Central Administrative Tribunal - Jabalpur
In The Central Administrative Tribunal vs Railway Board At Rail Bhawan on 6 August, 2013
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL JABALPUR BENCH : JABALPUR On this Tuesday the 6th day of August Two Thousand and Thirteen OA. 471 & 472 / 2010 Honble Shri Justice Dhirendra Mishra, Judicial Member Honble Shri G.P. Singhal, Administrative Member Rakesh Kumar Ranjan s/o Ram Pravesh Thakur Aged about 30 years, C/o Rajesh Kumar Ranjan House of DL Jain, Professor Colony Bhopal (MP) 462010 (OA.471/2010) 2.Mukesh Kumar Singh S/o Pooran Singh, Aged about 28 years R/o P-22, Fire Brigade Colony Archana Gas Godown, Chhola Road Bhopal (MP) 462010 (OA.472/10) Applicants (By Advocate: Shri M.K. Verma) Vs. 1.Railway Board at Rail Bhawan Raisina Road, New Delhi 110001 Through its Chairman 2.General Manager Western Railway, Church Gate Mumbai 400020 (Maharashtra) 3.Divisional Railway Manager Western Railway, Ratlam 457001 (MP) 4.Railway Recruitment Board Through its Chairman East Railway Colony, Bhopal MP 462010 Respondents (common in both OA) (By Advocate : Shri Arun Soni) (Date of reserving the Order: 16.07.2013) ] O R D E R
By G.P. Singhal, AM -
The facts and circumstances of these two Original Applications are similar and therefore they are being decided by this common order. For the purpose of discussion we are taking the facts of OA.No.472/2010.
2 The applicants in these two OAs had appeared for selection to the post of Traffic Apprentices, in response to the advertisement dated 17.12.2005 (Annexure A-1). They appeared in the examination held for selection and were finally selected for the post. The applicants were issued offer of appointment dated 4.7.2008 (Annexure A-4), which was subject to their being found medically fit for the post. Therefore, the applicants appeared for medical examination but were declared unfit for A-2 category, which was the requirement for this post. Thereafter, the applicants were informed vide letter dated 26.12.2008 (Annexure A-6) that, on their consent, they may be examined for lower medical categories, for which they will have to deposit Rs.24 as examination fee and submit various documents mentioned in the letter before 15.1.09. The applicants appeared for medical examination again and, this time, according to them, they were found to be fit for B2 and below category. In this regard, the applicant in OA.472/10 has filed certificate dated 12.1.09 (Annexure A-6), while the applicant in OA.471/10 has simply filed memorandum of appearance for the second medical examination. The applicants also applied for consideration in regard to alternative appointment, as was expected of them, in response to the said letter dated 26.12.2008 (Annexure A-6). However, they were informed vide letter dated 4.6.09 (Annexure A-8) that their representations in regard to alternative appointment have not been considered by the competent authority.
3 The applicants submitted that thereafter they preferred combined representation to the Railway Minister (Annexure A-10), which was forwarded by the office of the Minister of State for Railways for necessary action to General Manager, Western Railways, Mumbai (Annexure A-11). However, this representation has been rejected by the respondents, mentioning that as per the Railway Boards letter No.99/E/(RRB)/25/12 dated 25.5.2009 there is no provision for giving alternative appointment to medically unfit RRB candidates.
4 The applicant in OA.472/10 has vide MA.1116/11 filed certain documents, which are the lists of candidates who have been provided alternative appointment, after their failing in the medical fitness examination, during the period 1999-2009 in various Railways. The document at Annexure A contains a list of 5 persons who were selected as Traffic Apprentices during the period 2005-2009 and after being declared medically unfit for the post, provided alternative appointment by the Western Railways. The annexure B is the information provided by Senior Divisional Personnel Officer, Nagpur, where only one candidate was provided alternative appointment during this period. However, he was appointed vide letter dated 5.6.09, which is after the circular dated 25.5.09. At Annexure C there is copy of letter dated 1.4.09, from the office of Chief Personnel Officer, Bilaspur, which gives list of 5 candidates who were provided alternative appointment on being declared medically unfit. At Annexure D there is a list of 27 candidates, who have been provided alternative appointment during the 10 year period under West Central Railways. Thus, the applicants contention is that like all these cases, they too deserve to be considered for alternative appointment as they were found medically unfit for the post on which they were selected by RRB and had submitted their representation for alternative appointment on 16.1.2009 which was much before the date of Railway Boards letter dated 25.5.2009.
5 The respondents, in their reply, submitted that as per the Railway Board instructions dated 25.5.2009 (Annexure R-1) alternative appointment is not permissible to the medically failed and empanelled candidates who had been declared successful by RRB. Further, the Railway Board vide their letter dated 28.7.2010 (Annexure R-2) have clarified that irrespective of the fact whether the case occurred before 25.5.09 or after that date, the alternative appointment of medically unfit candidates should not be considered in any case. In these circumstances, the representations of the applicants have been rightly rejected and the OAs deserve to be dismissed.
