Judgment :- (1.) THIS appeal is directed against the judgment and order dated 23.2.2004 passed by a learned Single Judge of this Court in W.P. No. 2524 (W) of 2004 whereby and where under the writ petition filed by the appellants/petitioners was dismissed after holding that it was without any merit. (2.) THE writ petition was filed by these appellants/petitioners challenging the order dated 15.1.2004 which was made Annexure -"p 8 therein and which was a letter, of the Commanding Officer of the 8bn/rpsf/crhj addressed to the Chief Medical Superintendent informing him that in terms of the order of the Railway Board dated 07.11.03, the appellants/petitioners (hereinafter referred to for the sake of brevity as the appellants) who had been medically decategorized would be directed to the Chief Medical Superintendent of northern Railway Hospital for re-medical examinations with complete case papers including the previous Medical Boards findings. (3.) THE appellants had also prayed for an order commanding upon the respondents to at least allow the appellant Nos. 2 and 3 to join on the posts of the Junior Clerks pursuant to the order dated 16.1.2004 which was marked annexure - p5 to the writ petition by reason whereof and in terms of the memorandum dated 8.1.2004 issued by the DRM (P)/kgp, these two appellants who had also been decategorised were absorbed on the alternative posts of junior Clerks. (4.) THE appellants also made a prayer that they should be considered for suitable alternative appointments as they had been similarly decategorized. (5.) IT appears that thereafter, another order was passed on 24.1.2004 under the seal and signature of the Commanding Officer, 8th Battalion/r P S F, chittaranjan (W. B.) being a movement order whereby and whereunder, all the appellants, who had already been decategorized, were spared and directed to move by the Poorva Express for purposes of reporting to the Chief Medical health Director, Northern Railway, Baroda House for their re-medical examination. (6.) THE facts, very briefly stated, are that while the petitioner No. 1 was appointed as a Sub-Inspector of the Railway Protection Special Force, the petitioner Nos. 2 to 8 were appointed as constables under the same force and they were all posted at the 8th Battalion R P S F Chittaranjan. (7.) AFTER having served a certain period of time, the appellant No. 1 (Tejen mitra) was declared medically unfit for the post of a Sub-Inspector on 4.8.2003. 2 to 8 were appointed as constables under the same force and they were all posted at the 8th Battalion R P S F Chittaranjan. (7.) AFTER having served a certain period of time, the appellant No. 1 (Tejen mitra) was declared medically unfit for the post of a Sub-Inspector on 4.8.2003. Consequently, a letter was issued on the same day i. e. 4.8.2003 by the Under secretary, Railway Board addressed to the General Manager (P), Eastern railway informing him about the aforementioned development to the effect that the appellant No. 1 had been declared medically unfit for the post of Sub-Inspector, R P S P but was fit for "bee -I" category and below. The Under secretary informed the General Manager (P) that the appellant No. l had requested that he be provided with an alternative job in the Eastern Railway. Consequently, the Under Secretary forwarded the service particulars, medical certificates and willingness letter to the General Manager. (8.) THE said letter was brought on record by the appellants vide Annexure -p4 appended to the said writ petition. (9.) DURING the course of arguments, Mr. Chittaranjan Bag, produced, for the perusal of the Court, photocopies containing various instructions including the instructions issued vide correction slip No. 71 which was circulated by the government of India, Ministry of Railways through their letter No. E (NG)1/ 96/re3/9 (1) issued under the seal and signature of the Joint Director Estt. (N)dated 29.4.1999 and addressed to the General Managers (P), All India Railways and Production Units. The said letter reads thus : (10.) NOW the said Advance Correction Slip No. 71 referred to above reads as follows : "INDIAN RAILWAY ESTABLISHMENT CODE. VOLUME-K FIFTH EDITION 1985) (REPRINT EDITION 1995)Chapter-3, Termination of Service substitute the following Rule for the existing Rule 304: advance CORRECTION SLIP NO. 71 304. (1) A Railway servant who fails in a vision test or otherwise by virtue of disability occurred during service and becomes physically incapable of performing the duties of the post which he occupies should not be dispensed with or reduced in rank but should be shifted to some other post with the same pay scale and service benefits. (2) A Railway servant falling in clause (1) above ceases to perform the duties of the post he is holding from the date he is declared medically unfit for the present post. (2) A Railway servant falling in clause (1) above ceases to perform the duties of the post he is holding from the date he is declared medically unfit for the present post. If such a Railway servant cannot be immediately adjusted against or absorbed in any suitable alternative post he may be kept on a special supernumerary post in the grade in which the concerned employee was working on regular basis before being declared medically unfit pending location of suitable alternative employment for him with the same pay scale and service benefits, efforts to locate suitable alternative employment starting immediately. (Authority : Section 47 (1) of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 and ministry of Railways letter No. E (NG)l/96/re3/9 (l) dated :29/4/1999)" (Quoted from the photocopy produced in Court) (11.) IT appears that on the same day, i. e. 29.4.1999, the Joint Director of