{"id":3833,"date":"2007-10-01T00:00:00","date_gmt":"2007-09-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-raghuraman-vs-union-of-india-on-1-october-2007"},"modified":"2017-11-27T07:21:41","modified_gmt":"2017-11-27T01:51:41","slug":"s-raghuraman-vs-union-of-india-on-1-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-raghuraman-vs-union-of-india-on-1-october-2007","title":{"rendered":"S. Raghuraman vs Union Of India on 1 October, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
S. Raghuraman vs Union Of India on 1 October, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n      IN  THE  HIGH  COURT  OF  JUDICATURE  AT  MADRAS\n                              \n                      Dated:  01.10.2007\n\n                              \n                           Coram:\n                              \n         The Honourable Mr. Justice Elipe DHARMA RAO\n                             and\n            The Honourable Ms. Justice K. SUGUNA\n                              \n                    W.P. No.40730 of 2002\n                              \n\n\nS. Raghuraman\nClerk\nCPO's Office\nIntegral Coach Factory\nNo.49 \nBaliamman Koil Street\nVillivakkam\nChennai 600 049.\t\t\t\t\t..Petitioner\n\n             Versus\n\n1.  Union of India\n    rep. by the General Manager\n    Integral Coach Factory\n    Chennai 600 038.\n\n2.  The Chief Personeel Officer\n    Integral Coach Factory\n    Chennai 600 038.\n\n3.  The Senior Personnel Officer (R & T)\n    Integral Coach Factory\n    Chennai 38.\n\n4.  The Registrar\n    Central Administrative Tribunal\n    City Civil Court Buildings\n    Chennai 600 104           \t\t..Respondents\n\n\n\nPetition under Art.226 of the Constitution of India, praying\nfor  a  Writ  of  Certiorarified Mandamus, calling  for  the\nrecords relating to the order of the fourth respondent  made\nin  O.A.  No.1441  of 2000 dated 22-11-2002  confirming  the\norder  of  the  third  respondent made in PB\/SIC\/OA.534\/1998\ndated  7-6-2000  and to quash the same and  to  consequently\ndirect  the  respondents 1 to 3 to extend  all  benefits  of\nGrade Protection, Promotion, etc.\n\n\n\n       For Petitioner         : Mr. L. Chandrakumar\n\n       For Respondents\t\t: Mr. V. Radhakrishnan (for R1 to R3)\n                              \n                              \n\n\n                            ORDER\n<\/pre>\n
Elipe DHARMA RAO, J.\n<\/p>\n<\/p>\n
        Aggrieved  by the order dated 22-11-2001  passed  by<\/p>\n
the   Central   Administrative  Tribunal  (in   short   ‘the<\/p>\n
Tribunal’),   dismissing  the  original   application,   the<\/p>\n
original applicant has filed the present writ petition.<\/p>\n
        2.   The writ petitioner, who was working as Station<\/p>\n
Master  in the Chennai Division of Southern Railways in  the<\/p>\n
pay  scale of Rs.5000-8000, was found to be medically  unfit<\/p>\n
on  3-2-1997  and, therefore, he was offered an  alternative<\/p>\n
employment  as  Head Train Clerk in the same  pay  scale  of<\/p>\n
Rs.5000-8000.  The writ petitioner, however, did not  accept<\/p>\n
the  offer.   Thereafter, he was offered the  employment  of<\/p>\n
Clerk  Grade  in the Integral Coach Factory (in  short  ICF)<\/p>\n
with  a  condition that he will be placed  at  last  in  the<\/p>\n
seniority list of Clerk Grade.\n<\/p>\n<\/p>\n
        3.   Claiming  that  he  should  be  given  the  pay<\/p>\n
protection  as  well  as  seniority  protection,  the   writ<\/p>\n
petitioner  filed an original application  (O.A.  No.534  of<\/p>\n
1998)  before  the Tribunal.  The said original  application<\/p>\n
was  disposed  of  on  18-4-2000 with  a  direction  to  the<\/p>\n
respondents  therein  to consider  the  claim  of  the  writ<\/p>\n
petitioner   and  pass  suitable  orders.   The  respondents<\/p>\n
considered  the claim of the writ petitioner,  but  rejected<\/p>\n
the same by order dated 7-6-2000.\n<\/p>\n<\/p>\n
        4.   Challenging the order dated 7-6-2000, the  writ<\/p>\n
petitioner  filed the original application (O.A. No.1441  of<\/p>\n
2000) seeking the relief of direction to the respondents  to<\/p>\n
place  him  in the grade of Rs.5000-8000 in the Clerk  Grade<\/p>\n
with effect from 19-9-1997; to fix his seniority with effect<\/p>\n
from 8-11-1991 when he has been promoted as SM-II in the pay<\/p>\n
scale of Rs.1400-2300 (now Rs.5000-8000 with effect from   1-<\/p>\n
1-1996).  The Tribunal dismissed the original application by<\/p>\n
observing  that since the applicant had joined the  post  in<\/p>\n
the  ICF  on  his  own volition and knowing fully  well  the<\/p>\n
consequences after satisfying with the conditions set  forth<\/p>\n
therein,  under such circumstances it was not  open  to  the<\/p>\n
applicant  to  claim  protection of his pay  and  seniority.<\/p>\n
Aggrieved by the order passed by the Tribunal, the  original<\/p>\n
applicant has filed the present writ petition.<\/p>\n
        5.   Learned  counsel  for the petitioner  submitted<\/p>\n
that  the Tribunal has erred in not considering the plea  of<\/p>\n
the  writ petitioner that he is entitled to the benefits  of<\/p>\n
grade   protection  and  consequential  benefits   including<\/p>\n
seniority   in   terms  of  Sec.47  of  the   Persons   with<\/p>\n
Disabilities (Equal Opportunities, Protection of Rights  and<\/p>\n
Full  Participation) Act, 1995.  Paragraph  1304  read  with<\/p>\n
Paragraph  1314  (a) and (c) of the Indian  Railways  Manual<\/p>\n
provides  for  an alternative employment in  the  equivalent<\/p>\n
grade  even after accepting an offer made in the lower grade<\/p>\n
either  permanently  or  temporarily  even  by  creating   a<\/p>\n
supernumerary  post.  Paragraph 1310 of the Indian  Railways<\/p>\n
Manual  enables  the  petitioner to decline  an  offer  duly<\/p>\n
reserving   his   right  seek  alternative   employment   in<\/p>\n
equivalent  grade.   When paragraph 1306(6)  of  the  Indian<\/p>\n
Railways   Manual  provides  for  making   an   option   for<\/p>\n
alternative  employment in a specific category, the  finding<\/p>\n
of  the Tribunal that the petitioner had joined the post  in<\/p>\n
the ICF on his own volition and therefore it was not open to<\/p>\n
him  to  claim  protection  of  his  pay  and  seniority  is<\/p>\n
unsustainable.  Further, the Tribunal went wrong in  holding<\/p>\n
that  the petitioner was accommodated in the ICF by  way  of<\/p>\n
inter-railway  transfer since there was no post  other  than<\/p>\n
Head Train Clerk was available is untenable since even after<\/p>\n
declining  to  accept  the offer as Head  Train  Clerk,  the<\/p>\n
petitioner  was  still  holding the  right  for  alternative<\/p>\n
employment  in  equivalent grade, for  such  an  alternative<\/p>\n
employment there is no need for existence of a vacancy since<\/p>\n
the  offer may be against a permanent or temporary  even  by<\/p>\n
creating  supernumerary and a transfer at request  could  be<\/p>\n
made  only  when the petitioner was holding a  post  in  the<\/p>\n
office clerk category at the time of making such request.<\/p>\n
        6.   On  the  other hand, learned  counsel  for  the<\/p>\n
respondents submitted that the writ petition is liable to be<\/p>\n
dismissed  for non-joinder of Southern Railway as  a  party-<\/p>\n
respondent to this writ petition because ICF is  in  no  way<\/p>\n
concerned with this case.  Learned counsel further submitted<\/p>\n
that  Sec.47  of  the  Persons with Disability  Act  is  not<\/p>\n
applicable  to  the  petitioner since he  had  already  been<\/p>\n
offered  the  alternative  employment  in  the  same   grade<\/p>\n
consequent   to  his  medical  decategorisation,   but   the<\/p>\n
petitioner  did  not accept the same and  insisted  for  his<\/p>\n
posting  in the clerical grade, which could not be  done  in<\/p>\n
view  of the ban in filling up the clerical vacancies.   His<\/p>\n
case  was  forwarded  to ICF for consideration  against  the<\/p>\n
vacancies, if any, and as there were some vacancies in Clerk<\/p>\n
Grade  II in the scale of pay of Rs.950-1500 at the relevant<\/p>\n
time,  the  petitioner’s request was considered for  posting<\/p>\n
him  as  Clerk Grade II in ICF as an inter-Railway  transfer<\/p>\n
subject to the conditions that he will ranked as junior-most<\/p>\n
to  all permanent and temporary Clerks Grade-II in scale  of<\/p>\n
Rs.950-1500 as on the date of his joining ICF; at any  point<\/p>\n
of  time,  he  should  not  represent  seeking  fixation  of<\/p>\n
seniority or absorption in any other higher grade other than<\/p>\n
Clerk  Grade II in scale of Rs.950-1500; and his request  if<\/p>\n
any  for  re-transfer to Southern Railways at a  later  date<\/p>\n
will  not  be considered under any circumstances.  Accepting<\/p>\n
all these conditions, the petitioner has joined ICF as Clerk<\/p>\n
Grade-II.  After joining ICF in the cadre of Clerk Grade-II,<\/p>\n
the   petitioner   made  representation   dated   29-11-1997<\/p>\n
requesting for accommodating him in the cadre of Head  Clerk<\/p>\n
in  the  pay scale of Rs.5000-8000.  The said representation<\/p>\n
was  forwarded to Southern Railway for disposal  as  he  was<\/p>\n
medically  decategorised  only  in  Southern  Railway.   The<\/p>\n
Southern  Railway  has  replied  that  the  petitioner   was<\/p>\n
originally  offered alternative appointment  as  Head  Train<\/p>\n
Clerk in the equivalent grade of Head Clerk in the scale  of<\/p>\n
Rs.1400-2300  (now Rs.5000-8000) in Southern Railway  cannot<\/p>\n
be  agreed to and the same was informed to the petitioner by<\/p>\n
the   ICF   by   letter  dated  16-4-1998.   The  petitioner<\/p>\n
thereafter  filed  O.A. No.534 of 1998 before  the  Tribunal<\/p>\n
praying for a direction to post him in the grade of Rs.5000-<\/p>\n
8000  in the clerical category with effect from the original<\/p>\n
date  of absorption on medical decategorisation and  to  pay<\/p>\n
all the consequential benefits.  The Tribunal by order dated<\/p>\n
18-4-2000  disposed of the application with a  direction  to<\/p>\n
the  respondents  to consider his claim  and  pass  suitable<\/p>\n
orders  in  the  light of paragraph 1304 of  Indian  Railway<\/p>\n
Establishment Manual within a period of three  months.   The<\/p>\n
representation was considered, but the claim  was  rejected.<\/p>\n
The  contempt  petition  filed  by  the  petition  was  also<\/p>\n
dismissed  by  the  Tribunal,  reserving  liberty   to   the<\/p>\n
petitioner  to file a separate application,  if  he  was  so<\/p>\n
advised.\n<\/p>\n<\/p>\n
        7.   Learned  counsel  further  submitted  that  the<\/p>\n
transfer of the petitioner from Southern Railway to ICF  was<\/p>\n
an  inter-railway  transfer (one  way)  subject  to  certain<\/p>\n
conditions regarding his seniority and pay.  Accepting these<\/p>\n
specific conditions, the petitioner had joined ICF as  Clerk<\/p>\n
Grade-II  and his request for posting him as Head  Clerk  in<\/p>\n
ICF, which is equivalent to Station Master Grade II prior to<\/p>\n
his medical invalidation, cannot be agreed to.  The Southern<\/p>\n
Railways had already offered the post of Head Train Clerk in<\/p>\n
the  same pay scale of Rs.1400-2300 (5000-8000) which he was<\/p>\n
holding  before being medically invalidated.  The petitioner<\/p>\n
did  not  accept the same and made a representation to  post<\/p>\n
him  as Head Clerk\/Senior Clerk\/Clerk.  His application  was<\/p>\n
then  forwarded  to ICF and ICF agreed to take  him  in  the<\/p>\n
clerical grade-II with the scale of pay of Rs.950-1500.  The<\/p>\n
petitioner  accepted  the  above post  with  the  conditions<\/p>\n
