IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.10.2007
Coram:
The Honourable Mr. Justice Elipe DHARMA RAO
and
The Honourable Ms. Justice K. SUGUNA
W.P. No.40730 of 2002
S. Raghuraman
Clerk
CPO's Office
Integral Coach Factory
No.49
Baliamman Koil Street
Villivakkam
Chennai 600 049. ..Petitioner
Versus
1. Union of India
rep. by the General Manager
Integral Coach Factory
Chennai 600 038.
2. The Chief Personeel Officer
Integral Coach Factory
Chennai 600 038.
3. The Senior Personnel Officer (R & T)
Integral Coach Factory
Chennai 38.
4. The Registrar
Central Administrative Tribunal
City Civil Court Buildings
Chennai 600 104 ..Respondents
Petition under Art.226 of the Constitution of India, praying
for a Writ of Certiorarified Mandamus, calling for the
records relating to the order of the fourth respondent made
in O.A. No.1441 of 2000 dated 22-11-2002 confirming the
order of the third respondent made in PB/SIC/OA.534/1998
dated 7-6-2000 and to quash the same and to consequently
direct the respondents 1 to 3 to extend all benefits of
Grade Protection, Promotion, etc.
For Petitioner : Mr. L. Chandrakumar
For Respondents : Mr. V. Radhakrishnan (for R1 to R3)
ORDER
Elipe DHARMA RAO, J.
Aggrieved by the order dated 22-11-2001 passed by
the Central Administrative Tribunal (in short ‘the
Tribunal’), dismissing the original application, the
original applicant has filed the present writ petition.
2. The writ petitioner, who was working as Station
Master in the Chennai Division of Southern Railways in the
pay scale of Rs.5000-8000, was found to be medically unfit
on 3-2-1997 and, therefore, he was offered an alternative
employment as Head Train Clerk in the same pay scale of
Rs.5000-8000. The writ petitioner, however, did not accept
the offer. Thereafter, he was offered the employment of
Clerk Grade in the Integral Coach Factory (in short ICF)
with a condition that he will be placed at last in the
seniority list of Clerk Grade.
3. Claiming that he should be given the pay
protection as well as seniority protection, the writ
petitioner filed an original application (O.A. No.534 of
1998) before the Tribunal. The said original application
was disposed of on 18-4-2000 with a direction to the
respondents therein to consider the claim of the writ
petitioner and pass suitable orders. The respondents
considered the claim of the writ petitioner, but rejected
the same by order dated 7-6-2000.
4. Challenging the order dated 7-6-2000, the writ
petitioner filed the original application (O.A. No.1441 of
2000) seeking the relief of direction to the respondents to
place him in the grade of Rs.5000-8000 in the Clerk Grade
with effect from 19-9-1997; to fix his seniority with effect
from 8-11-1991 when he has been promoted as SM-II in the pay
scale of Rs.1400-2300 (now Rs.5000-8000 with effect from 1-
1-1996). The Tribunal dismissed the original application by
observing that since the applicant had joined the post in
the ICF on his own volition and knowing fully well the
consequences after satisfying with the conditions set forth
therein, under such circumstances it was not open to the
applicant to claim protection of his pay and seniority.
Aggrieved by the order passed by the Tribunal, the original
applicant has filed the present writ petition.
5. Learned counsel for the petitioner submitted
that the Tribunal has erred in not considering the plea of
the writ petitioner that he is entitled to the benefits of
grade protection and consequential benefits including
seniority in terms of Sec.47 of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995. Paragraph 1304 read with
Paragraph 1314 (a) and (c) of the Indian Railways Manual
provides for an alternative employment in the equivalent
grade even after accepting an offer made in the lower grade
either permanently or temporarily even by creating a
supernumerary post. Paragraph 1310 of the Indian Railways
Manual enables the petitioner to decline an offer duly
reserving his right seek alternative employment in
equivalent grade. When paragraph 1306(6) of the Indian
Railways Manual provides for making an option for
alternative employment in a specific category, the finding
of the Tribunal that the petitioner had joined the post in
the ICF on his own volition and therefore it was not open to
him to claim protection of his pay and seniority is
unsustainable. Further, the Tribunal went wrong in holding
that the petitioner was accommodated in the ICF by way of
inter-railway transfer since there was no post other than
Head Train Clerk was available is untenable since even after
declining to accept the offer as Head Train Clerk, the
petitioner was still holding the right for alternative
employment in equivalent grade, for such an alternative
employment there is no need for existence of a vacancy since
the offer may be against a permanent or temporary even by
creating supernumerary and a transfer at request could be
made only when the petitioner was holding a post in the
office clerk category at the time of making such request.
6. On the other hand, learned counsel for the
respondents submitted that the writ petition is liable to be
dismissed for non-joinder of Southern Railway as a party-
respondent to this writ petition because ICF is in no way
concerned with this case. Learned counsel further submitted
that Sec.47 of the Persons with Disability Act is not
applicable to the petitioner since he had already been
offered the alternative employment in the same grade
consequent to his medical decategorisation, but the
petitioner did not accept the same and insisted for his
posting in the clerical grade, which could not be done in
view of the ban in filling up the clerical vacancies. His
case was forwarded to ICF for consideration against the
vacancies, if any, and as there were some vacancies in Clerk
Grade II in the scale of pay of Rs.950-1500 at the relevant
time, the petitioner’s request was considered for posting
him as Clerk Grade II in ICF as an inter-Railway transfer
subject to the conditions that he will ranked as junior-most
to all permanent and temporary Clerks Grade-II in scale of
Rs.950-1500 as on the date of his joining ICF; at any point
of time, he should not represent seeking fixation of
seniority or absorption in any other higher grade other than
Clerk Grade II in scale of Rs.950-1500; and his request if
any for re-transfer to Southern Railways at a later date
will not be considered under any circumstances. Accepting
all these conditions, the petitioner has joined ICF as Clerk
Grade-II. After joining ICF in the cadre of Clerk Grade-II,
the petitioner made representation dated 29-11-1997
requesting for accommodating him in the cadre of Head Clerk
in the pay scale of Rs.5000-8000. The said representation
was forwarded to Southern Railway for disposal as he was
medically decategorised only in Southern Railway. The
Southern Railway has replied that the petitioner was
originally offered alternative appointment as Head Train
Clerk in the equivalent grade of Head Clerk in the scale of
Rs.1400-2300 (now Rs.5000-8000) in Southern Railway cannot
be agreed to and the same was informed to the petitioner by
the ICF by letter dated 16-4-1998. The petitioner
thereafter filed O.A. No.534 of 1998 before the Tribunal
praying for a direction to post him in the grade of Rs.5000-
8000 in the clerical category with effect from the original
date of absorption on medical decategorisation and to pay
all the consequential benefits. The Tribunal by order dated
18-4-2000 disposed of the application with a direction to
the respondents to consider his claim and pass suitable
orders in the light of paragraph 1304 of Indian Railway
Establishment Manual within a period of three months. The
representation was considered, but the claim was rejected.
The contempt petition filed by the petition was also
dismissed by the Tribunal, reserving liberty to the
petitioner to file a separate application, if he was so
advised.
