Central Administrative Tribunal - Delhi
Rajesh Yadav vs M/O Railways on 30 October, 2023
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Item No.44/ C-4 OA No. 713/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 713/2017
Reserved on 20.09.2023
Pronounced on 30.10.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Shri Rajesh Yadav, age 28 years
S/o Shri Uma Prashad Yadav
R/o 42, B/3 Railway Colony
Punjabi Bagh,
New Delhi-26 ...Applicant
(By Advocate : Mr. Karanjot Singh Mainee)
Versus
1. Secretary
Railway Board
Ministry of Railways
Rail Bhawan, New Delhi.
2.General Manager
Northern Railway
BARODA HOUSE
NEW DELHI
3.Divisional Railway Manager
Northern Railway
State Entry Road, New Delhi
4. Sr Divisional Material Manager
Northern Railway
Shakurbasti, New Delhi
...Respondents
(By Advocate: Mr. Ashish Rai)
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Item No.44/ C-4 OA No. 713/2017
ORDER
By Hon'ble Dr. Chhabilendra Roul, Member (A):-
The instant OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act 1985, seeking the following relief(s):-
"8.1 That the Hon'ble Tribunal may be graciously pleased to allow this application and quash the Impugned order dt. 8.2.16. 8.2 That the Hon'ble Tribunal may further be graciously pleased to direct the respondents to offer an appointment to the applicant in Group 'D' post in medical category in which he had been found fit even at the time when he was appointed as an Apprentice and give all consequential benefits.
8.3 That the Hon'ble Tribunal may further graciously be pleased to pass any other or further order as may be deemed fit and proper on the facts and circumstances of the case. 8.4 That the Hon'ble Tribunal may further be graciously pleased to grant costs against the respondents and in favour of the applicant."
2. In support of his claim learned counsel for applicant submitted that in January 2007, the applicant herein was selected for apprenticeship in the trade of book binder. On 01.04.2009 he completed his apprenticeship. On 09.07.2010, he was called for the verification of the certificates. On 24.11.2010 the Assistant Personnel Officer (APO), Northern Railways offered the post of a substitute and he was directed 3 Item No.44/ C-4 OA No. 713/2017 to produce relevant certificates. He accepted the offer. However, he was declared unfit medically in Category B-I, because of a defect in his right foot. Applicant submitted a representation to General Manger regarding the medical examination in category B-II. Subsequently, the applicant submitted representations on 20.10.2014, however, there was no response from the respondents.
3. Learned counsel for the applicant submits that as the applicant was not given any relief even after making many representations on several occasions. Being aggrieved, he filed an OA No. 3229/2015 seeking indulgence of Hon'ble Tribunal in present matter which was disposed-off vide order dated 21.09.2015 with the directions to decide the representation of the applicant. Applicant submitted a representation in compliance with the order of this Hon'ble Tribunal, which was rejected by the respondents vide speaking order dated 08.02.2016. Aggrieved by the same, the applicant has filed the present OA.
4. Learned counsel for the applicant further argues that During pendency of the present OA, applicant received information from reliable sources about appointment of two similarly situated persons, Sh. Sunny Bhardwaj s/o Sh. 4
Item No.44/ C-4 OA No. 713/2017 Rajeshwar Prasad and Sh. Anil Pal s/o Sh. Ram Sewak Pal. Both of these persons, despite being declared medically unfit, were given appointment. The applicant also sought information about the appointment of these two persons, but the respondents are not furnishing any details thereof. It is submitted that both these persons had completed their apprenticeship with applicant in 2009 and their names appeared against item 11 & 16 vide Annexure A-4 of the present OA. It is also important to submit that both of these persons were declared medically unfit along with applicant.
5. However, recently applicant received information from the reliable sources that both of these persons, Sh. Sunny Bhardwaj & Sh. Anil Pal were given appointment in 2010/11. It is further submitted that the respondents have acted in partial manner by not giving the appointment to applicant in category-II even when they had already been given appointment to aforementioned two similarly situated persons in the same category who were also declared medically unfit.
6. Learned counsel for applicant contends that he was appointed as apprentice and he was put under training. He also relies upon annexure A-1A dated 20.05.2011, which is reproduced as under:-
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Item No.44/ C-4 OA No. 713/2017 "Subject : Engagement of Course Completed Act Apprentices of Printing Press/SSB as Substitutes in Group-D post.
