M. PenchalaiahS/o. Meka Govindu v. Union of India,Rep. by Chief Personnel Officer,Southern Railway,Chennai 600 003 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23-12-2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABE MR. JUSTICE A. KULASEKARANW.P.Nos.27979 & 27980 OF 2006W.P.No.27979/2006M. PenchalaiahS/o. Meka Govindu.. PetitionerVs.1. Union of India,Rep. by Chief Personnel Officer,Southern Railway,Chennai 600 003.2.The Central Administrative Tribunal,Madras Bench, Chennai 104... RespondentsW.P.No.27980/2006N. Prabhakara ReddyS/o.N.R. Medduleti Reddy.. PetitionerVs.1. Union of India,Rep. by Chief Personnel Officer,Southern Railway,Chennai 600 003.2.The Central Administrative Tribunal,Madras Bench, Chennai 104... RespondentsPrayer in W.P.No.27979 of 2006:Petition filed under Article 226 ofthe Constitution of India for the issuance of Writ of CertiorarifiedMandamus calling for the records relating to the impugned order dated22.3.2006 in O.A.No.895 of 2005, on the file of the CentralAdministrative Tribunal, Madras Bench, and quash the same and directing https://hcservices.ecourts.gov.in/hcservices/ the Respondent No.1 to fix the pay scale of Rs.825-1200 w.e.f. the dateof the petitioner's absorption as peon on medical decategorisation, viz.4.4.1991 and the corresponding revised V Pay Commission pay scale ofRs.2,750 - 4400 along with arrears of pay w.e.f. 4.4.1991 and also thebenefit of Assured career pay protection (ACP) for two periods.Prayer in W.P.No.27980 of 2006:Petition filed under Article 226 ofthe Constitution of India for the issuance of Writ of CertiorarifiedMandamus calling for the records relating to the impugned order dated22.3.2006 in O.A.No.919 of 2005, on the file of the CentralAdministrative Tribunal, Madras Bench, and quash the same and directingthe Respondent No.1 to fix the pay scale of Rs.825-1200 w.e.f. the dateof the petitioner's absorption as peon on medical decategorisation, viz.29.6.1992 and the corresponding revised V Pay Commission pay scale ofRs.2,750 - 4400 along with arrears of pay w.e.f. 29.6.1992 and also thebenefit of Assured career pay protection (ACP) for two periods.For Petitioner Mr.M. Muthusamyin bothWPs: Senior Counsel forMr.N. MariappanFor Respondent-1 in WPs.27979 & 27980/06:Mr.V.P. Rajendran- - -COMMON JUDGMENTP.K. MISRA, JIn W.P.No.27979 of 2006, the petitioner was appointed asRakshak in the year 1977. Subsequently, such post was renamed asConstable, which was in Group "C" cadre. In April, 1991, the petitionerwas declared medically unfit. However, soon thereafter, he was absorbedas Peon, which was a post in Group "D" cadre. In course of time, he waspromoted as Jamedar Peon, Record Sorter 'B' and Record Sorter 'A' andlast such promotion had been given on 16.8.1999. On 25.5.2005, thepetitioner made a representation wherein he referred to his earlierrepresentations dated 20.5.1992, 4.9.1999 and 7.9.2002. Substance ofthe representation was to the effect that even though he had acceptedGroup "D" post, he had been making representation to absorb him in anequivalent post carrying scale of pay comparable to Group "C" post,which he was holding before invalidation on medical grounds. Therefore,he prayed that he should be granted pay scale of Rs.825-1200 with effectfrom the date of his medical decategorisation and he placed relianceupon the decision of the Supreme Court in (1994) 4 SCC 460 (NARENDRAKUMAR CHANDLA v. STATE OF HARYANA AND OTHERS) and a subsequent decisionof the Madras High Court. Thereafter, he made several other https://hcservices.ecourts.gov.in/hcservices/ representations and ultimately he filed O.A.No.895 of 2005 for adirection to fix the pay scale at Rs.825-1200 with effect from the dateof absorption as a Peon and the corresponding revised V Pay Commissionscale of Rs.2750-4400 along with arrears of pay and also the benefit ofthe Assured Career Pay protection. 1.2 In the reply filed before the Tribunal, the Union of India,averred that after the petitioner was declared as medically unfit, hewas offered an alternative job as peon in the scale of Rs.750-940 (V PayCommission scale - Rs.2550-3200) and his pay was fixed at Rs.940/- beingthe maximum of the scale. In course of time, he was promoted as JamedarPeon in the scale of Rs.775-1025 (V Pay Commission scale - Rs.2610-3540)and further promoted as Record Sorter 'B' in the scale of Rs.800-1150 (VPay Commission scale - Rs.2650-4000). Subsequently, he was promoted asRecord Sorter 'A' in the V Pay Commission scale of Rs.2750-4400, whichis a Group "C" post, with effect from 16.8.1999. It was furtheradmitted that the decision of the Tribunal giving the benefit of payprotection had been upheld by the High Court in W.P.Nos.761 and 762 of2002 and