7. Learned counsel further submitted that the
transfer of the petitioner from Southern Railway to ICF was
an inter-railway transfer (one way) subject to certain
conditions regarding his seniority and pay. Accepting these
specific conditions, the petitioner had joined ICF as Clerk
Grade-II and his request for posting him as Head Clerk in
ICF, which is equivalent to Station Master Grade II prior to
his medical invalidation, cannot be agreed to. The Southern
Railways had already offered the post of Head Train Clerk in
the same pay scale of Rs.1400-2300 (5000-8000) which he was
holding before being medically invalidated. The petitioner
did not accept the same and made a representation to post
him as Head Clerk/Senior Clerk/Clerk. His application was
then forwarded to ICF and ICF agreed to take him in the
clerical grade-II with the scale of pay of Rs.950-1500. The
petitioner accepted the above post with the conditions
imposed by the ICF Administration. Therefore, it is not
open to the petitioner at this stage to make a
representation for absorption in the post of Head Clerk in
ICF, which is equivalent to the post of Station Master Grade
II.
8. Considering the above facts and circumstances of
the case, the objection for not posting the petitioner in
the grade of Head Clerk in the ICF is that when the
petitioner was medically invalidated to hold the post of
Station Master in the Southern Railway, he was offered
alternative equivalent employment in the grade of Head Train
Clerk, but when he refused to accept the said post, on his
request, he was given employment in the clerical grade in
the ICF. The petitioner accepted the employment and jointed
and thereafter after a period of six months, the petitioner
made a representation to appoint him as Head Train Clerk
with the scale of pay of Rs.5000-8000. The request made by
the petitioner was not accepted by the respondents. The
reasons given by the respondents is that the petitioner was
accommodated in the ICF on the basis of inter-railway
transfer and the petitioner had also accepted the terms and
conditions set forth therein when he was accommodated in the
ICF. The petitioner having accepted the conditions when he
was accommodated in the ICF on inter-railway transfer, his
claim for pay and seniority protection cannot be sustained.
9. Section 47 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 reads as follows:
“47. Non-discrimination in Government employment.-
(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 attained 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.”
10. Chapter XIII of the Indian Railway
Establishment Manual (IREM) deals with the absorption of
medically incapacitated staff in alternative employment.
Clause 1301 provides that a railway servant who fails in a
vision test or otherwise becomes physically incapable of
performing the duties of the post which he occupies should
not be discharged forthwith but every endeavour should be
made to find alternative employment for him as expeditiously
as possible. Such employment must be of suitable nature and
on reasonable emoluments having regard to the emoluments
previously drawn by the railway servant. Clause 1303 deals
with railway servant totally incapacitated for further
service. It provides that a railway servant in group (i)
above cannot be retained in service and is not, therefore,
eligible for alternative employment. If he is on duty, he
shall be invalidated from service from the date of relief of
his duty, which should be arranged without delay on receipt
of the report of medical authority. If, however, he is
granted leave, he shall be invalidated from service on the
expiry of that leave or extension of leave. The leave or
extension of leave that may be granted to him after the
report of the medical authority has been received, will be
so limited that the amount of leave, as debited against the
leave account, together with any period of duty beyond the
date of the medical authority’s report does not exceed six
months. Note 2 to Clause 1304 says that in the matter of
absorption of a medically incapacitated staff in alternative
post, Railway administrations, should take care to ensure
that the interests of staff in service are not adversely
affected as far as possible. The alternative appointment
should be offered only in posts which the staff can
adequately fill.
11. The above said clauses in Chapter XIII of IREM
are in consonance with Section 47 of the above said Act.
Therefore the provisions of Section 47 of the Act as well as
the above said clauses of IREM deal with the protection of
employment of medically incapacitated staff by absorbing
them in alternative suitable employment with the protection
of pay and other service benefits. Therefore, the stand
taken by the Railway Administration that the petitioner is
not entitled for the reliefs sought for by him is incorrect
and against the sprit of Section 47 of the Act and the above
said clauses of IREM. Therefore, we are not able to accept
the contention raised by the respondents.
12. In the result, the impugned order passed by the
Tribunal is set aside and the writ petition is allowed. The
respondents are directed to fit the petitioner in the grade
of Rs.5000-8000 in the clerical cadre with effect from
19-9-1997 and to reckon the petitioner’s relative seniority
with effect from 8-11-1991 when the petitioner has been
promoted as Station Master Grade III in the scale of pay of
Rs.1400-2300 (Rs.5000-8000 with effect from 1-1-1996) and to
pay all other attendant benefits, including seniority. No
costs.
Jai
To:
1. The General Manager
Union of India
Integral Coach Factory
Chennai 600 038.
2. The Chief Personnel Officer
Integral Coach Factory
Chennai 600 038.
3. The Senior Personnel Officer (R & T)
Integral Coach Factory
Chennai 38.
4. The Registrar
Central Administrative Tribunal
City Civil Court Buildings
Chennai 600 104.
**************
Elipe DHARMA RAO, J.
And
K. SUGUNA, J.
In view of the difference of opinion expressed by
the Bench with regard to the applicability of the provisions
of Sec.47 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1955 read with Clause 1302 of the Indian Railway
Establishment Manual to the issue involved in this writ
petition, Registry is directed to place this matter before
the Hon’ble The Chief Justice for referring the matter to a
third Judge.
**************
K. SUGUNA,J.
The above writ petition has been filed challenging
the order dated 22.11.2001 passed in O.A. No. 1441/2000 by
the Central Administrative Tribunal.
2. The petitioner, while working as a Station
Master Gr.III in the Chennai Division of Southern Railways
in the pay scale of RS.1400-2300, was medically
decategorised and was declared unfit for safety categories
under medical classification A-1, but found fit for A-2
classification and below according to visual standards. As
per paragraph 1304 of Indian Railway Establishment Manual
(in short “IREM”), the petitioner was offered alternative
appointment in equal cadre such as Head Train Clerk, which
was an identical grade to that of the post which the
petitioner was holding before his medical decategorisation
by letter dated 4.7.1997. But, by letter dated 17.7.1997,
the petitioner requested to give posting as a Head
Clerk/Senior Clerk/Clerk in Southern Railway/ or in Integral
Coach Factory (in short “ICF”). As there were no vacancies
to consider his request and there was a ban on filling up
clerical vacancies by the Southern Railway Administration,
his case was forwarded to ICF for consideration against the
vacancies, if any. Since, at the relevant point of time,
some vacancies were available in Clerk Grade II in the scale
of Rs.950-1500, the petitioner’s request was considered for
posting him as a Clerk in ICF, as an inter-railway transfer
subject to the following conditions:
(i) He should rank junior-most to all
permanent and temporary Clerk Grade II in
scale Rs.950-1500 as on the date of his
joining the new seniority unit viz.
Personnel Department in ICF.
(ii) At any point of time, he should not
represent seeking fixation of seniority or
absorption in any other higher grade other
than Clerk Grade II in scale Rs.950-1500 and
(iii) His request if any for re-transfer to
Southern Railway at a later date will not be
considered under any circumstances.