the railway Board issued another letter No. E (NG)l/96/re3/9 (2) addressed to the general Managers (P), All Indian Railways and Production Units, the contents whereof read thus : (12.) THE enclosure to the said letter, being the Advance Correction Slip No.77 was incorporated in the Indian Railway Establishment Manual, Vol. I, chapter-Kill. The same deals with the absorption of the medically incapacitated staff on alternative employment. Paragraph 1303 thereof lays down that the railway servants who had been found medically unfit would cease to perform the duties of the posts they were holding from the date they were so declared unfit medically. The said paragraph also provides that no officer had the authority to permit the Railway servant concerned to perform his duties on that post beyond that date and if such a Railway servant could not immediately be adjusted against or absorbed on any suitable alternative post, then he would be kept on a special supernumerary post on the grade on which the concerned employee was working on regular basis before being declared medically unfit. The relevant portions of the same read as follows : "INDIAN RAILWAY ESTABLISHMENT MANUAL volume-I (REVISED EDITION 1989) Chapter XIII -Absorption of Medically Incapacitated Staff in Alternative employment advance CORRECTION SLIP NO. 77 substitute the following for the existing Chapter XIII and paragraphs 1301-1315 therein: chapter XIII absorption of disabled/medically decategorised staff in Alternative employment. 1301. The relevant portions of the same read as follows : "INDIAN RAILWAY ESTABLISHMENT MANUAL volume-I (REVISED EDITION 1989) Chapter XIII -Absorption of Medically Incapacitated Staff in Alternative employment advance CORRECTION SLIP NO. 77 substitute the following for the existing Chapter XIII and paragraphs 1301-1315 therein: chapter XIII absorption of disabled/medically decategorised staff in Alternative employment. 1301. A Railway servant who fails in a vision test or otherwise by virtue of disability acquired during service becomes physically incapable of performing the duties of the post which he occupies should not dispensed with or reduced in rank but should be shifted to some other post with the same pay scale and service benefits. 1302. Classification of Railway servants declared medically unfit:-Railway servants acquiring disability during service and declared medically unfit are divisible into two groups : (i) Those completely disabled for further service in any post in the railway, i. e. those who cannot be declared fit even in the c medical category; and (ii) Those disabled/incapacitated for further service in the post they are holding but declared fit in a lower medical category and eligible for retention in service in posts corresponding to this lower medical category. 1303. The Railway servants both in group (i) and group (ii) of para 1302 above cease to perform the duties of the posts, they are holding from the date they are declared medically unfit for the present post. No officer has the authority to permit the Railway servant, concerned to perform the duties in the post beyond that date. If such a Railway servant cannot be immediately adjusted against or absorbed in any suitable alternative post he may be kept on a special supernumerary post in the grade in which the concerned employee was working on regular basis before being declared medically unfit pending location of suitable alternative employment for him with the same pay scale and service benefits, efforts to locate suitable alternative employment starting immediately. The special supernumerary post so created will stand abolished as soon as the alternative employment is located. Photocopies of the aforementioned Rules which were produced in Court by mr. C. R. Bag, learned Counsel for the respondents are ordered to be retained with the records of this case. The special supernumerary post so created will stand abolished as soon as the alternative employment is located. Photocopies of the aforementioned Rules which were produced in Court by mr. C. R. Bag, learned Counsel for the respondents are ordered to be retained with the records of this case. (13.) SIMILAR orders of being declared medically unfit were passed by the under Secretary in relation to the other appellants also and they were all brought on record in the writ petition and they have also been included in the paper book but for purposes of clarification, it is recorded as follows : (a) The letter pertaining to Suvendu Das, Constable, (appellant No. 2)was issued on 12.12.2002 by the Under Secretary informing the general Manager that he had been declared medically unfit but found fit in B-I category. (b) The letter pertaining to Bidyut Kumar Mondal, constable (appellant no. 3) was issued sometime in the month of August, 2003 by the Under secretary informing the General Manager that he had been declared medically unfit in B-I and B-II category but found fit in C-I and below category of posts with glasses. (c) The letter pertaining to Dileep Kumar S., constable (appellant No. 4) was issued on 9.7.2003, by the Under Secretary informing the general Manager that he had been declared medically unfit for B-I category but found fit for B-II, and below category of posts. (d) The letter pertaining to Nur Hossen, constable, (appellant No. 5) was issued on 9. 8. 