imposed  by the ICF Administration.  Therefore,  it  is  not<\/p>\n
open   to   the  petitioner  at  this  stage   to   make   a<\/p>\n
representation for absorption in the post of Head  Clerk  in<\/p>\n
ICF, which is equivalent to the post of Station Master Grade<\/p>\n
II.\n<\/p>\n<\/p>\n
        8.  Considering the above facts and circumstances of<\/p>\n
the  case,  the objection for not posting the petitioner  in<\/p>\n
the  grade  of  Head  Clerk in the  ICF  is  that  when  the<\/p>\n
petitioner  was medically invalidated to hold  the  post  of<\/p>\n
Station  Master  in  the Southern Railway,  he  was  offered<\/p>\n
alternative equivalent employment in the grade of Head Train<\/p>\n
Clerk,  but when he refused to accept the said post, on  his<\/p>\n
request,  he was given employment in the clerical  grade  in<\/p>\n
the ICF.  The petitioner accepted the employment and jointed<\/p>\n
and  thereafter after a period of six months, the petitioner<\/p>\n
made  a  representation to appoint him as Head  Train  Clerk<\/p>\n
with the scale of pay of Rs.5000-8000.  The request made  by<\/p>\n
the  petitioner  was not accepted by the  respondents.   The<\/p>\n
reasons given by the respondents is that the petitioner  was<\/p>\n
accommodated  in  the  ICF  on the  basis  of  inter-railway<\/p>\n
transfer and the petitioner had also accepted the terms  and<\/p>\n
conditions set forth therein when he was accommodated in the<\/p>\n
ICF.  The petitioner having accepted the conditions when  he<\/p>\n
was  accommodated in the ICF on inter-railway transfer,  his<\/p>\n
claim for pay and seniority protection cannot be sustained.<\/p>\n
        9.   Section  47  of  the Persons with  Disabilities<\/p>\n
(Equal   Opportunities,  Protection  of  Rights   and   Full<\/p>\n
Participation) Act, 1995 reads as follows:<\/p>\n
    “47.  Non-discrimination in Government employment.-\n<\/p><\/blockquote>\n
    (1)  No  establishment  shall  dispense  with,   or<\/p>\n
    reduce   in  rank,  an  employee  who  acquires   a<\/p>\n
    disability during his service;\n<\/p><\/blockquote>\n
             Provided  that,  if  an  employee,   after<\/p>\n
    acquiring disability is not suitable for  the  post<\/p>\n
    he  was  holding, could be shifted  to  some  other<\/p>\n
    post with the same pay scale and service benefits;\n<\/p><\/blockquote>\n
             Provided  further  that  if  it   is   not<\/p>\n
    possible  to adjust the employee against any  post,<\/p>\n
    he  may  be  kept on a supernumerary post  until  a<\/p>\n
    suitable post is available or, he attained the  age<\/p>\n
    of superannuation, whichever is earlier.\n<\/p><\/blockquote>\n
            (2)   No  promotion shall be  denied  to  a<\/p>\n
    person  merely on the ground of his disability.\n<\/p><\/blockquote>\n
            Provided  that  the appropriate  Government<\/p>\n
    may,  having regard to the type of work carried  on<\/p>\n
    in  any  establishment, by notification and subject<\/p>\n
    to  such conditions, if any, as may be specified in<\/p>\n
    such  notification,  exempt any establishment  from<\/p>\n
    the provisions of this section.”\n<\/p><\/blockquote>\n
         10.    Chapter   XIII   of   the   Indian   Railway<\/p>\n
Establishment  Manual (IREM) deals with  the  absorption  of<\/p>\n
medically  incapacitated  staff in  alternative  employment.\n<\/p><\/blockquote>\n
Clause 1301 provides that a railway servant who fails  in  a<\/p>\n
vision  test  or otherwise becomes physically  incapable  of<\/p>\n
performing  the duties of the post which he occupies  should<\/p>\n
not  be  discharged forthwith but every endeavour should  be<\/p>\n
made to find alternative employment for him as expeditiously<\/p>\n
as possible.  Such employment must be of suitable nature and<\/p>\n
on  reasonable  emoluments having regard to  the  emoluments<\/p>\n
previously drawn by the railway servant.  Clause 1303  deals<\/p>\n
with  railway  servant  totally  incapacitated  for  further<\/p>\n
service.   It provides that a railway servant in  group  (i)<\/p>\n
above  cannot be retained in service and is not,  therefore,<\/p>\n
eligible  for alternative employment.  If he is on duty,  he<\/p>\n
shall be invalidated from service from the date of relief of<\/p>\n
his  duty, which should be arranged without delay on receipt<\/p>\n
of  the  report  of medical authority.  If, however,  he  is<\/p>\n
granted leave, he shall be invalidated from service  on  the<\/p>\n
expiry  of that leave or extension of leave.  The  leave  or<\/p>\n
extension  of  leave that may be granted to  him  after  the<\/p>\n
report  of the medical authority has been received, will  be<\/p>\n
so  limited that the amount of leave, as debited against the<\/p>\n
leave  account, together with any period of duty beyond  the<\/p>\n
date  of the medical authority’s report does not exceed  six<\/p>\n
months.   Note 2 to Clause 1304 says that in the  matter  of<\/p>\n
absorption of a medically incapacitated staff in alternative<\/p>\n
post,  Railway administrations, should take care  to  ensure<\/p>\n
that  the  interests of staff in service are  not  adversely<\/p>\n
affected  as  far as possible.  The alternative  appointment<\/p>\n
should  be  offered  only  in  posts  which  the  staff  can<\/p>\n
adequately fill.\n<\/p>\n<\/p>\n
        11.   The above said clauses in Chapter XIII of IREM<\/p>\n
are  in  consonance with Section 47 of the above  said  Act.<\/p>\n
Therefore the provisions of Section 47 of the Act as well as<\/p>\n
the  above said clauses of IREM deal with the protection  of<\/p>\n
employment  of  medically incapacitated staff  by  absorbing<\/p>\n
them  in alternative suitable employment with the protection<\/p>\n
of  pay  and other service benefits.  Therefore,  the  stand<\/p>\n
taken  by the Railway Administration that the petitioner  is<\/p>\n
not  entitled for the reliefs sought for by him is incorrect<\/p>\n
and against the sprit of Section 47 of the Act and the above<\/p>\n
said  clauses of IREM.  Therefore, we are not able to accept<\/p>\n
the contention raised by the respondents.<\/p>\n
        12.  In the result, the impugned order passed by the<\/p>\n
Tribunal is set aside and the writ petition is allowed.  The<\/p>\n
respondents are directed to fit the petitioner in the  grade<\/p>\n
of  Rs.5000-8000  in  the clerical cadre  with  effect  from<\/p>\n
19-9-1997  and to reckon the petitioner’s relative seniority<\/p>\n
with  effect  from  8-11-1991 when the petitioner  has  been<\/p>\n
promoted as Station Master Grade III in the scale of pay  of<\/p>\n
Rs.1400-2300 (Rs.5000-8000 with effect from 1-1-1996) and to<\/p>\n
pay  all other attendant benefits, including seniority.   No<\/p>\n
costs.\n<\/p>\n
Jai<\/p>\n
To:\n<\/p>\n
1.  The General Manager
\n    Union of India
\n    Integral Coach Factory
\n    Chennai 600 038.\n<\/p>\n
2.  The Chief Personnel Officer
\n    Integral Coach Factory
\n    Chennai 600 038.\n<\/p>\n
3.  The Senior Personnel Officer (R & T)
\n    Integral Coach Factory
\n    Chennai 38.\n<\/p>\n
4.  The Registrar
\n    Central Administrative Tribunal
\n    City Civil Court Buildings
\n    Chennai 600 104.\n<\/p>\n
\n\t\t\t\t**************<\/p>\n
Elipe DHARMA RAO, J.\n<\/p>\n
        And
\nK. SUGUNA, J.\n<\/p>\n<\/p>\n
        In  view  of the difference of opinion expressed  by<\/p>\n
the Bench with regard to the applicability of the provisions<\/p>\n
of   Sec.47   of   the  Persons  with  Disabilities   (Equal<\/p>\n
Opportunities,  Protection of Rights and Full Participation)<\/p>\n
Act,  1955  read  with  Clause 1302 of  the  Indian  Railway<\/p>\n
Establishment  Manual  to the issue involved  in  this  writ<\/p>\n
petition,  Registry is directed to place this matter  before<\/p>\n
the Hon’ble The Chief Justice for referring the matter to  a<\/p>\n
third Judge.\n<\/p>\n<\/p>\n
\t\t\t\t**************<\/p>\n
K. SUGUNA,J.\n<\/p>\n<\/p>\n
        The  above  writ petition has been filed challenging<\/p>\n
the  order dated 22.11.2001 passed in O.A. No. 1441\/2000  by<\/p>\n
the Central Administrative Tribunal.\n<\/p>\n<\/p>\n
        2.      The  petitioner, while working as a  Station<\/p>\n
Master  Gr.III in the Chennai Division of Southern  Railways<\/p>\n
in   the   pay   scale  of  RS.1400-2300,    was   medically<\/p>\n
decategorised  and was declared unfit for safety  categories<\/p>\n
under  medical  classification A-1, but found  fit  for  A-2<\/p>\n
classification and below according to visual standards.   As<\/p>\n
per  paragraph  1304 of Indian Railway Establishment  Manual<\/p>\n
(in  short  “IREM”), the petitioner was offered  alternative<\/p>\n
appointment  in equal cadre such as Head Train Clerk,  which<\/p>\n
was  an  identical  grade to that  of  the  post  which  the<\/p>\n
petitioner  was  holding before his medical decategorisation<\/p>\n
by  letter  dated 4.7.1997.  But, by letter dated 17.7.1997,<\/p>\n
the   petitioner  requested  to  give  posting  as  a   Head<\/p>\n
Clerk\/Senior Clerk\/Clerk in Southern Railway\/ or in Integral<\/p>\n
Coach  Factory (in short “ICF”).  As there were no vacancies<\/p>\n
to  consider his request and there was a ban on  filling  up<\/p>\n
clerical  vacancies by the Southern Railway  Administration,<\/p>\n
his  case was forwarded to ICF for consideration against the<\/p>\n
vacancies,  if  any. Since, at the relevant point  of  time,<\/p>\n
some vacancies were available in Clerk Grade II in the scale<\/p>\n
of  Rs.950-1500, the petitioner’s request was considered for<\/p>\n
posting  him as a Clerk in ICF, as an inter-railway transfer<\/p>\n
subject to the following conditions:\n<\/p>\n<\/p>\n
         (i)     He  should  rank junior-most  to  all<\/p>\n
         permanent  and temporary Clerk  Grade  II  in<\/p>\n
         scale  Rs.950-1500  as on  the  date  of  his<\/p>\n
         joining   the   new   seniority   unit   viz.\n<\/p>\n
         Personnel Department in ICF.\n<\/p>\n<\/p>\n
         (ii)    At  any point of time, he should  not<\/p>\n
         represent  seeking fixation of  seniority  or<\/p>\n
         absorption  in any other higher  grade  other<\/p>\n
         than Clerk Grade II in scale Rs.950-1500 and<\/p>\n
         (iii)  His request if any for re-transfer  to<\/p>\n
         Southern Railway at a later date will not  be<\/p>\n
         considered under any circumstances.\n<\/p>\n
     Accepting  these conditions, the petitioner had  joined<\/p>\n
as  Clerk Grade II in ICF vide office order No. PB\/S1-C\/2157<\/p>\n
dated  27.9.1997.   In the said order, it has  been  clearly<\/p>\n
stated  that  the petitioner, who was working as  a  Station<\/p>\n
Master  in  the  scale  of  pay  of  Rs.1400-2300  has  been<\/p>\n
transferred from Southern Railway to ICF on one  way  Inter-<\/p>\n
Railway Transfer. After joining in ICF, the petitioner filed<\/p>\n
a   representation  dated  29.11.1997  with  a  request   to<\/p>\n
accommodate him in the equivalent cadre of Head Clerk in the<\/p>\n
scale  of  Rs.5000-8000 (new scale). The said representation<\/p>\n
was  forwarded  to Chennai Division of the Southern  Railway<\/p>\n
for  disposal as he was medically decategorised only in  the<\/p>\n
Southern Railway.  The Southern Railway has replied that the<\/p>\n
petitioner was originally offered alternative appointment as<\/p>\n
Head   Train  Clerk  in  the  equivalent  scale.  But,   the<\/p>\n
petitioner  had declined to accept the same and as  per  his<\/p>\n
request,  his case was forwarded to the ICF and at  his  own<\/p>\n
request  for posting as a Clerk Grade II , he was posted  as<\/p>\n
