Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 1670 (MAD)

Union of India v. R. Vincent

2012-04-01

ELIPE DHARMA RAO, M.VENUGOPAL

body2012
Judgment :- ELIPE DHARMA RAO, J. These writ petitions have been filed to issue a writ of certiorari calling for the records relating to the order dated 06.10.2010 passed by the Central Administrative Tribunal, Chennai in O.A.Nos.360/2010 and 359/2010 respectively and to quash the same. 2. The brief facts of the case are as follows: The first respondent in each writ petition is a Graduate in Civil Engineering. They joined the services of the petitioners as Inspector of Works – Grade – I under direct recruitment on 12.02.1989 and 05.01.1990 respectively. The said post was subsequently re-designated as Section Engineer (Works). Thereafter, under the Assured Career Progression Scheme, the first respondent in each case was designated as Senior Section Engineer (Works), which is a Group – C Post. A proposal was made by the petitioners to conduct a test for selection to Group – B post viz., Assistant Divisional Engineer / Assistant Executive Engineer in the Civil Engineering Department of the petitioners against 70% quota in accordance with the provisions contained in the Indian Railway Establishment Manual. Accordingly, a Notification dated 28.10.2009 in Proceedings No.P(G)532/70% Regular 2009-2012 was issued by the petitioners. The first respondent in each case applied for the said post and they appeared for the written examination on 10.01.2010 and 24.01.2010 respectively. In the written test, totally 78 candidates were selected in respect of 57 vacancies. The first respondent in each case passed the written examination and they were placed at Serial Nos.16 and 15 respectively. Pursuant to the same, they were directed to undergo medical examination test in the Railway Hospital. They also underwent the medical examination test, in which, they were found unfit and the same was communicated by the third petitioner to each one of them on 31.03.2010 and 01.03.2010 respectively. Therefore, their names were excluded from the list of candidates selected for viva-voce. Challenging the said order passed against each one of them, they filed O.A.Nos.360/2010 and 359/2010 respectively before the Central Administrative Tribunal. The Tribunal, by common order dated 06.10.2010 disposed of the original applications with a direction to the petitioners herein to consider the name of the first respondent in each case for any other post in Group-B Cadre, without reference to their medical unfitness and to promote them, if they are otherwise found suitable. The Tribunal, by common order dated 06.10.2010 disposed of the original applications with a direction to the petitioners herein to consider the name of the first respondent in each case for any other post in Group-B Cadre, without reference to their medical unfitness and to promote them, if they are otherwise found suitable. Aggrieved by the said order, the petitioners have filed the present writ petitions seeking for the relief referred to above. 3. We have heard Mr.V.Radhakrishnan, learned senior counsel appearing for the petitioners and Mr.Balan Haridas, learned counsel appearing for the first respondent. 4. Learned senior counsel appearing for the petitioners submitted that, in the Notification issued by the petitioners, it was clearly mentioned that the candidates who qualify in the written test will be subjected to medical examination under Medical Manual 530(a) before conducting viva-voce test and only the candidates who qualify in the written examination and medical test will be called for viva-voce test in terms of Railway Board's letter dated 31.10.1991 and though the first respondent in each case passed the written examination conducted for selection to Group-B post viz., Assistant Divisional Engineer / Assistant Executive Engineer in the Civil Engineering Department, yet, they were found medically unfit for holding the said post and therefore, they were not called for the viva-voce test. He also submitted that, under paragraph 522(2) of the Indian Railway Establishment Manual, Volume – I, as against the order declaring the first respondent in each case medically unfit for promotion to Group-B service, they ought to have filed an appeal before the Chief Medical Director within a period of seven days from the date of receipt of the notice of failure to pass the medical examination; however, without exhausting the alternative remedy available to them, they approached the Tribunal by filing original applications and the Tribunal, without considering the case of the petitioners in a proper perspective, had passed the order under challenge. In addition to the above, they are not entitled to seek benefit under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Therefore, the order under challenge is liable to be set aside. In support of the above submissions, learned senior counsel appearing for the petitioners relied upon the decisions of the Hon'ble Supreme Court of India in the cases reported in (2009) 5 SCC 515 (K.A.Nagamani Vs. Therefore, the order under challenge is liable to be set aside. In support of the above submissions, learned senior counsel appearing for the petitioners relied upon the decisions of the Hon'ble Supreme Court of India in the cases reported in (2009) 5 SCC 515 (K.A.Nagamani Vs. Indian Airlines and Others) and (2009) 14 SCC 546 (Union of India Vs. Devendra Kumar Pant & Others). 5. On the other hand, according to the learned counsel appearing for the first respondent in each case, they were medically found fit at the time of their respective appointment in Group-C post; the exact reason for excluding the name of the first respondent in each case in the list of candidates selected for viva-voce test had not been assigned by the third petitioner; if at all they have become medically unfit for Group-B service, it has so happened during the course of their employment with the petitioners and even assuming that they are medically unfit to hold Group-B post, they are entitled to get protection under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and therefore, the order passed by the Tribunal cannot be interfered with in any manner. 