S. Ravichandran & Ors. vs Union Of India & Ors.

These applicants are former Loco Pilots, who were medically decategorised. The grievance of the applicants is that they were then asked to discharge the functions of Crew Controller and retired while working as Crew Controllers. Even after medical decategorisation they were not granted any alternative appointment and thus they are entitled to get 55% of pay element of running staff for the purpose of fixation of pension, which was denied to them. Instead, they were granted pension reckoning only 30% of running allowance, thus they have approached the Tribunal 'to declare that they are entitled to get pension, pensionary benefits including salary on par with retirement benefits allowable to Loco Pilots (Running Staff)-II, to direct the respondents 1 to 3 to refix the pension by adding 55% of pay element of Running Staff(Loco Pilots) and disburse the balance 25% pay element of Running Staff for retirement benefits/pensionary benefits to the applicants'.

First applicant claims that he had started as Diesel Assistant on 22.12.1986 and then was promoted as Loco Pilot. While working as Loco Pilot he was medically decategorised on 08.07.2013. From 09.03.2018 onwards he was discharging functions of Crew Controller. While so, without giving any alternative appointment he retired as Crew Controller on attaining age of superannuation on 31.05.2024.

The 2^nd applicant had started as Loco Pilot on 18.07.1989. He was medically decategorised on 26.12.2008. His complaint also is that he was not granted alternative appointment and was asked to work as Crew Controller, which is an ex-cadre post of Loco Pilot and ultimately retired on superannuation on 31.05.2024. Similarly, the 3^rd applicant had commenced service in Railways on 02.06.1980. While working as Loco Pilot, he was medically decategorised on 15.06.2012. His grievance also is that he was not given alternative appointment and was made to retire on superannuation on 31.05.2020 while working as Crew Controller.

Thus all the applicants have stated that even though they were medically decategorised, were not given alternative appointment. The applicants 1 and 2 are Diploma holders and claim that, had they been granted ministerial posts after decategorisation, taking into consideration their general education qualification, they would have been appointed in clerical cadre and would have become Chief Office Superintendents; some of their juniors have already become Chief Office Superintendents and therefore, denial of granting alternative appointment has caused them considerable monetary loss. Similarly, the 3^rd applicant is a matriculate with ITI and says that he also was not granted alternative appointment, he also could have been given some other posting, had it been done, he would have gone up higher in the ladder of promotion and therefore, denial of the said alternative appointment to them has caused them considerable monetary loss.

All have stated that that they have made representations before the authorities seeking to grant alternative appointment on medical decategorisation, but it were not heeded to and they had to retire from the ex-cadre post of Crew Controller. Still they were not given running allowance at 55% for reckoning pension. Their pension was granted taking only 30% of the running allowance, which is illegal. It is also stated that similarly placed employees who were medically decategorised and were not granted alternative appointment were given full pension taking into account 55% of the running allowance. Instance of one N.Dinakaran has been mentioned. Thus discrimination has been meted out to them, which is illegal.