Clerk  Grade  II,  which  he had accepted.   Therefore,  the<\/p>\n
request for absorption in the equivalent cadre of Head Clerk<\/p>\n
in  the  scale  of Rs.1400-2300 (Rs.5000-8000)  in  Southern<\/p>\n
Railway cannot be granted and this has been communicated  to<\/p>\n
the  petitioner  by letter dated 16.4.1998. Challenging  the<\/p>\n
same, the petitioner had filed O.A. No. 534\/1998 before  the<\/p>\n
fourth  respondent. But, by order dated 18.4.2000, the  same<\/p>\n
was  disposed  of to consider the above said  claim  of  the<\/p>\n
petitioner  and  pass  suitable  orders  in  the  light   of<\/p>\n
paragraph 1304 of IREM within a period of three months  from<\/p>\n
the   date  of  service  of  the  order.   Accordingly,  the<\/p>\n
representation of the petitioner was considered by  the  ICF<\/p>\n
Administration  and by order of the second respondent  dated<\/p>\n
7.6.2000,   the  petitioner’s  request  was   rejected   and<\/p>\n
challenging  the said order, the petitioner had  filed  O.A.<\/p>\n
No. 1441\/2000 praying for a direction to the respondents  to<\/p>\n
fit him the grade of Rs.5000-8000 in the clerical cadre with<\/p>\n
effect  from 19.9.1997 and to reckon his relevant  seniority<\/p>\n
with  effect  from 8.11.1991 i.e, the date on which  he  was<\/p>\n
promoted as Station Master in scale of Rs.1400-2300 (Rs.5000-<\/p>\n
8000)  and to pay the attendant benefits. But the  same  has<\/p>\n
been rejected by orderdated 22.11.2001. As against that, the<\/p>\n
present writ petition has been filed.\n<\/p>\n<\/p>\n
               3.      According to the learned counsel  for<\/p>\n
the   petitioner,  the  petitioner  is  entitled  for  grade<\/p>\n
protection,   pay  protection  and  consequential   benefits<\/p>\n
including  seniority  as  per Section  47  of  Persons  with<\/p>\n
Disabilities (Equal Opportunities, Protection of Rights  and<\/p>\n
Full  Participation) Act, 1995 (in short “the  Act”).   That<\/p>\n
apart,  according to the learned counsel for the petitioner,<\/p>\n
the  petitioner’s claim has been rejected erroneously by the<\/p>\n
Tribunal on the ground that having accepted the offer by the<\/p>\n
respondent Department for appointment in the grade of Rs.950-<\/p>\n
1500,  cannot  aspire  for  grade protection.   That  apart,<\/p>\n
according to the learned counsel, the Tribunal has failed to<\/p>\n
take  cognizance  of the statutory provisions  in  paragraph<\/p>\n
1304 read with paragraph 1314 (a) and (c), which provide for<\/p>\n
an alternative employment in the equivalent cadre even after<\/p>\n
accepting   the  offer  made  in  the  lower  grade   either<\/p>\n
permanently  or  temporarily.  Besides, the finding  of  the<\/p>\n
Tribunal,  since the petitioner had rejected  the  offer  of<\/p>\n
alternative  employment  as  a  Head  Train  Clerk  in   the<\/p>\n
identical scale of pay and made a request to offer a post in<\/p>\n
the  ICF, the respondent Department cannot be said  to  have<\/p>\n
failed  to  consider in a proper perspective  the  statutory<\/p>\n
provisions  in  paragraph 1310 of IREM cannot  be  accepted.<\/p>\n
That apart, according to the learned counsel, while offering<\/p>\n
an  alternative employment, the provisions of Section 47  of<\/p>\n
the  Act  have to be complied with and in the  case  of  the<\/p>\n
petitioner, the respondent Department, totally ignoring  the<\/p>\n
same,  has  appointed the petitioner as a  Clerk  Grade  II,<\/p>\n
contrary to the provisions of the above said Act.<\/p>\n
               4.      On  the  other hand, learned  counsel<\/p>\n
for  respondents  1 to 3 has contended that  immediately  on<\/p>\n
medical   decategorisation,  the  petitioner   was   offered<\/p>\n
alternative  job in accordance with the relevant  provisions<\/p>\n
and in an identical cadre with pay protection by order dated<\/p>\n
4.7.1997.   Since the petitioner had refused to  accept  the<\/p>\n
same,  by  letter dated 17.7.1997 and requested  to  give  a<\/p>\n
posting  as  a  Head  Clerk\/Senior clerk\/Clerk  in  Southern<\/p>\n
Railway  or  in  ICF  as an alternative  appointment,  after<\/p>\n
bringing  to  his notice that the pay of the post  of  Clerk<\/p>\n
Grade II is only Rs.950-1500 and with the condition that  he<\/p>\n
should  not  make  any  representation seeking  fixation  of<\/p>\n
seniority  or  absorption in any other  higher  cadre,  this<\/p>\n
offer  was  made.  Accepting the offer, the  petitioner  had<\/p>\n
joined  duty. As such, according to the learned counsel  for<\/p>\n
respondents 1 to 3, the petitioner is estopped from making a<\/p>\n
request seeking pay protection and absorption in the  higher<\/p>\n
grade (equal grade). That apart, as far as ICF is concerned,<\/p>\n
it is a different entity and Southern Railway is a different<\/p>\n
entity.   As  an  employee  of  the  Southern  Railway,  the<\/p>\n
petitioner  can  seek  an alternative  employment  with  pay<\/p>\n
protection  in terms of Section 47 of the Act  only  in  the<\/p>\n
Southern  Railway and not in the ICF.  That apart, when  the<\/p>\n
petitioner  had  refused to accept the  offer  made  by  the<\/p>\n
Southern  Railway, by letter dated 17.7.1997, his  right  to<\/p>\n
seek  protection  under  Section  47  of  the  Act  elapses.<\/p>\n
According to the learned counsel, it is not the case, as  if<\/p>\n
the  petitioner was not given any alternative employment  in<\/p>\n
terms  of  Section 47 of the Act.  Besides, having  accepted<\/p>\n
the  offer in ICF and joined the service accepting the terms<\/p>\n
and  conditions imposed therein, the petitioner is  estopped<\/p>\n
from making the representation dated 29.11.1997 seeking  pay<\/p>\n
protection  and  other benefits.  According to  the  learned<\/p>\n
counsel, the order of the Tribunal has to be sustained.<\/p>\n
                5.       I   have   considered   the   above<\/p>\n
submissions  of  the learned counsel for the  petitioner  as<\/p>\n
well as respondents.\n<\/p>\n<\/p>\n
                6.       Admittedly,  the   petitioner   was<\/p>\n
medically  decategorised while he was working as  a  Station<\/p>\n
Master  in  the  scale  of pay of Rs.1400-2300  (revised  as<\/p>\n
Rs.5000-8000).   He  was found unfit for  safety  categories<\/p>\n
under  medical  classication A-1,  but  found  fit  for  A-2<\/p>\n
classification  and  below according  to  visual  standards.<\/p>\n
Subsequent  to  this, it is not in dispute  that  by  letter<\/p>\n
dated  4.7.1997,  the  Southern  Railway  has  offered   him<\/p>\n
alternative  employment as Head Train  Clerk,  which  is  an<\/p>\n
identical  cadre, compared to the one which he  was  holding<\/p>\n
before his medical decategorisation.  But, the same was  not<\/p>\n
accepted  by  the  petitioner.   On  the  other  hand,   the<\/p>\n
petitioner  had submitted a representations dated  17.7.1997<\/p>\n
and 4.8.1997 with a request to post him as Head Clerk\/Senior<\/p>\n
Clerk\/Clerk  in  the Southern Railway or in ICF.  Basing  on<\/p>\n
this, since there were no vacancies in the clerical cadre in<\/p>\n
the   Southern  Railway,  his  case  was  referred  to  ICF.<\/p>\n
Consequence  of this, by letter dated 13.8.1997,  the  Chief<\/p>\n
Personnel Officer of the ICF has informed that vacancies are<\/p>\n
available  in the clerical cadre in the scale of Rs.950-1500<\/p>\n
and  this  fact  has  been brought  to  the  notice  of  the<\/p>\n
petitioner  also  and  by proceedings dated  19.9.1997,  the<\/p>\n
petitioner was directed to report for absorption in the post<\/p>\n
of  Office Clerk in the scale of pay of Rs.950-1500.   Based<\/p>\n
on  this, the petitioner was also relieved from the Southern<\/p>\n
Railway and he was directed to report before the ICF and  in<\/p>\n
the  office  order dated 27.9.1997, it has  been  made  very<\/p>\n
clear that the transfer and absorption of the petitioner  is<\/p>\n
subject  to  the conditions mentioned therein.  One  of  the<\/p>\n
conditions  is  that  the petitioner  should  not  represent<\/p>\n
seeking  fixation of seniority or absorption in  the  higher<\/p>\n
cadre  other  than Clerk Grade II in the  scale  of  pay  of<\/p>\n
Rs.950-1500. That apart, it has been made very clear to  him<\/p>\n
that  he  will rank as the ;junior-most to all the permanent<\/p>\n
and temporary Clerk Grade II in the scale of Rs.950-1500  as<\/p>\n
on  the  date  of joining. Subsequently, the petitioner  has<\/p>\n
submitted  a representation dated 29.11.1997 for  absorption<\/p>\n
in the higher cadre with pay protection and seniority.<\/p>\n
               7.      As  a  medically invalidated  person,<\/p>\n
the  petitioner is entitled for protection under Section  47<\/p>\n
of  the  Act  and there is no dispute with regard  to  that.<\/p>\n
There is also no dispute that the petitioner was given  that<\/p>\n
offer by letter of the Southern Railway dated 4.7.1997. But,<\/p>\n
the  same  was  not accepted by the petitioner  and  at  his<\/p>\n
request,  and  imposing certain conditions, he  was  offered<\/p>\n
employment in the ICF.  Having accepted those conditions and<\/p>\n
joined the post,  ignoring the acceptance given by him,  the<\/p>\n
petitioner cannot seek either pay protection or seniority or<\/p>\n
grade protection.  As far as protection under Section 47  of<\/p>\n
the  Act  and similar provisions in IREM are concerned,  the<\/p>\n
same had come to an end when the petitioner had declined  to<\/p>\n
accept  the offer given by the Southern Railway.  As far  as<\/p>\n
the  protection  under  Section 47 is  concerned,  it  is  a<\/p>\n
concession given to the employees based on their disability.<\/p>\n
But,  that  does  not  mean that gives a  privilege  to  the<\/p>\n
concerned  employee to seek employment  at  his  choice  and<\/p>\n
wherever  he  wants.  As rightly contended  by  the  learned<\/p>\n
counsel  for  the respondents, the Southern Railway  wherein<\/p>\n
the  petitioner  was  working at the  time  of  his  medical<\/p>\n
decategorisation is a separate entity and ICF is a  separate<\/p>\n
entity.   If at all, the petitioner can get protection  only<\/p>\n
in  the  Southern Railway and it is not in dispute  that  an<\/p>\n
order  to  alternative employment with  pay  protection  was<\/p>\n
offered to the petitioner by the Southern Railway.   On  his<\/p>\n
refusal to accept the same, the petitioner lost his right to<\/p>\n
claim any protection either under Section 47 of the said Act<\/p>\n
or  under similar provisions in IREM.  The protection  given<\/p>\n
under  Section 47 of the Act , certainly, does not confer  a<\/p>\n
right  on  the disabled employee to claim any post according<\/p>\n
to  his  own  whims and fancies.  If the contention  of  the<\/p>\n
learned  counsel for the petitioner has to be accepted,  the<\/p>\n
concession given under Section 47 will amount to a privilege<\/p>\n
without  any limitation and that it can be demanded  at  any<\/p>\n
time.  In fact, by getting medical decategorisation, instead<\/p>\n
of  getting an alternative employment, one will be  able  to<\/p>\n
get  what he could not get otherwise as per the Rules.  That<\/p>\n
apart, it is not the case of the petitioner that inspite  of<\/p>\n
his refusal, he was compelled to accept the post in ICF.  On<\/p>\n
the other hand, on his choice, the same was given to him and<\/p>\n
as  referred  to  above,  the benefits  given  either  under<\/p>\n
Section 47 of the  Act or under the provisions in IREM  come<\/p>\n
to  an  end on his refusal to accept the offer made by order<\/p>\n
dated  4.7.1997 and the concession\/protection under  Section<\/p>\n