Accepting these conditions, the petitioner had joined
as Clerk Grade II in ICF vide office order No. PB/S1-C/2157
dated 27.9.1997. In the said order, it has been clearly
stated that the petitioner, who was working as a Station
Master in the scale of pay of Rs.1400-2300 has been
transferred from Southern Railway to ICF on one way Inter-
Railway Transfer. After joining in ICF, the petitioner filed
a representation dated 29.11.1997 with a request to
accommodate him in the equivalent cadre of Head Clerk in the
scale of Rs.5000-8000 (new scale). The said representation
was forwarded to Chennai Division of the Southern Railway
for disposal as he was medically decategorised only in the
Southern Railway. The Southern Railway has replied that the
petitioner was originally offered alternative appointment as
Head Train Clerk in the equivalent scale. But, the
petitioner had declined to accept the same and as per his
request, his case was forwarded to the ICF and at his own
request for posting as a Clerk Grade II , he was posted as
Clerk Grade II, which he had accepted. Therefore, the
request for absorption in the equivalent cadre of Head Clerk
in the scale of Rs.1400-2300 (Rs.5000-8000) in Southern
Railway cannot be granted and this has been communicated to
the petitioner by letter dated 16.4.1998. Challenging the
same, the petitioner had filed O.A. No. 534/1998 before the
fourth respondent. But, by order dated 18.4.2000, the same
was disposed of to consider the above said claim of the
petitioner and pass suitable orders in the light of
paragraph 1304 of IREM within a period of three months from
the date of service of the order. Accordingly, the
representation of the petitioner was considered by the ICF
Administration and by order of the second respondent dated
7.6.2000, the petitioner’s request was rejected and
challenging the said order, the petitioner had filed O.A.
No. 1441/2000 praying for a direction to the respondents to
fit him the grade of Rs.5000-8000 in the clerical cadre with
effect from 19.9.1997 and to reckon his relevant seniority
with effect from 8.11.1991 i.e, the date on which he was
promoted as Station Master in scale of Rs.1400-2300 (Rs.5000-
8000) and to pay the attendant benefits. But the same has
been rejected by orderdated 22.11.2001. As against that, the
present writ petition has been filed.
3. According to the learned counsel for
the petitioner, the petitioner is entitled for grade
protection, pay protection and consequential benefits
including seniority as per Section 47 of Persons with
Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (in short “the Act”). That
apart, according to the learned counsel for the petitioner,
the petitioner’s claim has been rejected erroneously by the
Tribunal on the ground that having accepted the offer by the
respondent Department for appointment in the grade of Rs.950-
1500, cannot aspire for grade protection. That apart,
according to the learned counsel, the Tribunal has failed to
take cognizance of the statutory provisions in paragraph
1304 read with paragraph 1314 (a) and (c), which provide for
an alternative employment in the equivalent cadre even after
accepting the offer made in the lower grade either
permanently or temporarily. Besides, the finding of the
Tribunal, since the petitioner had rejected the offer of
alternative employment as a Head Train Clerk in the
identical scale of pay and made a request to offer a post in
the ICF, the respondent Department cannot be said to have
failed to consider in a proper perspective the statutory
provisions in paragraph 1310 of IREM cannot be accepted.
That apart, according to the learned counsel, while offering
an alternative employment, the provisions of Section 47 of
the Act have to be complied with and in the case of the
petitioner, the respondent Department, totally ignoring the
same, has appointed the petitioner as a Clerk Grade II,
contrary to the provisions of the above said Act.
4. On the other hand, learned counsel
for respondents 1 to 3 has contended that immediately on
medical decategorisation, the petitioner was offered
alternative job in accordance with the relevant provisions
and in an identical cadre with pay protection by order dated
4.7.1997. Since the petitioner had refused to accept the
same, by letter dated 17.7.1997 and requested to give a
posting as a Head Clerk/Senior clerk/Clerk in Southern
Railway or in ICF as an alternative appointment, after
bringing to his notice that the pay of the post of Clerk
Grade II is only Rs.950-1500 and with the condition that he
should not make any representation seeking fixation of
seniority or absorption in any other higher cadre, this
offer was made. Accepting the offer, the petitioner had
joined duty. As such, according to the learned counsel for
respondents 1 to 3, the petitioner is estopped from making a
request seeking pay protection and absorption in the higher
grade (equal grade). That apart, as far as ICF is concerned,
it is a different entity and Southern Railway is a different
entity. As an employee of the Southern Railway, the
petitioner can seek an alternative employment with pay
protection in terms of Section 47 of the Act only in the
Southern Railway and not in the ICF. That apart, when the
petitioner had refused to accept the offer made by the
Southern Railway, by letter dated 17.7.1997, his right to
seek protection under Section 47 of the Act elapses.
According to the learned counsel, it is not the case, as if
the petitioner was not given any alternative employment in
terms of Section 47 of the Act. Besides, having accepted
the offer in ICF and joined the service accepting the terms
and conditions imposed therein, the petitioner is estopped
from making the representation dated 29.11.1997 seeking pay
protection and other benefits. According to the learned
counsel, the order of the Tribunal has to be sustained.
5. I have considered the above
submissions of the learned counsel for the petitioner as
well as respondents.
6. Admittedly, the petitioner was
medically decategorised while he was working as a Station
Master in the scale of pay of Rs.1400-2300 (revised as
Rs.5000-8000). He was found unfit for safety categories
under medical classication A-1, but found fit for A-2
classification and below according to visual standards.
Subsequent to this, it is not in dispute that by letter
dated 4.7.1997, the Southern Railway has offered him
alternative employment as Head Train Clerk, which is an
identical cadre, compared to the one which he was holding
before his medical decategorisation. But, the same was not
accepted by the petitioner. On the other hand, the
petitioner had submitted a representations dated 17.7.1997
and 4.8.1997 with a request to post him as Head Clerk/Senior
Clerk/Clerk in the Southern Railway or in ICF. Basing on
this, since there were no vacancies in the clerical cadre in
the Southern Railway, his case was referred to ICF.
Consequence of this, by letter dated 13.8.1997, the Chief
Personnel Officer of the ICF has informed that vacancies are
available in the clerical cadre in the scale of Rs.950-1500
and this fact has been brought to the notice of the
petitioner also and by proceedings dated 19.9.1997, the
petitioner was directed to report for absorption in the post
of Office Clerk in the scale of pay of Rs.950-1500. Based
on this, the petitioner was also relieved from the Southern
Railway and he was directed to report before the ICF and in
the office order dated 27.9.1997, it has been made very
clear that the transfer and absorption of the petitioner is
subject to the conditions mentioned therein. One of the
conditions is that the petitioner should not represent
seeking fixation of seniority or absorption in the higher
cadre other than Clerk Grade II in the scale of pay of
Rs.950-1500. That apart, it has been made very clear to him
that he will rank as the ;junior-most to all the permanent
and temporary Clerk Grade II in the scale of Rs.950-1500 as
on the date of joining. Subsequently, the petitioner has
submitted a representation dated 29.11.1997 for absorption
in the higher cadre with pay protection and seniority.
7. As a medically invalidated person,
the petitioner is entitled for protection under Section 47
of the Act and there is no dispute with regard to that.
There is also no dispute that the petitioner was given that
offer by letter of the Southern Railway dated 4.7.1997. But,
the same was not accepted by the petitioner and at his
request, and imposing certain conditions, he was offered
employment in the ICF. Having accepted those conditions and
joined the post, ignoring the acceptance given by him, the
petitioner cannot seek either pay protection or seniority or
grade protection. As far as protection under Section 47 of
the Act and similar provisions in IREM are concerned, the
same had come to an end when the petitioner had declined to
accept the offer given by the Southern Railway. As far as
the protection under Section 47 is concerned, it is a
concession given to the employees based on their disability.
