Central Administrative Tribunal - Delhi
S Ganeshan vs M/O Railways on 5 September, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 955/2014
Reserved on : 12.08.2016
Pronounced on : 05.09.2016
HON'BLE MR. P.K. BASU, MEMBER (A)
HON'BLE DR. BRAHM AVTAR AGRAWAL, MEMBER (J)
S. Ganeshan,
S/o Late Shri S. Sethurama Shastrigal,
Commercial Inspector/Marketing,
Northern Railway, Baroda House,
New Delhi. .. Applicant
(By Advocate : Shri S.P. Sethi)
Versus
Union of India through
1. General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. Chief Personnel Officer,
Northern Railway,
Baroda House,
New Delhi. .. Respondents
(By Advocate : Shri Satpal Singh)
OA 955/2014
2
ORDER
By Hon'ble Mr. P.K. Basu The applicant was appointed in the year 1989 and promoted to the grade of Rs.2375-3500 in 1995. He was granted financial upgradation under MACP Scheme w.e.f. 01.09.2008 in Grade Pay of Rs.4800/-.
2. In September, 2013, the respondents started the process of selection for the post of Assistant Commercial Manager from Group 'C' to Group 'B'. The applicant appeared in the written test and was declared successful vide Northern Railway letter dated 24.02.2014. The applicant was No.3 amongst seven General category candidates, who had successfully cleared the written test.
3. The written test was to be followed by a medical test and in case the candidate was found medically fit, he was to appear in the viva-voce fixed for 25.03.2014. On 10.03.2014, the applicant was declared medically 'unfit' due to sub-standard vision. The applicant made a representation to the CPO, Northern Railway with a request for regularisation under para 504 of IREM as he had been declared medically 'unfit' on the ground that he did not belong to Operating or Safety Category. He received no response. Hence, this O.A. has been filed with the following prayer:
"To direct the Respondents to allow the applicant to appear in the viva voce to be held on 25.03.2014 and consider him for OA 955/2014 3 posting as ACM, if possible, against a vacancy of ACM involving office work, if he is found otherwise fit apart from his substandard vision."
4. In support of his claim, the learned counsel for the applicant adduced the following points :
(i) As per provisions of Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, no employee can be denied promotion on the ground of disability. In this regard, the specific provision is quoted below:
"Section 47: Non-discrimination in Government employments-
(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 benefits:
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."
(ii) The post of Assistant Commercial Manager is not a safety post and people with impaired vision can function.OA 955/2014 4
(iii) There is a provision in the Act that certain posts or department can be exempted from the application of the Act.
However, no such exemption has been sought by the Railways and, therefore, the provision of Section 47 will apply.
(iv) IREM Rule 189(A) also provides, in line with Section 47 of the Act, that there shall be no discrimination in the matter of promotion merely on the ground of physical disability.
(v) In O.A. No.439/2001 (Sanjay Kumar Jain Vs. Union of India), which was a similar case of denial of promotion from Group 'C' to Group 'B' on the ground of visual defect, the O.A. was allowed by this Tribunal and upheld by the Hon'ble High Court. The Hon'ble Supreme Court in SLP No.5178/2004, decided vide order dated 11.08.2004, affirmed the Tribunal's and the High Court's orders.
(vi) RBE 76/2013 dated 31.07.2013 (Annexure A-12) also clarifies as follows:
"In the light of instructions contained in Board's letter dated 30.04.2009 referred to above, it is clarified that the Group 'B' post of ACM in the Transportation (Commercial) Department shall be treated as a Non-Safety category post when the selections are conducted stream-wise for applicability of the scheme of "Best amongst failures"."
(vii) In D. Tangrajan vs. Union of India & Ors., which was allowed by Madras Bench of CAT on 09.08.2005, the Tribunal in para 12 of its judgment categorically held as follows:
OA 955/20145
"12. For all the above reasons, we answer the question holding that ACM post is not coming under the safety category on the basis of the Railway Board's clarification and in the facts and circumstances of the case. The amendment to the Medical Manual is confined only to the visual acuity which can always be insisted upon after the applicant being selected and in case if he is going to be promoted to the post of DCM, respondents No.3 and 4 ought not to have violated the specific Railway Board's letter dated 15.4.1982 and the respondents' interpretation is contrary to the instructions contained in that letter." One of the reasons for cancelling the appointment of the applicant in that case was that the post of ACM was treated as safety category and, hence, he was not considered for appointment which has been answered by the Tribunal in the para quoted above.
5. In summary, the case of the applicant is that the Disabilities Act clearly provides that there can be no discrimination, denial of promotion solely on the ground of disability. This is reiterated by the IREM Rule 189(A); further that in similar circumstances in Sanjay Kumar Jain's case, right upto the Hon'ble Supreme Court, it was held that the applicant's being visually handicapped cannot be a ground for denying him promotion, which is the same case as in the present O.A.
6. Per contra, the learned counsel for the respondents relied on judgment of the Hon'ble Supreme Court in Civil Appeal No. 4688/2007 (Union of India Vs. Devendra Kumar Pant & Ors.), specifically to paras 18 and 19, which we quote below:
"18. Prescription of a minimum medical standard for promotion should be considered as such, and should not be viewed as denial of a promotional opportunity to a person with disability.OA 955/2014 6
We may illustrate. When an advertisement for the post of a police inspector prescribes a minimum height or a minimum chest measurements or a minimum physical stamina, a person who lacks the same and therefore denied appointment, cannot contend that he is discriminated on the ground of physical disability. Firstly being short or very thin or lacking stamina is not a physical disability but a physical characteristic. Therefore in such a situation the question of applicability of the Act does not arise at all. If a person not having a colour perception is denied appointment to the post of a driver, he cannot complain that he is discriminated on the ground of his disability. Same would be the position where the colour perception is a required minimum standard for a particular post. A person not possessing it is not being denied appointment or promotion on the ground of disability. The denial is on the ground of non- fulfillment of a minimum required standard/qualification. Viewed accordingly, it will be seen that section 47(2) is not attracted at all.