47 is certainly not carried over to ICF where the petitioner<\/p>\n
was   appointed  basing  on  his  choice.   If  it  is  held<\/p>\n
otherwise, sympathetic consideration will become a matter of<\/p>\n
right, which is not permissible under Section 47 of the Act.<\/p>\n
That apart, no provisions have been brought to the notice of<\/p>\n
this  Court that even after accepting the offer in the lower<\/p>\n
cadre,  the  petitioner can seek absorption  in  the  higher<\/p>\n
cadre,  that too, in a different entity.  Hence, I  find  no<\/p>\n
merit  in  the writ petition and the same is dismissed.  The<\/p>\n
order  of  the  Tribunal dated 22.11.2001 is  confirmed.  No<\/p>\n
costs.\n<\/p>\n
nv<\/p>\n
To<\/p>\n
1.     The General Manager
\n       Integral Coach Factory
\n       Chennai 600 038.\n<\/p>\n
2.     The Chief Personnel Officer
\n       Integral Coach Factory
\n       Chennai 600 038.\n<\/p>\n
3.     The Senior Personnel Officer (R & T)
\n       Integral Coach Factory
\n   \t Chennai 38.\n<\/p>\n<\/p>\n
Prabha Sridevan, J.\n<\/p>\n<\/p>\n
        In  view  of the difference in the decision  between<\/p>\n
Dharmarao  Elipe, J. and K. Suguna, J. with  regard  to  the<\/p>\n
right of the petitioner protection of his service conditions<\/p>\n
in terms of the Disabilities Act this matter has been placed<\/p>\n
before me.\n<\/p>\n<\/p>\n
        2.  The  dispute  is  with regard  to  the  question<\/p>\n
whether   a   Railway  employee  who  has   been   medically<\/p>\n
decategorised  and has been given alternative employment  in<\/p>\n
Integral  Coach Factory is entitled to such protection.   K.<\/p>\n
Suguna,  J. Found that his claim was without merit, whereas,<\/p>\n
Dharmarao Elipe, J. allowed the claim.\n<\/p>\n<\/p>\n
         3.  The  chronological  dates  and  events  are  as<\/p>\n
follows:\n<\/p>\n
                    W.P. No.40730 of 2002<\/p>\n
\t           …Sri.S.Raghuraman,   now    working    as
\nClerk Gr.II in ICF is the petitioner.\n<\/p>\n
Prayer  in  W.P.\n<\/p>\n
\t\t            ..W.P. is filed to quash  the  order
\ndated 22.11.2001  passed  by  CAT\/MAS in   O.A.   1441\/2000,   rejecting Petitioner’s  claim  for  fitment  of his    scale
\nof  pay in  Rs.5000-8000 as Head  Clerk  from      19.9.1997
\nand      to     reckon    his     seniority  with     effect
\nfrom    9.11.91,    i.e.     the     date   on  which     he
\nwas     promoted     as     Station    Master    in    scale      Rs.1,400-2300   (Revised as Rs.5000 – 8000 with effect  from
\n1.1.96).\n<\/p>\n
w.e.f.9.11.91           …Petitioner   was   promoted    as
\nStation Master   Gr.III    in    scale      Rs.1400  –  2300                         (Revised  as  5000 – 8000)       and        posted        at
\nJolarpettai     and     later     on     transferred      to
\nAthipattu.\n<\/p>\n
13.3.1989                     …  Petitioner was  initially
\nappointed   as    Asst.    Station    Master    in     Scale
\nRs.1200 – 2040 (Revised as Rs.4500 – 7000).<\/p>\n
03.02.1997                     …Petitioner  was   declared
\nmedically  unfit  to  continue  in    the   safety  category                          of   Station Masgter.<\/p>\n
02.06.97                          ..Suitability        Test.\nOrders Passed.\n\n04.7.1997                      ..  Petitioner  was   offered\nalternaste  post   of   Head    Train  Clerk  in  the   same\nscale     of     pay    of    Rs.1400     -     2300     (RP\nRs.5000 - 8000).\n\n17.7.1997                     ...  Petitiner  representation\n<\/pre>\n
declining  (Page   2)   to   accept the alternate employment
\nas Head Train Clerk.\n<\/p>\n
04.08.1997                     …   Further  representation
\nrequesting to (Page    3A)   appoint     him     as     Head
\nClerk\/Sr.Clerk\/Clerk either in MAS Divn.\/HQ\/ICF                        (equivalent)<\/p>\n
08.08.1997                    …DRM\/MAS  wrote  to  CPO\/MAS
\ninforming (Page4)   Applicant’s   request   to   post    him
\nas   Office    Clerk  either  in  Dn.Or.HQ or   ICF,     and
\nthat      there      is       no    clerical       vacancies,       besides        ban        on      copy was marked to CPO\/ICF<\/p>\n
13.08.1997                    …  CPO\/ICF informed  DRM\/MAS
\nthat   they    have   few   in   clerial  cadre   in   scale                              Rs.950-1500  and  the  medically  decategorised     employee
\ncan       be       absorbed    as     Clerk     Gr.II     in
\nscale     Rs.950-1500.\n<\/p>\n
(RP Rs.3050 – 4590).\n<\/p>\n
                      …His  suitability  to  the  post  of
\nClerk      Gr.II   should   be   assessed before   directing
\nto   report  duty to ICF.\n<\/p>\n
17.08.1997                     …DRM\/MAS  appointed   DCM-I
\nand DPO-I to form a committee.\n<\/p>\n
15.09.1997                    …  CPO’S letter  to  DRM\/MAS
\nasking  to   take  further  action,   pursuant  to   CPO\/ICF                          letter  dated 13.8.1997.<\/p>\n
17.09.1997                    … Petitioner  was  asked  to
\nattend  the  suitability  test   at   Sr.DPO’s    Office  at
\n15.00 Hrs. on 18.9.1997.\n<\/p>\n
15.09.1997                    …CPO’s  letter  to   DRM\/MAS
\nasking  to   take  further  action,    pursuant  to  CPO\/ICF                          letter  dated  13.8.1997.<\/p>\n
17.09.1997                    … Petitioner  was  asked  to
\nattend  the   suitability  test   at   Sr.DPO’s   Office  at                           15.00   Hrs.  on 18.9.197.<\/p>\n
18.09.1997                       …    Suitability     test
\nconducted  and  found  suitable  for  the  post  of   Office
\nClerk.\n<\/p>\n
19.9.1997                      …DRM\/MAS   passed    orders
\ndirecting  the  petitioner  to  report to CPO\/ICF.<\/p>\n
19.9.1997                       ...Same   day,    petitioner\nreported   to    CPO\/ICF    and     joined   duty   in   ICF   \nas    Office   Clerk.\n\n27.09.1997                    ...  Posting  Order   in   ICF\ngiven with  conditions.\n\n29.11.1997                      ...Petitioner     gave     a\nrepresentation  requesting to        post        him      as        Head   Clerk    instead of clerk Gr.II.\n\n12.02.1998                           ...        Petitioner;s\n<\/pre>\n
representation  was forwarded to southern Railway.<\/p>\n
30.03.1998                    …  Southern Railway  replied
\nthat  the   transfer  was  at   the    request     of    the                               petitioner  and  hence  he  could  continue in ICF only.<\/p>\n
16.4.1998                       ...   ICF    informed    the\npetitioner  that   his    request    is    not   agreed  to.\nPetitioner  filed O.A.534\/98  in  CAT\/Madras, praying    for    \na    direction     to     post        him      in      Grder     Rs.5000     -8000,      w.e.f. the  date of absorption.\n\n18.4.2000                     ...R4 Tribunal directed  R1  &\n<\/pre>\n
R2  to   consider  his claim  and  pass  suitable  orders in
\nthe   light of   para  1304  of  IREM  within   3 months.<\/p>\n
07.06.2000                       …R2     informed     that
\nPetitioner’s request (page  4) to post him in the  Grade  of
\nRs.5000  –  8000  is  not   agreed   to.\n<\/p>\n
                        ..    Petitioner   filed    Contempt\nPetition   61\/2000     alleging   that   the   order   dated                          7.6.2000   passed         by        R2        is         not  \nin    compliance     of    the     directions     of     the     \nR4 Tribunal.\n\n10.10.2000                     ...  contempt  Petition   was\ndismissed  with    an  observation   that  the    petitioner   \ncould        challenge      the  order  dated  7.6.2000,  if                          so  advised.\n\n20.12.2000                       ...     Thereafter,     the\npetitioner    filed    O.A.No.1441\/2000.\n\n22.11.2001                   ... CAT dismissed O.A.\n\n                        ...   Aggrieved   by   this   order,\npetitioner filed the present W.P.\n\n\n\n<\/pre>\n
        4.  The  relevant rules that apply to the petitioner<\/p>\n
are  Section  47  of  the Persons with  Disabilities  (Equal<\/p>\n
Opportunities,  Protection of Rights and Full Participation)<\/p>\n
Act,  1995  (Act 1 of 1996) (‘Disabilities Act’  in  short),<\/p>\n
Paragraph  Nos.312  and  313  of the  Railway  Establishment<\/p>\n
Manual  (Volume-I) and Paragraphs 1301 to 1310 under Chapter<\/p>\n
XIII  of the Absorption of Medically Incapacitated Staff  in<\/p>\n
Alternative Employment Rules. These are extracted hereunder:<\/p>\n
               “Section   47.   Non-discrimination   in
\n     government employment.- (1) No establishment shall
\n     dispense with, or reduce in rank, an employee  who
\n     acquires a disability during his service:\n<\/p><\/blockquote>\n
              Provided  that,  if  an  employee,  after
\n     acquiring disability is not suitable for the  post
\n     he  was  holding, could be shifted to  some  other
\n     post with the same pay scale and service benefits:\n<\/p><\/blockquote>\n
              Provided  further  that  if  it  is   not
\n     possible to adjust the employee against any  post,
\n     he  may  be kept on a supernumerary post  until  a
\n     suitable post is available or he attains  the  age
\n     of superannuation, whichever is earlier.\n<\/p><\/blockquote>\n
             (2)  No  promotion shall be  denied  to  a
\n     person merely on the ground of his disability:\n<\/p><\/blockquote>\n
             Provided  that the appropriate  Government
\n     may, having regard to the type of work carried  on
\n     in  any establishment, by notification and subject
\n     to such conditions, if any, as may be specified in
\n     such  notification, exempt any establishment  from
\n     the provisions of this section.”\n<\/p><\/blockquote>\n
            “312. TRANSFER ON REQUEST :\n<\/p><\/blockquote>\n
              The   seniority   of   railway   servants
\n     tranferred  at their own request from one  railway
\n     to  another should be allotted below that  of  the
\n     existing   confirmed,  temporary  and  officiating
\n     railway  servants  in the relevant  grade  in  the
\n     promotion   group   in   the   new   establishment
\n     irrespective of the date of confirmation or length
\n     of   officiating  or  temporary  service  of   the
\n     transferred railway servants.\n<\/p><\/blockquote>\n
             Note:-  (i) This applies also to cases  of
\n     transfer  on  request from one cadre\/division   to
\n     another cadre\/division on the same railway.\n<\/p><\/blockquote>\n
              (Rly.Bd.No.  E(NG)  I-85   SR   6\/14   of
\n     21\/01\/1986)<\/p>\n<\/blockquote>\n
              (ii)   The  expression  “relevant  grade”
\n     applies  to  grade where there is  an  element  of
\n     direct  recruitment.   Transfers on  request  from
\n     Railway  employees working in such grades  may  be
\n     accepted  in  such  grades.    No  such  transfers
\n     should  be allowed in the intermediates grades  in
\n     which  all  the  posts  are  filled  entirely   by
\n     promotion  of  staff from the lower  grade(s)  and
\n     there is no element of direct recruitment.\n<\/p><\/blockquote>\n
             (No. E(NG) I-69 SR 6\/15, dated 24.06.1969)
\n     ACS-14)<\/p>\n<\/blockquote>\n
            313. MEDICALLY UNFITTED RAILWAY SERVANTS:\n<\/p><\/blockquote>\n
             (a) (i) Medically decategorised staff may,
\n     as   far   as  possible,  be  absorbed   in   such
\n     alternative  posts  which  should  broadly  be  in
\n     allied  categories and where their background  and
\n     experience  in  earlier posts could  be  utilised.
