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2021 DIGILAW 1777 (MAD)

Chief Security Commissioner, Railway Protection Force, Southern Railway v. Uday Singh Meena

2021-06-18

KRISHNAN RAMASAMY, PUSHPA SATHYANARAYANA

body2021
JUDGMENT : PUSHPA SATHYANARAYANA, J. The above appeal is preferred by the Railway Protection Force, as an employer aggrieved by the order passed by the learned single Judge dated 21.09.2020 made in W.P. No.10078 of 2013, quashing the order of termination of services of the respondent herein dated 10.10.2012. 2. The respondent herein had applied for the selection conducted by the Appellants Force for the post of Sub Inspector in Railway Protection Force (RPF). The respondent qualified in the physical endurance test, written test, interview and also the medical test on 09.04.2009. He was also sent for the training for the post of Sub Inspector at the RPF Academy, Kharagpur. After completion of the training on 10.06.2010, he was appointed as a temporary Sub Inspector at RPF at Trichirapalli with effect from 22.04.2010. He was put on probation for two years. 3. On 29.07.2011, the respondent was directed to undergo training in Weapon and Tactics course and also for medical examination. He was examined by the Medical Board of Railways on 09.12.2011. On 10.02.2012 he was found not fit for the post of Sub Inspector in RPF in BEE One category as glasses were not permitted for RPF for such category, but he was found eligible for Bee One level and below for other jobs. In view of the same, a show-cause notice was issued on 18.04.2012 by the second appellant as to why the probation of the respondent should not be terminated. The same was replied by the respondent by enclosing a copy of the certificate issued by the Government Eye Hospital, Egmore, certifying that his vision was correct. Accordingly his probation was extended on 14.06.2012 by another six months. In fact a supernumerary post was created on 16.07.2012 and the respondent was accommodated. On 30.07.2012, he was once again referred to the Medical Board, which confirmed its earlier report dated 10.02.2012. Based on the same, the respondent was terminated on 10.10.2012. The respondent had filed an appeal before the first appellant on 29.10.2012, which was dismissed on 08.03.2013. The said orders were challenged by the writ petitioner in W.P. No.10078 of 2013. 4. The writ petitioner had mainly contended that he was entitled to be appointed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The respondent had filed an appeal before the first appellant on 29.10.2012, which was dismissed on 08.03.2013. The said orders were challenged by the writ petitioner in W.P. No.10078 of 2013. 4. The writ petitioner had mainly contended that he was entitled to be appointed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. According to the petitioner, the Medical Board had found him to be unfit only for the post of Sub Inspector in RPF in Bee One category, as glasses were not permitted for the RPF. However, the writ petitioner was found fit for Bee One and below for other jobs. Thereafter only, the probation of the writ petitioner was extended by six months and a supernumerary post was created to accommodate the writ petitioner/respondent. 5. The appellants herein resisted the writ petition contending that on 09.12.2011, the Medical Board at Railway Hospital, Perambur, examined the respondent and found him that he had distant vision. However, the Board has stated that he was found medically unfit for Bee One category and fit in Bee One and below for other jobs as glasses were not permitted only for RPF. The respondent had produced the certificate issued by the Medical Officer from the State Government, which was not acceptable to the appellants, as medical fitness of the Railway servant, can be certified only by the competent authority, namely the Railway Medical Board. Despite the same, the medical fitness certificate submitted by the respondent was referred to the Chief Medical Director, Southern Railway for obtaining clarification. Accordingly, reexamination was done on the petitioner on 30.07.2012. Once again it was certified that the respondent was medically unfit for the post of Sub Inspector in RPF. 6. It was further contended that as he was already appointed and was in probation, the probation period was extended by six months in terms of Rule 57.1 of Railway Protection Force Rules, 1987. Admittedly, a supernumerary post was created in the same grade only in order to accommodate the writ petitioner and facilitate him to get the salary, since he was found to be not fit for the post of Sub Inspector in RPF. Since he was unfit, his probation could not be confirmed contrary to RPF Service Rules and he was terminated in terms of Rule 57.3 of RPF Service Rules. 7. Since he was unfit, his probation could not be confirmed contrary to RPF Service Rules and he was terminated in terms of Rule 57.3 of RPF Service Rules. 7. The learned Single Judge, after elaborately considering the medical reports submitted by the Medical Board of the Railway, discussed the writ petitioner's eligibility for employment, as per Persons with Disabilities Act, 1995. Placing reliance on a decision of the Hon'ble Supreme Court in Kunal Singh vs. Union of India reported in (2003) 4 SCC 524 , the learned single Judge held that the benevolent provisions of the Act, 1995 has to be read in favour of the employee for his survival and not otherwise. Thus holding that the writ petitioner was entitled for appointment, the learned single judge allowed the writ petition directing the respondents therein to reinstate the writ petitioner in service in an equivalent post which in no way affects the security and safety of the public, co-employees and the employee himself and further also safeguards the interests of the administration. Even, if such post is not available, the learned single Judge has directed to create a supernumerary post and reinstate the petitioner till such time any post falls vacant. The learned single Judge had further held that the writ petitioner will be entitled to continuity of service from the date of his termination, but would not be entitled to back wages in view of the principle 'no work no pay'. Aggrieved by the said order, the above appeal is preferred by the Railway Protection Force. 