6. In the light of the submissions made by the learned counsel appearing on either side, we perused the entire materials available on record to find out whether the first respondent in each case is entitled to the relief sought for by each one of them or not. 7. Before proceeding to decide as to whether the first respondent in each case is entitled to the benefit of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 or not, it is relevant to extract section 47 of the said Act , which reads as follows: "47. Non-discrimination in Government employment: (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he ws holding, could be shifted to some other post with the same pay scale and service benefits. Non-discrimination in Government employment: (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he ws holding, could be shifted to some other post with the same pay scale and service benefits. Provided further that, if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability. Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." 8. In the light of the above provision of law, now we have to find out whether the first respondent in each case is entitled to be promoted to Group – B post or not. Admittedly, the first respondent in each case joined the services of the Southern Railway as Inspector of Works – Grade – I under direct recruitment on 12.02.1989 and 05.01.1990 respectively. The said post was subsequently re-designated as Section Engineer (Works) and later on, under the Assured Career Progression Scheme, the first respondent in each case was designated as Senior Section Engineer (Works), which is a Group – C Post. A Notification dated 28.10.2009 was issued by the petitioners calling for applications from candidates for promotion to Group – B post viz., Assistant Divisional Engineer / Assistant Executive Engineer in the Civil Engineering Department of the petitioners against 70% quota, in accordance with the provisions contained in the Indian Railway Establishment Manual. The condition stipulated in the Notification dated 28.10.2009 is that, those who qualify in the written test, will be subjected to medical examination under Medical Manual 530(a), before conducting the viva-voce test and only those who qualify in the written examination and medically certified fit for Group B service, will be called for viva-voce test in terms of Railway Board's Letter No.E (GP) 80/2/8 dated 31.10.1991. In this case, admittedly, the first respondent in each case appeared for the written examination and they also passed the same. In this case, admittedly, the first respondent in each case appeared for the written examination and they also passed the same. Thereafter, they were sent for medical examination However, since according to the petitioners, they were found medically unfit, they were not called for the viva-voce test. 9. According to the petitioners, since the first respondent in each case was aware of the fact that each one of them should qualify in the written examination as well as in the medical examination before attending the viva-voce test, they ought to have challenged the condition of medical fitness mentioned in the Notification and they, having participated in the selection as per the said Notification, cannot now turn round and challenge the selection process, which is purely an after thought. The petitioners also rely upon the decisions of the Hon'ble Supreme Court of India in the cases reported in (2009) 5 SCC 515 (K.A.Nagamani Vs. Indian Airlines and Others) and (2009) 14 SCC 546 (Union of India Vs. Devendra Kumar Pant & Others) to contend that the first respondent in each case, having participated in the selection process without any demur or protest, cannot be allowed to turn round and question the very same process, having failed to qualify for promotion. 10. It may be true that the first respondent in each case passed the written examination and each one of them was found medically unfit in the medical examination conducted by the Railway Hospital, on the basis of which, their names were excluded from the list of candidates selected for attending the viva-voce test. But, however, the petitioners have not produced even an iota of material to show the nature of medical unfitness suffered by the first respondent in each case. The petitioners' only contention is that, the first respondent in each case ought to have challenged the condition of medical fitness mentioned in the Notification. It may be true that the first respondent in each case had not challenged the said condition mentioned in the Notification, probably and presumably, for the reason that they would have never felt that as a result of such medical examination, they would be disabled from being promoted to Group B post. It may be true that the first respondent in each case had not challenged the said condition mentioned in the Notification, probably and presumably, for the reason that they would have never felt that as a result of such medical examination, they would be disabled from being promoted to Group B post. It is not also the case of the petitioners that there is no other Group B post, except the one for which the Notification was issued, for accommodating the first respondent in each case. As already stated, in the absence of any material produced by the petitioners to show the nature of medical unfitness suffered by the first respondent in each case and in view of the fact that the petitioners themselves have stated that the first respondent in each case passed the written examination, the petitioners