Central Administrative Tribunal - Ernakulam
L. Premkumar vs Divisional Personnel Officer on 25 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00900/2014
Monday, this the 25th day of July, 2016
CORAM:
HON'BLE MR. U. SARATHCHANDRAN, JUDICIAL MEMBER
L. Premkumar, aged 56 years,
S/o. Lakshmanan, Subamangalam Village,
C.K. Ashramam Post, Tirupattur, Vellur District,
Pin - 635 602. ... Applicant
(By Advocate - Mr. P.V. Mohanan)
Versus
1. Divisional Personnel Officer, Southern Railway,
Divisional Office, Palakkad - 678 002.
2. The General Manager, Southern Railway,
Park Town, PO Chennai - 3.
3. Chief Medical Superintendent, Office of the
Chief Medical Superintendent, Southern Railway,
Palakkad - 678 009. ... Respondents
(By Advocate : Mr. Thomas Mathew Nellimoottil, Sr. PCGC)
This application having been heard on 01.07.2016, the Tribunal on
25.07.2016 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
The applicant is a retrenched casual labour who was working in the Palakkad Division of Southern Railway from 21.8.1982 to 20.4.1984. In terms of the judgment rendered by the Apex Court in Inder Pal Yadav & Ors. v. Union of India & Ors. - (1985) 2 SCC 648, the Divisional Office, Southern Railway had prepared a live register of retrenched casual labourers in which the applicant was at serial No. 1845 (LTI No. 153). He was directed to report before the Divisional Office, Palakkad with the requisite records including proof of date of birth, caste, photo identity and other documents. The screening committee recommended him for absorption. But as there was mistake in that certificate the school transfer certificate (TC) issued by the school in which the applicant studied he was not absorbed into service. On representation the Divisional Officer informed him that he cannot be considered for absorption on account of the discrepancies in the TC. There upon the applicant filed OA No. 855 of 2005 before this Tribunal. Thereafter on the request of the Head Master of the school in which he was studying a discrete inquiry was done through a Revenue Inspector and issued a fresh certificate certifying the date of birth of the applicant as 4.7.1958. OA No. 855 of 2005 was disposed of by directing the respondents to consider the certificate and to pass appropriate orders. But by the proceedings dated 10.5.2007 the applicant's claim was rejected on the ground that the earlier certificate had not been cancelled and hence, a fresh certificate cannot be agreed to. Aggrieved by that the applicant again approached this Tribunal by filing OA No. 503 of 2007 but it was dismissed. Applicant challenged the order of this Tribunal in OA No. 503 of 2007 in the High Court by WP(C) No. 32592 of 2008. The High Court vide Annexure A1 judgment allowed the Writ Petition and directed the Railways to take up the case of the applicant and to issue such orders as may be called for in the light of Annexure A7 certificate (therein) and he be admitted to duty accordingly in terms of the appropriate guidelines within two months. As the order was not complied with applicant approached the High Court by filing contempt case No. 1259 of 2010. During the pendency of the contempt of court case applicant was directed by the Personnel Branch of the Palakkad Division of the Railway to appear before the Medical Superintendent on 20.12.2010. Without properly examining the applicant the Divisional Officer produced the proceedings dated 24.12.2010 intimating the applicant as unfit for all categories due to diabetes mellitus vide medical certificate dated 21.12.2010 (Annexure A2). He was also informed that he may seek medical re-examination by the Chief Medical Superintendent with the support of a medical certificate issued by a medical practitioner. In the light of Annexure A2 contempt proceedings were dropped. Applicant was examined by a Government Doctor who had issued Annexure A3 series certificates indicating that he is fit for Railway Trackman post. It is also stated in Annexure A3 that his physical condition, biochemical status, ex-ray, ECG were all within the normal limits. However, the Chief Medical Superintendent who examined the applicant on 22.2.2011 issued Annexure A6 certificate declaring him unfit in all categories. As the contempt of court case was disposed of by the Hon'ble High Court holding that if the applicant is aggrieved he may challenge the same before the appropriate forum. Therefore, the applicant filed OA No. 146 of 2012. It was disposed of along with another similar case vide. Annexure A7 holding that there are posts like Waterman, Gardner, etc. which do not involve much physical strain, giving liberty to the respondents to examine whether in the face of the certificate of medical unfitness an administrative decision can be taken to offer the applicant lighter jobs under C-1 and C-2 medical classification. In the light of clause 2007(4)(b) of Indian Railway Establishment Manual if a casual labour on medical examination is found unfit for all categories for which he was sent for medical examination he may be considered for alternative category requiring lower medical classification subject to their suitability for the alternative category being adjudged by the screening committee. Relying on that provision the applicant submitted Annexure A8 representation on 12.11.2012. That representation was rejected by the respondents vide Annexure A9 which is marked in this OA. Applicant states that as per clause 511 of Indian Railway Medical Manual (IRMM) applicant is not suffering from any deficient physical condition and he is not suffering from any of the disabilities mentioned in clause 511. Therefore he prays for quashing Annexure A9 communication and to direct the respondents to appoint him as a Watchman or as a Gardner or any job involving less arduous nature of duties in the Railway forthwith with all consequential benefits; constitute a medical board consisting of experts and to examine him by the medical board to ascertain as to whether the applicant is suffering from any contagious disease, constitutional affliction or bodily infirmity unfitting him or likely to unfit him for public appointment/service. He further prays for for directing the respondents to admit the applicant to duty as Track Man (Gang Man) or any other equivalent post in Southern Railway in terms of Annexure A1 judgment of the Hon'ble High Court.