subsequently such order has been implemented. It was furtherstated that in terms of the Railway Board's letter dated 31.5.2005 thatthe scheme regarding absorption of disabled / medically decategorisedstaff on alternative employment on the same scale of pay is applied incase of the employees who had been disabled / medically decategorised onor after 7.2.1996, the date on which The Persons with Disabilities(Equal Opportunities, Protection of Rights and Full participation) Act,1995, came into force. It was further indicated that since theapplicant had been medically decategorised on 4.4.1991, a reply wasgiven in December, 2005 (during pendency of the Original Application)turning down the representation of the petitioner. It has been furtherstated that as per the Rules applicable before the introduction of thePersons with Disabilities (Equal Opportunities, Protection of Rights andFull participation) Act, 1995, the pay protection is limited to themaximum of the scale for the post in which the medically decategorisedemployee is absorbed. The decision of the Supreme Court in NarendraKumar Chandla's case was sought to be distinquished on the ground thatthe person in the said case was absorbed in category "C" post and it isnot known whether the person in the said case had drawn more pay thanthe maximum of the lower scale.2. In W.P.No.27980 of 2006, the petitioner was appointed asRakshak in 1980, which was renamed as Constable in the year 1986 inGroup "C" cadre carrying pay scale of Rs.825-1200 (V Pay Commissionscale - Rs.2750-4400). The petitioner was declared medically unfit on29.6.1992 and on 9.9.1992 he was absorbed as Peon, which is in Group "D"Cadre in the pay scale of Rs.750-940. The petitioner was subsequentlypromoted as Jamedar Peon on 2.2.1993 in the scale of Rs.775-1025(Revised pay scale - 2610-3540). On 25.5.2005, the petitioner made arepresentation wherein he referred to his earlier representations dated31.7.1995, 19.2.1998 and 24.8.2002 to absorb him in an equivalent post https://hcservices.ecourts.gov.in/hcservices/ carrying scale of pay comparable to Group "C" post, which he was holdingbefore invalidation on medical grounds and ultimately filed O.A.No.915of 2005.2.1 In the reply filed by the Respondent, the Union of India,similar averments made in the reply filed in O.A.No.894 of 2005 weremade. 3. The Tribunal in its common order negatived the contentionof the petitioners by observing that The Persons with Disabilities(Equal Opportunities, Protection of Rights and Full participation) Act,1995 had no retrospective operation. The Tribunal, however, furtherobserved that the persons with similar disability incurred after7.2.1996 would be entitled to pay protection. Denial of such benefit tothe applicants, who were working in the same Organization, merelybecause the disability was incurred earlier, would amount to hostilediscrimination. It was further observed :-"9. . . . To that extent we hold that the enforcement ofthe provisions of the Act in a blanket strait jacket mannertantamounts to hostile discrimination against the applicants.The applicants in our view may certainly have no claim witheffect from 1988 or other applicable dates as the case may bein view of the fact that the then extant provisions relatingto them had been fairly implemented. They had come beforethis Tribunal not because they felt discriminated in 1988,etc., but because of certain pronouncements made by thisTribunal which were later confirmed by the Hon'ble High Court.In that view of the matter, their claim for being extendedwith benefits prior to February 1996 may not be on stronggrounds. However, with the passing of the legislation and itsnotification on 7.2.96, and on the basis of the fact that theyare continuing to work in the organization where similarlyplaced persons like them are deriving benefits as contemplatedin the Act, we hold that the applicants have made out a casein their favour to that extent. In that view of the matter,the respondents are directed to consider the representationsof the applicants and consider extension of benefits ascontemplated under the Act with effect from 7.2.96 on notionalbasis and with financial and consequential benefits from thedate of filing of this O.A. The applicants are at liberty tosubmit fresh representations within a period of four weeksfrom the date of receipt of a copy of this including copies ofthe various representations submitted by them after 1996. Therespondents shall consider the aforesaid representationswithin a period of 12 weeks thereafter and pass ordersstrictly in terms of the provisions of the Act currently inforce." https://hcservices.ecourts.gov.in/hcservices/

