in the screening test and the respondents themselves have not held Screening test for the applicant from 1989 to 2013 and they held the screening test only when the applicant requested for MACP benefits and further as per the above extracted Railway Board Circular (RBE 36/2010) there is no distinction between a screened Substitute and unscreened Substitute and, therefore, the entire service of temporary Substitute shall be counted for the purposes of granting MACP benefits. In view of these facts, we are of the view that OA requires to be allowed.

Accordingly, the OA is allowed. The respondents are directed to count 100% service of the applicant from 31.08.1989 and grant him ACP/MACP benefits with all consequential benefits within three months from the receipt of the copy of this order. No order as to costs.