High Court
Case Details
WP(C) 3530/2010 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE MR. JUSTICE P.K.MUSAHARY Heard Mr. U.K. Nair, learned Standing Counsel, Railways, assisted by Mr. H.K. Da s for the petitioners. Also heard Mr. B. C. Pathak, learned counsel for the resp ondent. 2. 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 C entral Administrative Tribunal, Gauhati Bench, Guwahati (hereinafter referred to as Tribunal only) in O.A. No. 183/2008 whereby and whereunder, the learned Trib unal set aside and quashed the communication dated 14.7.2008 issued by the Deput y 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 S ection 47(2) of (cid:28)The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (cid:29) (hereinafter referred to as Equal Rights Act in short) and also the Railway Board’s order dated 30.4.2007/9.4.2007 . 3. tion, are set out hereunder : The facts relevant for the purpose of disposal of this writ peti (i) The respondent is a B.E. (Electrical) degree holder and on being duly select ed, was appointed initially as Electrical Foreman in the NF Railway. He was prom oted to the post of Senior Electrical Foreman now designated as Senior Section E ngineer, (Electrical), on 7.8.1996.
Legal Reasoning
(ii) The Railway authorities issued office order No. 12 of 1998(Elect) on 24.6.9 8 promoting 9 (nine) employees to the rank of Asstt. Electrical Engineer excludi ng the respondent. Being aggrieved by his non-selection, he approached the learn ed 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 th e 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 judi cial review of the aforesaid order dated 27.4.2001 passed by the learned Tribuna l. 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 t he respondent was again found unfit for promotion to Group ’B’ post in technical category as per medical certificate issued by the Senior Divisional Medical Off icer of the Railway, Maligaon, Guwahati. Consequent upon holding of fresh medica l test as per direction of the learned Tribunal, this Court by a judgment & orde r dated 07.11.2006 closed the aforesaid W.P.(C) No. 7249/2001 as being infructuo us. (v) the respondent again approached the learned Tribunal on 12.3.07 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 re presentation 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 re
Decision
laxed medical standards with a prayer for consideration of his case under Sectio n 47(2) of the Equal Rights Act. The aforesaid OA was disposed of by the learned Tribunal vide an order dated 13.12.07 directing the Railway administration to d ispose of the said representation dated 11.12.07 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 Trib unal’s order aforesaid, the Railway authorities examined the respondent’s case i n details and passed a speaking order dated 14.7.2008 disposing the representati on dated 11.12.2007. The Railway authorities rejected the respondent’s prayer fo r promotion. vi) The respondent being aggrieved, again filed OA No. 183/08 assailing, inter alia, the communication/order dated 14.7.08 whereby his representation was rejec ted. The learned Tribunal vide its order dated 18.1.10 disposed of the said OA r equiring the present petitioners(Railway authorities) to carry out the direction s issued by the learned Tribunal, namely the order dated 27.4.2001 in OA No. 172 /98 as well as the directions dated 13.12.07 in OS No. 63/07. The respondent aut horities were further required to take into consideration the provision of Secti on 47(2) of the Equal Rights Act. Mr. Nair, learned Standing Counsel, appearing for the petitioner 4. s, submits that the earlier directions of the learned Tribunal vide orders dated 27.4.2001 in OA No. 172/98 and 13.12.07 in OA No. 63/07, have already been comp lied 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 Gr oup ’B’ post and as such the impugned judgment and order dated 18.1.10 passed in OA No. 183/08 directing the petitioners to carry out the learned Tribunal’s ear lier directions/order aforementioned is wholly unjustified, illegal and unsustai nable under the law and the same is liable to be set aside. Mr. Nair further sub mits that for promotion from non-gazetted post to gazetted rank in the Electrica l Engineering Department, one has to pass a strict medical test, particularly co ncerning the visual acuteness and the medical test includes test of colour visio n as the Railway trains are controlled and run by colour signal. The Railway Med ical Officer, after holding due medical examination, declared the respondent unf it for promotion to Group ’B’ post in technical category and as such the respond ent failed to fulfil the minimum requirement for promotion to higher post in the technical category. The impugned direction of the learned Tribunal, according t o Mr. Nair, would amount to insistence on promotion of a visually unfit person t o higher technical post and such a direction is liable to be set aside as being illegal and unsustainable under the law. In the written statement filed in OA No. 172/98, the Railways d 5. isputed the claim of the respondent stating inter alia that - (cid:28)(i) Adverse entries contained in the ACR for the year ending 31.3.95 was duly c ommunicated 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. (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. (cid:29) Whereas in the Writ Petition No. 7249/2001, which was filed agai nst the learned Tribunal’s order dated 27.4.2001, the Railways took the followin g grounds - (cid:28) (i) The applicant was not promoted both on count of not getting minimum qualif ying marks of 15 and for not having a clear medical certificate. (ii) The learned Tribunal acted beyond jurisdiction and erred in law in directin g to consider the case of the applicant by holding review DPC on the basis of th e ACRs sans the ACRs for the years 1993-94 and 1995 to 96. (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 promo tion 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. (cid:29) Whereas the petitioner Railway authorities in the instant writ p etition have laid much emphasis on the medical certificate in which the medical officer declared the respondent unfit for promotion to Group ’B’ post in technic al category although the respondent has rendered long service since 7.8.96 in th e post of Senior Electrical Foreman, now designated as Senior Section Engineer, Electrical, without any blemish which proves that the respondent has been perfor ming all field duties including footplat duties assigned to him like any other e lectrical 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 repo rt 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 th e Equal Rights Act. The order dated 14.7.2008 issued by the petitioner Railway a uthorities purportedly disposing the representation of the respondent is not a s peaking order in real sense and thereby the petitioners failed to comply with th e directions issued by the learned Tribunal vide order dated 13.12.07. 6. In reply to submissions of the learned counsel for the responden t, it is argued by Mr. Nair, learned counsel for the petitioners that the provis ions 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 Standi ng 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 i s denied promotion, it can not be said that such denial of promotion is on the g round 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 9.7.200 9 rendered by the Hon’ble Supreme Court in Union of India -VS- Devendra Kumar Pa nth & Ors. (Annexure 4 to the writ petition). 