6 We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith.
7 The learned counsel for the applicants submitted that similar matter was considered by Patna Bench of this Tribunal in OA.430/09 wherein vide order dated 30.11.2010, it has been held that the Railway Board letter dated 25.5.2009 (Annexure R-1 in the present case) is effective from the date of its issue i.e.25.5.2009. In this view of the matter, the respondents were directed in that case to consider case of the applicant for alternative appointment. In the present OA also the applicants were found medically unfit and thereafter submitted representations for alternative appointment on 16.1.2009, which was much before the date of coming into effect of Railway Board Circular dated 25.5.2009 (Annexure R-2). In these circumstances, the applicants should not be denied consideration for alternative appointment on the basis of this circular.
8 The learned counsel for the respondents submitted that the applicants are not entitled to get alternative appointment as, much earlier to the circular dated 25.5.2009, such appointments were banned for certain categories of posts vide circular RRCB no.5/2001 dated 4.9.2001. The para 4 of this circular provided that, candidates selected for the category of Assistant Driver/ASM/Motor man will also be not eligible for any alternative appointment if they failed in medical examination conducted by the Railways before appointment for any reason.
9 The learned counsel for the respondents further submitted that as per IREM Para 125, the Traffic Apprentices are to fill 25% of the posts in the categories of Section Controllers, Station Masters, Yard Masters and Traffic Inspectors. Thus, even though the post of Traffic Apprentice is not specifically mentioned in the said circular dated 4.9.2001, since they are eligible for appointment to the post of Station Masters, by implication, this circular shall be applicable in their case also. In regard to the order passed by the Patna Bench of CAT in OA.430/2009, the learned counsel for the respondents submitted that, in that case, the applicant had applied for the posts of Goods Guard as well as Enquiry cum Reservation Clerk (in short ECRC). The RRB had selected him for the post of Goods Guard, for which he was found to be medically unfit. However, the applicant therein was medically fit for the other post of ECRC, for which also he had duly applied. Since the case of applicant in that O.A. did not belong to any of the categories mentioned in the Railway Board circular dated 4.9.2001 (RRCB No.5/2001), the matter is quite different from that of present applicants. Thus the facts of that case are clearly distinguishable from the present case.
10 We find that, as mentioned in their reply, the respondents have denied alternative appointment to the applicants on the ground of Railway Board circular dated 25.5.2009 (Annexure R-1). The relevant para 4 and 5 of this circular is reproduced as under:
Board have decided to discontinue the policy of providing alternative appointment to the medically failed empanelled candidates selected through RRBs/RRCs for any Group C or Group D post.
These orders supersede all earlier orders issued on the subject and will take effect from the date of issue. Thus, this circular is to take effect from its date of issue. This view has been upheld by the Patna Bench of this Tribunal in their order dated 30.11.2010 passed in OA.430/09.
12 In regard to contention of the respondents that the post of Traffic Apprentices was covered in the earlier Railway Board Circular dated 4.9.01 (RRCB No.5/10) read with Para 125 of IREM, we find that the applicant in OA.472/10 has filed the list of 5 persons who were declared medically unfit for the post of Traffic Apprentices and they were thereafter provided alternative appointment during the period from 2005-07 in Western Railway (Annexure A-MA.1116/11). Thus, if the said circular dated 4.9.01 was applicable for traffic apprentices, how could these people be provided alternative appointment after that date? In any case, this circular provides in its para-5 that The fact that the candidates who failed in the medical examination for these categories will not be eligible for any alternative appointment in the Railways, should be mentioned clearly in the employment notice so as to discourage those candidates, who do not fulfill medical requirements, from applying. The Circular further provides that the candidates were to be asked to enclose a medical certificate from an Eye-Specialist regarding vision in a prescribed Proforma, when they apply for these posts. However, the respondents have not submitted anything to show that such a requirement was ever mentioned in the advertisement in regard to candidates applying for the post of Traffic Apprentices. Thus, there is nothing to substantiate the claim of the respondents that this circular No.RRCB No.5/01 dated 4.9.2001 was applicable in the case of Traffic Apprentices.
13 It is also apparent from the letter dated 26.12.2008 (Annexure A-6) wherein, the applicants were asked to give their written consent within 15 days for their examination in other medical categories and submit copies of education qualification, date of birth etc. along with 5 pass port size photographs and be present with all these documents up to 15.1.2009, otherwise this proposal of appointment may be treated as cancelled, that this communication was with a view to consider the cases of applicants for alternative appointment. In response to this communication, the applicants preferred representation dated 16.1.2009 and also attended second medical examination, in which they were declared fit for B2 and below category. However, their representations were rejected vide letter dated 4.6.2009 (Annexure A-8) without assigning any reasons. The stand of respondents now is that the applicants could not be offered alternative appointment in view of Railway Board Circular dated 25.5.2009 (Annexure R.1). But the applicants had filed representations for alternative appointment much before that date. Therefore, their cases deserve to be decided in terms of the order dated 30.11.2010 in OA.430/2009 of Patna Bench of this Tribunal, wherein, it has been held that the said letter dated 25.5.2009 shall be effective from the date of issue and not before that.
