Central Administrative Tribunal - Kolkata
Biswanath Murmu vs Eastern Railway on 24 August, 2018
1
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
No.0 A /350/1055/ 2016 Date of order:
Corarn : Hon'ble Mrs. Bidisha Banerjee, Judicial Member
Hon'ble Dr.(Ms) NanditaChatterjee, Administrative Member
Biswanath Murmu, son of Rasik Murmu,
aged about 45 years, working as Chowkidar,
underPWl/SSE(P)/Liluah/Eastern Railway,
residing at Village-Shialagori,
Post Office - Barui,District- Hooghly,
Pin-712134, West Bengal
Applicant
V
- Versus- I :
1. The Uni ø'1Ifa,t4r ugh the General Manager,
II. The s nnel Officer,
SiorWPemm
Easte
.. .. .............Respondents
For the applicant : Mr. A. Chakraborty, counsel
Ms. P. Mondal, counsel
For the respondents : Ms. C. Mukherjee, counsel
/
ORDER
Bdisha Banerjee, Judicial Member The appikant has assailed an office order dated 16.11.2015 issued by the Senior Divisional Personnel Officer, Eastern Railway, Howrah on the grourd that it has been issued in violation of Section 47(1) of Persons With Disabilities(Equal Opportunities, Protection of Rights and Full Participation)Act, 1995(heeinafter referred to PWD Act) andRBE No.89/1999. Further prayer is to grant alternative S • S • • H . 5 I 2 appointment to the applicant against a post carrying Grade Pay of 1 Rs.2400 substantively.
At hearing Id. counsel for the applicant would draw our attention to the I office order dated 16.11.2015, as contained in Annexure A/i, which revals that the applicant, Biswanath Murmu, a Head Constable under Senior D.S.E., Hwrah-1, upon being medically decategorised was rehabilitated in an alternative post of Track Maintainer, Gr.11(Chowkidar) in Grade Pay of Rs.2400/- in Enineering Department and was allowed to draw pay in Grade Pay of Rs.2800/- undr MACP Scheme.
Ld. counsel for the applicant would strenuously urge that uponmedical decategorisation and corresponding rehabilitation the status of the applicant along with pay and scale ought cted.
L C Section 47 of the PWD 1 ions on "Non-discrimination in \N. / '; i / Government employments" and stiuIe&-e'f lowing:-
"(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, ëould be shifted to some other post with the same pay scale and service benefit:
PROVIDED FURTHER that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until Psuitable 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 rgard 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."
/ 4- 3 RBE 89/99 envisages as under(extracted with supplied eniphasisfor clarity):
"Subject: The Persons with Disabilities (Equal Opportuiities, Protection of Rights and Full Participation) Act, 1995 - Absorption of disabled/ medically decategorised staff in alternative employment - Amendment to IREM.
[No. E(NG)1/96/RE3/9(2), Dated 294.991 The enactment of the Persons with Disabilities (qual Opportunities, Protection of Rights and Full Participation) Act, 1995, has necessitated modification of the existing scherrie of absorption in alternative employment of staff medkally decategorised.
The Ministry of Railways have considered the mater and have decided that the Indian Railway Establishment Manual, VoIiim-1 (Revised Edition 1989) may be amended as in the Advnce Correction Slip No. 77 enclosed.ADVANCE CORRECTION SLIP NO. 77
INDIAN RAILWAY ESTABLISHMENT MANUAL VOLUM-I r%Str. 1.
LR c989)
Chapter XI 11 -- Akkso Me ica Ily Incapacitated Staff in
Substitute the followi ' isting Chapter XIII and paragrahs
1301-13 15 therein:
CHAPTER XIII
Absorption of disabled/medically decategorised staff in Alternative Employment :-
1301. A Railway servant who fails in a vision test or otherwise by virtue of disability acquired during service becomes physicaIy incapable of performing the duties of the post which he occupies should not dispensed with or reduced in rank, but should be shifted to some other post with the same pay scale and service benefits.
1302. Classification of Railway Servants declared medically unfit :
Railway servants acquiring disability during service and declared, medically unfit are diviibIe into two groups (I) Those completely disabled for further service in any post in the Railway, i.e. those who cannot be declared fit even in the 'C' medical category; and 4
(ii) Those disabled/incapacitated for further service in the post they are holding but declared fit in a lower medical category and eligible for retention in service in posts correspoçding to this lower medical category.
