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2013 DIGILAW 333 (GAU)

Union of India v. Pradip Kumar Acharjee

2013-05-22

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. Heard Mr. U.K. Nair; learned Standing Counsel, Railways, assisted by Mr. H.K. Das for the petitioners. Also heard Mr. B.C. Pathak, learned counsel for the respondent. The writ petitioners, by filing this petition under Art. 226/227 of the Constitution of India, take on the order dated 18.1.2010 passed by the Central Administrative Tribunal, Gauhati Bench, Guwahati (hereinafter referred to as Tribunal only) in O.A. No. 183/2008 whereby and whereunder, the learned Tribunal set aside and quashed the communication dated 14.7.2008 issued by the Deputy Chief Personnel Officer (GAZ) with further direction to carry out the earlier directions dated 27.4.2001 in O.A. No. 172/1998 as well as directions dated 13.12.2007 issued in O.A. No. 63/2007 taking into consideration the provision of Section 47(2) of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" (hereinafter referred to as Equal Rights Act in short) and also the Railway Board's order dated 30.4.2007/9.4.2007. 2. The facts relevant for the purpose of disposal of this writ petition, are set out hereunder: (i) The respondent is a B.E. (Electrical) degree holder and on being duly selected, was appointed initially as Electrical Foreman in the NF Railway. He was promoted to the post of Senior Electrical Foreman now designated as Senior Section Engineer, (Electrical), on 7.8.1996. (ii) The Railway authorities issued office order No. 12 of 1998 (Elect) on 24.6.1998 promoting 9 (nine) employees to the rank of Asstt. Electrical Engineer excluding the respondent. Being aggrieved by his non-selection, he approached the learned Tribunal in July, 1998 by filing O.A. No. 172/98. The learned Tribunal by his order dated 27.4.2001 allowed the said OA declaring the action of the Railways as vitiated with illegality and directed the Railways to hold review DPC against the vacancies on the basis of the ACRs sans the ACRs for the years 1993-94 and 1995-96. For the sake of fairness, it was also directed that the Railways should take steps to cause fresh medical examination of the respondent/applicant in the said OA. (iii) The present writ petitioners, approached this Court seeking judicial review of the Tribunal's aforesaid order by filing W.P. (C) No. 7249/2001, seeking judicial review of the aforesaid order dated 27.4.2001 passed by the learned Tribunal. (iii) The present writ petitioners, approached this Court seeking judicial review of the Tribunal's aforesaid order by filing W.P. (C) No. 7249/2001, seeking judicial review of the aforesaid order dated 27.4.2001 passed by the learned Tribunal. (iv) In the meantime, in compliance to learned Tribunal's order dated 27.4.2001 aforesaid, the Railway authorities called for a medical test on 16.01.2006 but the respondent was again found unfit for promotion to Group 'B' post in technical category as per medical certificate issued by the Senior Divisional Medical Officer of the Railway, Maligaon, Guwahati. Consequent upon holding of fresh medical test as per direction of the learned Tribunal, this Court by a judgment & order dated 07.11.2006 closed the aforesaid W.P. (C) No. 7249/2001 as being infructuous. (v) The respondent again approached the learned Tribunal on 12.3.2007 by filing OA No. 63/07 contending inter alia that the medical report dated 16.1.2006 and the subsequent non-consideration of his promotion is in violation of the provisions of Equal Rights Act. During pendency of the said OA the respondent submitted representation to the Railway authorities for reconsideration of his case in view of the Railway Board's letter No. 2005/H/5/13 dated 9.4.07 which provides for relaxed medical standards with a prayer for consideration of his case under Section 47(2) of the Equal Rights Act. The aforesaid OA was disposed of by the learned Tribunal vide an order dated 13.12.2007 directing the Railway administration to dispose of the said representation dated 11.12.2007 in accordance with law issuing a speaking order to be communicated to the respondent within a period of 2 (two) months from the date of receipt of the order. In compliance to the learned Tribunal's order aforesaid, the Railway authorities examined the respondent's case in details and passed a speaking order dated 14.7.2008 disposing the representation dated 11.12.2007. The Railway authorities rejected the respondent's prayer for promotion. (vi) The respondent being aggrieved, again filed OA No. 183/08 assailing, inter alia, the communication/order dated 14.7.2008 whereby his representation was rejected. The learned Tribunal vide its order dated 18.1.2010 disposed of the said OA requiring the present petitioners (Railway authorities) to carry out the directions issued by the learned Tribunal, namely the order dated 27.4.2001 in O.A. No. 172/98 as well as the directions dated 13.12.2007 in O.S. No. 63/07. The learned Tribunal vide its order dated 18.1.2010 disposed of the said OA requiring the present petitioners (Railway authorities) to carry out the directions issued by the learned Tribunal, namely the order dated 27.4.2001 in O.A. No. 172/98 as well as the directions dated 13.12.2007 in O.S. No. 63/07. The respondent authorities were further required to take into consideration the provision of Section 47(2) of the Equal Rights Act. 3. Mr. Nair, learned Standing Counsel, appearing for