8. Heard Mr. P.T. Ramkumar, learned counsel for the appellants and Mr. N.G.R. Prasad, M/s.Row and Reddy, learned counsel appearing for the respondent. 9. Learned counsel appearing for the appellants, pointedly argued that the medical examination conducted by the Divisional Railway Hospital found that the eye vision of the respondent was defective and no employee of RPF in Bee One category can wear spectacles during the first six years of service. The medical re-examination done by the Medical Board of Railway Hospital also found that the respondent was medically unfit. It was pointed out further that the extension of the probation for six months was done to the respondent only considering the fact that he did not perform the duty for more than six months due to medical reasons. The medical re-examination done by the Medical Board of Railway Hospital also found that the respondent was medically unfit. It was pointed out further that the extension of the probation for six months was done to the respondent only considering the fact that he did not perform the duty for more than six months due to medical reasons. The supernumerary post was created only to facilitate him to get his salary as he could not be given a regular posting, once he is declared medically unfit for the post of Sub Inspector. To substantiate his contention, the learned counsel relied on Rule 57.3 of RPF Force Rules. For better appreciation, the same is extracted hereunder: "57.3. If, during the period of probation or any extension thereof, as the case may be, the appointment authority is of the opinion that the member of the Force is not fit for permanent appointment, the appointing authority may terminate the services of a direct recruit or revert the member of the Force to the post held by him prior to such appointment: Provided that in case of termination of service, a probationer shall be given a notice of one month to that effect or pay in lieu thereof: Provided further that a notice or pay in lieu thereof shall not be required where the termination of service results as a consequence of the failure of the probationer to pass the initial training course or a repeat course, if any." 10. As the respondent/writ petitioner was a direct recruit and he was under probation, once he is certified to be unfit for a permanent appointment, the appointing authority, may terminate the services of the direct recruit or revert the member of the Force to the post held by him prior to such appointment. As the writ petitioner was terminated as a probationer who passed the initial training course, the notice contemplated in the proviso is also not required. Attention was also drawn to Rule 67.2 of the RPF Service Rules, where a direct recruit selected for being appointed as enrolled member, till such time he is not formally appointed to the Force, is liable to be discharged at any stage if the Principal Chief Security Commissioner for reasons to be recorded in writing, deems it fit so to do in the interest of the Force. The above provision, namely Rule 67.2 of the RPF Rules, may not be applicable to the present case, as the said rule is for taking any disciplinary control of a staff or a trainee and in the present case, the termination is not based on any indiscipline but on a physical disability. 11. However, the learned counsel appearing for the appellants pointed out that the Agreement dated 16.04.2019 entered into between the respondent and the appellants, which empowers the Chief Security Commissioner without giving any notice under sub rule (2) of rule 67 or under the second proviso to sub rule (3) of rule 57, to terminate the services of the writ petitioner can be terminated at any time. 12. The selection of the respondent/writ petitioner was intimated on 09.04.2009 after which the above referred agreement was entered into on 16.04.2009. On 28.05.2010, by an office order No.84/2010, the writ petitioner was appointed as temporary Sub Inspector after having completed 11 months of initial training including practical training and allotted to Southern Railway. On 10.06.2010, the writ petitioner was appointed as temporary Sub Inspector and was posted to TC/KG/TPJ vide CSC/MAS O.O. There was yet another communication on 11.06.2010 attaching the petitioner to TPJ division until further orders. While so, the writ petitioner was nominated to undergo Weapon and Tactics Course for RPF under CSWT, BSF Indore(MP) from 08.08.2011 to 22.10.2011 and was further directed to go for a medical examination. The Chief Medical Superintendent, Golden Rock, Southern Railway, Trichy, had certified that the writ petitioner was diagnosed to have defective distance vision and he is unfit for the duties of the original post as Sub Inspector and recommended suitable alternative employment on medical grounds. The further communication dated 10.02.2012 also certified that the writ petitioner is unfit as Sub Inspector in Railway Protection Force in BEE One category and is fit in Bee One and below for other jobs as glasses are not permitted for RPF. 13. According to the learned counsel appearing for the appellants, the Medical Superintendent is not a competent authority to recommend for a suitable alternative employment, as his job is only to certify the physical disability condition of a candidate. Even thereafter, the probation period of the petitioner was extended by six months on 14.06.2012. 