1303. The railway servants both in group (I) and group (ii)ôf para 1302 above cease to perform the duties of the posts they are holding from the date they are declared medically unfit for the present post. No officer has the authority to permit the Railway Servant coicerned to perform the duties in the post beyond that date. If suth.aRailwaV Servant cannot be immediately adjusted against or ahsorbddin ay suitable alternative post he may be kept on a special supernumerary post in the grade in which the concerned enployee was working on regular basis before being declared medically unfit pending location of suitable alternative employment for l'im with the same pay scale and service benefits; efforts to locate suitable alternative employment starting immediately. The special supernumerary post so created will stand abolished as soon as the alternative employment is located.
1304. Disabled Medi(1?'de€8e orised staff to be absrbed in posts they can adq6 the matter of absorption of le disabled/medicallyile s fin alternative posts, Railway administrations sI uldt 're ensure that the alernative employment offr 'i., I i which the staff can adequately fill and as far as possi oadly be in allied categories where their background and experience in earlier posts could beutilised. While finding alternative posts for absorption of disabled/medically decategorised staff, the Railway Administration should endure that the interests of other staff in service are not adversely affeted and no reversion of any officiating Railway servant is made to absorb the disabled/medically decategorised staff. For this purpose, attempts should be made to absorb the disabled/medically decategorised Railway servant not only within the Unit/Division or Department, but in other Unit/Division or Department.
1305. Absorption in posts identified for employment of physically handicapped persons/creation of supernumerary posts. The Railway servants falling in group (i) mentioned in para 1302 above i.e. those who are declared unfit even for the lowest medical category, may be absorbed in a post/category identified as suitable for employment of fi rlial physically handicapped persons and fresh recruitment to that IM post/category from open market from amongst physically handicapped withheld. In case the alternative post is not carrying the requisite pay scale, a supernumerary post may be created in I S appropriate scale of pay and the employee adjusted against the same keeping the lower grade post vacant by withholding fresh recruitment thereto. The supernumerary posts so created to accommodate a disabled/medically incapacitated employe.e shall stand abolished as soon as a suitable post in the appropriate scale is found for the Railway servant concerned or the post is vacated by him for other reasons, whichever is earlier.
1306. Steps to be taken for finding alternative employment :-
With a view to determine the categories in whidh the disabled/medically decategorised Railway servant is suitale for absorption, a committee should examine him. The committee may consist of two or three officers posted at the headquarters lof the officer under whom the disabled/ medically decategorised Railway servant was working, the Railway servant's immediate officer being one of the members of the committee. After the committee has examined the Railway servant and determined his suitability for certain categories of posts the officer under whom the Railway servant was working will proceed to take further action to find suitable alternative en ifoi him.
Tr \
pare a iist at vacai
on in,, the ?JwhIch the disable
Inca oaci b,4en found suitable
( attached to the p
ine declared medical
be offered to him.
suitable alternative employment for him. This will be done first by trying to find alternative employment in the officer's own unit/division, office, workshop etc. and a register with the dtails as mentioned in sub-para (6) below will be maintained fpr this purposed.
If there is no immediate prospect of employment in :tiis own unit/division office, etc, the name of the Railway servant with particulars as given in sub-para (6) below will be circulated to all other offices or establishments when suitable employment is likely to be found.
Nothing in the previous paragraphs, however, debars a Railway servant from applying for a particular post for which he is likely to be deemed suitable and it is known to be vacant under any officer. Such an application must be addressed through the immediate officer of 6 the Railway servant concerned and must contain full particulars of his service and must be forwarded to the officer to whom addressed or to the authority competent to make the appointment. The' result of the application must be intimated to the Railway servant.
(6) A register containing the names of all Railway servants declared medically unfit and to be absorbed in alternative post will be maintained by Headguarters, Divisional and other extra.
Divisional offices. These registers contain not only the names of the staff of the particular division, etc., but also the names notifid to the unit Officer concerned by other unit/offices. This will not, hDwever, absolve officers under whom the Railway servant was last working from continuing their efforts to find suitable employment for the disabled/medically decategorised employee. The particulars rquired to be maintained in registers and notified to other officers in accordance with the instructions above are as follows -
Serial number.
Date on which incapacitated.
Name anc PtAbVgV, e.
