Rajasthan High Court - Jaipur
Union Of India vs Ramakant Pareek S/O Babu Lal Pareek A/A on 24 July, 2023
Bench: Augustine George Masih, Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 9021/2023
1. Union Of India, Through General Manager, West Central
Railway, Indra Market, Jabalpur, M.P. Jabalpur.
2. Divisional Railway Manager, Kota Division Of West Central
Railway, DR.M. Office, Kota.
3. Divisional Personal Officer, Kota Division, Kota.
----Petitioners
Versus
Ramakant Pareek S/o Babu Lal Pareek A/a 45 Years, R/o 21,
Gayatri Vihar (II), Borkhera, Kota. Presently Posted As
Technician Grade II Under Sr. DEE (TRD), Kota.
----Respondent
For Petitioner(s) : Mr. P. C. Sharma For Respondent(s) : Mr. Amit Mathur
HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE SAMEER JAIN Order 24/07/2023
1. Being aggrieved and dissatisfied with the impugned order dated 21.02.2023 passed by the Central Administrative Tribunal, Jaipur (for short "CAT") in Original Application No. 53/2014, whereby the CAT directed the petitioners to allow the respondent-applicant to join post in his original cadre (i.e. Electrical Assistant Driver or in the alternative as Tower Wagon Driver, within a period of two months), the present writ petition has been filed with the following prayers:
"(i) By appropriate writ, order or direction your lordship may kindly be pleased to quash and set-
aside the impugned order passed by the Central Administration Tribunal, Jaipur Bench dated (Downloaded on 11/11/2023 at 06:32:39 PM) (2 of 8) [CW-9021/2023] 21.02.2023 passed in OA No. 53/2014 titled as Ramakant Pareek Vs. UOI and Ors.
(ii) Any other appropriate order which this Hon'ble Court deems fit and suitable for the benefit of the petitioners may kindly be passed
(iii) Cost of the writ petition may kindly be awarded in favour of the petitioners."
2. The brief facts of the case are as follows:
2.1 That the respondent-applicant was initially appointed as Electrical Assistant Driver at Kota vide order dated 23.09.1998. In his category an employee is subjected to periodical medical examination after every four years. In case, he is found fit then he would continue in the same category to which he belongs but in case, he is found unfit in medical test then he would be medically de-categorized and would be absorbed in any other post either of the same or different department of the Railways. In case of the respondent-applicant, he was declared as unfit in A-1 category of medical test for the post of Electrical Assistant Driver and was declared as fit in A-2 category without glasses. Thus, he was medically de-categorized for the said post as per certificate dated 23.04.2002.
2.2 That the respondent-applicant was then relieved to join as Technician Grade-II (Control Group) in TRD of Electrical Department. During the interregnum period, the respondent-
applicant got treatment of his eyes sight and furnished a representation to DRM (E)- Kota along with certificate issued by the Medical Officer dated 20.06.2009 with a request to revise medical test for the post of Electrical Assistant Driver, which was his parent department before de-categorization as several others were also considered including Shri K. K. Murthy and Shri Banwari Lal Meena.
(Downloaded on 11/11/2023 at 06:32:39 PM)(3 of 8) [CW-9021/2023] 2.3 That on 01.07.2011 the respondent-applicant was
subjected to medical test and he was declared as fit in A-1 category vide medical certificate dated 01.07.2011. Thereafter, the applicant filed a representation but the same was not decided and therefore, the applicant preferred an OA No. 406/2012 in which vide order dated 16.07.2012, directions were given to the department to decide the representation of the respondent-
applicant.
2.4 That the department vide order dated 13.09.2012 dismissed the representation of the respondent-applicant after which he filed an OA No. 53/2014 before the CAT below which was allowed on 21.02.2023.
3. Learned counsel for the petitioner-Union of India has assailed the impugned order dated 21.02.2023, primarily, on the following grounds:
3.1. That the respondent-applicant had been working on the changed post ever since 27.06.2002 with continuous promotions and was recently promoted to the post of Senior Section Engineer Level-7 vide order dated 25.07.2022 in the Grade Pay of Rs. 4600/- and thus posting him on the post of Tower Wagon Driver, at this belated stage, that too in the lower pay scale of Rs. 2800/- would not be in interest of any party involved.
