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SCA/7702/2011 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7702 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI Sd/-
HONOURABLE
MR.JUSTICE G.B.SHAH
Sd/-
======================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
YES
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
======================================
PATHAN
SAMSULKHAN A - Petitioner
Versus
UNION
OF INDIA, THROUGH SPECIAL SECRETARY, GOVT. OF INDIA & 3 -
Respondents
======================================
Appearance
:
MR
YV SHAH for Petitioner.
None for
Respondents.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 27/06/2011
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
We
have heard Mr. Y. V. Shah, learned counsel for the petitioner.
This
writ petition has been filed challenging the judgment dated
11.04.2011 passed by Central Administrative Tribunal, Ahmedabad
Bench, Ahmedabad (for short ‘the Tribunal’) in Original Application
No.358 of 2009 whereby the Tribunal rejected the said application
filed by the petitioner.
The
petitioner was appointed on compassionate grounds as Train Clerk on
05.06.1991. He was promoted to the higher post of Senior TNC on
20.08.1994. He was further promoted as Goods Guard on 03.12.1999.
During the year 2008, the petitioner had to undergo bye-pass surgery
on account of unbearable strain and pressure of work as Goods Guard.
He was referred to the Chief Medical Superintendent for medical
examination in the year 2008. He was medically de-categorised for
A/2 and below and was recommended for permanent job change of job
not involving train running and train passing duties. The
petitioner was thereafter posted as Head Clerk by the order dated
04.12.2008. The petitioner did not report for duty as per the said
posting order, but submitted a representation for posting as Head
TTE. The petitioner appeared before the Screening Committee on
22.01.2009 and specifically demanded before the Screening Committee
that he is entitled to get posting as Deputy CTI / Head TTE in the
pay scale of Rs.5500 – 9000. Thereafter, the petitioner has
been making repeated representations for posting as TTE, but
respondents have not acceded to the request. Therefore, the
petitioner filed Original Application No.358 of 2009 before the
Tribunal for quashing the posting order dated 04.12.2008 and for a
direction to post the petitioner against any vacant posts of Deputy
CTI, TTI or Head TTE carrying the pre-revised pay scale of Rs.5500 –
9000 with effect from the date of medical de-categorisation.
The
Tribunal considered the Instructions of the Railway Board dated
11.12.2009 and 31.12.2001 and dismissed the Original Application
filed by the petitioner after recording the finding that even if
there are vacancies of TTE, it does not give a right to the
petitioner to ask that he should be given that post as an
alternative appointment. The law prescribes that in cases of
medical de-categorisation, the employee does not have a right to
claim post of his choice, but it is for the respondents to provide
for alternative employment to the petitioner in accordance with the
medical certificate and there is no material loss of salary in the
new employment to the petitioner.
Learned
counsel for the petitioner has urged that in view of Section 47 of
the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (hereinafter referred to as
‘the Act’), the petitioner was entitled for the post for which he
was claiming and he should not be given the alternative post as has
been given by the respondents.
For
appreciating the argument of learned counsel for the petitioner, it
is necessary to extract Section 47 of the Act, which reads as under
:-
“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.”
A
perusal of the Section demonstrates that services of an employee
shall not be dispense with or reduced in rank, where an employee
acquires disability during his service. It further provides that the
employee, after acquiring disability is not suitable for the post he
was holding, he could be shifted to some other post on the same pay
scale and service benefits. The Act further provides that no
promotion shall be denied to a person merely on the ground of his
disability. Sub-section (1) of Section 47 clearly lays down that
the employee having disability has to be shifted to some other post,
but his pay scale and service benefits could not be reduced.
The
petitioner has made representation claiming the post of his choice.
The representation was unfounded as the petitioner has already been
offered the post of Head Clerk. Therefore, it was not necessary for
the respondents to offer any other post once they have offered the
post of Head Clerk to the petitioner.
It
is not the case of the petitioner that his pay scale or service
benefits has been reduced. Learned counsel Mr. Y.V. Shah for the
petitioner has urged that the post offered to the petitioner by the
respondents would mar his chances for promotion. The argument does
not appear to have any force. The Act itself protects the
petitioner and Section 47 (2) clearly provides that no promotion
shall be denied to a person merely on the ground of his disability.
Since the petitioner has incurred medical disability, he has been
offered alternative
appointment by the respondents. It is not open to the employee to
choose alternative appointment and to claim that he may be appointed
to a particular post. It is the discretion of the respondents to
appoint the disabled person on such post as they think fit as per
the medical certificate and since the petitioner has been appointed
as Head Clerk by order dated 04.12.2008 and his pay scale has not
been reduced nor his service benefits have been reduced, we do not
find any illegality in the impugned order passed by the Tribunal.
This writ petition fails and is accordingly dismissed summarily.
Sd/-
[V. M. SAHAI, J.]
Sd/-
[G. B. SHAH, J.]
Savariya
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