\n     For  example, traffic running and operating  staff
\n     need  not  necessarily be absorbed in  the  ticket
\n     checking  cadre  alone  but  they  could  also  be
\n     absorbed  in  other commercial,  station  or  yard
\n     categories.\n<\/p><\/blockquote>\n
             (ii)  The  medically  decategorised  staff
\n     absorbed in alternative posts, whether in the same
\n     or other cadre, should be allowed seniority in the
\n     grade  of absorption with reference to the  length
\n     of   service   rendered  in  the   equivalent   or
\n     corresponding grade, irrespective of the  rate  of
\n     pay  fixed  in the grade of absorption  under  the
\n     extant  rules.  In the case of staff  who  are  in
\n     grade  higher than the grade of absorption at  the
\n     time of medical decategorisation, total service in
\n     the  equivalent and higher grade is  to  be  taken
\n     into account.\n<\/p><\/blockquote>\n
             Provided that if a medically decategorised
\n     employee happens to be absorbed in the cadre  from
\n     which  he was originally promoted, he will not  be
\n     placed above his erstwhile seniors in the grade of
\n     absorption.\n<\/p><\/blockquote>\n
              (iii)   While  absorbing  the   medically
\n     decategorised Running Staff in alternative  posts,
\n     a  percentage  of basis pay representing  the  pay
\n     element  in Running Allowance, as decided  by  the
\n     Government   through  administrative  instructions
\n     from  time to time, should be added to the minimum
\n     as  well  as  maximum  of the  scale  of  pay  for
\n     purposes  of  identifying ‘equivalent’  posts  and
\n     their  seniority  should  then  be  fixed  in  the
\n     equivalent absorbing posts.\n<\/p><\/blockquote>\n
             (No.  E(NG)  II\/77\/RE-3-2  OF  2-9-77  and
\n     E(NG) I-80-SR-6\/83 of 5.3.1981)<\/p>\n<\/blockquote>\n
             (b)  Railway servants whose services  were
\n     terminated either because of the maximum limit  of
\n     all  leave  including extraordinary  leave  having
\n     been exceeded or the medical authorities could not
\n     recommend the grant of extraordinary leave in  the
\n     case   of   tuberculosis,  pleurisy  and   leprosy
\n     patients  and  are re-employed in railway  service
\n     after  being  declared fit to work by the  medical
\n     authority  should take their seniority  below  all
\n     permanent railway servants on the date of their re-
\n     employment  provided  they were  permanent  before
\n     medical unfitness or would have been confirmed  in
\n     the   meantime.    Railway   servants   who   were
\n     officiating  or temporary at the time  of  medical
\n     unfitness or would not have been confirmed in  the
\n     meantime should be placed below the officiating or
\n     temporary employees as the case may be on the date
\n     of their re-employment.\n<\/p><\/blockquote>\n
             (c)  Seniority of medically unfitted staff
\n     mentioned in sub-para (a) above, on restoration to
\n     their  original  posts  should  be  determined  as
\n     under:\n<\/p><\/blockquote>\n
             (i)  Railway servants who properly  appeal
\n     within  the  time limit laid down for  appeals  or
\n     whose appeal is entertained in a reasonable period
\n     waiving  the  time  limit and  get  declared  fit,
\n     should not lose their seniority or their claim for
\n     consideration  for promotion for which  they  were
\n     eligible  in the original categoroy in which  they
\n     were employed.\n<\/p><\/blockquote>\n
             (ii)  Seniority  of railway  servants  who
\n     prefer delayed appeals and are declared fit or who
\n     take  treatment and consequently get declared fit,
\n     if  they were formerly confirmed in the grades  in
\n     which  they were, would be affected to the  extend
\n     of  any persons who may have been confirmed before
\n     their  re-absorption into the  original  category.
\n     If  however,  they  were only officiating  in  the
\n     original category, then their seniority should  be
\n     below the staff confirmed till then, but need  not
\n     be  affected vis-a-vis their original juniors  who
\n     happen to be till officiating.\n<\/p><\/blockquote>\n
             (d)  In the case of staff coming to a  new
\n     unit  on own request by accepting bottom seniority
\n     and    then   getting   medically   decategorised,
\n     provision  of  sub-para  (a)(ii)  above  will   be
\n     applicable  only to the extent of service  in  the
\n     new unit.\n<\/p><\/blockquote>\n
            (No. E(NG)I-71 SR 6\/39 dated 31-5-1977)<\/p>\n<\/blockquote>\n
             (e)  In  the  case of staff  who  are  not
\n     required to undergo periodical Medical examination
\n     but who of their own accord request for change  of
\n     category on grounds of health, and are recommended
\n     change  of  occupation by the  medical  authority,
\n     their  change will be treated as transfer  on  own
\n     request and dealt with as per para 312.\n<\/p><\/blockquote>\n
              (No.   E(NG)I   –  76  SE   6\/37,   dated
\n     18.09.1976)”\n<\/p><\/blockquote>\n
                        “CHAPTER XIII<\/p>\n
       ABSORPTION OF MEDICALLY INCAPACITATED STAFF IN
\n                   ALTERNATIVE EMPLOYMENT<\/p>\n
             1301.  A  railway servant who fails  in  a
\n     vision   test  or  otherwise  becomes   physically
\n     incapable  of performing the duties  of  the  post
\n     which   he   occupies  should  not  be  discharged
\n     forthwith  but every endeavour should be  made  to
\n     find    alternative   employment   for   him    as
\n     expeditiously  as possible.  Such employment  must
\n     be of suitable nature and on reasonable emoluments
\n     having  regard to the emoluments previously  drawn
\n     by the railway servant.\n<\/p><\/blockquote>\n
             1302.   Classification of railway servants
\n     declared   medically  unfit  –  Railway   servants
\n     declared  medically unfit for further service  are
\n     divisible into two groups :\n<\/p><\/blockquote>\n
             (i)  Those  completely  incapacitated  for
\n     further  service in any post on the railway,  ie.,
\n     those  who cannot be declared fit even in the  “C”
\n     medical category;\n<\/p><\/blockquote>\n
             (ii)  Those incapcited for further service
\n     in the post they are holding but declared fit in a
\n     lower  medical category and eligible for retention
\n     in  service  in posts corresponding to this  lower
\n     medical category.\n<\/p><\/blockquote>\n
                1303.     Railway    servant    totally
\n     incapacitated   for   further   service   :   (Not
\n     Applicable)<\/p>\n
             1304.  Railway servants incapacitated  for
\n     service in posts held by them –\n<\/p><\/blockquote>\n
              (a)  Permanent  Railway  Servants   :   A
\n     permanent  railway servant in group (ii)  of  Para
\n     1302  above must also cease to perform the  duties
\n     of  the post, he was holding from the date  he  is
\n     declared medically unfit.  Here again, no  officer
\n     has  the  authority to permit him to  perform  his
\n     duties in hat post beyond that date.  He should be
\n     granted  leave  as admissible to  him,  under  the
\n     leave  Rules  by which he is governed,  from  that
\n     date  he  is incapacitated subject to the  proviso
\n     that  where  the railway servant has not  got  six
\n     months  leave to this credit, his leave  shall  be
\n     made upto six months by the grant of extraordinary
\n     leave.   If  an alternative employment  cannot  be
\n     found  for  such  a person within  the  period  of
\n     leave  so  granted his service should, be extended
\n     by  grant of extraordinary leave, subject  to  the
\n     condition  that the total amount of  extraordinary
\n     leave  to  be granted to the railway servant  does
\n     not  exceed  six  months.  It should  be  possible
\n     within  the period of leave thus extended to  find
\n     either  a  permanent or a temporary post  for  his
\n     absorption.   If the railway servant  is  absorbed
\n     against  a temporary post in a permanent  cadre  a
\n     supernumerary  post may also be  created  and  his
\n     lien   counted  against  the  post.   It   should,
\n     however, be noted that,<\/p>\n<\/blockquote>\n
             (i)  the  actual creation of supernumerary
\n     post  will  follow  the  acceptance  of  offer  of
\n     alternative post;\n<\/p><\/blockquote>\n
             (ii)  the  supernumerary  post  should  be
\n     abolished as soon as a permanent post is found for
\n     the railway servant concerned.\n<\/p><\/blockquote>\n
              The  purpose  of  granting  extraordinary
\n     leave  envisaged in this para is that in case  the
\n     Railways administration is able to find a suitable
\n     alternative    employment    for    a    medically
\n     incapacitated employee, there should be  no  break
\n     in   his  service.   Since  the  period  of   such
\n     extraordinary  leave counts  for  the  purpose  of
\n     special  contribution to P.F. in the  case  of   a
\n     railway  servant  governed by  the  state  Railway
\n     Provident  Fund  Rules but  not  in  the  case  of
\n     pensionable  Railway servant the letter   employee
\n     may  not like to avail of the extraordinary  leave
\n     but may instead prefer to quit service on pension,
\n     immediately on the expiry of his period  of  leave
\n     with allowances.  In such case extraordinary leave
\n     need not be granted to a railway servant, if he so
\n     desires.\n<\/p><\/blockquote>\n
             2.  In  the  matter  of  absorption  of  a
\n     medically incapacitated staff in alternative post,
\n     Railway  administrations,  should  take  care   to
\n     ensure  that the interest of staff in service  are
\n     not  adversely  affected as far as possible.   The
\n     alternative appointment should be offered only  in
\n     posts which the staff can adequately fill.\n<\/p><\/blockquote>\n
              (b)  Temporary  Railway  Servants   :   A
\n     temporary  Railway Servant in group (ii)  of  para
\n     1302  above  who becomes medically unfit  for  the
\n     post  held  by  him  on account  of  circumstances
\n     arising   out  of  and  in  the  course   of   his
\n     employment,  the benefit admissible  to  permanent
\n     Railway servants as at (a) above should be given.\n<\/p><\/blockquote>\n
             A  temporary employee has become medically
\n     fit  for  the  post  held by him,  on  account  of
\n     circumstances which did not arise out  of  and  in
\n     the  course of employment, the benefit of Rule 304
\n     RI (of Fifth edition 1985) will not be admissible.