ought to have pressed into service section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, especially, when sub-section (1) to section 47 of the Act in clear terms provides that there cannot be any discrimination in Government employments and no establishment shall dispense with or reduce in rank an employee whatsoever during his service and sub-section (2) specifically provides that no promotion shall be denied to a person merely on the ground of his disability. In this case, admittedly, the petitioners have not produced even a scrap of paper l to show the nature of disability suffered by the first respondent in each case. .Though, it is contended on behalf of the petitioners that the first respondent in each case, having participated in the selection process without any demur or protest, cannot be allowed to turn round and question the very same process, they having failed to qualify for promotion, yet, in the light of the provisions of law referred to in sub-sections (1) and (2) of the said Act and in the absence of any document produced by the petitioners to substantiate their claim of medical unfitness suffered by the first respondent in each case, we are not inclined to accept the said contention raised on behalf of the petitioners. The above conclusion arrived at by us makes us to hold that the non-challenge to the condition of medical fitness mentioned in the Notification by the first respondent in each case, in our considered view, would not in any way defeat the equitable relief to be granted in favour of the first respondent in each case. Even if the first respondent in each case is medically unfit to hold Group – B post, even then, they cannot be denied the same, having regard to the fact that they were employed with the petitioners for quite a long time and they had suffered such disability during the course of their employment with the petitioners and therefore, it cannot be said that section 47 of the Act is not applicable to the first respondent in each case to deny promotion to them. Since the facts and circumstances of the present case are different from the facts and circumstances available in the decisions of the Hon'ble Supreme Court of India referred to above and relied upon by the learned senior counsel appearing for the petitioners, we are not inclined to hold that the said decisions can be applied against the first respondent in each case. 11. In addition to the above, denial of promotion by the petitioners to the first respondent in each case is contrary to paragraph 189A of the Establishment Manual, which has been framed on the basis of the provisions contained in section 47 of the said Act. Paragraph 189A reads thus: "189A: Promotions of Persons with Disability: There shall be no discrimination in the matter of promotion merely on ground of physical disability. This will apply to the categories of staff who have been recruited from the open market against the vacancies reserved for recruitment of physically handicapped and the staff who acquire disability during service and are absorbed in suitable alternative employment as per provisions contained in Chapter XIII. This will apply to the categories of staff who have been recruited from the open market against the vacancies reserved for recruitment of physically handicapped and the staff who acquire disability during service and are absorbed in suitable alternative employment as per provisions contained in Chapter XIII. Such staff will be considered for promotion in their turn based on their eligibility and suitability along with others in the selection / suitability / trade test, for promotion to higher grade post." Having regard to the materials available in Paragraph 189A of the Establishment Manual, we are of the view that the conduct of the petitioners in denying promotion to the first respondent in each case is contrary to the said material available in the Establishment Manual, which cannot be legally sustained. 12. The Tribunal, on the basis of the materials available on record, has found that, though the petitioners have taken a stand that Group B post is a selection post and not a recruitment post, yet, they have not come forward with proper explanation as to why the first respondent in each case cannot be accommodated in any other work not connected with train working / use of trolley on open line in Group B service. It is pertinent to note here that the petitioners have also not produced any material before this court to show the Group B posts available in the Southern Railway, except the one for which the medical test was conducted and as to why the first respondent in each case cannot be accommodated in any other Group B post. The Tribunal has also found that the petitioners did not deny that there are no other posts in Group B cadre to accommodate the first respondent in each case. In the decision of the Hon'ble Supreme Court of India in Civil Appeal No.5178 / 2004 (Union of India Vs. Sanjay Kumar Jain) and relied upon by the Tribunal to grant relief to the first respondent in each case, among other things, the Hon'ble Supreme Court of India has held in clear terms that no employee shall be discriminated on the ground of disability in terms of section 47 of the said Act. Therefore, we are of the opinion that the Tribunal has not committed any error in passing the order under challenge. 13. Therefore, we are of the opinion that the Tribunal has not committed any error in passing the order under challenge. 13. Having regard to all the materials noted above, we see no reason to interfere with the order under challenge and the same is confirmed. The writ petitions are dismissed and there will be no order as to costs. Connected miscellaneous petitions are closed. The petitioners are directed to implement the order passed by the Tribunal within a period of eight weeks from the date of receipt of a copy of this order.