4. The aforesaid direction is challenged by the applicantsthemselves in these writ petitions with a prayer to quash the order ofthe Tribunal and to give a direction to the Central Government to fixthe pay scale at Rs.825-1200 with effect from the date of absorption onmedical decategorisation and also the benefit of the Assured Career Payprotection.5. The decision of the Supreme Court reported in (1994) 4 SCC460 (cited above) is the main plank of the submission made by thecounsel for the petitioner. In the said case, the appellant before theSupreme Court was working as a Sub Station Attendant under the StateElectricity Board in the scale of Rs.1400-2300. Subsequently, one armhad to be amputated. The Electricity Board absorbed him as CarrierAttendant in the pay scale of Rs.825-1300. The writ petition of theappellant having been dismissed, the matter was taken to the SupremeCourt. During pendency of the appeal, the Supreme Court had called uponthe Electricity Board to examine whether the appellant could dischargethe duties of Sub-Station Attendant or any other equivalent postcarrying the pay scale of Rs.1400-2300, but it was found that theappellant would not be in a position to perform such duty. Whileaccepting the above, the Supreme Court found that the appellant waseducationally not qualified to be appointed as UDC, which carried thesimilar scale and it ultimately observed :-"7. Article 21 protects the right to livelihood as anintegral facet of right to life. When an employee is afflictedwith unfortunate disease due to which, when he is unable toperform the duties of the posts he was holding, the employermust make every endeavour to adjust him in a post in which theemployee would be suitable to discharge the duties. Asking theappellant to discharge the duties as a Carrier Attendant isunjust. Since he is a matriculate, he is eligible for the postof LDC. For LDC, apart from matriculation, passing in typingtest either in Hindi or English at the speed of 15/30 wordsper minute is necessary. For a Clerk, typing generally is nota must. In view of the facts and circumstances of this case,we direct the respondent Board to relax his passing of typingtest and to appoint him as an LDC. Admittedly on the date whenhe had unfortunate operation, he was drawing the salary in thepay scale of Rs 1400-2300. Necessarily, therefore, his lastdrawn pay has to be protected. Since he has been rehabilitatedin the post of LDC we direct the respondent to appoint him tothe post of LDC protecting his scale of pay of Rs 1400-2300and direct to pay all the arrears of salary."(Emphasis added)6. In W.P.Nos.761 and 762 of 2002 (UNION OF INDIA v. THEREGISTRAR, C.A.T., CHENNAI BENCH & OTHERS) disposed of on 16.2.2005, thesecond respondent was working as Constable in the scale of pay of https://hcservices.ecourts.gov.in/hcservices/ Rs.825-1200 (pre-revised) in the Railway Protection Force.Subsequently, being found medically unfit during 1997, he was absorbedas Peon in a lower scale of pay corresponding to Rs.2610-3540. Thesecond respondent, however, made a representation for an equivalentpost, which having been turned down, he approached the Tribunal. TheTribunal accepted the contention of the second respondent and issued adirection that he should be absorbed in the similar scale of pay. TheDivision Bench observed as follows :-"7. Now coming to the present order of the CentralAdministrative Tribunal which is under challenge in thesepetitions, the perusal of the instructions of the Railwayadministration, it is clear that alternative appointment wouldbe considered suitable if the emoluments of the same are atlevel not more than 25 per cent below their previousemoluments in their substantive appointments. We have alreadyreferred to the earlier order passed in O.A.Nos.259/2000 and351/2000 declaring that both the applicants are entitled topay protection. In the light of the decision of the ApexCourt in Narendra Kumar Chandla's case, referred to the above,and in view of the factual details furnished and theinstructions available from the Indian Railway EstablishmentManual and taking note of the fact that the medical de-categorisation occurred in the course of their employment, weare in agreement with the conclusion of the Tribunal that theapplicants are entitled pay protection consequent upon theirmedical de-categorisation a well as the direction regardingtheir fixation of pay. In the absence of any other material,we do not find any valid ground for interference; accordingly,both the writ petitions fail and they are dismissed."7. It is apparent that in the aforesaid two cases, medicaldecategorisation occurred after The Persons with Disabilities (EqualOpportunities, Protection of Rights and Full participation) Act, 1995.The Division Bench does not lay down categorically that even where thedecategorisation has taken place before introduction of the said Act,the employee has to be re-employed by giving full pay protection. Thedecision of the Supreme Court in Narendra Kumar Chandla's case wasrendered in the context of Article 21 of the Constitution. Validity ofthe rule or instruction relating to re-empoyment and limited protectionof pay was not directly in issue. What the writ petitioner now claimsis the right to get full pay protection, even though the rules /instructions applicable at the time did not so contemplate. 