On behalf of the respondents, the 2^nd respondent filed reply denying the contentions and challenging the very maintainability of the O.A. According to them, all the applicants, after having been found unfit to work in Aye and Bee categories, while working in pay matrix level -6 of Loco Pilot (Mail), Loco Pilot (Passenger) and Loco Pilot (Goods) respectively were medically decategorised with effect from 08.07.2013, 26.12.2008 and 15.06.2012 and were provided with alternative appointments in the category of Crew Controller in Pay Matrix Level-6 with effect from 09.03.2018, 16.07.2010 and 01.11.2012 respectively. They retired from service on 31.05.2024, 31.05.2024 and 31.05.2020 respectively. According to the respondents, 'applicants being running staff prior to their medical decategorisation and on being absorbed against stationary posts, 30% of the basic pay which represents the pay element of the running allowance has to be added on to the basic pay prior to their absorption in the stationary post as per terms of Rule 1308 of Indian Railway Establishment Manual which states that the pay of the disabled/medically de-categorised Railway servants would be fixed on absorption in an alternative post at a stage corresponding to the pay previously drawn in the post held by them on regular basis before acquiring disability/medical de-categorisation. For running staff, the pay fixation will be based on the basic pay plus a percentage of their basic pay representing the pay element of running allowance as may be in force. If the basic pay so arrived at does not correspond to any stage in the absorbing grade, the pay may be fixed at the stage just below and the difference allowed as personal pay to be absorbed in future increase in pay. Similarly, if the pay so arrived exceeds the maximum of the absorbing grade, the pay may be fixed at the minimum (maximum) and the difference may be allowed as personal pay to be absorbed in future increments/increases in pay. Other allowances such as Dearness Allowance, City Compensatory Allowance and House Rent Allowance should be allowed on pay plus personal pay, if any, in the absorbed category'.

Similarly, it is stated that 'on being medically decategorised, as provided in RBE No. 137/2016, when one opts for voluntary retirement instead of accepting an alternative stationary post, the option should be given within one month from the date of offer of the first alternative post, his pension shall be computed by adding 55% Pay Element, after adjusting any 30% Pay Element fixation benefit already granted under RBE No. 138/2011. In the event the employee does not exercise the option of voluntary retirement within the stipulated period of one month, it is deemed that he has accepted re-deployment, and his retirement benefits are thereafter governed by the existing rules applicable at the time of his eventual retirement or voluntary retirement'.

Referring to the decision of the Hon'ble Supreme Court in Union of India v. B.Banerjee [(2013) 10 SCC 265], it is submitted that entitlement of allowance in lieu of kilometrage for a medically de-categorised Driver (Loco Pilot) of the Indian Railways, working as a Crew Controller with stationary duties, is governed by the nature of the post. The Apex Court had considered the issue and clarified that medically decategorised running staff once absorbed in stationary/non-running posts, are not entitled to the kilometrage allowance, which is granted only to running staff. Thus it is established that, upon absorption into a non-running category, such erstwhile running staff ceases to enjoy the privileges attached to running duties.

Further it is submitted that the O.A. is liable to be dismissed in limine since it is a delayed proceeding. Moreover, after accepting alternative appointments on 09.03.2018, 16.07.2010, and 01.11.2012 respectively and working in stationary/non-running posts, they are now claiming pension by adding 55% Pay Element including salary, which is bad.

It is also submitted that, from Annexure-A1 it is clear that the 1^st applicant was granted alternative appointment. Similarly, referring to Annexures-R1(a) and R1(b) it is submitted that applicants 2 and 3 respectively also were granted alternative appointments. With respect to Sri. N.Dinakaran and Sri.Sambasivan, they are not similarly placed. Referring to Annexure-R1(c) it is submitted that from the proceedings itself it is clear that the said Sambasivan was not given alternative appointment and that was why his pay had to be re-fixed, on a later point of time.

The respondents have also given details of the retiral benefits granted to the applicants in a tabular form.

According to the respondents, the claims of the applicants are not based on any statutory rules, regulations, guidelines or established Railway schemes and therefore cannot be sustained. It is submitted that the applicants have previously filed O.A.No.286/2017 and 141/2023, which are still pending consideration before the Tribunal, where they have challenged denial of MACP benefits as well as re-fixation of pay and recovery of alleged over payments. The pendency of those OAs have not been disclosed by the applicants in the present proceedings. On that ground also the O.A. is liable to be dismissed.

The applicants filed a rejoinder stating that O.A.141/2023 was not filed by the 2^nd applicant. The 2^nd applicant had filed O.A.141/2024 against recovery of additional increment granted to him. With respect to O.A.286/2017 it is submitted that it relates to denial of MACP, filed by the 2^nd and 3^rd applicants along with one Sri. P.C. Antony. The 1^st applicant is not a party in that OA. The 2^nd applicant and Sri. P.C. Antony were given MACP by the respondents while the 3^rd applicant was not given, for which the said OA is now pending. The present claim of the applicants is different from the other OAs. The 1^st and 3^rd applicants are not parties to OAs. Since both the OAs are different from the instant OA, it was not necessary to disclose such matters.