2. This OA was vehemently contested by the respondents by contending that the prayers in this OA has already been considered in Annexure A7 common order of this Tribunal in respect of the OA No. 146 of 2012 filed by the applicant. Respondents therefore contend that the prayers sought for by the applicant in the present OA is hit by the principles of res judicata. It is further contended that in Annexure A7 order this Tribunal had given the discretion to the respondents to decide the issue of offering lighter job under C-1 and C-2 medical classification and hence the applicant cannot challenge Annexure A9 by which he was informed that in view of the medical unfitness in all the categories he cannot be considered for appointment in the Railways. The reply statement has been filed by the Senior Divisional Personnel Officer of the Palakkad Division of the Railway narrates the previous litigational history of this case including the first rejection of the applicant's case due to the irregularities in the TC as proof of date of birth. According to the respondents the present OA is bereft of bonafides and has been filed as an experimental measure to derive undue benefits.
3. Heard Mr. P.V. Mohanan, learned counsel for the applicant and Mr. Thomas Mathew Nellimoottil, learned counsel for the respondents in extenso.
4. Applicant is, obviously an intended beneficiary of Inder Pal Yadav's case (supra). Though he was considered for absorption as Group-D employee in terms of the directions of the Apex Court in that case, he was rejected by the respondent Railway for the first time on certain discrepancies where noted in the certificate of date of birth of the applicant. OA No. 503 of 2007 filed by him before this Tribunal was not decided in his favour finding that by producing bogus certificates relating to date of birth the applicant evinced lack of integrity, upholding the decision of the Railway. But interfering with the order of this Tribunal in OA No. 503 of 2007 the High Court gave a verdict in his favour, holding:
'3. While it is definitely true that the integrity is not to be compromised, the fact of the matter remains that the applicant belongs to the marginalised sector of the society and going by Annexure A7 document, which has been belied by the Tribunal, he had hardly, education till the 6 th standard. He was a casual labourer with the Railways between 1982 and 1984. The thrust of the ratio laid down by the Apex Court in Inder Pal Yadav's case was to provide succor for casual labourers, who happened to be uneducated.
4. Taking into account the entire materials, we are of the view that justice demands that the respondents be directed to treat Annexure A7, as having been issued by the competent authority with clearance from the Tahsildar. This will only serve the ends of justice and provide an opportunity to the applicant to work for the Railways, in terms of the directions issued by the Apex Court in Inder Pal Yadav's case.
For the aforesaid reasons, Ext. P1 is set aside and OA No. 503/07 of the Central Administrative Tribunal, Ernakulam Bench will stand ordered, directing the respondents therein to take up the a case of the petitioner and issue such orders, as may be called for, in the light of Annexure A7 certificate and he be admitted to duty accordingly, in terms of the appropriate guidelines. Let this be done at the earliest, within a period of two months from the date of receipt of a copy of this judgment.'
