OP (CAT) No.79 of 2022

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE S.V.BHATTI ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 4[TH] DAY OF APRIL 2023/14TH CHAITHRA, 1945 ``` ## **`OP (CAT) NO. 79 OF 2022`** ``` AGAINST THE ORDER DATED 08.04.2022 IN OA NO.180/00498/2020 AND THE ORDER DATED 26.07.2022 IN RA 180/12/2022 IN OA NO.180/00498/2020 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ``` ## **`PETITIONERS/RESPONDENTS IN O.A/PETITIONERS IN R.A:`** - **`1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI - 600 003.`** - **`2 CHIEF PERSONNEL OFFICER SOUTHERN RAILWAY, CHENNAI - 600 003.`** - **`3 SENIOR DIVISIONAL PERSONNEL OFFICER DIVISIONAL OFFICE, SOUTHERN RAILWAY, THIRUVANANTHAPURAM DIVISION - 695 014.`** - **`4 SENIOR SECTION ENGINEER PERMANENT WAY, SOUTHERN RAILWAY, ALUVA - 683 101.`** ``` BY ADV T.V.VINU - CGC ``` ## **`RESPONDENT/APPLICANT IN O.A/RESPONDENT IN R.A:`** ``` K. K. SATHYAN AGED 60 YEARS S/O. KARAPPAN, TRACK MAINTAINER-II, O/O. SENIOR SECTION ENGINEER (P. WAY), ALUVA, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, RESIDING AT KODATH HOUSE, NEDUVANNUR, P.O CHOWARA, ALUVA, ERNAKULAM DISTRICT - 683 571. ``` ``` BY ADV SHAMEENA SALAHUDHEEN ``` ``` THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 04.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (CAT) No.79 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** Dated this the 04[th] day of April, 2023 ## **BASANT BALAJI, J** Respondents 1 to 4 in O.A. No.180/00498/2020 are the petitioners, and the respondent was the applicant therein. The petitioners have filed this O.P. (CAT) aggrieved by the order of the Central Administrative Tribunal, Ernakulam dated 08.04.2022 in O.A.No.180/00498/2020 and order dated 26.07.2022 in R.A.No.180/12/2022 in O.A.No.180/00498/2020. 2. The brief facts are as follows:- The applicant was working as Track Maintainer -II. The applicant entered the Railway service as a casual labourer on 06.02.1984 and continued till 15.04.1985. Thereafter, he was retrenched. The retrenchment of casual labourers was a subject matter of consideration before the Apex Court in ``` OP (CAT) No.79 OF 2022 ``` **`3` InderpalYadav and Others Vs. Union of India** [1985 SCC (L&S) 526] and connected cases, in which the Apex Court has directed the Railways to prepare a divisional list of all 'project casual labourers' in each Division of the Railways, who had been retrenched after the cut off date mentioned and directed to consider them for future engagement. In obedience to the Apex Court’s directions, a list was published by the Trivandrum Division. Thereafter, as per notifications dated 27.01.2003 and 18.02.2003, applications were invited to fill up the vacancies for the Trackman post. The applicant applied and was called for document verification and a medical examination. The notification was published in the newspaper on 03.07.2003, directing the applicant and similarly situated persons to report before the officer along with all documents. After a medical examination, the applicant was appointed as Trackman as per ``` OP (CAT) No.79 OF 2022 ``` ``` 4 ``` order dated 10.08.2004. Since the appointment order was after 01.01.2004, the applicant was included in the new pension scheme, which is contributory and deductions were to be made from his salary. The question of inclusion of Railway employees in the pension scheme who were appointed pursuant to the direction of the Supreme Court of India where the notification was before 01.01.2004 and appointment given after 01.01.2004 was a subject matter of dispute before the Division Bench of this Court in W.P.(C). No.23757 of 2010. This court declared that the date of regularisation of all empanelled employees to be taken as 03.11.2003 and the same would be counted only for pension and would not be eligible for any other benefit. Seeking a similar relief, the applicant also approached the 3[rd] respondent with representation, but the representation was dismissed by the impugned order and it was under ``` OP (CAT) No.79 OF 2022 ``` ``` 5 ``` challenge before the Tribunal. The applicant also filed an application taking shelter under Annexures A6 and A7. The said request was also turned down. It is challenging those orders that he has approached the Tribunal. The Tribunal, by order dated 08.04.2022, declared that the applicant is entitled to consider his date of regularisation as 03.11.2003 and is also eligible to be considered for grant of statutory pension under the Old Pension Scheme as ordered in **Union of India & Ors. v. C.Devadhasan & Ors** . The respondents were directed to consider the applicant's case in light of the above mentioned judgment. The respondents filed a review application as R.A No.12 of 2022 before the Tribunal to review the order dated 08.04.2022. The Tribunal, by order dated 26.07.2022, dismissed the review application finding that there was no error apparent on the face of record. It is impugning these two orders that the ``` OP (CAT) No.79 OF 2022 ``` **`6`** Railways had approached this Court with this OP (CAT). 