the petitioners, submits that the earlier directions of the learned Tribunal vide orders dated 27.4.2001 in O.A. No. 172/98 and 13.12.07 in O.A. No. 63/07, have already been complied with inasmuch as fresh medical examination of the respondent was conducted and also a review DPC was held for consideration of his case for promotion to Group 'B' post and as such the impugned judgment and order dated 18.1.10 passed in O.A. No. 183/08 directing the petitioners to carry out the learned Tribunal's earlier directions/order aforementioned is wholly unjustified, illegal and unsustainable under the law and the same is liable to be set aside. Mr. Nair further submits that for promotion from non-gazetted post to gazetted rank in the Electrical Engineering Department, one has to pass a strict medical test, particularly concerning the visual acuteness and the medical test includes test of colour vision as the Railway trains are controlled and run by colour signal. The Railway Medical Officer, after holding due medical examination, declared the respondent unfit for promotion to Group 'B' post in technical category and as such the respondent failed to fulfill the minimum requirement for promotion to higher post in the technical category. The impugned direction of the learned Tribunal, according to Mr. Nair, would amount to insistence on promotion of a visually unfit person to higher technical post and such a direction is liable to be set aside as being illegal and unsustainable under the law. 4. In the written statement filed in O.A. No. 172/98, the Railways disputed the claim of the respondent stating inter alia that-- (i) Adverse entries contained in the ACR for the year ending 31.3.1995 was duly communicated to the applicant. (ii) Non-communication of favourable entries did not nullify the adverse remarks. (iii) The promotion of the applicant as Senior Electrical Foreman (Non-gazetted cadre) has no bearing with Group 'B' selection. (ii) Non-communication of favourable entries did not nullify the adverse remarks. (iii) The promotion of the applicant as Senior Electrical Foreman (Non-gazetted cadre) has no bearing with Group 'B' selection. (iv) The Selection Committee recommended only the eligible persons for promotion and the applicant was found not eligible. (v) The applicant did not qualify in the medical test. Whereas in the Writ Petition No. 7249/2001, which was filed against the learned Tribunal's order dated 27.4.2001, the Railways took the following grounds-- (i) The applicant was not promoted both on count of not getting minimum qualifying marks of 15 and for not having a clear medical Certificate. (ii) The learned Tribunal acted beyond jurisdiction and erred in law in directing to consider the case of the applicant by holding review DPC on the basis of the ACRs sans the ACRs for the years 1993-94 and 1995 to 1996. (iii) That the non communication of the adverse remarks in the ACR for 1994-95 did not render the adverse remarks non est. (iv) That the applicant made no prayer to set aside and quash the order of promotion of any of the proforma respondents. (v) That there is no vacancy to accommodate the applicant without reverting any one of the 9 proforma respondents/promotees. Whereas the petitioner Railway authorities in the instant writ petition have laid much emphasis on the medical certificate in which the medical officer declared the respondent unfit for promotion to Group 'B' post in technical category although the respondent has rendered long service since 7.8.1996 in the post of Senior Electrical Foreman, now designated as Senior Section Engineer, Electrical, without any blemish which proves that the respondent has been performing all field duties including foot plat duties assigned to him like any other electrical duty. The respondent, in fact, is not unfit for promotion to the said post due to deficiency found by the medical officer inasmuch as the medical report does not say that the respondent is not colour blind. The petitioner Railway authorities failed to consider the respondent's case in the light of relaxation provided in the medical standard in terms of provision under Section 47(2) of the Equal Rights Act. The petitioner Railway authorities failed to consider the respondent's case in the light of relaxation provided in the medical standard in terms of provision under Section 47(2) of the Equal Rights Act. The order dated 14.7.2008 issued by the petitioner Railway authorities purportedly disposing the representation of the respondent is not a speaking order in real sense and thereby the petitioners failed to comply with the directions issued by the learned Tribunal vide order dated 13.12.2007. 5. In reply to submissions of the learned counsel for the respondent, it is argued by Mr. Nair, learned counsel for the petitioners that the provisions under Section 47(2) of the Equal Rights Act is not attracted in respect of the respondent's case inasmuch as he was not denied the promotion on account of his disabilities. What had actually taken place, as argued by the learned Standing Counsel, is that there being a prescription that the colour perception is of required minimum standard for a particular post and a person not possessing it is denied promotion, it can not be said that such denial of promotion is on the ground of disability. The denial of promotion in the said circumstances is rather on the ground of non-fulfillment of a minimum required standard/qualification. In support of the said submission, Mr. Nair relies on the judgment dated 9.7.2009 rendered by the Hon'ble Supreme Court in Union of India v. Devendra Kumar Panth & Ors. (Annexure 4 to the writ petition). 