13. According to the learned counsel appearing for the appellants, the Medical Superintendent is not a competent authority to recommend for a suitable alternative employment, as his job is only to certify the physical disability condition of a candidate. Even thereafter, the probation period of the petitioner was extended by six months on 14.06.2012. Though it was stated that the extension was granted considering the fact that the writ petitioner did not perform his duties for more than six months on medical grounds, when the Medical Superintendent had already certified that the writ petitioner was unfit to be a Sub Inspector in RPF it is incomprehensible as to why the extension of probation for six months was granted to the petitioner on 14.06.2012, four months later. Even though it was argued that the Medical Superintendent of Golden Rock, Trichy was not competent to recommend an alternative employment for the writ petitioner, on 25.09.2012, the Chief Medical Superintendent, Golden Rock, had once again found him to be unfit for BEE One category for RPF, but fit in BEE one and below with glasses for distant vision categories with effect from 30.07.2012. 14. When the order of appointment was issued to the writ petitioner, he was only 25 years of age. The medical certificate issued to him by the Medical Board at the time of joining the post had not found any deficiency in his eyes and the said defective distance vision has been acquired by him only during his services as a probationer with the appellants. No doubt, in RPF no one can work with glasses for the first six years of joining the post, as the rules enable the appellants to terminate the probationer on the ground of fitness, the case of the petitioner cannot be considered. In this regard, the learned single Judge, in paragraph 48 of his order, has discussed in detail, which is extracted below: "48. In this regard, the learned single Judge, in paragraph 48 of his order, has discussed in detail, which is extracted below: "48. It is to be pointed out at this juncture that once the medical officer came to the conclusion that the petitioner is a person unfit to hold the post of BEE One, as glasses are not permitted and when certifying that the petitioner is unfit for the said post and at the same time recommending his case for alternative employment, the medical officer ought to have assessed the percentage of deficiency of vision of the petitioner for the purpose of recommending the case of the petitioner for alternative employment. Mere finding the petitioner to be a person with distance vision, without assessing the shortfall in the percentage of the vision, it is to be pointed out that if the said assessment of the medical officer is taken to be a condition of low vision, then such an assessment by the medical officer would place atleast a third of the population in the country to be persons suffering from disability attracting the provisions of the Act, 1995. The disability having not been assessed in terms of percentage by the medical officer and more so, when distance vision having not been prescribed as a disability under the Act, 1995, this Court is of the considered view that the case of the petitioner for attracting the provisions of the Act, 1995, for the purpose of alternative employment would not stand the test of judicial scrutiny and, therefore, the claim made by the petitioner for an alternative employment invoking the provisions of Section 47 of the Act, 1995, does not deserve acceptance." 15. Though it has been found that the writ petitioner/respondent cannot get the benefit under the provisions of the Persons with Disabilities Act, 1995, he can be given an alternative employment. Rule 57.3 provides for the competent authority to terminate the services of the direct recruit when he/she is found to be not fit for permanent appointment. In this case also, the writ petitioner is a direct recruit, therefore, reverting him to the post held by him prior to such appointment, does not arise. The said rule is silent about the plight of a direct recruit as a Sub Inspector in the event he becomes medically unfit during the probation period, when such disability arises out of employment. 16. The said rule is silent about the plight of a direct recruit as a Sub Inspector in the event he becomes medically unfit during the probation period, when such disability arises out of employment. 16. Admittedly, the writ petitioner had already been in service for more than 2-1/2 years. In such circumstances only, the learned singe Judge has also directed the respondents to create a supernumerary post and reinstate the petitioner till such time a post is available to accommodate the writ petitioner. It is further stated that the petitioner would not be entitled for any back wages for the period he was not performing any duties, however, he would be entitled to continuity of service from the date of his termination. The learned Single Judge had elaborately considered the facts and circumstances of the case and passed the well reasoned order. We do not find any defect or infirmity in the order of the learned single Judge and the same is liable to be confirmed. 17. Accordingly, the writ appeal is dismissed. However, there is no order as to costs. Consequently, the connected civil miscellaneous petition is closed.