14 In these circumstances, we direct the respondent No.2 to consider the cases of the applicants for alternative appointment as per the provisions of relevant rules/ instructions in this regard, ignoring the ban imposed on such appointments vide Railway Board Circular dated 25.5.2009 (Annexure R-1), within a period of 3 months from the date of communication of this order.
15 In view of the above, the OAs are allowed. No order as to costs.
(G.P. Singhal) (Dhirendra Mishra) Administrative Member Judicial Member Sk
11 Thus, this circular clarifies that appointment for alternative posts is not a right of the candidates. In any case, the provision for alternative appointment was made primarily with the view to fill up the vacancies though there is acute shortage of staff. Since the provision was being misused by certain candidates, the Railway Board decided to discontinue the policy providing alternative appointment to the medically failed and empanelled candidates selected through RRB/ RRCB for group C or D posts.
12 The Railway Board vide their letter dated 28.7.2010 (Annexure R-2) has further clarified that requests for alternative appointment should not be considered irrespective of the fact whether the case occurred before 25.5.2009 or after 25.5.09. The relevant para 2 of this letter is reproduced as under:
Prior to issue of Boards instructions dated 25.5.2009, General Managers of Zonal Railways were authorised to consider requests from such candidates for appointment in alternative category in same grade provided there is an acute shortage of staff in the alternative post. When the delegated powers ceased to exist with the issue of Boards instructions ibid, it is immaterial whether case occurred before 25.05.2009 or after 25.05.2009. Therefore, in the above scenario, request for alternative appointment of medically unfit candidates should not be considered in any case. 13 In regard to information filed by the applicant in OA.472/10 vide MA.1116/11, we find that except for one case, mentioned in Annexure B, all the cases are for the period prior to 25.5.2009. Since the matter has been further clarified by letter dated 28.7.2010 (Annexure R-2) of the Railway Board, there is no scope now for consideration of the case of the applicants for alternative category, particularly when such consideration was already banned vide earlier Railway Board Circular dated 4.9.2001 (RRCB No.5/10) for certain categories which indirectly included the applicants also.
14 In view of the aforesaid, we do not find any justification to interfere with the impugned orders of the respondents. Accordingly, the OAs are dismissed. No order as to costs.
Sub : Alternative appointment to medically unfit candidates empanelled by RRBs & RRCs in Group C and D posts regarding.
Ref: (1) Railway Boards letter No.99/E(RRB)25/12 dt.20.8.1999 (RRCB No.9/99) (2) Railway Boards letter No.99/E(RRB)25/12 dt.7.8.2000 (RRCB No.6/2000) (3) Railway Boards letter No.E(RRB)/2001/25/21 dt.4.9.2001 (RRCB No.5/2001) The matter regarding provision of alternative appointment in the same grade to candidates selected for Group C and Group D posts by RRBs and RRCs who fail in the prescribed medical examination has been engaging the attention of the Board for quite some time. In terms of Boards letters under reference, General Managers of the Zonal Railways/ PU s are presently authorized to consider requests from such candidates for appointment in alternative categories provided there is an acute shortage of staff in the alternative posts of the same grade and on fulfillment by the candidate of the prescribed medical standard, educational qualifications and other eligibility criteria prescribed for the post. This provision is not to be taken as a matter of right by the candidates.
The genesis of the provision for considering alternative appointment primarily lies in the High Cost of recruitment, short panels and filling up of vacancies where there is acute shortage of staff. However, the experience of the Railways over the years indicates that this provision is being misused. A large number of candidates empanelled for the post of ASM/ Assistant Loco Pilot /Motorman had been falling in the prescribed medical examination thereby resulting in short panels. Board had, therefore, decided not to provide appointment in alternative posts to the medically failed empanelled candidates for these categories. These orders were issued in 2001 vide reference No.3 above.
Some of the Railways have brought to the notice of the Board that due to large number of surplus /medically decategorised staff waiting re-depolyment, it is not feasible to consider cases of alternative appointment to medically unfit RRB/RRC empanelled candidates. Moreover, some candidates take this provision as matter of right and misused it for securing alternative appointment in Non Technical Popular Categories posts where the level of competition is much tougher. This matter was also discussed in the Conference of Chief Personnel Officers held in Boards office on 1.5.2009 wherein the general consensus was that the policy of providing alternative appointment to the medically failed empanelled candidates both for Group C and Group D posts should be dispensed with.
Considering all these aspects, . In case of their appointment on alternative posts, the applicants will be entitled to seniority vis-`-vis other appointees on those posts of the aforesaid advertisement notice as per the prevalent rules. This exercise should be completed ??
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