7. 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 que stion involved for decision by this Court. The question is whether the responden t, 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 medica l standard in terms of provision under Section 47(2) of the Equal Rights Act. Wh at is to be noted in this case is that the respondent has not challenged the med ical report dated 16.01.2006 whereby he was declared unfit for promotion to Grou p ’B’ post in technical category. Since the respondent has not challenged the me dical report it can be accepted that he has admitted the position that he was no t fit for promotion to the said post in technical category. What he has asserte d 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 perf orm the duties assigned to him, he should be given promotion to the higher techn ical post by providing him benefit of medical fitness by relaxing the standard i n the medical test as emphasized under Section 47(2) of the Equal Rights Act. Fo r better appreciation, the above provision of law is quoted hereunder : (cid:28)47. Non-discrimination in Government employment - (1) No establishment shall di spense with, or reduce in rank, an employee who acquires a disability during his service : Provided that, if an employee, after acquiring disability is n ot suitable for the post he was holding, could be shifted to some other post wit h the same pay scale and service benefit : Provided further that if it is not possible to adjust the employee ag ainst 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 su ch conditions, if any, as may be specified in such notification, exempt any esta blishment from the provisions of this section. (cid:29) 8. Under the aforesaid provision of law, it is found that no promot ion 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 estab lishment, by notification and subject to such conditions, if any, as may be spec ified 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. It is also provi ded 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 th e employee against any post, he may be kept on a supernumerary post until a suit able post is available or he attains the age of superannuation, whichever is ear lier. 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 fo r a chance to promote or accommodate him against a suitable post in the higher r ank by relaxing the standard of medical or physical fitness as may be found suit able as per his physical condition/fitness. The said section of law provides a f air chance for promoting/accommodating such person even by creating supernumerar y post. 9. We have gone through the official file/record pertaining to OA N o. 183/2008 as produced by the learned Standing Counsel, Railways, which contain s the communication bearing No. E(GP) 80/2/8 dated 31.10.1991 issued by the Dire ctor, Establishment (GAZ. P), Railway Board, regarding appointment to Group ’B’ post in relaxation of prescribed standard in the medical examination by the Medi cal 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 wh o did not pass the prescribed medical standard should not be included in the pan el. 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 4 7(2) of the Equal Rights Act for railway employees on promotion from non-gazette d to gazetted post. In this regard Railway Board circulated its letter No. 2005/ H/5/13 dated 9.4.07 which reads as under - (cid:28) 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 cla use :- (cid:28) any one of the conditions may be relaxed in favour of any candidate for specia l reasons. The relaxation in medical standards in each case should have specifi c approval of the concerned Board member of Rly. Board. (cid:29) (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 posti ng if available in his department, where if posted, the underlying medical condi tion shall not compromise the safety & productivity of work. 2. After obtaining the above certification from PHOD, a fresh medical exa m may be processed for the specified post. 3. The report of re-medical exam if in favour of the employee, will be forw arded through CMD/Zonal Railway to DG/RHS for obtaining the approval of concerne d Railway Board Member. 4. tion. (cid:29) The Board decision shall be communicated to Zonal Railway for further ac 10. What transpires from the above Railway Board’s circular/communic ation 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/Zon al Railway is satisfied with the adverse medical examination report, it can refe r the case to PHOD for examining the concerned employee for a suitable post subj ect to availability of post in the department. In the said circular/communicatio n a provision has also been made for fresh medical examination for the specified post. It is submitted at the Bar that the aforesaid circular/communica 11. tion 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 entit led to promotion to Group ’B’ post due to medical unfitness or below the standar d prescribed by the Board for being qualified for promotion to the said post. Th e admitted factual position is that the medical officer who examined the respond ent 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 responden t was found medically unfit his case should have been forwarded for re-examinati on with due approval of the authority concerned. No process was initiated toward s 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 un der 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 au thority so as to have a fresh report or fitness certificate from the higher medi cal 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 auth orities to refer the respondent to higher medical officer/authority for fresh me dical examination taking into consideration that the respondent has been renderi ng service to the Railways for a long period of time and till now he has not bee n 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. 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 aut horities concerned after fresh medical examination and obtaining a report thereo f. 12. In view of above discussion and on the face of the attending fac ts and circumstances of the case, we hold that the learned Tribunal as well as t he 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 asid e the impugned orders of the learned tribunal as well as the Railway’s communica tion dated 14.7.2008 as wholly in contravention of provision of Section 47 of th e Equal Rights Act, and direct the petitioner Railway authorities to send up the Respondent to concerned higher medical officer/authority of the Railways for ho lding fresh medical examination and obtaining necessary fitness certificate or m edical report so that the Respondent’s grievance for promotion could be consider ed by the appropriate authority as provided in the Railway Board’s circular date d 9.4.2007 aforementioned and decide the entire matter within a period of 6(six) months from to-day. 13. With the aforesaid observations and directions, this petition stands dis posed of. Parties are directed to bear their own cost. The departmental file af orementioned may be returned through Mr. Nair, learned Standing Counsel, Railway s.