5. Thus, it can be seen that the court has given a clear order directing the respondents Railway to admit him to duty in terms of appropriate guidelines. The respondents thereupon caused the applicant to be examined medically in terms of the requirements in the IRMM which has resulted in Annexure A2 medical certificate issued by the Senior Divisional Medical Officer, Palakkad finding that he applicant is unfit for all categories. By Annexure A2 letter communicating the medical certificate of unfitness the respondents had permitted him to be examined by the Chief Medical Superintendent of the Railway Division provided he produced another medical practitioner's certificate regarding his physical condition. Accordingly applicant met two Government doctors who issued Annexures A3 and A4 certificates. Annexures A3 & A4 certificates show that the aforesaid Government doctors had examined him on his physical condition, biochemical status, x-ray and ECG and have opined that he is fit for the post of Trackman. However, on re- medical examination by the Chief Medical Superintendent of the Railway Division who issued Annexure A6 certificate once again confirmed that he is 'unfit' in all categories and is unfit for such appointments. It is also seen in Annexure Nos. A2 and A6 that he was examined for class B-1 . Aggrieved by this the applicant again approached this Tribunal by filing OA No. 146 of 2012 wherein this Tribunal held:
'8. Therefore, according to respondents the applicants could not be considered for the post of Trackman with B-1 medical classification in view of the medical unfitness. The applicants on the other hand demand a medical re- examination by a duly constituted Medical Board. Para 563(b)(i) of IRMM does not envisage such re-examination for non-gazetted employees. So the issue is as per para 522(i) of IRMM, whether an error in diagnosis has crept in. It has not happened is the view taken by the competent medical authority. It is seen that the diagnosis of the disease is based on biochemical analysis for blood sugar and the reading recorded for BP. The scope for error in judgment of the medical examiner as in the case of any complicated disease presenting alternative courses of treatment does not arise in this case, in my opinion. In fact diagnostic skills and expert medical opinion is not called for when the diagnosis is based on biochemical analysis report/BP reading etc. I, therefore, find that respondents cannot be called upon to order a re-examination by the medical board. The applicants are above 50 years and it is probable as in the case of many in that age bracket that they are suffering from the so called lifestyle diseases. Therefore, the OAs deserve to be dismissed, as far as the relief sought for is concerned. However, vide Annexure A-3, in OA 146/12 the civil surgeon, Government hospital Tirupathur, Tamilnadu has certified that the applicant is fit to work as Trackman and his Diabetes is under control with medication. The work of a Trackman is undoubtedly a physically arduous one. But there are posts like watchman and gardener etc. whose work does not involve much physical strain. It is for respondents to examine whether, in the face of a certificate of medical unfitness, an administrative decision can be taken to offer them lighter jobs under C-1 and C-2 medical classification. It is purely at the liberty of the respondents as this Tribunal does not find it fit and proper to direct the respondents to resort to any action which is not covered by the provisions of IREM. It is only due to the fact that applicant have been agitating for their absorption for long. The respondents have submitted in other OAs that many medically decategorised employees are waiting for such alternative posts. Therefore, any decision to entertain the request of the applicants for absorption will be prospective in nature and subject to availability of vacancies and the relevant recruitment rules.'
6. Annexure A7 decision is highlighted by the respondents as res judicata for the applicant for seeking the relief sought in the present OA. True, this Tribunal is bound by its own decisions and therefore, the respondents Railway is right in their contention that they have been given a discretion to decide whether the applicant is to be considered for posts like watchman, gardener, etc. and that an administrative decision can be taken by the respondents to offer him lighter jobs under C-1 & C-2 medical classification. It is worth noticing in Annexure A7 order that this Tribunal has acknowledged the discretionary powers of the respondents to consider the applicant for appointment abiding the provisions in the IREM. In Annexure A7 order this Tribunal declined the prayer of the applicant for a re-medical examination by constituting a board of medical officers.
7. What is significant to note in this OA is that despite the benevolent Annexure A1 judgment of the High Court directing to consider the case of the applicant as a beneficiary of the Inder Pal Yadav's case which was indeed a decision rendered by the Apex Court to provide succor to the uneducated casual labourers - amongst whom applicant happened to be one - directed the respondents to appoint the applicant treating Annexure A7 therein as having been issued by the competent authority, relating to his date of birth, respondents used their ultimate weapon of medical examination.