But, that does not mean that gives a privilege to the
concerned employee to seek employment at his choice and
wherever he wants. As rightly contended by the learned
counsel for the respondents, the Southern Railway wherein
the petitioner was working at the time of his medical
decategorisation is a separate entity and ICF is a separate
entity. If at all, the petitioner can get protection only
in the Southern Railway and it is not in dispute that an
order to alternative employment with pay protection was
offered to the petitioner by the Southern Railway. On his
refusal to accept the same, the petitioner lost his right to
claim any protection either under Section 47 of the said Act
or under similar provisions in IREM. The protection given
under Section 47 of the Act , certainly, does not confer a
right on the disabled employee to claim any post according
to his own whims and fancies. If the contention of the
learned counsel for the petitioner has to be accepted, the
concession given under Section 47 will amount to a privilege
without any limitation and that it can be demanded at any
time. In fact, by getting medical decategorisation, instead
of getting an alternative employment, one will be able to
get what he could not get otherwise as per the Rules. That
apart, it is not the case of the petitioner that inspite of
his refusal, he was compelled to accept the post in ICF. On
the other hand, on his choice, the same was given to him and
as referred to above, the benefits given either under
Section 47 of the Act or under the provisions in IREM come
to an end on his refusal to accept the offer made by order
dated 4.7.1997 and the concession/protection under Section
47 is certainly not carried over to ICF where the petitioner
was appointed basing on his choice. If it is held
otherwise, sympathetic consideration will become a matter of
right, which is not permissible under Section 47 of the Act.
That apart, no provisions have been brought to the notice of
this Court that even after accepting the offer in the lower
cadre, the petitioner can seek absorption in the higher
cadre, that too, in a different entity. Hence, I find no
merit in the writ petition and the same is dismissed. The
order of the Tribunal dated 22.11.2001 is confirmed. No
costs.
nv
To
1. The General Manager
Integral Coach Factory
Chennai 600 038.
2. The Chief Personnel Officer
Integral Coach Factory
Chennai 600 038.
3. The Senior Personnel Officer (R & T)
Integral Coach Factory
Chennai 38.
Prabha Sridevan, J.
In view of the difference in the decision between
Dharmarao Elipe, J. and K. Suguna, J. with regard to the
right of the petitioner protection of his service conditions
in terms of the Disabilities Act this matter has been placed
before me.
2. The dispute is with regard to the question
whether a Railway employee who has been medically
decategorised and has been given alternative employment in
Integral Coach Factory is entitled to such protection. K.
Suguna, J. Found that his claim was without merit, whereas,
Dharmarao Elipe, J. allowed the claim.
3. The chronological dates and events are as
follows:
W.P. No.40730 of 2002
…Sri.S.Raghuraman, now working as
Clerk Gr.II in ICF is the petitioner.
Prayer in W.P.
..W.P. is filed to quash the order
dated 22.11.2001 passed by CAT/MAS in O.A. 1441/2000, rejecting Petitioner’s claim for fitment of his scale
of pay in Rs.5000-8000 as Head Clerk from 19.9.1997
and to reckon his seniority with effect
from 9.11.91, i.e. the date on which he
was promoted as Station Master in scale Rs.1,400-2300 (Revised as Rs.5000 – 8000 with effect from
1.1.96).
w.e.f.9.11.91 …Petitioner was promoted as
Station Master Gr.III in scale Rs.1400 – 2300 (Revised as 5000 – 8000) and posted at
Jolarpettai and later on transferred to
Athipattu.
13.3.1989 … Petitioner was initially
appointed as Asst. Station Master in Scale
Rs.1200 – 2040 (Revised as Rs.4500 – 7000).
03.02.1997 …Petitioner was declared
medically unfit to continue in the safety category of Station Masgter.
02.06.97 ..Suitability Test. Orders Passed. 04.7.1997 .. Petitioner was offered alternaste post of Head Train Clerk in the same scale of pay of Rs.1400 - 2300 (RP Rs.5000 - 8000). 17.7.1997 ... Petitiner representation
declining (Page 2) to accept the alternate employment
as Head Train Clerk.
04.08.1997 … Further representation
requesting to (Page 3A) appoint him as Head
Clerk/Sr.Clerk/Clerk either in MAS Divn./HQ/ICF (equivalent)
08.08.1997 …DRM/MAS wrote to CPO/MAS
informing (Page4) Applicant’s request to post him
as Office Clerk either in Dn.Or.HQ or ICF, and
that there is no clerical vacancies, besides ban on copy was marked to CPO/ICF
13.08.1997 … CPO/ICF informed DRM/MAS
that they have few in clerial cadre in scale Rs.950-1500 and the medically decategorised employee
can be absorbed as Clerk Gr.II in
scale Rs.950-1500.
(RP Rs.3050 – 4590).
…His suitability to the post of
Clerk Gr.II should be assessed before directing
to report duty to ICF.
17.08.1997 …DRM/MAS appointed DCM-I
and DPO-I to form a committee.
15.09.1997 … CPO’S letter to DRM/MAS
asking to take further action, pursuant to CPO/ICF letter dated 13.8.1997.
17.09.1997 … Petitioner was asked to
attend the suitability test at Sr.DPO’s Office at
15.00 Hrs. on 18.9.1997.
15.09.1997 …CPO’s letter to DRM/MAS
asking to take further action, pursuant to CPO/ICF letter dated 13.8.1997.
17.09.1997 … Petitioner was asked to
attend the suitability test at Sr.DPO’s Office at 15.00 Hrs. on 18.9.197.
18.09.1997 … Suitability test
conducted and found suitable for the post of Office
Clerk.
19.9.1997 …DRM/MAS passed orders
directing the petitioner to report to CPO/ICF.
19.9.1997 ...Same day, petitioner reported to CPO/ICF and joined duty in ICF as Office Clerk. 27.09.1997 ... Posting Order in ICF given with conditions. 29.11.1997 ...Petitioner gave a representation requesting to post him as Head Clerk instead of clerk Gr.II. 12.02.1998 ... Petitioner;s
representation was forwarded to southern Railway.
30.03.1998 … Southern Railway replied
that the transfer was at the request of the petitioner and hence he could continue in ICF only.
16.4.1998 ... ICF informed the petitioner that his request is not agreed to. Petitioner filed O.A.534/98 in CAT/Madras, praying for a direction to post him in Grder Rs.5000 -8000, w.e.f. the date of absorption. 18.4.2000 ...R4 Tribunal directed R1 &
R2 to consider his claim and pass suitable orders in
the light of para 1304 of IREM within 3 months.
07.06.2000 …R2 informed that
Petitioner’s request (page 4) to post him in the Grade of
Rs.5000 – 8000 is not agreed to.
.. Petitioner filed Contempt
Petition 61/2000 alleging that the order dated 7.6.2000 passed by R2 is not
in compliance of the directions of the
R4 Tribunal.
10.10.2000 ... contempt Petition was
dismissed with an observation that the petitioner
could challenge the order dated 7.6.2000, if so advised.
20.12.2000 ... Thereafter, the
petitioner filed O.A.No.1441/2000.
22.11.2001 ... CAT dismissed O.A.
... Aggrieved by this order,
petitioner filed the present W.P.
4. The relevant rules that apply to the petitioner
are Section 47 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995 (Act 1 of 1996) (‘Disabilities Act’ in short),
Paragraph Nos.312 and 313 of the Railway Establishment
Manual (Volume-I) and Paragraphs 1301 to 1310 under Chapter
XIII of the Absorption of Medically Incapacitated Staff in
Alternative Employment Rules. These are extracted hereunder:
“Section 47. Non-discrimination in
government employment.- (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.”
“312. TRANSFER ON REQUEST :
The seniority of railway servants
tranferred at their own request from one railway
to another should be allotted below that of the
existing confirmed, temporary and officiating
railway servants in the relevant grade in the
promotion group in the new establishment
irrespective of the date of confirmation or length
of officiating or temporary service of the
transferred railway servants.