\n     While, therefore, it is strictly not obligatory to
\n     find  alternative employment for such an employee,
\n     every  effort would nevertheless, be made to  find
\n     alternative  employment.  The  employee  concerned
\n     should br granted such leave as is due to him plus
\n     extraordinary have not exceeding three months; the
\n     total not exceeding six months.  If no alternative
\n     employment  be found in this period, the  employee
\n     should be discharged from service.\n<\/p><\/blockquote>\n
              1305.   Alternative  employment  must  be
\n     found  in  the  case  of permanent  and  temporary
\n     railway servants:\n<\/p><\/blockquote>\n
             Medically decategorised staff may, as  far
\n     as possible, be absorbed in such alternative posts
\n     which  should broadly be in allied categories  and
\n     where  their background and experience in  earlier
\n     posts  could  be  utilised.  There  should  be  no
\n     difficulty    in   providing   such    alternative
\n     employment  and  no reversion of  any  officiating
\n     railway  servant for the purpose of absorbing  the
\n     disabled railway servant should be necessary.  For
\n     this purpose attempts should be made to absorb the
\n     disabled  railway  servant  not  only  within  the
\n     District\/Division  or Department  but  in  another
\n     District\/Division or Department.\n<\/p><\/blockquote>\n
             1306.   Steps  to  be  taken  for  finding
\n     alternative employment :\n<\/p><\/blockquote>\n
             1. With a view to determine the categories
\n     in which a medically incapacitated railway servant
\n     is  suitable  for  absorption, a Committee  should
\n     examine him.  The committee may consist of two  or
\n     three    officers   under   whom   the   medically
\n     incapacitated  railway servant  was  working,  the
\n     railway servant’s immediate officer being  one  of
\n     the members of the Committee.  After the Committee
\n     has  examined  the railway servant and  determined
\n     his  suitability for certain categories of  posts,
\n     the  officer  under whom the railway  servant  was
\n     working  will  proceed to take further  action  to
\n     find suitable alternative employment for him.\n<\/p><\/blockquote>\n
             2.  The  officer concerned will prepare  a
\n     list  of vacancies within his jurisdiction in  the
\n     categories  for which the medically  incapacitated
\n     railway servant has been found suitable and a post
\n     with emoluments as near as possible to his earlier
\n     emoluments will be offered to him.\n<\/p><\/blockquote>\n
             3. It will be the responsibility primarily
\n     of  the officer under whom the railway servant  is
\n     directly  serving  to  find  suitable  alternative
\n     employment  for him.  This will be done  first  by
\n     trying  to  find alternative employment  for  him.
\n     This   will  be  done  first  by  trying  to  find
\n     alternative   employment  in  the  officer’s   own
\n     district,   sub-district,  sub-division,   office,
\n     workshop and c. and a register. Vide sub-paragraph
\n     (7) below will be maintained for this purpose.\n<\/p><\/blockquote>\n
             4.  If  there is no immediate prospect  of
\n     employment in his own district, sub-district, sub-
\n     division,  office and c. the name of  the  Railway
\n     servant with particulars as given in sub-paragraph
\n     (7) below, will be circulated to all other offices
\n     or  establishments  where suitable  employment  is
\n     likely to be found.\n<\/p><\/blockquote>\n
             (5)  The names of railway servants  likely
\n     to be suitable for clerical appointments should be
\n     intimated to the Divisional Office as well  as  to
\n     the Headquarters Office.\n<\/p><\/blockquote>\n
             (6) Nothing in the previous sub-paragraphs
\n     debars  a  railway  servant from  applying  for  a
\n     particular  post  for which he  is  likely  to  be
\n     deemed  suitable and which is known to  be  vacant
\n     under  any officer.  Such an application  must  be
\n     addressed  through the immediate  officer  of  the
\n     railway  servant concerned and must  contain  full
\n     particulars  of his service and must be  forwarded
\n     to  the  officer  to  whom  addressed  or  to  the
\n     authority competent to make the appointment.   The
\n     result of the application must be communicated  to
\n     the railway servant.\n<\/p><\/blockquote>\n
            …\n<\/p><\/blockquote>\n
              (8)  A  medically  incapacitated  railway
\n     servant   who  is  permanent  will  be   appointed
\n     substantively to the alternative post  subject  to
\n     his suitability.  His further chances of promotion
\n     thereafter  will be in accordance with the  normal
\n     channels of promotion, and he will not be entitled
\n     to consideration for out-of-turn promotions merely
\n     because  of  his  absorption  int  he  post  as  a
\n     consequence of medication incapacitation.\n<\/p><\/blockquote>\n
             1307. Absorption in alternative employment
\n     to be circularised.\n<\/p><\/blockquote>\n
             1308.  Before  any post  is  filled  or  a
\n     promotion  is  ordered,  officers  concerned  will
\n     refer  to  their registers and satisfy  themselves
\n     that  no  medically incapacitated servant  who  is
\n     suitable   for   the  post  is  available.    Such
\n     medically incapacitated railway servant under  all
\n     circumstances  be  given preference  over  surplus
\n     retrenched or demoted railway servant and  shorter
\n     service.\n<\/p><\/blockquote>\n
              1309.   Alternative  employment   to   be
\n     suitable. –\n<\/p><\/blockquote>\n
             (i) The alternative post to be offered  to
\n     a railway servant shoudl be the best available for
\n     which  he  is suited, to ensure that the  loss  in
\n     emoluments is a minimum.\n<\/p><\/blockquote>\n
            …\n<\/p><\/blockquote>\n
            (E(NG) ISO SR6\/83 dt. 5.3.81).\n<\/p><\/blockquote>\n
             NOTE  :-  Care should be taken by  Railway
\n     administration  to see that the interests  of  the
\n     staff in service are not affected adversely as far
\n     as  possible and alternative appointment should be
\n     offered   only  in  post  which  the   staff   can
\n     adequately  fill.   Their  suitability   for   the
\n     alternative posts be judged by holding suitability
\n     test\/interview  as  prescribed  under  the  extent
\n     instructions.\n<\/p><\/blockquote>\n
            …\n<\/p><\/blockquote>\n
            (E(NG) II-73 RE 3\/16 dt. 11.4.75)<\/p>\n
             1310.  Offer of alternative employment  to
\n     be  in writing. – The alternative employment  must
\n     be  offered in writing, stating the scale  of  pay
\n     and  the  rate of pay at which it is  proposed  to
\n     reabsorb him in service.  On no account should the
\n     Railway   servant  be  posted  to  an  alternative
\n     appointment  until he has accepted  the  post.   A
\n     railway  servant is at liberty to refuse an  offer
\n     of  alternative appointment and the leave  granted
\n     to  him will not be terminated pre-maturely merely
\n     because  of his refusal.  The Leave must  run  its
\n     course.   He will continue to remain eligible  for
\n     other  alternative offers of appointment till  his
\n     leave   expires   and   efforts   to   find   such
\n     appointments    should,    therefore,     continue
\n     throughout the currency of his leave.”\n<\/p><\/blockquote>\n
These  are  the  rules based on which the petitioner  claims<\/p>\n
relief.\n<\/p>\n<\/p>\n
        5.  Learned counsel for the petitioner submits  that<\/p>\n
the  petitioner is entitled to protection of his  rights  in<\/p>\n
terms  of Section 47 of the Disabilities Act as well as  the<\/p>\n
provisions of Indian Railway Establishment Manual  which  is<\/p>\n
extracted  above and that he cannot be treated as  a  person<\/p>\n
seeking  transfer on request or as a one way transfer  case.<\/p>\n
The  learned counsel submitted that he has a statutory right<\/p>\n
to  be  fitted in an alternative employment without loss  of<\/p>\n
pay and if necessary a super numerary post must be created.<\/p>\n
        6.  The  learned  Senior counsel appearing  for  ICF<\/p>\n
submitted  that  the  petitioner was informed  even  at  the<\/p>\n
earliest possible time that he could go back to the Southern<\/p>\n
Railway and that in ICF a post commensurate with the post he<\/p>\n
was holding Southern Railway was not available.  In spite of<\/p>\n
that,  he opted to come to ICF and he knew the terms subject<\/p>\n
to  which  is  transfer  was ordered.   The  learned  senior<\/p>\n
counsel  submitted that if the petitioner were to be  fitted<\/p>\n
in  ICF  it would disrupt the seniority in ICF.  The learned<\/p>\n
senior  counsel also submitted that the petitioner ought  to<\/p>\n
have  impleaded  the  Southern  Railway  to  get  a  binding<\/p>\n
adjudication.\n<\/p>\n<\/p>\n
        7.  On  the side of the petitioner, the judgment  in<\/p>\n
Writ  Appeal  No.860 of 2007 [The Management of  Tamil  Nadu<\/p>\n
State  Transport Corporation (Villupuram Division-III) Ltd.,<\/p>\n
Kancheepuram vs. B. Gnanasekaran<\/a>] was relied on.   (2000)  4<\/p>\n
S.C.C. 13 [Comptroller & Auditor General of India vs.  Farid<\/p>\n
Sattar<\/a>] is cited on behalf of the respondent.  In the latter<\/p>\n
case,  the claim for protection of pay was rejected  on  the<\/p>\n
ground  that the workman had applied for universal  transfer<\/p>\n
after seeking reversion to the lower post of Accountant as a<\/p>\n
direct  recruit,  which the respondent  before  the  Supreme<\/p>\n
Court  accepted and thereafter had prayed for protection  of<\/p>\n
pay  and it was rightly rejected by the Supreme Court.  This<\/p>\n
does not apply to the present case.\n<\/p>\n<\/p>\n
        8.  It must be remembered that the petitioner herein<\/p>\n
was  only aged 36 years when he was medically incapacitated.<\/p>\n
The  relevant rules have been extracted.  It is  clear  even<\/p>\n
from  a  reading of the paragraphs extracted from the Manual<\/p>\n
that  the  transfers  on request and  transfers  on  medical<\/p>\n
incapacitation  are  different.  The former  is  dealt  with<\/p>\n
under  paragraph  312  and the latter is  dealt  with  under<\/p>\n
paragraph  313 of Indian Railway Establishment  Manual.  The<\/p>\n
relevant  clauses  in  Chapter XIII  of  the  Absorption  of<\/p>\n
Medically  Incapacitated  Staff  in  Alternative  Employment<\/p>\n
Rules  protect the rights of medically incapacitated  staff.<\/p>\n
There  is  reference to supernumerary posts as  provided  in<\/p>\n
Section  47  of  the Disabilities Act and  the  creation  of<\/p>\n
supernumerary posts is only until a permanent post is  found<\/p>\n
for  the  railway servant concerned, which is almost similar<\/p>\n
to  the  proviso  to  Section 47 of the Act.   Extraordinary<\/p>\n
leave  is  granted to such railway servants to  ensure  that<\/p>\n
there  was  no break in his service.  It is also made  clear<\/p>\n
that in the matter of absorption in an alternative post, the<\/p>\n
railway administration should take care that the interest of<\/p>\n
the  staff  is  not adversely affected as far  as  possible.<\/p>\n
Paragraph   1305  declares  in  no  uncertain   terms   that<\/p>\n
alternative employment must be found in the case of  railway<\/p>\n
servants  (emphasis  supplied).  The  insistence  that   the<\/p>\n
railway servant shall not suffer any prejudice is seen  from<\/p>\n
the fact that this paragraph requires the administration  to<\/p>\n
absorb  a  disabled  railway servant  not  only  within  the<\/p>\n