3. Heard. 4. It is an admitted fact that, the applicant was engaged as a casual labourer on 06.02.1984 and retrenched on 15.04.1985. In view of the dictum laid down by the Apex Court in **InderpalYadav** (supra), the Railway was directed to invite the applications for filling up the vacancies of Trackman as per notifications dated 27.01.2003 and 18.02.2003. The applicant was called for submission of the documents on 21.07.2003. The applicant has submitted all the documents as per Annexure-R3 press notification. Thereafter, the appointment order was issued to the petitioner only on 11.10.2004. By that time, the old pension scheme was faced out, and new contributory pension came into effect from 01.01.2004. Since the appointment was after 01.01.2004, the ``` OP (CAT) No.79 OF 2022 ``` ``` 7 ``` applicant’s request for inclusion under the old pension scheme was rejected, and he was included in the new pension scheme only. ## 5. Annexure-R3 press notification of the Southern Railway state as follows:- “It is proposed to consider Sl.No.2191 to 3063 from the merged Seniority list of retrenched casual labourers of Engineering Department of Trivandrum Division to fill up vacancies of Trackman (Rs.2610-3540). They should report before the undersigned on the following dates along with all documents in original as prescribed in this office letter of even number dated 20.08.2003 available with all the offices of Engineering Department of Trivandrum Division. - Sl. No.2191 to 2366 21.07.2003 - Sl. No.2367 to 2542 22.07.2003 - Sl. No.2543 to 2718 23.07.2003 - Sl. No.2719 to 2894 24.07.2003 - Sl. No.2895 to 3063 25.07.2003”. 6. The applicant in Sl. No.2338, therefore, he was directed a report on 21.07.2003 as per the press notification. The Railways, after that took time to issue the appointment order; ultimately, it was done only on 11.10.2004. On 01.01.2004, new pension scheme came into effect. The delay caused ``` OP (CAT) No.79 OF 2022 ``` ``` 8 ``` on account of issuing appointment orders by the Railway from 21.07.2003 till 11.10.2004 cannot be used against the applicant to deny the benefit of coming under the old pension scheme. 7. This Court had occasioned to consider this issue in OP (CAT) No.352 of 2017 and relying on the judgment in W.P.(C) No.23757 of 2010, dismissed the OP (CAT) filed by the Union and the Railways. We do not find any reason to take a contrary view to the judgment of this Court in OP (CAT) No.352 of 2017 as there are no compelling circumstances. In the result, we are constrained to follow the judgment of this Court in OP (CAT) No.352 of 2017, and this OP (CAT) is dismissed. **Sd/-** ## **S.V.BHATTI, J** **Sd/-** ## **BASANT BALAJI, J** SPR ``` OP (CAT) No.79 OF 2022 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1A TRUE PHOTOCOPY OF THE ORIGINAL APPLICATION - O.A.NO.180/00498/2020 - DATED 14.10.2020 FILED BY THE RESPONDENT HEREIN BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P2A TRUE PHOTOCOPY OF THE REPLY STATEMENTDATED24.03.2021IN O.A.NO.180/00498/2020 FILED BEFORE THE CENTRALADMINISTRATIVETRIBUNAL, ERNAKULAM BENCH BY THE PETITIONERS (ALONG WITH COPY OF ANN.R3 AND ANN.R10). EXHIBIT P3A TRUE COPY OF THE REJOINDER DATED 21.10.2021 IN O.A.NO.180/00498/2020 FILEDBEFORETHECENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH BY THE RESPONDENT HEREIN. ``` ``` EXHIBIT P4A TRUE PHOTOCOPY OF THE ORDER DATED 08.04.2022 IN O.A.NO.180/00498/2020 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ``` - **`EXHIBIT P5 A TRUE COPY OF THE REVIEW APPLICATION - R.A.NO.180/12/2022 DATED 10.05.2022 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH BY THE PETITIONERS HEREIN.`** - **`EXHIBIT P6 A TRUE COPY OF THE AFFIDAVIT DATED 07.07.2022 FILED IN R.A.NO.180/12/2022 BY THE 3RD PETITIONER HEREIN.`** - **`EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 26.07.2022 IN R.A.NO.180/12/2022 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.`** - **`EXHIBIT P8 TRUE COPY OF THE MISCELLANEOUS APPLICATION - M.A.NO.180/111/2021 IN O.A.NO.180/498/2020, DATED 28.10.2021, FILED BY THE RESPONDENT.`** ## **`RESPONDENTS EXHIBITS: NIL.`**