Note:- (i) This applies also to cases of
transfer on request from one cadre/division to
another cadre/division on the same railway.
(Rly.Bd.No. E(NG) I-85 SR 6/14 of
21/01/1986)
(ii) The expression “relevant grade”
applies to grade where there is an element of
direct recruitment. Transfers on request from
Railway employees working in such grades may be
accepted in such grades. No such transfers
should be allowed in the intermediates grades in
which all the posts are filled entirely by
promotion of staff from the lower grade(s) and
there is no element of direct recruitment.
(No. E(NG) I-69 SR 6/15, dated 24.06.1969)
ACS-14)
313. MEDICALLY UNFITTED RAILWAY SERVANTS:
(a) (i) Medically decategorised staff may,
as far as possible, be absorbed in such
alternative posts which should broadly be in
allied categories and where their background and
experience in earlier posts could be utilised.
For example, traffic running and operating staff
need not necessarily be absorbed in the ticket
checking cadre alone but they could also be
absorbed in other commercial, station or yard
categories.
(ii) The medically decategorised staff
absorbed in alternative posts, whether in the same
or other cadre, should be allowed seniority in the
grade of absorption with reference to the length
of service rendered in the equivalent or
corresponding grade, irrespective of the rate of
pay fixed in the grade of absorption under the
extant rules. In the case of staff who are in
grade higher than the grade of absorption at the
time of medical decategorisation, total service in
the equivalent and higher grade is to be taken
into account.
Provided that if a medically decategorised
employee happens to be absorbed in the cadre from
which he was originally promoted, he will not be
placed above his erstwhile seniors in the grade of
absorption.
(iii) While absorbing the medically
decategorised Running Staff in alternative posts,
a percentage of basis pay representing the pay
element in Running Allowance, as decided by the
Government through administrative instructions
from time to time, should be added to the minimum
as well as maximum of the scale of pay for
purposes of identifying ‘equivalent’ posts and
their seniority should then be fixed in the
equivalent absorbing posts.
(No. E(NG) II/77/RE-3-2 OF 2-9-77 and
E(NG) I-80-SR-6/83 of 5.3.1981)
(b) Railway servants whose services were
terminated either because of the maximum limit of
all leave including extraordinary leave having
been exceeded or the medical authorities could not
recommend the grant of extraordinary leave in the
case of tuberculosis, pleurisy and leprosy
patients and are re-employed in railway service
after being declared fit to work by the medical
authority should take their seniority below all
permanent railway servants on the date of their re-
employment provided they were permanent before
medical unfitness or would have been confirmed in
the meantime. Railway servants who were
officiating or temporary at the time of medical
unfitness or would not have been confirmed in the
meantime should be placed below the officiating or
temporary employees as the case may be on the date
of their re-employment.
(c) Seniority of medically unfitted staff
mentioned in sub-para (a) above, on restoration to
their original posts should be determined as
under:
(i) Railway servants who properly appeal
within the time limit laid down for appeals or
whose appeal is entertained in a reasonable period
waiving the time limit and get declared fit,
should not lose their seniority or their claim for
consideration for promotion for which they were
eligible in the original categoroy in which they
were employed.
(ii) Seniority of railway servants who
prefer delayed appeals and are declared fit or who
take treatment and consequently get declared fit,
if they were formerly confirmed in the grades in
which they were, would be affected to the extend
of any persons who may have been confirmed before
their re-absorption into the original category.
If however, they were only officiating in the
original category, then their seniority should be
below the staff confirmed till then, but need not
be affected vis-a-vis their original juniors who
happen to be till officiating.
(d) In the case of staff coming to a new
unit on own request by accepting bottom seniority
and then getting medically decategorised,
provision of sub-para (a)(ii) above will be
applicable only to the extent of service in the
new unit.
(No. E(NG)I-71 SR 6/39 dated 31-5-1977)
(e) In the case of staff who are not
required to undergo periodical Medical examination
but who of their own accord request for change of
category on grounds of health, and are recommended
change of occupation by the medical authority,
their change will be treated as transfer on own
request and dealt with as per para 312.
(No. E(NG)I – 76 SE 6/37, dated
18.09.1976)”
“CHAPTER XIII
ABSORPTION OF MEDICALLY INCAPACITATED STAFF IN
ALTERNATIVE EMPLOYMENT1301. A railway servant who fails in a
vision test or otherwise becomes physically
incapable of performing the duties of the post
which he occupies should not be discharged
forthwith but every endeavour should be made to
find alternative employment for him as
expeditiously as possible. Such employment must
be of suitable nature and on reasonable emoluments
having regard to the emoluments previously drawn
by the railway servant.
1302. Classification of railway servants
declared medically unfit – Railway servants
declared medically unfit for further service are
divisible into two groups :
(i) Those completely incapacitated for
further service in any post on the railway, ie.,
those who cannot be declared fit even in the “C”
medical category;
(ii) Those incapcited for further service
in the post they are holding but declared fit in a
lower medical category and eligible for retention
in service in posts corresponding to this lower
medical category.
1303. Railway servant totally
incapacitated for further service : (Not
Applicable)1304. Railway servants incapacitated for
service in posts held by them –
(a) Permanent Railway Servants : A
permanent railway servant in group (ii) of Para
1302 above must also cease to perform the duties
of the post, he was holding from the date he is
declared medically unfit. Here again, no officer
has the authority to permit him to perform his
duties in hat post beyond that date. He should be
granted leave as admissible to him, under the
leave Rules by which he is governed, from that
date he is incapacitated subject to the proviso
that where the railway servant has not got six
months leave to this credit, his leave shall be
made upto six months by the grant of extraordinary
leave. If an alternative employment cannot be
found for such a person within the period of
leave so granted his service should, be extended
by grant of extraordinary leave, subject to the
condition that the total amount of extraordinary
leave to be granted to the railway servant does
not exceed six months. It should be possible
within the period of leave thus extended to find
either a permanent or a temporary post for his
absorption. If the railway servant is absorbed
against a temporary post in a permanent cadre a
supernumerary post may also be created and his
lien counted against the post. It should,
however, be noted that,
(i) the actual creation of supernumerary
post will follow the acceptance of offer of
alternative post;
(ii) the supernumerary post should be
abolished as soon as a permanent post is found for
the railway servant concerned.
The purpose of granting extraordinary
leave envisaged in this para is that in case the
Railways administration is able to find a suitable
alternative employment for a medically
incapacitated employee, there should be no break
in his service. Since the period of such
extraordinary leave counts for the purpose of
special contribution to P.F. in the case of a
railway servant governed by the state Railway
Provident Fund Rules but not in the case of
pensionable Railway servant the letter employee
may not like to avail of the extraordinary leave
but may instead prefer to quit service on pension,
immediately on the expiry of his period of leave
with allowances. In such case extraordinary leave
need not be granted to a railway servant, if he so
desires.
2. In the matter of absorption of a
medically incapacitated staff in alternative post,
Railway administrations, should take care to
ensure that the interest of staff in service are
not adversely affected as far as possible. The
alternative appointment should be offered only in
posts which the staff can adequately fill.
(b) Temporary Railway Servants : A
temporary Railway Servant in group (ii) of para
1302 above who becomes medically unfit for the
post held by him on account of circumstances
arising out of and in the course of his
employment, the benefit admissible to permanent
Railway servants as at (a) above should be given.
A temporary employee has become medically
fit for the post held by him, on account of
circumstances which did not arise out of and in
the course of employment, the benefit of Rule 304
RI (of Fifth edition 1985) will not be admissible.