Further they have disputed the contention of the respondents that they were given alternative postings after medical decategorisation. According to them, Crew Controller post is not an alternative post. 'If it is an alternative post, the Loco Pilots (Running staff) should not be posted to that post. Since the Loco Pilots (Running staff) are posted to do the work of Crew Controller, the post of Crew Controller is not different from the post of Loco Pilots (Running staff). Only difference is that one is running and the other is stationary. There should not be any discrimination when the Loco Pilots (Running staff) and the applicants are doing the same work as Crew Controller. So applicants are also eligible to get the pay element of 55%'.

It is submitted that the applicants were not re-deployed or given alternative appointment instead they were allowed to work as Crew Controller, which is not an alternative post. So, they reiterate that they are entitled to get pension adding 55% element of running duty. They reiterate that Loco Pilot (Running Staff) and Crew Controller are discharging the same functions. One is running and the other is stationary. There is no difference between the running staff and stationary staff. So, they claim that their contentions are liable to be upheld.

We heard Sri.K.S.Ajayaghosh, learned counsel for the applicants and Sri.V.Sajithkumar, learned Standing Counsel for the respondents.

Learned counsel for the applicants also produced copy of proceedings dated 22.11.2023, same as Annexure-R1(c) and another proceedings dated 22.11.2023 in respect of one Sri.Chandran Pillai and said that they were given higher pension even though they were medically decategorised. The applicants also wanted the very same benefit, which has been denied to them illegally.

On the other hand, the learned Standing Counsel produced a copy of the judgment of the Honb'le Supreme Court in B.Banerjee, quoted supra and argued that, on being re-deployed, and given alternative appointment on medical decategorisation as Crew Controllers, the applicants cannot claim 55% of allowance reckoned towards pension. So, he pressed for dismissing the O.A.

Before considering the rival contentions, it is advantageous to state the details of the applicants in a tabular form as below:

It is the common case that the applicants, while working as Loco Pilots, were medically decategorised on 08.07.2013, 26.12.2008 and 15.06.2012 respectively. It is the definite, asserted case of the applicants that despite they were medically decategorised and included in supernumerary posts, were not granted any alternative appointment and were made to work as Crew Controller which is an ex-cadre post of Loco Pilot, which is treated as good as Running Staff. Still, they were not granted 55% running allowance. Therefore, on retirement, they claim that they should have been granted pension reckoning 55%, which was denied to them. They have cited instances of some other persons who were given 55% pay element on subsequent refixation, even though they were medically decategorised. Instances have been pointed out through Annexure-A12 document; case of one Dinakaran was also mentioned.

These contentions have been denied by the respondents. They have asserted that the applicants were given alternative appointment on 09.03.2018, 16.07.2010 and 01.11.2012 respectively, thereafter as they were working in non-running category till retirement, are not entitled to get 55% reckoned while granting pension.

After considering rival contentions and materials made available before the Tribunal, I have no doubt that the contentions raised by the applicants have no legs to stand upon. Firstly, it is the admitted case that the applicants were medically decategorised on the dates already mentioned above, while working as Loco Pilots. At that time, it is the standing instruction that they should be given alternative appointment or they should be posted in a supernumerary post. After they were medically decategorised, they have no case that they have discharged running duty. In other words, from the dates from which they were medically decategorised, they stopped discharging functions of running staff and thereafter as the name suggest, there is no justification in claiming running allowance. In the rejoinder the applicants wanted to say that the Loco Pilot (Running Staff) and Crew Controller are discharging same functions. This statement defies logic. At the same time, it is stated that running staff means doing running duty, alternative assignment as that of Crew Controller is doing stationary duty. That means, as the very name suggests, 55% extra allowance is payable only to persons doing running duty and that cannot be claimed by a Crew Controller so long as he has been permanently decategorised and given a non-running assignment.