8. It has to be noted with special attention that the respondents, with too much sagacity and shrewdness, subjected the applicant to medical examination in purported compliance of the direction of Hon'ble High Court in Annexure A1 judgment ie. 'to issue such orders... in terms of the appropriate guidelines'. Further it has to be noted that the earlier two litigations i.e. OA No. 855 of 2005 and 503 of 2007 have already embittered the respondents authorities in the matter of absorbing the applicant and that to their chagrin,they were compelled to ignore the discrepancies in his date of birth which was indeed a trump card for them to reject the case. The respondents were not bestowed with the sensitivity as has been evinced by the Hon'ble High Court in Annexure A1 judgment. So, it appears that, to sideline the High Court direction highlighting the ratio in Inder Pal Yadav's case, they strategically deployed a more lethal tool in their arsenal by subjecting the applicant to medical examination by the Railway medical authorities firstly by the Senior Divisional Medial Officer and subsequently by the Chief Medical Officer of the same division. In between the examination by the hierarchy of two railway doctors the applicant was asked to seek the medical opinion of another doctor also directing him to be certified by such doctor that latter was aware of the fact that he has been declared medically unfit by the Railway medical authorities. Nevertheless the two medical doctors issued Annexures A3 and A4 where they unanimously and explicitly declared that the applicant is fit for employment as Track Man. One wonders whether the doctors who examined the applicant and issued Annexure A3 and A4 certificates are in any way inferior in their medical knowledge and integrity than the railway medical officers who are in the pay rolls of their masters! After all, even medical opinion is an opinion only. When two sets of doctors- one under the railway and the other under government service - give two different versions about the health and physical suitability of the applicant for the post of Trackman, judicial authorities should be more susceptible to draw inferences, gravitated in favour of the workman, especially when the issue is approached from the point of view of the ratio of the Inderpal Yadav decision of the apex court.
9. When Annexure A2 certificate of the Senior Divisional Medical Officer was communicated to the applicant it was pointed out that applicant is suffering from diabetes mellitus and hence he is unfit for the post of Track Man. When the Chief Medical Superintendent of the Railway issued Annexure A6 he reiterated the same 'unfitness for all categories' but has not stated whether the applicant is suffering from diabetes mellitus or any other disease which dis-entitles him from Railway employment.
10. Relying on Paragraph 511 of IRMM Volume-I, the learned counsel for the applicant submitted that the applicant is not suffering from any of the medical condition which dis-entitles him from Railway employment. Annexure A2 medical certificates were challenged by the applicant in OA No. 146 of 2012. In that case this Tribunal observed that due to the advance age of the applicant it is likely that he might have contracted lifestyle diseases like diabetes. It is worth noticing that in paragraph 511 of the IRMM diabetes mellitus is not listed as a disease which disqualifies a person for appointment in the Railway.
11. Nevertheless this Tribunal feels that it is worth quoting paragraph 510 of IRMM (Volume I) in this case. It appears from Annexure A2 and A6 medical certificates that applicant was subjected to medical examination for B-1 class of employment. Three different Groups- A, B & C classes of employees have been described in paragraph 510 of the IRMM. It reads:
'510. Classification of staff:-
(1) for the purpose of visual acuity and general physical examination of candidates and of serving Railway employees the non-gazetted railway services are divided into the following broad group and classes. The detailed categories of Railway poss under each of the classes/groups mentioned below are given in Annexure IV to this chapter:-
Groups Classes A. Vision tests required in the interest A-1, Foot plate staff, Rail car drivers of public safety and Navigating staff (for foot plate staff see para 520).
A-2, Other running staff, other shunting staff, point lockers, station masters, and other staff in operative control of signals.
A-3, Loco, Signal and Transportation Inspectors, staff authorised to work trolleys, Yard supervisory staff, Road Motor Drivers and Gate Keepers on level crossings.
B. Vision tests required in the interest B-1, Such station and yard non-
of the employee himself or his fellow supervisory, shd and other staff, workers or both excluding shed man, as are engaged on duties where failing eye sight may endanger themselves or other employees from moving vehicles, Road Motor drivers, Permanent Way Mistries, Gang Mates, Keymen, and staff of the Railway Protection Force.
B-2, Certain staff in workshops and engine rooms engaged on duties when failing eye sight may endanger themselves or other employees from moving parts of the machinery and crane drivers on open line.
C. Vision tests required in the interest C-1, Other workshop and engine room of administration only. staff, shed stockers and other staff in whom a higher standard of vision than is required in clerical and kindred occupation is necessary for reasons of efficiency and others not coming in group A or B. C-2, Staff in clerical occupations not included in A, B and C1.