3.2. That the CAT has not appreciated the fact that the respondent-applicant has been working on the post of technician and not as driver for long and now it is impossible to allow the applicant to be posted as Driver without the technical skill accustomed with the post as there has been a drastic change in (Downloaded on 11/11/2023 at 06:32:39 PM) (4 of 8) [CW-9021/2023] the technical operation of train from the year 2002 to the year 2023.
3.3. That the medically fit certificate in A-1 category was issued in the year 2011, i.e. about 12 years ago, and at this belated stage the same cannot be considered as foundation for posting the respondent-applicant as Driver. 3.4. That the comparison made to the purported similarly situated person was not proper for the reason that those people were claiming the post of Motorman and not Driver.
4. Per contra, learned counsel for the respondent-
applicant submits that the CAT had already dealt with all the contentions made hereinabove and had rightly decided the application in favour of the respondent-applicant as the only medical impediment attributed to the respondent-applicant was qua vision/eyesight and that was duly cured subsequently and the respondent-applicant was eligible to be posted to his original post again.
5. Heard the arguments advanced by both the sides and scanned the record of the writ petition.
6. The issue before the CAT was whether the respondent-
applicant could be considered for reposting to his original cadre of Electrical Assistant Driver on being found fit in A-1 medical category by the Chief Medical Superintendent in view of Medical Certificate dated 01.07.2011.
7. The CAT, after hearing both the sides, observed and held as under:
"9. The facts as not disputed are not repeated pertaining to his appointment as Electrical Assistant Driver in the pay scale of Rs. 3050-4590 and that he was subjected to periodical medical test on completion (Downloaded on 11/11/2023 at 06:32:39 PM) (5 of 8) [CW-9021/2023] of 04 years of service. During the periodical medical examination, the Senior Division Medical Superintendent, Kota found the applicant as unfit under the medical category of A-1 as per letter/certificate dated 23.04.2002 and found him fit under the medical category of A-2 and other below medical category without glasses. So applicant was found medically de- categorized for the post of Electrical Assistant Driver. He was then absorbed in the pay scale of Rs. 4000- 6000 on the post of Technician Grade-II in the Electrical Department (Carriage & Wagon) Ramgunj Mandi vide order dated 27.06.2002. Since then he is working as Technician Grade-II. In the interregnum period, applicant had undergone treatment of his eyes and was declared as fit for A-1 medical category as far as his eye sight is concerned as per Certificate issued by Medical Officer dated 20.06.2009. Thereafter, as he was found fit in A-1 medical category, he made a representation to DRM (E) along with said medical certificate in order to consider his case and allow him to join on his earlier post of Electrical Assistant Driver i.e. before his de- categorization.
10. The provision of para 518 of Indian Railway Medical Manual (IRMM), pertaining to "Re-examination on revision of medical classification", reads as under:-
"518. Re-examination on revision of medical classification:-
(1) The staff belonging to any medical category, when brought on to the categories of A-1, A-2, and A-3 on revision, should be examined immediately on revision.
(2) The staff belonging to any medical category, when brought on to the categories of B-1 or B-2 on revision, should, subject to the provisions of sub-para (4) below, be examined at the time of next scheduled examination prescribed for these categories.
(3) The staff belonging to any category when brought on to categories C-1 and C-2 on revision, may not be required to undergo any medical examination.
(4) Where, on revision, the medical category is raised upwards, there should be an immediate examination on revision and in other cases where the revision is downwards, the medical examination should be at the time of next scheduled examination.
(5) The provision of this paragraph need not apply to the staff who have already been given relaxation by the Railways as personal concession to them."
11. Accordingly, applicant made a request to the DRM (E) WCR, through proper channel, for (Downloaded on 11/11/2023 at 06:32:39 PM) (6 of 8) [CW-9021/2023] consideration of his case to the post of Electrical Assistant Driver vide his letter dated 11.08.2011 (Annexure A/11) as per his medical certificate dated 01.07.2011 on being found medically fit in A-1 category in view of sub para 4 of para 518 of IRMM. Since no action was taken by the respondents on his said representation, he filed OA No. 406/2012 before this Bench of the Tribunal. This Tribunal vide its order dated 16.07.2012 disposed of the said O.A. directing the respondents to consider and decide the representation dated 11.08.2011 and pass a reasoned & speaking order within three months from the date of receipt of a copy of the order.
