Union of India Rep. by its Chairman, Railway Board, New Delhi v. V. Guruswamy

2. The first respondent herein, as applicant, filed O.A.No.366of 2005 before the Central Administrative Tribunal, seeking to setaside the order dated 15.4.2004 r/w orders dated 23.4.2005,cancelling the applicant's promotion to Senior Scale in Group B and reverting him to Group B while denying him promotion to Group A and for a further direction to continue the applicant in Senior Scale in Group B with further promotion to group A with retrospective effect, when his juniors were given the same.2. The facts leading to the filing of the Original Application: (i)The applicant was selected by the Railway ServiceCommission and appointed to the post of Apprentice Mechanic (Diplomaholder) Electrical Engineering by order dated 8.9.1970. Onsuccessful completion of training, he was absorbed as Chargeman 'C'Electrical with effect from 30.8.1973 in workshop cadre of ElectricalEngineering Department in the ICF. The applicant was further promoted as Electrical Chargeman 'A' in 1979 and thereafter worked in various capacities in Electrical Inspectors, Electrical Designsand Technical Assistant, finally as Deputy Superintendent DevelopmentWing in Shop-9.

(ii)The applicant was empannelled for the post of AssistantElectrical Engineer in Group B through Limited DepartmentalCompetitive Examination and was promoted as officiating AssistantElectrical Engineer Group 'B' by order dated 13.12.1990. In the said promotion order, it was stated that the petitioner has been medically certified as "fit for Group B services as AEE in ICF only -– Unfitfor open Line". The applicant thereafter was promoted as SeniorElectrical Engineer/Maintenance by order dated 23.4.1996 and worked in the said post until 1998,when he was posted as Vigilance Officerby order dated 15.9.1998. The applicant was discharging his duties of the Vigilance Officer from 12.10.1998 till he filed the Application before the Tribunal i.e. during 2005.(iii)At that juncture, the applicant was served with aletter dated 27.2.2004, stating that he has been promoted to regularGroup B service with effect from 13.12.1990, even though he was not found fit in the prescribed Medical Classification under para 531(a)and 533 (1) and that he was promoted to Senior Scale as SeniorElectrical Engineer on adhoc basis with the approval of the GeneralManager awaiting the Railway Board's reply.

However, the RailwayBoard had not sent any reply for the General Manager's letter at that relevant time and subsequently on 21.11.1996, after examining the recommendations of the General Manager for relaxing medical standard https://hcservices.ecourts.gov.in/hcservices/ for Group 'C' employees to promote them in Group 'B' service in Technical Department in ICF, the Board did not agree to the recommendations and stated that he is not eligible for regular appointment in Group B service and therefore, the applicant was informed that he cannot be considered for promotion to Group A/JuniorScale and he will be in Group B service only on adhoc basis with the condition that he will not make any claim for consideration for higher grade such as Senior scale or Junior Scale/Group A in Electrical Department. By the above said letter of 27.02.2004, the applicant was further informed that as and when he is repatriated to the Electrical Department, he would be posted in Group B service.

The penultimate paragraph of the letter permitted the petitioner to submit a representation within fifteen days. Accordingly, the petitioner submitted a representation on 13.3.2004, inter aliacontending that he is continuing in Senior scale for the past eight years and served in various Branches and his service in Group B aswell as in Senior scale was not affected by the medical shortcoming in the regular discharge of his duties and though he has beensuperceded by several of his juniors, he has not represented in the past knowing his shortcomings. The applicant further submitted that having put in 14 years of service in a Gazetted cadre and 8 years in the Senior Scale and at the age of 54 years, if he is to be reverted to Assistant Officer Grade, he will have no face to work and for no fault committed by him, he is being faced with a demotion, which is equal to the major penalty. The applicant pleaded for considering his past performance and outstanding abilities in various fields likeProduction, Inspection, Development, Design etc. and prayed for considering his case sympathetically. The Representation of the applicant dated 13.03.04 came to be rejected by an order dated15.04.2004, the correctness of which was assailed before the Tribunal.