In reference to your appeal dated NIL, to offer you appointment in any other category, the matter was referred to Hd Qrs Office Hd.Qrs.Office has advised that as per Instructions contained in PS No. 13588/9, the policy has ended of giving alternative employment to those who fall in the prescribed medical category in view of this your request for appointment in any other pool can not be considered."
7. The main contention put forth by the learned counsel for the applicant at this juncture is that the applicant should have been treated on parity qua Sh. Sunny Bhardwaj & Sh. Anil Pal.
8. Learned counsel for respondents does not dispute the fact that Sh. Sunny Bhardwaj & Sh. Anil Pal were given appointment and they are working with the respondents. However, it has not been clarified whether Sh. Sunny Bhardwaj & Sh. Anil Pal are similarly situated persons as the present applicant. Further he would argue that as per the submission made by the learned counsel for applicant, the so called tentative/termination list dated 01.04.2009 was circulated by the respondents wherein the applicant stands at Sl. No. 14 and the two persons stated in the additional affidavit stands at Sl. No. 11 and 16, respectively. Therefore, 6 Item No.44/ C-4 OA No. 713/2017 he would contend that the impugned order (undated speaking order) has been passed in compliance of the earlier round of litigation. The following Order has been passed on the said OA No. 3229 of 2015.:-
"In compliance of the aforesaid orders your case has been examined in detail and it is revealed that you were given the offer of appointment as Act Apprentice in C&W cadre as C&W Cleaner. You were directed to CMS/DUI for medical examination in B-One but were declared unfit in B-one and fit in B-Two Vide Memo No 287216, dated- 10.12.2010., CMS/OLI was requested vide this letter dated 12.01 2011 for advising the reason for your unfitness in B-One medical category. CMS/DUI has given the remarks on the said letter mentioning that "the candidate has been declared unfit in 8-One because of shortening right lower limb with wasting of muscles. His handicap has also been accessed as forty 40% by CMO/Faizabad". These orders have also been communicated to you vide this office letter no. 725- E/9/8525/P-5, dated 06.08.2012.
Your case also examined for your accommodation in post having B-Two medical classification, but there was no Group "D" post in the said medical category over Delhi Division in Mechanical department. Hence your appointment could not be made."
9. Learned counsel for respondents further placed reliance upon preliminary submission as well as the contention urged in the counter affidavit in paras 1 to 9 which are reproduced here:-
"1. That the applicant Sh. Rajesh Yadav was found suitable and approved for engagement in 7 Item No.44/ C-4 OA No. 713/2017 C&W Unit of Delhi Division along with 22 other course completed Act. Apprentices by the General Manager on 26.08.2010. Accordingly, offer of appointment for the post of substitute C&W Cleaner was made to him on 24.11.2010 asking him to report for completion of all pre-appointment formalities like document verification, Medical examination etc.
2. That on reporting, he was directed for medical examination in medical category B-One being requisite category for the post of C&W cleaner. He was declared unfit in B-One by Sr. DMO/DLI vide medical certificate No 287216 dated 10.12.2010. CMS/DLI was requested vide letter dated 12.01 2011 to advise reason for declaring the applicant unfit' in Bee-One medical category as the same was not mentioned in the medical certificate.
3. That CMS/DLI responded with remark that the candidate has been declared unfit in Bee-One because of shortening of right lower limb with wasting of muscles. His disability has also been assessed as 40% by CMO/Faridabad. The applicant represented through Union at GM level to consider him for any other category of job which requires Bee- Two medical category as he has been declared fit in Bee-Two on 03.3.2007 when he was admitted in apprenticeship course.
4. That accordingly, on reference from GM/P, vacancy position in other Group 'D' category posts in Delhi Division was advised vide letter dated 20.03.2013. However, since such offer of alternative appointment/category on account of medical unfitness for the post, selected for, has been withdrawn by Rly. Board vide letter No.99E/RRB/25/12 dated 25.05.2009 (PS 13588/09), the applicant was replied to by DRM/P vide letter dated 20.05.2011.