While, therefore, it is strictly not obligatory to
find alternative employment for such an employee,
every effort would nevertheless, be made to find
alternative employment. The employee concerned
should br granted such leave as is due to him plus
extraordinary have not exceeding three months; the
total not exceeding six months. If no alternative
employment be found in this period, the employee
should be discharged from service.
1305. Alternative employment must be
found in the case of permanent and temporary
railway servants:
Medically decategorised staff may, as far
as possible, be absorbed in such alternative posts
which should broadly be in allied categories and
where their background and experience in earlier
posts could be utilised. There should be no
difficulty in providing such alternative
employment and no reversion of any officiating
railway servant for the purpose of absorbing the
disabled railway servant should be necessary. For
this purpose attempts should be made to absorb the
disabled railway servant not only within the
District/Division or Department but in another
District/Division or Department.
1306. Steps to be taken for finding
alternative employment :
1. With a view to determine the categories
in which a medically incapacitated railway servant
is suitable for absorption, a Committee should
examine him. The committee may consist of two or
three officers under whom the medically
incapacitated railway servant was working, the
railway servant’s immediate officer being one of
the members of the Committee. After the Committee
has examined the railway servant and determined
his suitability for certain categories of posts,
the officer under whom the railway servant was
working will proceed to take further action to
find suitable alternative employment for him.
2. The officer concerned will prepare a
list of vacancies within his jurisdiction in the
categories for which the medically incapacitated
railway servant has been found suitable and a post
with emoluments as near as possible to his earlier
emoluments will be offered to him.
3. It will be the responsibility primarily
of the officer under whom the railway servant is
directly serving to find suitable alternative
employment for him. This will be done first by
trying to find alternative employment for him.
This will be done first by trying to find
alternative employment in the officer’s own
district, sub-district, sub-division, office,
workshop and c. and a register. Vide sub-paragraph
(7) below will be maintained for this purpose.
4. If there is no immediate prospect of
employment in his own district, sub-district, sub-
division, office and c. the name of the Railway
servant with particulars as given in sub-paragraph
(7) below, will be circulated to all other offices
or establishments where suitable employment is
likely to be found.
(5) The names of railway servants likely
to be suitable for clerical appointments should be
intimated to the Divisional Office as well as to
the Headquarters Office.
(6) Nothing in the previous sub-paragraphs
debars a railway servant from applying for a
particular post for which he is likely to be
deemed suitable and which is known to be vacant
under any officer. Such an application must be
addressed through the immediate officer of the
railway servant concerned and must contain full
particulars of his service and must be forwarded
to the officer to whom addressed or to the
authority competent to make the appointment. The
result of the application must be communicated to
the railway servant.
…
(8) A medically incapacitated railway
servant who is permanent will be appointed
substantively to the alternative post subject to
his suitability. His further chances of promotion
thereafter will be in accordance with the normal
channels of promotion, and he will not be entitled
to consideration for out-of-turn promotions merely
because of his absorption int he post as a
consequence of medication incapacitation.
1307. Absorption in alternative employment
to be circularised.
1308. Before any post is filled or a
promotion is ordered, officers concerned will
refer to their registers and satisfy themselves
that no medically incapacitated servant who is
suitable for the post is available. Such
medically incapacitated railway servant under all
circumstances be given preference over surplus
retrenched or demoted railway servant and shorter
service.
1309. Alternative employment to be
suitable. –
(i) The alternative post to be offered to
a railway servant shoudl be the best available for
which he is suited, to ensure that the loss in
emoluments is a minimum.
…
(E(NG) ISO SR6/83 dt. 5.3.81).
NOTE :- Care should be taken by Railway
administration to see that the interests of the
staff in service are not affected adversely as far
as possible and alternative appointment should be
offered only in post which the staff can
adequately fill. Their suitability for the
alternative posts be judged by holding suitability
test/interview as prescribed under the extent
instructions.
…
(E(NG) II-73 RE 3/16 dt. 11.4.75)
1310. Offer of alternative employment to
be in writing. – The alternative employment must
be offered in writing, stating the scale of pay
and the rate of pay at which it is proposed to
reabsorb him in service. On no account should the
Railway servant be posted to an alternative
appointment until he has accepted the post. A
railway servant is at liberty to refuse an offer
of alternative appointment and the leave granted
to him will not be terminated pre-maturely merely
because of his refusal. The Leave must run its
course. He will continue to remain eligible for
other alternative offers of appointment till his
leave expires and efforts to find such
appointments should, therefore, continue
throughout the currency of his leave.”
These are the rules based on which the petitioner claims
relief.
5. Learned counsel for the petitioner submits that
the petitioner is entitled to protection of his rights in
terms of Section 47 of the Disabilities Act as well as the
provisions of Indian Railway Establishment Manual which is
extracted above and that he cannot be treated as a person
seeking transfer on request or as a one way transfer case.
The learned counsel submitted that he has a statutory right
to be fitted in an alternative employment without loss of
pay and if necessary a super numerary post must be created.
6. The learned Senior counsel appearing for ICF
submitted that the petitioner was informed even at the
earliest possible time that he could go back to the Southern
Railway and that in ICF a post commensurate with the post he
was holding Southern Railway was not available. In spite of
that, he opted to come to ICF and he knew the terms subject
to which is transfer was ordered. The learned senior
counsel submitted that if the petitioner were to be fitted
in ICF it would disrupt the seniority in ICF. The learned
senior counsel also submitted that the petitioner ought to
have impleaded the Southern Railway to get a binding
adjudication.
7. On the side of the petitioner, the judgment in
Writ Appeal No.860 of 2007 [The Management of Tamil Nadu
State Transport Corporation (Villupuram Division-III) Ltd.,
Kancheepuram vs. B. Gnanasekaran] was relied on. (2000) 4
S.C.C. 13 [Comptroller & Auditor General of India vs. Farid
Sattar] is cited on behalf of the respondent. In the latter
case, the claim for protection of pay was rejected on the
ground that the workman had applied for universal transfer
after seeking reversion to the lower post of Accountant as a
direct recruit, which the respondent before the Supreme
Court accepted and thereafter had prayed for protection of
pay and it was rightly rejected by the Supreme Court. This
does not apply to the present case.
8. It must be remembered that the petitioner herein
was only aged 36 years when he was medically incapacitated.
The relevant rules have been extracted. It is clear even
from a reading of the paragraphs extracted from the Manual
that the transfers on request and transfers on medical
incapacitation are different. The former is dealt with
under paragraph 312 and the latter is dealt with under
paragraph 313 of Indian Railway Establishment Manual. The
relevant clauses in Chapter XIII of the Absorption of
Medically Incapacitated Staff in Alternative Employment
Rules protect the rights of medically incapacitated staff.
There is reference to supernumerary posts as provided in
Section 47 of the Disabilities Act and the creation of
supernumerary posts is only until a permanent post is found
for the railway servant concerned, which is almost similar
to the proviso to Section 47 of the Act. Extraordinary
leave is granted to such railway servants to ensure that
there was no break in his service. It is also made clear
that in the matter of absorption in an alternative post, the
railway administration should take care that the interest of
the staff is not adversely affected as far as possible.