Secondly, the applicants have asserted that they were not given alternative appointment. But the documents produced by the applicants itself cut such claim from its roots. From Annexure-A1 itself it is clear that the 1^st applicant was granted alternative appointment. Annexure-A1 dated 09.03.2018 reads thus:

That means, the first applicant on being medically decategorised was initially placed in a supernumerary post and then granted alternative post of CRC. Similarly, Annexures-R1(a) and R1(b) are the orders granting alternative appointments in respect of applicants 2 and 3. That means, Annexures-A1, R1(a) and R1(b) falsify the assertion of the applicants that they were not given alternative appointment.

It may be true that Crew Controller is an ex-cadre post, but once a Loco Pilot is medically decategorised, he cannot run the train. He ceases to become a running staff. Here, all the three applicants were granted alternative appointments as stated earlier.

Applicants wanted to say that they had made representations for giving them appropriate alternative postings, but no such documents have been produced. As seen from the records, they were given alternative appointment on 09.03.2018, 16.07.2010 and 01.11.2012 respectively. They retired from service long after. They have no case that they were paid 55% of the running allowance after they were medially decatergorised and given alternative appointment as Crew Controller.

After medical decategorisation, the applicants have no case that they were not given pay protection, as provided under the extant Rules and also based on the principles in the PWD Act.

There is also no basis in the allegation of discrimination. They have cited the cases of Dinakaran, Sambasivan and Chandran Pillai and wanted to say that they were given a different treatment. The respondents have denied the allegation produced the memorandum in respect of Sri.Sambasivan, as Annexure-R1(c). Annexure-R1(c) reads thus:

That means, such a re-fixation became necessary only because, after medical decategorisation, on the failure on the part of the respondents, they were not given alternative appointment and that gave them an edge to claim the entire running allowance to be reckoned and that required refixation of pension. Therefore, the said Chandran Pillai, Sambasivan etc. cannot be treated at par with that of the applicants.

In the rejoinder it was averred that, B.Banerjee, referred in the reply relates to kilometreage allowance granted to Loco Pilot (Running Staff), it in no way connected to the pensionary benefits of medically decategorised Loco Pilots etc. in order to meet this argument, the learned Standing Counsel has made available a copy of RBE No.12/2004 dated 14.01.2004, which reads thus:

The decision in B.Banerjee gives complete quietus to the claim of the applicants. That case was originated on similar facts. The Hon'ble Supreme Court has considered the appeal, where the question was, whether the respondent-medically decategorised driver of the Indian Railways working as Crew Controller with stationary duties is entitled to get allowance in lieu of kilometreage (ALK). The Culcutta Bench of this Tribunal answered the question against the respondent. But the Culcutta High Court reversed the finding, against which the Union of India preferred the appeal. Answering the question against the respondent and upholding the view of the Culcutta Bench of the Tribunal, the Hon'ble Supreme Court allowed the appeal on the following lines:

From the above discussion, it is very clear that the applicants on being medically decategorised were given alternative appointment, they did not make any representation seeking full 55% ALK that could not have been granted to non-running staff and all of them have retired while working in the alternative post of Crew Controllers. A contention that they should have been given other appointments, cannot be raised by the applicants. It is for the employer to decide, having regard to the competency, the qualifications, availability of vacancies etc., in which post they should be absorbed on being medically decategorised. They cannot be heard to say that they should be given ministerial post.

To sum up, as they retired as Crew Controllers on the respective dates while working as non-running staff, they are not entitled to get 55% pay elements reckoned for pension.

The Original Application is bereft of merits and is dismissed. I abstain from awarding costs.