6. Having heard the submissions made by the learned counsel for the parties, we have found that in the present case there is only one pertinent question involved for decision by this Court. The question is whether the respondent, on being declared unfit for promotion, could be given promotion to Group 'B' post in the technical category in the light of relaxation provided in the medical standard in terms of provision under Section 47(2) of the Equal Rights Act. What is to be noted in this case is that the respondent has not challenged the medical report dated 16.01.2006 whereby he was declared unfit for promotion to Group 'B' post in technical category. Since the respondent has not challenged the medical report it can be accepted that he has admitted the position that he was not fit for promotion to the said post in technical category. Since the respondent has not challenged the medical report it can be accepted that he has admitted the position that he was not fit for promotion to the said post in technical category. What he has asserted is that he has been serving in the lower technical post in the field and since the authorities concerned have not questioned his ability or capability to perform the duties assigned to him, he should be given promotion to the higher technical post by providing him benefit of medical fitness by relaxing the standard in the medical test as emphasized under Section 47(2) of the Equal Rights Act. For better appreciation, the above provision of law is quoted hereunder: 47. Non-discrimination in Government employment.--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefit: 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. 7. Under the aforesaid provision of law, it is found that no promotion shall be denied to a person merely on the ground of his disability provided the appropriate Govt., 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. This provision has to be read with sub-section (1) of Section 47 of the said Act which provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. This provision has to be read with sub-section (1) of Section 47 of the said Act which provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. It is also provided that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. Further it is provided 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. The provision under Section 47 of the said Act clearly provides that even an employee who is otherwise eligible for promotion save his physical unfitness or disability, should not be deprived of promotion in general without looking for a chance to promote or accommodate him against a suitable post in the higher rank by relaxing the standard of medical or physical fitness as may be found suitable as per his physical condition/fitness. The said section of law provides a fair chance for promoting/accommodating such person even by creating supernumerary post. 8. We have gone through the official file/record pertaining to O.A. No. 183/2008 as produced by the learned Standing Counsel, Railways, which contains the communication bearing No. E(GP) 80/2/8 dated 31.10.1991 issued by the Director, Establishment (GAZ. P), Railway Board, regarding appointment to Group 'B' post in relaxation of prescribed standard in the medical examination by the Medical Board. The said communication conveyed the Railway Board's decision that the Group 'C' employees who have qualified in the selection for promotion to Group 'B' post but not passing the prescribed medical standard should not be promoted to Group 'B' even on ad hoc basis and accordingly the names of the candidates who did not pass the prescribed medical standard should not be included in the panel. The said communication was issued before enactment of the Equal Rights Act, 1995. After enactment of the said Act the Railway Board had accorded approval to relaxation of prescribed medical standard in terms of provision under Section 47(2) of the Equal Rights Act for railway employees on promotion from non-gazetted to gazetted post. The said communication was issued before enactment of the Equal Rights Act, 1995. After enactment of the said Act the Railway Board had accorded approval to relaxation of prescribed medical standard in terms of provision under Section 47(2) of the Equal Rights Act for railway employees on promotion from non-gazetted to gazetted post. In this regard Railway Board circulated its letter No. 2005/H/5/13 dated 9.4.07 which reads as under-- Advance Correction to para 532 of IRMM, 2000. The following may be added to para 532 of IRMM. 532(4):-- The relaxation of medical standards on promotion from Group 'C to Group 'B' in all categories may however, be considered for specific posts in the concerned Department on case to case basis under the following clause:-- Any one of the conditions may be relaxed in favour of any candidate for special reasons. The relaxation in medical standards in each case should have specific approval of the concerned Board member of Rly. Board. (Authority: Board letter No. 2005/H/5/13 dated 9.4.2007) Note:--1. CMD/Zonal Railway if satisfied with adverse Medical Exam report, can refer the case to PHOD for examining the concerned employee for a suitable posting if available in his department, where if posted, the underlying medical condition shall not compromise the safety & productivity of work. 2. After obtaining the above certification from PHOD, a fresh medical exam may be processed for the specified post. 3. The report of re-medical exam if in favour of the employee, will be forwarded through CMD/Zonal Railway to DG/RHS for obtaining the approval of concerned Railway Board Member. 