Paragraph 1305 declares in no uncertain terms that
alternative employment must be found in the case of railway
servants (emphasis supplied). The insistence that the
railway servant shall not suffer any prejudice is seen from
the fact that this paragraph requires the administration to
absorb a disabled railway servant not only within the
district division or department, but in another district,
division or department. Paragraph 1306(2) shows the list of
vacancies which is prepared for accommodation of the railway
servant must contain posts with emoluments as near as
possible to the earlier emoluments. Paragraph 1306(3) shows
that this alternative employment should be first found in
the officer’s own district, sub-division, office, workshop
etc., but if it is not possible, then the administration
shall circulate the name of the railway servant with
particulars to all other offices or establishments where
suitable employment is likely to be found. Paragraph
1306(8) shows that he is entitled to all normal channels of
promotion. What he cannot claim is an out-of-turn promotion
because of his absorption in the post as a consequence of
medical incapacitation.
9. Much was stressed on the side of the respondent
to show that Southern Railway and I.C.F. are different
organisations under the Ministry of Railways, and cannot be
treated as one unit. Paragraph 56 of the Manual of Office
Procedure shows that Southern Railway, Madras is listed
under A(vi) and Integral Coach Factory, Madras is listed
under A(xi). But, when their own Manual shows that they are
bound to accommodate the medically unfit employee in any
other district or establishment, the fact that I.F.C. has a
different General Manager and Southern Railway has a
different General Manager is hardly significant. It is true
that after his medical decategorisation, the petitioner was
offered alternative employment as HTNC. He made a request
that because of his vertigo and bronchitis, it will not be
possible for him to discharge his duty satisfactorily since
as a HTNC, he will have to maintain the relevant records,
physically collecting the materials by moving in and around
the coach yard (petitioner’s letter dated 17.7.1994).
Therefore, he requested that he should not be given work in
the Open Line. He requested that he may be given a post of
headclerk/senior clerk/clerk under the control of the
Southern Railway in a headquarters or in I.C.F. The fact
that he had written the word ‘Clerk’ in his request does not
mean that he was waiving his right to claim pay protection
because that benefit is given to him under the relevant laws
and rules. Not just once, but repeatedly, both the Manual
and the categoric language of Section 47 of the Disabilities
Act stress that the loss in pay suffered by the medically
incapacitated person should be at a minimum. It is in this
background that we should view his appointment as Clerk in
I.C.F. on 18.9.1997.
10. The Office Circular reads as follows :
“INTEGRAL COACH FACTORY, CHENNAI-38
General Manager’s Office,
Personnel Branch/Shell
Dated 27.9.07
OFFICE ORDER NO.PB/S1C/2157
The undermentioned employee who was
working as Station Master Gr.III in scale Rs.1400-
2300 has been transferred from S.Rly to IFC on
Inter Railway Transer (One way). He has been
taken on the rolls of ICF as Clerk G.II in Scale
Rs.0950-1500 from the date mentioned against him.
———————————————————————-
Sl. Name & Emp. No. Date of Date of Date of Pay Unit
No. Father's Name Birth Appt. reporting fixed
S/Shri in ICF
———————————————————————-
1. RAGHURAMAN S. 30.5.65 13.3.89 19.9.97 Rs.1500 9OD
806354
R.SETHURAMAN
———————————————————————-
He has declared that he is not residing in
Railway Quarters.
The above Inter Railway One Way Transfer
is ordered subject to the following conditions :
i. He will rank Junior most to all
permanent and temporary Clerks Gr.II in Scale
Rs.0950-1500 as on the date of joining the new
seniority unit i.e. Personnel Dept.ii. At any point of time, he should not
repersent seeking fixation of seniority or
absorption in any higher grade other than Clerk
G.II in Scale Rs.0950-1500.
iii. His request if any for retransfer to
South Railway at a later date will not be
considered under any circumstances.
SENIOR PERSONNEL OFFICER/R&T”
The first flaw in this order is that this is not an inter-
railway transfer of the ordinary category. He is
transferred to another establishment only because he was
medically incapacitated. He is entitled to this under
Paragraph 1306. It is not a transfer on request. It is a
right of transfer which the law gives him and therefore, the
respondent can neither say that he will rank junior to all
permanent and temporary clerks, neither can they say that
his request for re-transfer will not be considered in any
circumstances. On 29.11.1997, the petitioner requested that
he may be accommodated in the Headquarter Grade and that he
came to understand that there are vacancies. This letter is
extracted hereunder :
“S. Raghuraman,
Emp. No.806354,
CG-II, General Section,
Personnel Branch,
ICF/Chennai-38.
To
The CPO,
ICF.
Thro’ Proper Channel
Sir,
Sub : Absorption of Medically decategorised
SM – Self – Representation – SubmittedRef : Your office order No.M/153/97 dated
19.9.97 and letter No.M/P-439/I/Opt/
R/Vol.VI dated 19.9.1997Consequent to my decategorisation, I was
directed to report to the CPO/ICF for absorption
in an alternative employment. Accordingly, I have
been absorbed as an Office Order mentioned above
and now I am working in that category in ICF from
19.9.1997. In this connection, I wish to submit
as follows.
Prior to decategorisation, I was working
as a Station Master (permanent employee) of the
Railways from 13.3.1989 and I have been promoted
to the grade of Rs.1400-2300 with effect from
8.11.1991.
I now come to understand that there are
vacancies in Head Clerk Grade in scale Rs.1400-
2300. With respect to Para 1314(C)(1) of IREM, I
am privileged to be accommodated as an Head Clerk
in grade Rs.1400-2300 with due protection of the
last drawn pay and other consequential benefits.
In as much as I had been working on the grade SM-
III i.e. in the above said scale of pay and the
above mentioned vacancy being a clerical category
in which I could be fitted after decategorisation,
I request your goodself to kindly consider
absorption to the above grade at the earliest.”
On 7.6.2000, his request is treated as an inter-railways
transfer on bottom seniority.
11. Learned senior counsel appearing for the
Southern Railway repeatedly said that the petitioner should
have made Southern Railway as a party since it is only from
Southern Railway that he was transferred to I.C.F. The first
respondent is the Union of India and both Southern Railway,
Madras and Integral Coach Factory are only field
organisations under the Ministry of Railways. The following
paragraphs of (2003) 4 S.C.C. 524 [Kunal Singh vs. Union of
India] are relevant :
“8. The need for a comprehensive
legislation for safeguarding the rights of
persons with disabilities and enabling them to
enjoy equal opportunities and to help them to
fully participate in national life was felt for a
long time. To realize the objective that people
with disabilities should have equal opportunities
and keeping their hopes and aspirations in view a
meeting called the “Meet to Launch the Asian and
Pacific Decades of Disabled Persons” was held in
Beijing in the first week of December 1992 by the
Asian and Pacific countries to ensure “full
participation and equality of people with
disabilities in the Asian and Pacific regions”.
This meeting was held by the Economic and Social
Commission for Asia and Pacific. A proclamation
was adopted in the said meeting. India was a
signatory to the said proclamation and agreed to
give effect to the same. Pursuant thereto this
Act was enacted, which came into force on 1-1-
1996. The Act provides some sort of succour to
the disabled persons.
9. Chapter VI of the Act deals with
employment relating to persons with disabilities,
who are yet to secure employment. Section 47,
which falls in Chapter VIII, deals with an
employee, who is already in service and acquires
a disability during his service. It must be borne
in mind that Section 2 of the Act has given
distinct and different definitions of
“disability” and “person with disability”. It is
well settled that in the same enactment if two
distinct definitions are given defining a
word/expression, they must be understood
accordingly in terms of the definition. It must
be remembered that a person does not acquire or
suffer disability by choice. An employee, who
acquires disability during his service, is sought
to be protected under Section 47 of the Act
specifically. Such employee, acquiring
disability, if not protected, would not only
suffer himself, but possibly all those who depend
on him would also suffer. The very frame and
contents of Section 47 clearly indicate its
mandatory nature. The ve ry opening part of the
section reads “no establishment shall dispense
with, or reduce in rank, an employee who acquires
a disability during his service”. The section
further provides 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; if it is not possible to adjust the
employee against any post he will be kept on a
supernumerary post until a suitable post is
available or he attains the age of
superannuation, whichever is earlier. Added to
this no promotion shall be denied to a person
merely on the ground of his disability as is
evident from sub-section (2) of Section 47.