(2) As the foot plate staff have to pay sustained attention, it is necessary to have separate standards for these staff. These are enumerated in para 520 below. ' [underlining supplied]
12. This provision was examined by the Apex Court in S.K.M. Haider v. Union of India & Ors. in Civil Appeal No. 1630 of 2011 dated 14.2.2011 - reported in 2011 (1) AISLJ 492. In that case the Apex Court was examining the case of a candidate for promotion to the post of Ticket Collector Group-C post on account of his having not been medically fit in class B-2 under paragraph 510 of IRMM. It is significant to note that the decision of the Apex Court in that case, which in the opinion of this Tribunal, is squarely applicable in the instant case also. The Apex Court held:
'11. It would be seen from Para 510 of IRMM that non- Gazetted Railway services have been divided into three broad groups, namely, groups `A', `B' and `C' for the purpose of vision tests. These three groups have been divided into different classes. Group A has been divided in Classes A-1, A-2 and A-3 while groups B and C have been divided in two Classes each, viz; B-1, B-2 and C-1, C-2 respectively. The division of groups, A, B and C for vision tests appears to have been made keeping in mind the objective, viz; `in the interest of public safety'; `in the interest of the employee himself or his fellow workers or both' and `in the interest of administration only'. The classification of different staff in various `classes' is apparently founded to achieve the above objective. The detailed categories of Railway posts under each of the classes/groups are given in Annexure IV appended to Chapter V. Insofar as post of Ticket Collector is concerned, it is categorized in Class B-2 under the head `station supervisory and artisan staff'.
12.Though post of Ticket Collector is categorised in Annexure IV in Class B-2 but while doing so the underlying object of division of staff into three broad groups A, B and C for vision tests of candidates and of serving Railway employees in non-
Gazetted Railway services seems to have been overlooked. Broadly, Class B-2 covers a certain staff in workshops and engine rooms engaged on duties. It has been so done because failing eyesight may endanger themselves or other employees from moving parts of the machinery and crane drivers on open line. This is in consonance with the objective of group B viz; `in the interest of the employee himself or his fellow workers or both'. Insofar as Ticket Collectors are concerned, vision tests for them are not required `in the interest of employee himself or his fellow workers or both' as contemplated in group B but it is required in the interest of administration only - the objective contemplated in group C. In this view of the matter, there seems to be no rational basis, in relation to the object set out in Para 510 of IRMM, of categorizing the post of Ticket Collectors under Class B-2 in Annexure IV. However, it is for the respondents to have a fresh look insofar as categorisation of posts pertaining to non-Gazetted Railway services in Annexure IV is concerned. Suffice it to say that categorization of posts for the purpose of vision tests must have nexus with the object set out in Para 510. Having regard to the objective of division of groups/ classes for the purpose of vision tests under Para 510 of IRMM, the post of Ticket Collectors can not be held to be covered by Class B-2 but rather will be covered by Class C-2. Any inconsistency in categorization of Railway posts in Annexure IV, in our view, must not operate against the appellant in getting promotion to the post of Ticket Collector.
13. We hold, as it must be held, that the appellant could not have been denied promotion to the post of Ticket Collector as he had passed written test and viva voce and was provisionally selected for the post of Ticket Collector and had been declared medically fit in Class C-2.'
13. It appears that the Haider decision was not brought to the attention of this Tribunal when Annexure A7 order was passed. The aforesaid decision of the Apex Court in Haider(supra) being law laid down under Article 141 of the Constitution of India the law so declared by the Supreme Court shall be binding on all courts within the territory of India and therefore, this Tribunal holds that the case of the applicant requires a re-look especially in the light of Annexure A7 order which directs the respondents to consider him for Group- C posts like watchman, gardener, etc.
14. Therefore, while allowing the OA in part, this Tribunal directs the respondents to reconsider the case of the applicant, in the light of the above discussion, for appointment to any one of the available post of Watchman, Gardener, etc. which does not require the rigorous medical fitness in any of the aforementioned classification. As observed by the Apex Court, the categorization of posts for the purpose of vision test and medical examination must have nexus with the object set out in paragraph 510 and that there seems to be no rationale basis in relation to the objects set out in paragraph 510 of IRMM categorizing the aforementioned posts of gardener, watchman, etc. in any of the aforesaid classification. It is worth noticing that in Haider the Apex Court has directed the respondents to have a fresh look in so far as the categorization of posts in the IRMM for non-gazetted Railway service is concerned.
15. Therefore, this Tribunal directs the respondents to reconsider the case of the applicant in the light of the Apex Court decision in Haider's case (supra) and to consider the applicant for any of the posts like gardener, watchman etc. or in any other posts which does not require a stringent medical classification in the IRMM. It is further directed that the appointment so given to the applicant shall be notionally with retrospective effect from the date stipulated for compliance of Annexure A1 judgment of the High Court. However, he will be entitled to the cash benefit of salary and allowances which shall take into account the increments and fixations due from the aforesaid notional date of appointment, only from the date of his actual appointment. As he is fast approaching the age of superannuation, the aforesaid exercise shall be completed by the respondents within one month from the date of receipt of a copy of this order. No order as to costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER 'SA'