8. On the other hand, the learned counsel for the Respondentshas placed reliance upon the earlier decision of the Tribunal inO.A.No.959 of 1998 dated 15.2.2000, wherein the Tribunal had upheld theprovisions relating to pay protection to the maximum of the lower scalein which the medically decategorised employee was absorbed. It has been https://hcservices.ecourts.gov.in/hcservices/ further submitted that the aforesaid decision of the Tribunal was upheldby the High Court in W.P.No.13255 of 2000 (R. VENKATESALU v. THE UNIONOF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI & 2OTHERS), dated 17.10.2000. Learned counsel for the respondents hasfurther relied upon the provisions contained in para 1309 (i) and (ii)of The Indian Railway Establishment Manual (in short "IREM"). Theprovisions are extracted hereunder :-(i) The alternative post to be offered to a railwayservant to be best available for which he is suited, to ensurethat the loss in emoluments is a minimum. The low level ofemoluments should not, however, deter officers concerned fromissuing an offer if nothing better is available. The railwayservant must be given an opportunity to choose for himselfwhether he should accept the offer or reject it.(ii) It would not, however, be appropriate to offer aGroup 'D' post to a railway servant in the Group 'C' serviceeven if the emoluments are almost similar, except in specialcircumstances. For instance, a cleaner who had risen to be aShunter could be offered the post of a Cleaning Jamadar if nobetter post were available.(iii) For the purposes of this paragraph, an alternativeappointment will be considered 'suitable' if the emoluments ofthe same are at level not more than about 25% below hisprevious emoluments in his substantive appointment, orofficiating appointment from which he was unlikely to revert.In the case of running staff, the former emoluments for thepurpose of comparison will be basic pay plus a percentage ofsuch in force. The figure of 25 per cent is in the nature ofa guide and not a rigid rule. Each case should be judged onits merits. The underlying object is to ensure that theappointment offered will be considered 'suitable' if it willnot force the railway servant to adopt a standard of living(as far as the necessaries of life are concerned) of adrastically lower standard of comfort. A railway servant witha large family and considerable commitments would meritgreater consideration, than one without or with fewdependants."9. From the provisions extracted above, it is apparent thatwhen any equivalent post for re-employment of a medically decategorisedemployee was not available, such a person could be offered a Group 'D'post in lower category with lower pay scale, but with certain limitedpay protection as envisaged. It is obvious that The Persons withDisabilities (Equal Opportunities, Protection of Rights and Fullparticipation) Act, 1995 has not been made retrospective. The decision https://hcservices.ecourts.gov.in/hcservices/ of the Supreme Court in Narendra Kumar Chandla's case does not have theeffect of nullifying the provisions contained in IREM,which we havealready extracted. The decision of the Madras High Court in W.P.Nos.761& 762 of 2002 (cited supra), relied upon by the counsel for thepetitioner, relates to decategorisation after the enforcement of ThePersons with Disabilities (Equal Opportunities, Protection of Rights andFull participation) Act, 1995. Moreover, in such decision, validity ofthe provisions contained in IREM had not been challenged nor evenindirectly decided one way or the other. In such a scenario, we areunable to accept the contention of the petitioner regarding full payprotection. Therefore, we do not find any scope to interfere with theorder passed by the Tribunal.10. For the aforesaid reasons, we do not find any merit inthese writ petitions and they are accordingly dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrardpkTo1. Union of India,Rep. by Chief Personnel Officer,Southern Railway,Chennai 600 003.2.The Central Administrative Tribunal,Madras Bench, Chennai 104.+1cc to Mr.N.Mariappan,Advocate Sr 72128SA (CO)km/6.2. WP.NOs.27979 & 27980 of 2006