Section 47 contains a clear directive that the
employer shall not dispense with or reduce in
rank an employee who acquires a disability during
the service. In construing a provision of a
social beneficial enactment that too dealing with
disabled persons intended to give them equal
opportunities, protection of rights and full
participation, the view that advances the object
of the Act and serves its purpose must be
preferred to the one which obstructs the object
and paralyses the purpose of the Act. Language of
Section 47 is plain and certain casting statutory
obligation on the employer to protect an employee
acquiring disability during service.
10. The argument of the learned counsel
for the respondent on the basis of the definition
given in Section 2(t) of the Act that benefit of
Section 47 is not available to the appellant as
he has suffered permanent invalidity cannot be
accepted. Because, the appellant was an employee,
who has acquired “disability” within the meaning
of Section 2(i) of the Act and not a person with
disability.
11. We have to notice one more aspect in
relation to the appellant getting invalidity
pension as per Rule 38 of the CCS Pension Rules.
The Act is a special legislation dealing with
persons with disabilities to provide equal
opportunities, protection of rights and full
participation to them. It being a special
enactment, doctrine of generalia specialibus non
derogant would apply. Hence Rule 38 of the
Central Civil Services (Pension) Rules cannot
override Section 47 of the Act. Further, Section
72 of the Act also supports the case of the
appellant, which reads:
“72. Act to be in addition to and not in
derogation of any other law .-The provisions of
this Act, or the rules made thereunder shall be
in addition to, and not in derogation of any
other law for the time being in force or any
rules, order or any instructions issued
thereunder, enacted or issued for the benefit of
persons with disabilities.”
12. Merely because under Rule 38 of the
CCS (Pension) Rules, 1972, the appellant got
invalidity pension is no ground to deny the
protection mandatorily made available to the
appellant under Section 47 of the Act. Once it is
held that the appellant has acquired disability
during his service and if found not suitable for
the post he was holding, he could be shifted to
some other post with same pay scale and service
benefits; if it was not possible to adjust him
against any post, he could be kept on a
supernumerary post until a suitable post was
available or he attains the age of
superannuation, whichever is earlier. It appears
no such efforts were made by the respondents.
They have proceeded to hold that he was
permanently incapacitated to continue in service
without considering the effect of other
provisions of Section 47 of the Act.”
So, for the purpose of ensuring that the Disabilities Act is
given its full effect, the Indian Railways must be treated
as an Establishment and it is obliged in law to see that its
disabled employee does not suffer reduction of rank. There
may be other situations where such unit of the Indian
Railways may have to be treated as different units. But,
for advancing the objects of the Disabilities Act and to
give effect to Para 1306(3) of the IREM, the Indian Railways
must be treated as an Establishment.
12. In 2007 W.L.R. 256 [The State vs. K. Mohammed
Mustafa], a Division Bench had held that the benefit
envisaged under Section 47 of the Disabilities Act can be
considered in addition to the benefits contemplated under
the Act and observed thus :
“If in a given case the provisions
contained in the G.O. are more beneficial
notwithstanding any provision contained in the
Act, such beneficial provision of the G.O. can be
made applicable, and similarly, if the provisions
contained in the Act are more beneficial as
compared to the provisions contained in the G.O.,
benefit of such Act can be made available.”
13. In Tamil Nadu State Transport Corporation
(Villupuram Division-I) Limited vs. R. Jayakumar [Writ
Appeal No.610 of 2007] decided on 13.4.2007, a Division
Bench held that Section 47 of the Disabilities Act casts a
mandatory duty on the part of the employer to provide an
alternative employment to an employee who has suffered
disability during the course of his employment, and the fact
that such an employee has received some compensation under
the Motor Vehicles Act is no ground to deny him the
alternative employment, to which he is otherwise entitled
under the Disabilities Act.
14. In A. Veeriya Perumal vs. Secretary to
Government, Health & Family Welfare Department, Chennai
[(2006) 4 M.L.J. 335], a Division Bench held that sub-
section (1) of Section 47 of the Disabilities Act is clear
in terms that “no establishment shall dispense with or
reduce in rank, an employee who acquires a disability during
his service”. The Division Bench held that the right to
livelihood, which is an integral facet of the right to life
as guaranteed under Article 21 of the Constitution of India,
coupled with the protection under Section 47 of the
Disabilities Act entitles the employee who was incapacitated
during service for continuance of service in suitable
alternative post with same scale of pay drawn by him and
other service benefits. It was also held that the
appellant/employee’s right to alternate employment cannot be
deprived solely on ground of medical invalidation, as his
right is protected under Section 47 of the Disabilities Act.
15. Under the Indian Railway Establishment Manual,
the employee has the right not to be treated as a new
entrant. A transfer on request is a transfer which is made
on the volition of the employee, whereas a transfer or an
alternative accommodation given to a workmen on is being
found medically incapacitated is a right given to the
railway servant to choose the best option that is available
to him, since he is no longer able to serve in the post
where he was serving earlier and it is not a transfer on
request. It is an option that he exercises by virtue of the
right that is made available to him. In the Manual, under
Chapter II dealing with General Conditions of Service,
Paragraph 226 deals with transfers. It reads thus :
“Ordinarily, a railway servant shall be
employed throughout his service on the railway or
railway establishment to which he is posted on
first appointment and shall have no claim as of
right for transfer to another railway or another
establishment. In the exigencies of service,
however, it shall be open to the President to
transfer the railway servant to any other
department or railway or railway establishment
including a project in or out of India.”
So, under normal circumstances, a railway servant will be
employed throughout in the same railway or railway
establishment. But medical incapacity and diminishment of
vision at the age of 36 is not an ordinary situation, so in
that situation, the rule does not apply. Moreover, the same
rule states :
“Railway Ministry’s decision. – Requests
from railway servants in Groups C & D for transfer
from one railway to another on grounds of special
cases of hardships may be considered favourably by
the railway administration. Such staff
transferred at their request from one railway to
another shall be placed below all existing
confirmed and officiating staff in the relevant
grade in the promotion group in the new
establishment, irrespective of date of
confirmation or length of officiating service of
the transferred employees.”
Therefore, on the Railway Ministry’s decision, such requests
can be considered in special cases of hardship. A case of
an employee who has suffered medical disability is
indisputably a case of hardship.
16. Therefore, the writ petitioner’s prayer deserves
to be granted since that is a right given to him in law and
the rules can also be construed so as to advance the objects
of the Act and to protect the rights of the person who has
been medically incapacitated. I am inclined to agree with
Dharmarao Elipe, J. The writ petition is, therefore,
allowed. It is always open to the Integral Coach Factory
and the Southern Railway to arrive at a satisfactory
solution with regard to the fitment of the petitioner since
this should be treated as a special case and not a routine
case of inter-railway transfer and we earnestly hope that
both these wings of the Ministry of Railways will consider
the case of the petitioner in the spirit of the Act and the
purpose for which the relevant paragraphs of the Manual have
been introduced.
glp/ab