district  division  or department, but in another  district,<\/p>\n
division or department.  Paragraph 1306(2) shows the list of<\/p>\n
vacancies which is prepared for accommodation of the railway<\/p>\n
servant  must  contain  posts with  emoluments  as  near  as<\/p>\n
possible to the earlier emoluments.  Paragraph 1306(3) shows<\/p>\n
that  this alternative employment should be first  found  in<\/p>\n
the  officer’s own district, sub-division, office,  workshop<\/p>\n
etc.,  but  if  it is not possible, then the  administration<\/p>\n
shall  circulate  the  name  of  the  railway  servant  with<\/p>\n
particulars  to  all  other offices or establishments  where<\/p>\n
suitable  employment  is  likely  to  be  found.   Paragraph<\/p>\n
1306(8) shows that he is entitled to all normal channels  of<\/p>\n
promotion.  What he cannot claim is an out-of-turn promotion<\/p>\n
because  of  his absorption in the post as a consequence  of<\/p>\n
medical incapacitation.\n<\/p>\n<\/p>\n
        9.  Much  was stressed on the side of the respondent<\/p>\n
to  show  that  Southern Railway and  I.C.F.  are  different<\/p>\n
organisations under the Ministry of Railways, and cannot  be<\/p>\n
treated  as one unit.  Paragraph 56 of the Manual of  Office<\/p>\n
Procedure  shows  that Southern Railway,  Madras  is  listed<\/p>\n
under  A(vi)  and Integral Coach Factory, Madras  is  listed<\/p>\n
under A(xi).  But, when their own Manual shows that they are<\/p>\n
bound  to  accommodate the medically unfit employee  in  any<\/p>\n
other district or establishment, the fact that I.F.C. has  a<\/p>\n
different  General  Manager  and  Southern  Railway  has   a<\/p>\n
different General Manager is hardly significant.  It is true<\/p>\n
that after his medical decategorisation, the petitioner  was<\/p>\n
offered  alternative employment as HTNC.  He made a  request<\/p>\n
that  because of his vertigo and bronchitis, it will not  be<\/p>\n
possible for him to discharge his duty satisfactorily  since<\/p>\n
as  a  HTNC, he will have to maintain the relevant  records,<\/p>\n
physically collecting the materials by moving in and  around<\/p>\n
the   coach  yard  (petitioner’s  letter  dated  17.7.1994).<\/p>\n
Therefore, he requested that he should not be given work  in<\/p>\n
the Open Line.  He requested that he may be given a post  of<\/p>\n
headclerk\/senior  clerk\/clerk  under  the  control  of   the<\/p>\n
Southern  Railway in a headquarters or in I.C.F.   The  fact<\/p>\n
that he had written the word ‘Clerk’ in his request does not<\/p>\n
mean  that  he was waiving his right to claim pay protection<\/p>\n
because that benefit is given to him under the relevant laws<\/p>\n
and  rules.  Not just once, but repeatedly, both the  Manual<\/p>\n
and the categoric language of Section 47 of the Disabilities<\/p>\n
Act  stress  that the loss in pay suffered by the  medically<\/p>\n
incapacitated person should be at a minimum.  It is in  this<\/p>\n
background that we should view his appointment as  Clerk  in<\/p>\n
I.C.F. on 18.9.1997.\n<\/p>\n<\/p>\n
       10. The Office Circular reads as follows :<\/p>\n
“INTEGRAL COACH FACTORY, CHENNAI-38<\/p>\n
                            General Manager’s Office,
\n                            Personnel Branch\/Shell
\n                            Dated 27.9.07<\/p>\n
                 OFFICE ORDER NO.PB\/S1C\/2157<\/p>\n
             The   undermentioned  employee   who   was
\n    working  as Station Master Gr.III in scale Rs.1400-
\n    2300  has  been transferred from S.Rly  to  IFC  on
\n    Inter  Railway  Transer (One  way).   He  has  been
\n    taken  on  the rolls of ICF as Clerk G.II in  Scale
\n    Rs.0950-1500 from the date mentioned against him.<\/p>\n
———————————————————————-<\/p>\n
\nSl. Name & Emp. No.    Date of    Date of    Date of     Pay      Unit\nNo. Father's Name      Birth      Appt.      reporting   fixed\n    S\/Shri                                   in ICF\n<\/pre>\n
———————————————————————-\n<\/p>\n
1.  RAGHURAMAN S.      30.5.65    13.3.89    19.9.97     Rs.1500   9OD
\n    806354
\n    R.SETHURAMAN\n<\/p>\n
———————————————————————-<\/p>\n
            He has declared that he is not residing  in
\n    Railway Quarters.\n<\/p><\/blockquote>\n
            The  above  Inter Railway One Way  Transfer
\n    is ordered subject to the following conditions :\n<\/p><\/blockquote>\n
             i.   He  will  rank  Junior  most  to  all
\n    permanent  and  temporary  Clerks  Gr.II  in  Scale
\n    Rs.0950-1500  as  on the date of  joining  the  new
\n    seniority unit i.e. Personnel Dept.<\/p>\n
            ii.  At  any point of time, he  should  not
\n    repersent   seeking  fixation   of   seniority   or
\n    absorption  in  any higher grade other  than  Clerk
\n    G.II in Scale Rs.0950-1500.\n<\/p><\/blockquote>\n
            iii.  His request if any for retransfer  to
\n    South   Railway  at  a  later  date  will  not   be
\n    considered under any circumstances.\n<\/p><\/blockquote>\n
                       SENIOR PERSONNEL OFFICER\/R&T”\n<\/p><\/blockquote>\n
The  first flaw in this order is that this is not an  inter-<\/p>\n
railway   transfer  of  the  ordinary   category.    He   is<\/p>\n
transferred  to  another establishment only because  he  was<\/p>\n
medically  incapacitated.   He is  entitled  to  this  under<\/p>\n
Paragraph 1306.  It is not a transfer on request.  It  is  a<\/p>\n
right of transfer which the law gives him and therefore, the<\/p>\n
respondent can neither say that he will rank junior  to  all<\/p>\n
permanent  and temporary clerks, neither can they  say  that<\/p>\n
his  request for re-transfer will not be considered  in  any<\/p>\n
circumstances.  On 29.11.1997, the petitioner requested that<\/p>\n
he  may be accommodated in the Headquarter Grade and that he<\/p>\n
came to understand that there are vacancies.  This letter is<\/p>\n
extracted hereunder :\n<\/p>\n
           “S. Raghuraman,
\n           Emp. No.806354,
\n           CG-II, General Section,
\n           Personnel Branch,
\n           ICF\/Chennai-38.\n<\/p><\/blockquote>\n
           To
\n           The CPO,
\n           ICF.\n<\/p><\/blockquote>\n
                    Thro’ Proper Channel<\/p>\n
    Sir,<\/p>\n
      Sub : Absorption of Medically decategorised
\n           SM – Self – Representation – Submitted<\/p>\n
      Ref : Your office order No.M\/153\/97 dated
\n           19.9.97 and letter No.M\/P-439\/I\/Opt\/
\n           R\/Vol.VI dated 19.9.1997<\/p>\n
            Consequent  to my decategorisation,  I  was
\n    directed  to  report to the CPO\/ICF for  absorption
\n    in  an alternative employment.  Accordingly, I have
\n    been  absorbed  as an Office Order mentioned  above
\n    and  now I am working in that category in ICF  from
\n    19.9.1997.   In this connection, I wish  to  submit
\n    as follows.\n<\/p><\/blockquote>\n
            Prior  to  decategorisation, I was  working
\n    as  a  Station Master (permanent employee)  of  the
\n    Railways  from  13.3.1989 and I have been  promoted
\n    to  the  grade  of  Rs.1400-2300 with  effect  from
\n    8.11.1991.\n<\/p><\/blockquote>\n
            I  now  come to understand that  there  are
\n    vacancies  in  Head Clerk Grade in  scale  Rs.1400-
\n    2300.   With respect to Para 1314(C)(1) of IREM,  I
\n    am  privileged to be accommodated as an Head  Clerk
\n    in  grade Rs.1400-2300 with due protection  of  the
\n    last  drawn  pay and other consequential  benefits.
\n    In  as much as I had been working on the grade  SM-
\n    III  i.e.  in the above said scale of pay  and  the
\n    above  mentioned vacancy being a clerical  category
\n    in  which I could be fitted after decategorisation,
\n    I   request   your  goodself  to  kindly   consider
\n    absorption to the above grade at the earliest.”\n<\/p><\/blockquote>\n
On  7.6.2000,  his  request is treated as an  inter-railways<\/p>\n
transfer on bottom seniority.\n<\/p>\n<\/p>\n
         11.  Learned  senior  counsel  appearing  for   the<\/p>\n
Southern Railway repeatedly said that the petitioner  should<\/p>\n
have  made Southern Railway as a party since it is only from<\/p>\n
Southern Railway that he was transferred to I.C.F. The first<\/p>\n
respondent is the Union of India and both Southern  Railway,<\/p>\n
Madras   and   Integral  Coach  Factory   are   only   field<\/p>\n
organisations under the Ministry of Railways.  The following<\/p>\n
paragraphs of (2003) 4 S.C.C. 524 [Kunal Singh vs. Union  of<\/p>\n
India] are relevant :\n<\/p>\n
             “8.   The   need   for  a   comprehensive
\n    legislation   for  safeguarding  the   rights   of
\n    persons  with  disabilities and enabling  them  to
\n    enjoy  equal  opportunities and to  help  them  to
\n    fully participate in national life was felt for  a
\n    long  time.  To realize the objective that  people
\n    with  disabilities should have equal opportunities
\n    and keeping their hopes and aspirations in view  a
\n    meeting  called the “Meet to Launch the Asian  and
\n    Pacific  Decades of Disabled Persons” was held  in
\n    Beijing in the first week of December 1992 by  the
\n    Asian   and  Pacific  countries  to  ensure  “full
\n    participation   and  equality   of   people   with
\n    disabilities  in  the Asian and Pacific  regions”.
\n    This  meeting was held by the Economic and  Social
\n    Commission  for  Asia and Pacific. A  proclamation
\n    was  adopted  in  the said meeting.  India  was  a
\n    signatory  to the said proclamation and agreed  to
\n    give  effect  to the same. Pursuant  thereto  this
\n    Act  was  enacted, which came into force  on  1-1-
\n    1996.  The  Act provides some sort of  succour  to
\n    the disabled persons.\n<\/p><\/blockquote>\n
            9.  Chapter  VI  of  the  Act  deals  with
\n    employment  relating to persons with disabilities,
\n    who  are  yet  to secure employment.  Section  47,
\n    which  falls  in  Chapter  VIII,  deals  with   an
\n    employee,  who is already in service and  acquires
\n    a  disability during his service. It must be borne
\n    in  mind  that  Section 2 of  the  Act  has  given
\n    distinct    and    different    definitions     of
\n    “disability” and “person with disability”.  It  is
\n    well  settled  that in the same enactment  if  two
\n    distinct   definitions  are   given   defining   a
\n    word\/expression,   they   must    be    understood
\n    accordingly  in terms of the definition.  It  must
\n    be  remembered that a person does not  acquire  or
\n    suffer  disability  by choice.  An  employee,  who
\n    acquires disability during his service, is  sought
\n    to  be  protected  under Section  47  of  the  Act
\n    specifically.     Such     employee,     acquiring
\n    disability,  if  not  protected,  would  not  only
\n    suffer  himself, but possibly all those who depend
\n    on  him  would  also suffer. The  very  frame  and
\n    contents  of  Section  47  clearly  indicate   its
\n    mandatory  nature. The ve ry opening part  of  the
\n    section  reads  “no establishment  shall  dispense
\n    with,  or reduce in rank, an employee who acquires
\n    a  disability  during  his service”.  The  section
\n    further   provides  that  if  an  employee   after
\n    acquiring disability is not suitable for the  post
\n    he  was  holding, could be shifted to  some  other
\n    post   with   the  same  pay  scale  and   service
\n    benefits;  if  it is not possible  to  adjust  the
\n    employee  against any post he will be  kept  on  a
\n    supernumerary  post  until  a  suitable  post   is
\n    available    or   he   attains    the    age    of
\n    superannuation,  whichever is  earlier.  Added  to
\n    this  no  promotion shall be denied  to  a  person
\n    merely  on  the  ground of his  disability  as  is
\n    evident  from  sub-section  (2)  of  Section   47.