19. Therefore we are of the view that the section 47(2) only provides that a person who is otherwise eligible for promotion shall not be denied promotion merely on the ground that he suffers from disability. The use of the words `merely on the ground' shows that the section does not provide that if the disability comes in the way of performing the higher duties and functions associated with the promotional post, promotion shall not be denied. In other words promotion shall not be denied to a person on the ground of his disability only if the disability does not affect his capacity to discharge the higher functions of a promotional post."
7. It is further stated that Devendra Kumar Pant's judgment came after the judgment in Sanjay Kumar Jain's case and the Hon'ble Supreme Court had considered the Sanjay Kumar Jain's judgment while passing this order. Our attention was specifically drawn to the following observations of the Hon'ble Supreme Court in Devendra Kumar Pant's order:
"11. We may next refer to the decision in Sanjay Kumar Jain (supra), on which considerable reliance was placed by the High Court and the respondent. One S.K.Jain was working in a Group `C' post in the Railways. He applied for promotion to a Group `B' post. He qualified in the written test and was directed to undergo medical examination as per Para 531(b) of IREM (the Indian Railway Establishment Manual). Passing of the medical test was OA 955/2014 7 a requirement before a candidate was called for viva voce test.
S.K.Jain was found to be medically unfit as he was visually handicapped. He was therefore not called for viva voce test nor selected for promotion. The order dated 20.9.2000 by which he was informed that he was not being called for viva voce as he had been declared medically unfit, was challenged before the Central Administrative Tribunal. The Tribunal held that the provisions of the Act and newly introduced para 189A of IREM which laid down that there shall be no discrimination in the matter of promotion merely on the ground of physical disability, were not kept in view and therefore quashed the said order dated 20.9.2000. The said decision was upheld by the High Court having regard to section 47(2) of the Act. Before this Court, the Railways submitted that the proviso to sub-section (2) of section 47 permitted the appropriate government to exclude by notification, any establishment from the provisions of section 47 and the said provision indicated that in appropriate cases the protection/benefit provided by sub-section (2) of section 47 could be denied, and therefore this court may deny the protection under section 47(2) to S. K. Jain. This Court held that unless a notification was issued by the appropriate Government, exempting the establishment from the provisions of section 47, having regard to the type of work carried in any establishment, an establishment cannot be exempted from the operation of section 47(2) of the Act. This Court therefore upheld the decision of the Tribunal and the High Court. Thus the issue that was considered by this Court was whether exemption from the operation of section 47(2) could be claimed, when there was no exemption notification under the proviso to section 47 of the Act, by the appropriate Government. The scope and purport of section 47(2) did not really arise for consideration, nor considered in that decision. The observation of this court that sub-section (2) of Section 47 in crystal clear terms, provided that no promotion shall be denied to a person merely on the ground of his disability, strongly relied on by the respondent, is not enunciation of any principle, but a reiteration of what is stated in the section. Therefore the assumption of the High Court that according to the interpretation of section 47(2) by this court in Sanjay Kumar Jain, even if the respondent was not able to qualify in medical category B1 because of lack of or reduced colour perception, he could not be denied promotion and that he should be subjected only to a B2 category medical examination, is baseless. It is unfortunate that the High Court has totally misunderstood the scope and purport of section 47(2) of the Act and the decision in Sanjay Kumar Jain."
8. The point that is stressed by the respondents' counsel is that if the disability does not affect the candidate's capacity to discharge the higher function of a promotion post, only then the disability OA 955/2014 8 need not to be held against him. It is argued that in the present case there are certain medical standards set for selection as Assistant Commercial Manager against which the Medical Board found the applicant 'unfit' and it is stated that since it is a technical post, the law as settled in Devendra Kumar Pant (supra) judgment, should be followed.
9. The respondents' counsel further relies on the order dated 09.01.2014 in O.A. No.276/2006 on a similar issue which was dismissed by the Lucknow Bench of this Tribunal.
10. Heard the learned counsel for both sides and perused the various judgments and pleadings.
11. The issue to our mind is very clear. There are certain medical standards stipulated which the candidate has to meet in order to be considered for viva-voce for the post of ACM. Admittedly, the applicant does not meet that standard. Whether the post is Safety or Non-Safety is not the issue here. The applicant's reliance is mainly on the judgment of the Tribunal in O.A. No.439/2001 as upheld by the Hon'ble High Court as well as Hon'ble Superme Court, which primarily considered provisions of Section 47 of the Act. However, in a later judgment cited by the respondents' counsel, viz. Devendra Kumar Pant (supra), Hon'ble Supreme Court has distinguished the Sanjay Kumar Jain's judgment and settled the OA 955/2014 9 law clearly in paras 18 and 19 of their judgment, which is already quoted above.
12. The crucial findings of the Hon'ble Supreme Court is the following:
"The denial is on the ground of non- fulfillment of a minimum required standard/qualification. Viewed accordingly, it will be seen that section 47(2) is not attracted at all."
13. In view of above and in view of judgment of Lucknow Bench of this Tribunal in O.A. No. 276/2006, since admittedly the applicant has not met the medical standards required, denial for consideration for promotion as ACM by the respondents cannot be faulted with. The O.A. is, therefore, dismissed. No order as to costs.
(Dr. Brahm Avtar Agrawal) (P.K. Basu)
Member (J) Member (A)
/Jyoti/