12. On the other hand, respondents in compliance of the order dated 16.07.2012 passed in the said O.A., decided the said representation of the applicant vide order dated 13.09.2012, (Annexure A1), which is the impugned order in challenge. According to the reply filed by the respondents, they state that after applicant having been found medically unfit under A-1 category, he could not have been assigned the work in running category since it is concerned with the safety of the passengers and, thus, they came to the conclusion that applicant is not governed with the provisions of para 518 (4) of IRMM and found their action to be justified and proper.
13. Coming to the grounds raised by the applicant that rules are clear on the subject and that he be given benefits of sub para 4 of para 518 of IRMM and that as per medical certificate dated 01.07.2011, (Annexure A/9), he is found fit in A-1 medical category and also as per guidelines that after completion of 6 years service, one can be re-examined for sending back to the original cadre in case on revision his medical status has got raised upwards, he may be considered for sending him back to his original cadre. We agree with all these grounds raised by the applicant and find them to be sustainable. On the other hand, we do not agree as to how para 518 of IRMM does not apply in the case of applicant and find their contention to be erroneous as they themselves have found applicant to be fit for Tower Wagon Driver.
14. We are shocked to hear from learned Senior Central Government Standing Counsel, Shri Anand Sharma, who has asked us to go through the reply as he was unable to argue the matter as he received the file late in night. We find that he is unable to assist the Court though we have granted him adjournments on several occasions, but being matter of the year of 2014 and in accordance with the instructions issued by the Hon'ble Chairman, Central Administrative Tribunal, we were forced to hear the matter in absence of his assistance.
(Downloaded on 11/11/2023 at 06:32:39 PM)(7 of 8) [CW-9021/2023]
15. We find that para 518 (4) of IRMM applies in the case of the applicant. When para 518 can be applied in the case of other Divisions, we fail to understand as to why the benefits of said para cannot be granted to the applicant when he has a fitness medical certificate and when rules and guidelines are in his favour. As far as question of safety of passengers is concerned, when he is found fit in A-1 medical category and respondents themselves have found him fit for Tower Wagon Driver, then he can also be considered for his original post of Electrical Assistant Driver.
16. In view of the observations and discussions made hereinabove, we find that the impugned order dated 13.09.2012, (Annexure A/1), deserves to be interfered by this Tribunal as the same is highly unjust and illegal and, thus, in view of the medical certificate dated 01.07.2011, (Annexure A/9), the applicant can be allowed to join the post in his original cadre i.e. Electrical Assistant Driver or in alternatively as Tower Wagon Driver as per respondents' own admission. Therefore, the impugned order dated 13.09.2012 (Annexure A/1) is hereby quashed and set aside. Accordingly, respondents are directed to allow the applicant to join the post in his original cadre i.e. Electrical Assistant Driver or in alternatively as Tower Wagon Driver within a period of two months from the date of receipt of certified copy of this order.
17. Consequently, Original Application is hereby allowed with these observations and directions. No order as to costs."
8. From the analysis of the above, the following points emerge:
8.1. The CAT observed that since the benefit of Para 518 (4) was extended to similarly situated persons, then the petitioner cannot discriminate against the respondent-applicant. 8.2. The CAT observed that the only medical impediment attributed to the respondent-applicant was with regard to the eye-
sight, which was also cured/treated during the interregnum period and the respondent-applicant was declared fit by the competent authorities, as per the Rules. Even if the contention of the petitioner that the respondent-applicant cannot be appointed as driver, for the sake of abundant caution, is accepted, then also the (Downloaded on 11/11/2023 at 06:32:39 PM) (8 of 8) [CW-9021/2023] petitioners had themselves considered the respondent-applicant to be medically fit for Tower Wagon Driver.
8.3. Although the CAT observed that if the respondent-
applicant is fit for being a Tower Wagon Driver, he can also be considered for post of Electrical Assistant Driver; the CAT only directed the petitioner to appoint the respondent-applicant either as Electrical Assistant Driver or as Tower Wagon Driver.
9. In view of the above, this Court is of the opinion that the learned CAT has passed a well-reasoned speaking order and after consideration of material aspects, arrived at a logical conclusion and therefore no interference is called for in the directions issued by the learned CAT.
10. Accordingly, present writ petition stands dismissed.
11. Pending application(s), if any, shall stand disposed of.
(SAMEER JAIN),J (AUGUSTINE GEORGE MASIH),CJ Pooja /81 (Downloaded on 11/11/2023 at 06:32:39 PM) Powered by TCPDF (www.tcpdf.org)