\n    Section  47  contains a clear directive  that  the
\n    employer  shall  not dispense with  or  reduce  in
\n    rank  an employee who acquires a disability during
\n    the  service.  In  construing  a  provision  of  a
\n    social beneficial enactment that too dealing  with
\n    disabled  persons  intended  to  give  them  equal
\n    opportunities,  protection  of  rights  and   full
\n    participation, the view that advances  the  object
\n    of   the  Act  and  serves  its  purpose  must  be
\n    preferred  to the one which obstructs  the  object
\n    and paralyses the purpose of the Act. Language  of
\n    Section  47 is plain and certain casting statutory
\n    obligation on the employer to protect an  employee
\n    acquiring disability during service.\n<\/p><\/blockquote>\n
            10.  The  argument of the learned  counsel
\n    for  the respondent on the basis of the definition
\n    given  in Section 2(t) of the Act that benefit  of
\n    Section  47  is not available to the appellant  as
\n    he  has  suffered permanent invalidity  cannot  be
\n    accepted.  Because, the appellant was an employee,
\n    who  has  acquired “disability” within the meaning
\n    of  Section 2(i) of the Act and not a person  with
\n    disability.\n<\/p><\/blockquote>\n
            11.  We have to notice one more aspect  in
\n    relation   to  the  appellant  getting  invalidity
\n    pension  as per Rule 38 of the CCS Pension  Rules.
\n    The  Act  is  a  special legislation dealing  with
\n    persons   with   disabilities  to  provide   equal
\n    opportunities,  protection  of  rights  and   full
\n    participation   to  them.  It  being   a   special
\n    enactment,  doctrine of generalia specialibus  non
\n    derogant  would  apply.  Hence  Rule  38  of   the
\n    Central  Civil  Services  (Pension)  Rules  cannot
\n    override  Section 47 of the Act. Further,  Section
\n    72  of  the  Act  also supports the  case  of  the
\n    appellant, which reads:\n<\/p><\/blockquote>\n
    “72.  Act  to  be  in  addition  to  and  not   in
\n    derogation  of  any other law .-The provisions  of
\n    this  Act, or the rules made thereunder  shall  be
\n    in  addition  to,  and not in  derogation  of  any
\n    other  law  for  the time being in  force  or  any
\n    rules,    order   or   any   instructions   issued
\n    thereunder, enacted or issued for the  benefit  of
\n    persons with disabilities.”\n<\/p><\/blockquote>\n
            12.  Merely because under Rule 38  of  the
\n    CCS  (Pension)  Rules,  1972,  the  appellant  got
\n    invalidity  pension  is  no  ground  to  deny  the
\n    protection  mandatorily  made  available  to   the
\n    appellant under Section 47 of the Act. Once it  is
\n    held  that  the appellant has acquired  disability
\n    during  his service and if found not suitable  for
\n    the  post  he was holding, he could be shifted  to
\n    some  other  post with same pay scale and  service
\n    benefits;  if  it was not possible to  adjust  him
\n    against   any  post,  he  could  be  kept   on   a
\n    supernumerary  post  until  a  suitable  post  was
\n    available    or   he   attains    the    age    of
\n    superannuation, whichever is earlier.  It  appears
\n    no  such  efforts  were made by  the  respondents.
\n    They   have   proceeded  to  hold  that   he   was
\n    permanently incapacitated to continue  in  service
\n    without   considering   the   effect   of    other
\n    provisions of Section 47 of the Act.”\n<\/p><\/blockquote>\n
So, for the purpose of ensuring that the Disabilities Act is<\/p>\n
given  its full effect, the Indian Railways must be  treated<\/p>\n
as an Establishment and it is obliged in law to see that its<\/p>\n
disabled employee does not suffer reduction of rank.   There<\/p>\n
may  be  other  situations where such  unit  of  the  Indian<\/p>\n
Railways  may have to be treated as different  units.   But,<\/p>\n
for  advancing the objects of the Disabilities  Act  and  to<\/p>\n
give effect to Para 1306(3) of the IREM, the Indian Railways<\/p>\n
must be treated as an Establishment.\n<\/p>\n<\/p>\n
        12.  In  2007 W.L.R. 256 [The State vs. K.  Mohammed<\/p>\n
Mustafa],  a  Division  Bench  had  held  that  the  benefit<\/p>\n
envisaged  under Section 47 of the Disabilities Act  can  be<\/p>\n
considered  in  addition to the benefits contemplated  under<\/p>\n
the Act and observed thus :\n<\/p>\n
             “If   in   a  given  case  the  provisions
\n    contained   in   the  G.O.  are   more   beneficial
\n    notwithstanding  any  provision  contained  in  the
\n    Act,  such beneficial provision of the G.O. can  be
\n    made  applicable, and similarly, if the  provisions
\n    contained  in  the  Act  are  more  beneficial   as
\n    compared  to the provisions contained in the  G.O.,
\n    benefit of such Act can be made available.”\n<\/p><\/blockquote>\n
         13.  In  Tamil  Nadu  State  Transport  Corporation<\/p>\n
(Villupuram  Division-I)  Limited  vs.  R.  Jayakumar<\/a>  [Writ<\/p>\n
Appeal  No.610  of  2007] decided on 13.4.2007,  a  Division<\/p>\n
Bench  held that Section 47 of the Disabilities Act casts  a<\/p>\n
mandatory  duty on the part of the employer  to  provide  an<\/p>\n
alternative  employment  to  an employee  who  has  suffered<\/p>\n
disability during the course of his employment, and the fact<\/p>\n
that  such an employee has received some compensation  under<\/p>\n
the  Motor  Vehicles  Act  is no  ground  to  deny  him  the<\/p>\n
alternative  employment, to which he is  otherwise  entitled<\/p>\n
under the Disabilities Act.<\/p><\/blockquote>\n
         14.   In  A.  Veeriya  Perumal  vs.  Secretary   to<\/p>\n
Government,  Health  &  Family Welfare  Department,  Chennai<\/p>\n
[(2006)  4  M.L.J.  335], a Division Bench  held  that  sub-<\/p>\n
section  (1) of Section 47 of the Disabilities Act is  clear<\/p>\n
in  terms  that  “no establishment shall  dispense  with  or<\/p>\n
reduce in rank, an employee who acquires a disability during<\/p>\n
his  service”.  The Division Bench held that  the  right  to<\/p>\n
livelihood, which is an integral facet of the right to  life<\/p>\n
as guaranteed under Article 21 of the Constitution of India,<\/p>\n
coupled  with  the  protection  under  Section  47  of   the<\/p>\n
Disabilities Act entitles the employee who was incapacitated<\/p>\n
during  service  for  continuance  of  service  in  suitable<\/p>\n
alternative  post with same scale of pay drawn  by  him  and<\/p>\n
other   service  benefits.   It  was  also  held  that   the<\/p>\n
appellant\/employee’s right to alternate employment cannot be<\/p>\n
deprived  solely on ground of medical invalidation,  as  his<\/p>\n
right is protected under Section 47 of the Disabilities Act.<\/p>\n
        15.  Under the Indian Railway Establishment  Manual,<\/p>\n
the  employee  has  the right not to be  treated  as  a  new<\/p>\n
entrant.  A transfer on request is a transfer which is  made<\/p>\n
on  the volition of the employee, whereas a transfer  or  an<\/p>\n
alternative  accommodation given to a workmen  on  is  being<\/p>\n
found  medically  incapacitated is  a  right  given  to  the<\/p>\n
railway  servant to choose the best option that is available<\/p>\n
to  him,  since he is no longer able to serve  in  the  post<\/p>\n
where  he  was serving earlier and it is not a  transfer  on<\/p>\n
request.  It is an option that he exercises by virtue of the<\/p>\n
right  that is made available to him.  In  the Manual, under<\/p>\n
Chapter  II  dealing  with General  Conditions  of  Service,<\/p>\n
Paragraph 226 deals with transfers.  It reads thus :<\/p>\n
            “Ordinarily,  a  railway servant  shall  be
\n    employed  throughout his service on the railway  or
\n    railway  establishment to which  he  is  posted  on
\n    first  appointment and shall have no  claim  as  of
\n    right  for  transfer to another railway or  another
\n    establishment.   In  the  exigencies  of   service,
\n    however,  it  shall  be open to  the  President  to
\n    transfer   the   railway  servant  to   any   other
\n    department  or  railway  or  railway  establishment
\n    including a project in or out of India.”\n<\/p><\/blockquote>\n
So,  under normal circumstances, a railway servant  will  be<\/p>\n
employed   throughout  in  the  same  railway   or   railway<\/p>\n
establishment.   But medical incapacity and diminishment  of<\/p>\n
vision at the age of 36 is not an ordinary situation, so  in<\/p>\n
that situation, the rule does not apply.  Moreover, the same<\/p>\n
rule states :\n<\/p>\n<\/p>\n
            “Railway  Ministry’s decision.  –  Requests
\n    from  railway servants in Groups C & D for transfer
\n    from  one railway to another on grounds of  special
\n    cases of hardships may be considered favourably  by
\n    the    railway    administration.     Such    staff
\n    transferred  at their request from one  railway  to
\n    another   shall  be  placed  below   all   existing
\n    confirmed  and  officiating staff in  the  relevant
\n    grade   in   the  promotion  group   in   the   new
\n    establishment,    irrespective    of    date     of
\n    confirmation  or length of officiating  service  of
\n    the transferred employees.”\n<\/p><\/blockquote>\n
Therefore, on the Railway Ministry’s decision, such requests<\/p>\n
can  be considered in special cases of hardship.  A case  of<\/p>\n
an   employee   who  has  suffered  medical  disability   is<\/p>\n
indisputably a case of hardship.\n<\/p>\n<\/p>\n
        16. Therefore, the writ petitioner’s prayer deserves<\/p>\n
to  be granted since that is a right given to him in law and<\/p>\n
the rules can also be construed so as to advance the objects<\/p>\n
of  the Act and to protect the rights of the person who  has<\/p>\n
been  medically incapacitated.  I am inclined to agree  with<\/p>\n
Dharmarao  Elipe,  J.   The  writ  petition  is,  therefore,<\/p>\n
allowed.   It  is always open to the Integral Coach  Factory<\/p>\n
and  the  Southern  Railway  to  arrive  at  a  satisfactory<\/p>\n
solution with regard to the fitment of the petitioner  since<\/p>\n
this  should be treated as a special case and not a  routine<\/p>\n
case  of  inter-railway transfer and we earnestly hope  that<\/p>\n
both  these wings of the Ministry of Railways will  consider<\/p>\n
the  case of the petitioner in the spirit of the Act and the<\/p>\n
purpose for which the relevant paragraphs of the Manual have<\/p>\n
been introduced.\n<\/p>\n
glp\/ab<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S. Raghuraman vs Union Of India on 1 October, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-3833","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS. 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