2003, by the Under Secretary informing the General manager that he had been declared medically unfit for B-I, B-II, and c-l category but found fit for C-II category. (e) The letter pertaining to Partha Sanyal, Constable (appellant No. 6)was issued on 5.9.2003, by the Under Secretary informing the General manager that he had been declared medically unfit for B-II category and below. (f) The letter pertaining to Manoj Kumar Singh, constable (appellant no. 7) was issued on 1.7.2003, by the Under Secretary informing the general Manager that he had been declared medically unfit for B-I category. (g) The letter pertaining to Arindam Mishra, constable (appellant No. 8)was issued on 16.10.2003, by the Under Secretary informing the general Manager that he had been declared medically unfit for the post of constable but was fit for C-I or C-II category of posts. (g) The letter pertaining to Arindam Mishra, constable (appellant No. 8)was issued on 16.10.2003, by the Under Secretary informing the general Manager that he had been declared medically unfit for the post of constable but was fit for C-I or C-II category of posts. (14.) IT appears that after the appellants were found medically unfit and were decategorised, an Order, in terms of Paragraph 1303 quoted above was passed only in respect of the appellant Nos. 2 and 3 by order dated 16 1.2004 issued from the office of the South Eastern Railway whereby and where under, it was inter alia intimated, that in terms of the memorandum of the DRM (P)/kgp dated 8.1.2004, they had been absorbed on alternative posts of Junior Clerks. (15.) IT is the case of the appellants that so far as the remaining appellants were concerned, they were waiting for similar orders as the one passed on 16.1.2004 but all of a sudden, and one week thereafter, i. e. on 24.1.2004, the impugned movement order was passed. (16.) THE learned Counsel for the appellants has submitted that even prior thereto and after having declared them medically unfit on the dates mentioned, above the respondents had suddenly issued the order dated 15.1.2004 which was challenged in the writ petition by which the Commanding Officer had directed the appellants to report to the Chief Medical Superintendent, Northern railway Hospital for their "reexamination". (17.) ACCORDING to the learned Counsel, once the appellants were decategorised and/or were declared medically unfit, and once they had exercised their power in terms of paragraph 1303 of the Railway Establishment Manual in respect of the appellant Nos. 2 and 3, the respondents could not have once directed the appellants for a "re-medical examination" nor could they have immobilized the order dated 16.1.2004 which was passed qua the appellant Nos. 2 and 3 absorbing them on alternative jobs. They submit that the procedure of periodical re-examination and/or medical examination as contemplated under Rule 514 of the Medical examination Rules, photocopies of which were produced by the learned Counsel appearing for the appellants, could not have been applied upon the appellants. 2 and 3 absorbing them on alternative jobs. They submit that the procedure of periodical re-examination and/or medical examination as contemplated under Rule 514 of the Medical examination Rules, photocopies of which were produced by the learned Counsel appearing for the appellants, could not have been applied upon the appellants. (18.) LEARNED Counsel submits that the aforesaid aspect was not at all considered by the learned Single Judge inasmuch as the impugned judgment proceeds on the basis that it was a case exclusively relating to medical examination and did not proceed to consider the submissions to the effect that a medically decategorised staff could not have been subjected to a re-examination as specifically submitted by them in paragraphs 28 and 29 of the writ petition. The procedure relating to medical examination containing Rule 514 as produced by the learned Counsel for the appellants is ordered to be retained with the records of the case. Rule 514 reads as thus : "514. Periodical Re-examination of serving Railway employees.-(1) In order to ensure the continuous ability of Railway employees in classes a-1, A-2, A-3, B-1 and B-2 to discharge their duties with safety, they will be required to appear for re-examination at the following stated intervals throughout their service. (A) Categories A-l, A-2 and A-3 : (i) At the termination of every period of four years, calculated from the date of appointment, until they attain the age of 45 years and then every two years until the age of 55 years and then thereafter annually, until the conclusion of their service. If an employee in medical category-A has been periodically medically examined at any time within two years prior to his attaining the age of 45, his next medical examination should be held two years from the date of the last medical examination and subsequent medical examinations every two years until 55 years and then annually thereafter until retirement. If however such an employee has been medically examined at any time earlier than two years prior to his attaining the age of 45 years, his next medical examination should be held on the date he attains the age of 45 and subsequent medical examinations every two years thereafter. (Rly Bd. s letter No. 88/5/12 dt. 29/01/93) (B) Categories B-l and B-2 :-On attaining the age of 45 years, and thereafter at the termination of every period of 5 years. (Rly Bd. s letter No. 88/5/12 dt. 29/01/93) (B) Categories B-l and B-2 :-On attaining the age of 45 years, and thereafter at the termination of every period of 5 years. Note : The employees in Railway Protection Force will be re-examined for physical fitness at the termination of every period of three years, calculated from the date of appointment until the conclusion of their service. However, inspectors, Sub-Inspectors, and Assistant Inspectors of the Railway protection Force are to be re-examined for physical fitness and visual acuity on attaining the age of 45 years and thereafter at the termination of every period of five years. (C) Categories C-1 and C-2 :- Will not be required to undergo any re-examination during the course of their service, unless specifically directed. (D) Any Railway employee in service may be required to undergo tests for vision and general physical examination the event of his failure to comply with signals. (E) Workshop staff and another staff in Loco-shed and C and W depots would be exempt from P. M. Es except when such staff are promoted to depots requiring higher medical examination from safety angle. (F) Special Medical Examination : The staff in categories A-1, A-2, A-3 should be sent for special medical examination in the interest of safety under the following circumstances unless they have been under the treatment of a railway Medical Officer : (a) Having undergone any treatment or operation for eye irrespective of the duration of sickness. (b) Absence from duty for a period in excess of 90 days. (c) In case of A-l, A-2 and A-3 an employee may be asked to give an undertaking to his supervisor when reporting back to duty after leave or absence, irrespective of the period, that he has not suffered from any eye disease or undergone an eye operation. " (Quoted from the photocopy produced in Court) (19.) MR. Chittaranjan Bag, learned Counsel appearing for the respondents, has submitted that the appellants being members of a disciplined force and being members of a service under the Union, cannot have any objection to a medical examination, even if they are to be considered for an alternative employment. (20.) WE do appreciate the stand taken by Mr. Chittaranjan Bag, learned Counsel appearing for the respondents, has submitted that the appellants being members of a disciplined force and being members of a service under the Union, cannot have any objection to a medical examination, even if they are to be considered for an alternative employment. (20.) WE do appreciate the stand taken by Mr. Chittaranjan Bag but in the instant case, we are inclined to take the view in line with paragraph 1303 to the effect that once a Member of a force under a para-military service has been declared medically unfit and if he cannot immediately be adjusted or absorbed on any suitable alternative post, then he has to be kept on a supernumerary post in the grade in which he was working before being declared medically unfit. The rule does not provide that once declared medically unfit, the instructions as contained in paragraph 1303 can be bypassed and instead, the concerned decategorised/alrea dy declared medically unfit staff can be once again sent for "re-medical examination" and that too, to such a far-away place under the Northern Railways. (21.) WE are inclined to take this view considering the fact that insofar as the appellant Nos. 2 and 3 are concerned, the respondents apparently acted in terms of paragraph 1303 by passing an order of absorption of those appellants on the posts of Junior Clerks on 16.1.2004. It does not stand to reason therefore nor does this Court comprehend as to how and under what logic, the commanding Officer had passed an order one day prior thereto on 15.1.2004 in respect of all the appellants including the appellant Nos. 2 and 3 directing them to report to the Chief Medical Superintendent, Northern Railways for "re-medical examination". (22.) INTERPRETING and after having read the provisions of paragraph 1303 quoted above, we are of the view that once a Railway servant is declared medically unfit, he has to be given a suitable alternative employment but before that status is conferred, the person concerned has to be kept on a supernumerary post but he cannot be subjected to a "re-examination". He can be ordered to be examined in accordance with law by the concerned authorities of only those departments in which such a medically declared unfit person is absorbed in an alternative status in terms of paragraph 1303 of the Railway Establishment code quoted above. He can be ordered to be examined in accordance with law by the concerned authorities of only those departments in which such a medically declared unfit person is absorbed in an alternative status in terms of paragraph 1303 of the Railway Establishment code quoted above. (23.) FOR the foregoing reasons, we find substance in the submissions made on behalf of the appellants and are therefore, not inclined to accept the submissions of Mr. Chittaranjan Bag, learned Counsel for the respondents. (24.) WE, therefore, set aside the impugned order and we allow the appeal and as a consequence, the writ petition is also allowed. The order of the learned single Judge passed on 23.2.2004 is set aside. The respondents will now proceed to act in terms of paragraph 1303 and in the same manner as they had done in the case of the appellant Nos. 2 and 3. After absorption, if the appellants are required for a medical check up, then they shall obey such an order and subject themselves to such medical check up strictly in accordance with law after considering the observations made hereinabove. (25.) AFTER the aforementioned order was dictated, the learned Counsel for the appellants submitted that for a certain period of time and till the order of the Division Bench was passed on 31.8.2005, the appellants were not allowed to join. We do not wish to pass any order on this aspect save and except to observe that since we have directed the respondents to act in accordance with paragraph 1303, they will do so and they will take all such steps as are necessary to be taken in accordance with law if the appellants file an application for regularization of the period during which they were not allowed to join. (26.) IF urgent xeroxed certified copy of this order is applied for by the parties, the same should be given expeditiously. Appeal allowed.