Post Iasi h 14 asis with scale of Pay and rate
ofpay
Educa u ns - If no educational
qualificat general remarks regarding
knowledge of English, regional language etc. Medical category in which placed.
Details of special supernumerary post till absorptidn in alternative appointment (Para 1303).
Date from which absorbed in alternative appointment.
Nature and category of alternative appointment.
Scale of Pay of the alternative post and the pay fixed at.
Details of supernumerary posts, if any after absorption in Alternative appointment (Para 1305) Remarks.
(7) If and when a Railway servant is absorbed in a alternative post, intimation will be sent by the officer under whom he was previously working to all other officers to whom his name was notified. On I 7 receipt of such intimation, his name will be deleted from the registers.
(8) Before any post is filled or a promotion is ordered,, officers concerned will refer to their registers and satisfy themselves that no disabled medically incapacitated Railway servant who is suitable for the post is available. If any such disabled/medically incapacitated employee is available, he will be given preference over all other categories of staff for appointment."
5. Ld. counsel would draw our attention to amended Rule. 304 of IREC Volume-I amended in accordance with Section 47 of the Act that envisages the following:-
"304(1) A Railway servant who fails in a vision test or otherwise by virtue of disability acquired during service and becomes physically incapable of performing the duties of the post which he occupies should: not be dispense& with or reduced ikç,pt should be shifted to some other post with the same pay nefits.
(2) A Railway. servant tflirje .) above ceases .to perform the duties of the post he is d he is declared medically unfit for the present post. I aa ervant cannot be immediately adjusted against or absor iflen able alternative post he may be kept on a special supernumerar in the grade in which the concerned employee was working on regular basis before being declared medically unfit pending location of suitable alternative employment for him with the same pay scale and service benefits; efforts to locate suitable alternative employment starting immediately."
Citing the aforesaid provisions Id. counsel would argue that such shifting to an alternative post ought to have been either to a special supernumerary post on a par with his erstwhile position as h)e was enjoying on regular basis before being declared medically unfit, pending location of suitable alternative employment for him, or to some other "post" of same pay scale and service benefits as his erstwhile post. The respondents having resorted to demoting a Head Constable to Chowkidar although protecting his pay and scale, has acted contrary to the provisions of the Act, therefore, the office order dated 16.11.2015 qua the r applicant ought to be quashed for the ends of justice and respondents ought to be directed to implement the provisions of Section 47 of the PWD Act and RBE 89/1999.
Ld. counsel for the respondents Ms. C. Mukherjee while vehemently opposing the claim would submit that the applicant was adjusted against such alternative post in accordance with his qualification and visual acquity which in our considered opinion was not permissible. The provisions of the PWI$ Act is unequivocal and univocal that when posting to an alternative post, such alternative post should carry the same pay scale as the applicant was crawing prior to his medical decategorisation. The provisions of RBE 89/1999 is also explicit, clear and unambiguous. A post of Chowkidar carries much legser pay \nStr3.
than that of Head Constable. IX
At this juncture, Id. couil pIit would refer to a deciiôn of
this Tribunal in
\kft /
g noticed that a Cônstab!e was
adjusted against a post of Chowkidar, which was undoubtedly a lower pot, this Tribunal had disposed it of with a direction upon the respondents to immediately find out a suitable alternative adjustment for the applicant in scrupulous observation of Rule 1301 to 1307 as contained in RBE 89/1999 within one tnohth and till such time not to compel the applicant to join the post of transfer.
Ld. counsel for the applicant would further refer to the decision of the Hon'ble High Court in WPCT No.105 of 2016 where order passed in O.A.No.37/2016(supra) was affirmed.
Ld. counsels were heard and materials on record were perused.
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10. In as much inarguably and indubitably the applicant wOuld deerve adjustment against a supernumerary post pending location of a suiale L alternative "post" with the same pay scale and service beneflts..in whid the: * • *4*.
,, ( • applicant was working on regular basis before being declared medically iinfiit, without reduction in rank, we dispose of the present O.A. with a direction up4r the respondents to make efforts to locate a suitable alternati1e post fortIje applicant in accordance with RBE 89/1999 and pending such location to adjust the applicant against appropriate supernumerary post in accordance with RBE 89/99, extracted supra.. • 11 Appropriate orders be issued within eight weeks from the date of receipt f a copy of this order. No costs. .. H (DrNandita'hatterjee) Jud sb I LV.H . . .
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