It is further submitted that before any such promotion, the employees have to give a declaration to the https://hcservices.ecourts.gov.in/hcservices/ effect that they will have no further claim for promotion to SeniorScale, for absorption to Group A/Junior Scale, and they are prepared for the Group B adhoc promotion and that their adhoc promotion to Group B posts will continue till a suitable post is found available. (ii)It is further contended that the applicant's visual acuity was not upto the desired level and, therefore, he was declared by the medical authorities as "fit in Group B' service as AEE in ICF only –Unfit for open-line" and in terms of Railway Board's letter dated14.12.1983, the General Manager considered the case and the applicant was promoted to Group B post, considering the local requirements. Itis further stated that the medical standard prescribed for Group Bposts in Electrical Department is same for open-line and ProductionUnits.

Since the incumbents are liable for transfer between open-line and production Units on promotion, the petitioner was promoted to Group B on 13.12.1990, subject to a declaration dated 12.12.1990signed by the applicant and therefore, it is contended by the administration that he cannot stake his claim for further promotion. (iii)It is admitted in paragraph No.6 of the reply affidavit that while promoting the applicant to Group B post, the order did not mention that it was on adhoc basis. However, in the reply it is stated that his promotion to Group B was on adhoc basis and the same was inadvertently not mentioned. It is further stated that the Promotion Committee was not aware of his medical condition and the Committee recommended the applicant's name for promotion to Senior Scale on adhoc basis. One V.Narayanan Kezhedath, who was granted Adhoc promotion to Group B post, due to his medical condition, submitted a representation aggrieved over his exclusion from the panel for ad-hoc promotion to senior scale.

On consideration of the said representation, the Railway Board while rejecting the contention of the said V.Narayanan Kezhedath, also stated that similarly placed employees should not be considered for adhocpromotion to Senior Scale, by a letter dated 21.11.1996. Therefore, it is contended by the Administration that based on such proceedings of the Railway Board on 21.11.1996, a show cause notice was issued to the applicant and thereafter the order dated 15.04.2004 was passed, and as such the same does not suffer from any illegality.

Near vision-Sn.0.6 in one eye, regardless of vision in the other eye, with or without glasses. "(iii)A perusal of the above provisions reveal that the Railway employees who are promoted from non gazetted to gazetted posts are divided into two categories namely " Open Line" and "Otherthan Open Line". In respect of the "Other than Open Line" category namely category B, under para 531, the standards of vision has been prescribed in sub paragraph No.2 of para 533 of the Manual. Admittedly, the case on hand falls under clause (b)of para 531,namely "other than open line" and the standard prescribed for visionis as per sub para 2 of para 533. The applicant was promoted to Group B on 13.12.1990 and the promotion order only contained the observation that the applicant was medically certified as "fit for Group B service only as AEE in ICF and not fit for Open-Line".Therefore, it is to be taken that the applicant satisfied the standards prescribed for visual acuity spelt in sub para 2 of para533 of the Railway Medical Manual.

It is to be noted that the applicant was also further promoted on adhoc basis as SeniorScale/Senior Electrical Engineer (Maintenance) on 23.4.1996. It is https://hcservices.ecourts.gov.in/hcservices/ thereafter, the applicant was posted in a tenure post as VigilanceOfficer on 15.9.1998. It is at that stage, the Deputy ChiefPersonnel Officer, passed an order dated 27.2.2004, though it is termed as a show cause notice, by stating that the applicant's very promotion to Group B itself was on adhoc basis and as such he would not be entitled to claim for consideration of higher grade such as Junior Scale or Senior Scale of pay/Group A in the ElectricalDepartment.iv)In terms of the opportunity granted in the proceedings dated 27.02.04, the applicant submitted a representation on13.3.2004. We have seen that the representation is very detailed and has set out all the facts. Curiously, the same came to be rejected by a cryptic non-speaking order dated 15.4.2004.