5. That aggrieved by this, the applicant filed an OA No.3229/15 before the Hon'ble Tribunal seeking relief to appoint him in a Group 'D' post in the medical category in which he has been found fit even when being appointed as on Apprentice. The 8 Item No.44/ C-4 OA No. 713/2017 Hon'ble Tribunal, after having heard the matter, passed the following order dated 21.09.2015: -
"Learned counsel for respondents submits that they have complied with the order of this Tribunal dated 21.09.2015 by passing a speaking order on 09.02.2016, a copy of which has already been given to the learned counsel for applicant in the court. Learned counsel for applicant submits that she is not satisfied with this order as it is not in accordance with the direction given by this Tribunal. As the respondents have already complied with the order of this Tribunal, the CP is closed and the notices are discharged. However, the applicant will be at liberty to work out his remedies in accordance with law."
6. That complying with these orders, reasoned and speaking orders were passed and compliance report filed on 09.02.2016. While the compliance was undertaken, the applicant filed CP No.123/2016. However, the CP was dismissed on 06.04.2.016 since the compliance was made through speaking order dated 08.2.2016 and further giving liberty to the applicant to work out his remedies in accordance with law.
7. That being aggrieved, the applicant has now filed the present OA under reply.
8. That alternative appointment to medically unfit direct recruits selected for a particular post from open market stands withdrawn as per Railway Board Letter No 99E/RRB/25/12 dated 25.05.2009 (Annexure-R-1).
9. That pursuant to instructions contained in RBE No.71/2016 (Annexure-R-2) providing 20% of vacancies in DR quota. In GP Rs. 1800 to be filled through RRC by giving preference to course completed Act Apprentice trained in Rly Establishment and possessing NAC (National Apprenticeship Certificate), the existing powers of GMs to engage CCAAS contained in RBE No. 136/2004 (Annexure-R-3) stands withdrawn as stipulated in RBE No.34/2017 (Annexure-R-4)." 9
Item No.44/ C-4 OA No. 713/2017
10. Learned counsel for respondents states that though they were allowed to join apprentice and perform job under B-1 category however, they were not entitled for B-1 category.
11. To counter the arguments put forth by learned counsel for respondents, learned counsel for applicant states that applicant was already working under B-II category and therefore he should be examined under B-II category instead of B-I category.
12. The learned counsel for the applicant has stated that he would be happy if he can be accommodated in any post having B-II medical classification.
13. Heard learned counsels for parties carefully and perused the records of the case thoroughly.
14. Here the short issue is that whether the present applicant can be considered for appointment based on the apprentice training undergone at par with other two apprentices namely Sh. Sunny Bhardwaj S/o Sh. Rajeshwar Prasad and Sh. Anil Pal S/o Sh. Ram Sewak Pal. Learned counsel for respondents stated that these two apprentices were offered the appointment under category B-I disability whereas the present applicant has disability under category 10 Item No.44/ C-4 OA No. 713/2017 B-II disability. In view of this, the two cases cannot be considered as similar. The present applicant could not be considered for B-I as he was not qualified for the said post on account of his disability.
14.1 We do not discount the averments made by the learned counsel for respondents. The respondents have the prerogative of considering the apprentice trainees for appropriate appointment considering their eligibility and fitness as per the Recruitment Rules prevalent for the said post which they would be considered. However, the learned counsel for respondents could not give a satisfactory response as to why the present applicant cannot be considered for any other suitable post, if available with the respondents because the applicant has undergone apprentice training in the Railway. In view of the fact that the present applicant has undergone the apprentice training, and spent precious two years of his life serving the railways, it is appropriate that he should be considered for an appropriate position taking into consideration his degree of disability. The impugned order dated 08.02.2016 states that the case of the applicant was considered for accommodation for posts appropriate for B-II medical classification, but there was no group-D post in the 11 Item No.44/ C-4 OA No. 713/2017 said medical category in Mechanical Department in Delhi Division. Accordingly, his appointment could not be made.
15. In view of the averments made by both the counsels, it will be appropriate that the respondents will reconsider the matter regarding offering appointment to the present applicant for any post having B-II medical classification if available in Delhi Division. In absence of such post in Delhi Division, they may consider him for offering such post in any other Division of the Railways. This exercise shall be completed within a period of eight weeks from the receipt of a certified copy of this order.
16. The OA is disposed of in the above manner. No costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/daya/