4. The Board decision shall be communicated to Zonal Railway for further action. 9. What transpires from the above Railway Board's circular/communication is that relaxation in medical standard has been provided but it should be considered on case to case basis in favour of the candidates for special reasons with specific approval of the concerned Railway Board member and if the CMD/Zonal Railway is satisfied with the adverse medical examination report, it can refer the case to PHOD for examining the concerned employee for a suitable post subject to availability of post in the department. In the said circular/communication a provision has also been made for fresh medical examination for the specified post. 10. It is submitted at the Bar that the aforesaid circular/communication of the Railway Board is still in force. As per the submission of Mr. In the said circular/communication a provision has also been made for fresh medical examination for the specified post. 10. It is submitted at the Bar that the aforesaid circular/communication of the Railway Board is still in force. As per the submission of Mr. Nair, learned Standing Counsel appearing for the petitioners, the aforesaid provision of the Act is not applicable to the present case and the respondent is not entitled to promotion to Group 'B' post due to medical unfitness or below the standard prescribed by the Board for being qualified for promotion to the said post. The admitted factual position is that the medical officer who examined the respondent was satisfied that the respondent was not fit for promotion and his case was not sent up for fresh medical examination. If it is accepted that the respondent was found medically unfit his case should have been forwarded for re-examination with due approval of the authority concerned. No process was initiated towards this end. At the same time, it is to be noted that the respondent also did not approach the authorities concerned for fresh medical examination as provided under the aforesaid circular/communication of the Railway Board. At this stage, it would be improper on our part to make any observation whether the respondent's case should be forwarded for fresh medical examination by appropriate medical authority so as to have a fresh report or fitness certificate from the higher medical authority. Although no demand has been made by the respondent for such fresh medical examination, the writ Court, in our considered view, for the benefit of the respondent and also in the interest of justice, can direct the Railway authorities to refer the respondent to higher medical officer/authority for fresh medical examination taking into consideration that the respondent has been rendering service to the Railways for a long period of time and till now he has not been declared unsuitable for the duties he has been assigned with. The question as to whether the respondent should or should not be given promotion to the Group 'B' post in the technical category is a matter which could be decided only after fresh medical examination of the respondent and obtaining the report thereof in future. The question as to whether the respondent should or should not be given promotion to the Group 'B' post in the technical category is a matter which could be decided only after fresh medical examination of the respondent and obtaining the report thereof in future. Hence, at the moment we refrain from making any further discussion on it or other issues involved in this case leaving the same to be decided by the authorities concerned after fresh medical examination and obtaining a report thereof. 11. In view of above discussion and on the face of the attending facts and circumstances of the case, we hold that the learned Tribunal as well as the Railway authorities proceeded on a wrong premises not contemplated under the provisions of Equal Rights Act in as much as the respondent has not been sent up to concerned higher medical officer/authority of the Railways for fresh/further medical examination for deciding the respondent's claim for promotion under the provision of Section 47 of the said Act and also in the light of Railway Board's circular dated 9.4.2007 as mentioned and quoted above. We, therefore, set aside the impugned orders of the learned tribunal as well as the Railway's communication dated 14.7.2008 as wholly in contravention of provision of Section 47 of the Equal Rights Act, and direct the petitioner Railway authorities to send up the respondent to concerned higher medical officer/authority of the Railways for holding fresh medical examination and obtaining necessary fitness certificate or medical report so that the respondent's grievance for promotion could be considered by the appropriate authority as provided in the Railway Board's circular dated 9.4.2007 aforementioned and decide the entire matter within a period of 6(six) months from to-day. With the aforesaid observations and directions, this petition stands disposed of. Parties are directed to bear their own cost. The departmental file aforementioned may be returned through Mr. Nair, learned Standing Counsel, Railways.