The problem seems to have arisen is on account of the department reviewing the situation at the instance of another incumbent who had been promoted on adhoc basis in Group B who was declared medically unfit for open-line and who had submitted a representation which was taken up for consideration by the Railway Board. Though in all fairness the Railway Board ought to have extended the same benefit as given to the applicant, for no reason, they sought to unilaterally deny the privilege conferred on the applicant. In our considered view, the Tribunal had rightly applied the provisions of Section 47 of Personswith Disabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995 and observed that no employee should be reduced in rank or denied promotion only on account of his disability. Having observed so, the Tribunal ought to have extended the benefit to the applicant and placed him as a regular promotee in Group B cadre to enable him to aspire for further promotion to SeniorScale /Senior Electrical Engineering and thereafter if eligible.

Itis to be noted that on conducting the medical examination in respect of visual acuity, Administration took a decision that the applicant was fit for ICF only and having done so, it is most unreasonable and arbitrary on the part of the Administration to now state that the applicant cannot aspire for regular promotion in the ICFAdministration. In fact, we have seen the reply affidavit as well as the affidavit filed in support of the above Writ Petition, but, no details as regards the visual standard of the applicant has been mentioned except a vague statement, stating that the applicant'svisual acuity was not upto the desired level.v)It is not in dispute that the applicant was not fit for Open Line. The Medical Board which examined the applicant, found him fit for promotion in Group B as AEE in ICF. Therefore, when the applicant had satisfied the standards for Group B post, there is no justification for the Department to promote the applicant as an adhocpromotee and thereafter put further embargo on his promotion prospects. https://hcservices.ecourts.gov.in/hcservices/ vi)At this juncture, the learned counsel for the Administration submits that the applicant has executed a declaration and he is fully aware of the facts and is estopped.

In our considered view such a declaration is against the elementary principles of service jurisprudence. One could easily infer under what circumstances, the applicant was made to execute such adeclaration. The declaration cannot be put against the applicant especially when the Railway Medical Manual classified two categories of posts, for the purpose of examining the visual acuity. The RailwayMedical Manual is a code by itself and a Regulation having the force of law. The applicant is shown to have been fit under para 533(2) and therefore the question of the declaration being put against the applicant does not arise. It is a well settled legal principle that there cannot be an estoppel against statute. Therefore, the contention raised by the Administration deserves to be rejected.vii)It is to be further noted that the applicant was an outstanding employee of the Administration and such fact has been recognised while celebrating the Railway Week during 1996 and the applicant was given an award for his outstanding performance.

Further, even in the reply filed before the Tribunal, the applicant'ssuitability and competence is not disputed, nor there is any allegation in the reply affidavit that the visual acuity has affected the applicant's discharge of his duties and responsibilities. Theonly thing which is put against the applicant is that the RailwayBoard, while considering the representation submitted by another employee had denied the benefit given to the applicant that too without affording any opportunity to the applicant, in our view, such an approach of the Railway Board is not sustainable. The applicant had been functioning in the promoted Group B post from 13.12.1990 and the decision of the Railway Board came to be communicated only on27.2.2004. The Applicant was not given any opportunity before the decision was taken by the Railway Board to deny him the benefit. Theapplicant was also given adhoc promotion as Senior Scale/SeniorElectrical Engineer/maintenance on 23.4.1996 and during 1998 promoted and posted as Vigilance Officer which carries onerous responsibilities, and these factors go to establish the applicant'ssuitability and eligibility to the promoted posts.

We find that the applicant has been made to suffer all these years by the unreasonable delay committed by the Administration. That apart, the representation made by the applicant stating that he has, at the relevant point of time, put in 14 years of service in gazetted cadre and eight years in Senior scale and that if he is to be reverted he would have no fact to work especially when such reversion is on account of no fault committed by the applicant, was not considered and came to be rejected by a non-speaking and cryptic order dated 15.4.2004.Therefore, it is unfair and illegal to state that the promotion accorded to the applicant on 13.12.1990 is an adhoc basis. https://hcservices.ecourts.gov.in/hcservices/