Central Administrative Tribunal - Allahabad
Rakesh Kumar S/O Sri K.S.P. Singh vs Union Of India Through General Manager ... on 22 November, 2010
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
Dated: This the 22 day of November,2010
Original Application No. 525 of 2009
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. S.N. Shukla, Member (A)
Rakesh Kumar S/o Sri K.S.P. Singh, R/o House No.A-36, Shahpur Awas & Vikas Colony Gorakhpur.
.. Applicant
By Adv.:: Shri K.K. Mishra
V E R S U S
1. Union of India through General Manager Northern Railway, Baroda House, New Delhi.
2. Chief Personnel Officer, Northern Railway, Baroda House, New Delhi.
3. Senior Divisional Personnel Officer, Delhi Division, Northern Railway, New Delhi.
4. Sanjeeb Kumar Saha, a/a 31 years, S/o Shri Manik Chand Saha, Commercial Superintendent, N.R. Panipat.
................... Respondents
By Adv.: Shri Anil Dwivedi
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-J) The facts of the case as per the O.A. are succinctly given as hereunder:
(i) The Railway Recruitment Board, Chandigarh on 28.01.2006 issued a notification inviting applications for Commercial Apprentices in grade of Rs.5500-9000/- vide Annexure A-4. The applicant was one of the aspirants. He also appeared in the pre-mains written examination on 12.11.2006 and was declared as qualified. In the main examination also the applicant was declared successful vide Annexure A-5. The Original documents of the applicant were verified and final result/panel was declared, vide Annexure A-6 applicants name appears at Sl. No.1.
(ii) After qualifying the examination of Commercial Apprentice, selected candidates are sent for training and after completion thereof, they are posted in different categories viz Commercial Inspector, Commercial Supervisor, Inquiry cum Reservation Supervisor, all in the grade of Rs.5500-9000 against their respective direct recruitment quota. Candidates are allotted different divisions where they are required to undergo medical examination in their respective medical category. The posts of Commercial Inspector has been categorized in C-I category. Paragraph 510 of the medical manual reads as under:-
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 groups and classes. The detailed categories of Railway posts under each of the classes/groups mentioned below are given in Annexure IV to this chapter:-
Group Classes A. Vision tetsts required in the interested of public safely.
A-1 Foot plate staff, Rail car divers and Navigating Staff (for foot plate staff see para 5.20) 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 authorized to work trolleys. Yard Supervisory staff, road Motor Drivers and gate keepers on level crossings.
B. Vision tests required in the interest of the employee himself or his fellow workers or both.
B-1 Such station and yard non supervisory, shed and other staff, 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 Maters, Key men 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 of administrations only.
C-1 Other workshop and engine room staff, shed Stockers and other staff in whom a higher Standard of vision than is required in Clerical and kindred occupation in 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 C-1.
N Note No.1 appended thereto Apprentices of all departments will be examined in the medical category for the post in which they are intended to be permanently employed.
(iii) The applicant was allotted Delhi Division vide letter dated 05.06.2007, Annexure A-7 refers. The applicant presented himself for medical examination and deposited the requisition fee. Vide Annexure A-9, the applicant was directed to appear for medical examination. Medical was conducted on 15.04.2008 wherein the applicant was declared as unfit in C-1 category. Annexure A-10 refers. As per the applicant, the applicant was declared fit in C-2 category and an endorsement to this effect has been made in the letter dated 15.04.2008 but later on the same was scored out. The applicant requested that he may be appointed in other corresponding posts, viz. Commercial Supervisor & Enquiry cum Reservation Supervisor. The applicants representation was considered but was rejected by order dated 11.07.2008 on the ground that there is no such post available in non-technical category, Annexure A-1 refers.
(iv) The applicant vide his letter dated 19.06.2008 requested the respondents that medical examination of the applicant may be conducted again. Representation of the applicant dated 19.06.2008 was forwarded to Chief Medical Superintendent who in turn vide his letter dated 08.08.2008 referred the applicant to the Medical Director, Northern Railway Central Hospital, New Delhi, Annexure A-13 refers. On 12.08.2008, applicant was medically re-examined and an endorsement has been made on 12.08.2008 in the letter dated 08.08.2008 itself and the applicant was directed to handover the same to Chief Medical Superintendent and in turn applicant submitted the same in the office of Chief Medical Superintendent, Northern Railway, New Delhi. As the applicant was not yet been informed of the result of medical examination, he again enquired from the respondents regarding further development. The Chief Medical Superintendent informed that applicant after handing over the letter dated 12.08.2008 did not stay and went back and therefore, his medical examination could not be conducted, Annexure A-14 refers.
(v) According to the applicant, The above contention of the respondents is wholly erroneous inasmuch as medical examination of the applicant has already been conducted on 12.08.2008 itself in the Central Hospital and his report thereof was sent to applicant himself and therefore, it cannot be said that medical examination did not take place as the applicant did not stay. He was never directed to stay rather he was informed to go back and suitable information according to his medical examination would be sent to his home address later on which never reached. The applicant contacted the authorities concerned in February, 2009 when he came to know for the first time that his medical examination was required to be conducted The applicant came to know that post of Commercial Supervisor/Commercial Superintendent and Inquiry cum Reservation Supervisor are required to be filled in the medical category of C-2, to which applicant is fit and, therefore, vide his representation dated 11.09.2008, he requested the respondent No.1 that he may be considered for same post, Annexure A-15 refers. Vide representation dated 11.09.2008, applicant had also given an example of other Zonal Rlys, N.E. Rly etc. where also Commercial Apprentice are recruited through Railway Recruitment Board and thereafter they are medically examined against their respective medical category as per the provision of Medical Manual inasmuch as, the same is issued by Railway Board and it has statutory force.
(vi) Respondent No.2 rejected the representation on the ground that Commercial Inspector, Commercial Supervisor and Inquiry cum Reservation Supervisor are being selected through RRB as Commercial Apprentice and their prescribed medical classification is C-1 where as the case is in N.E. Rly is different and the same is not applicable on the applicant. Respondent No.1 rejected the request of the applicant also on the ground that there is no direct recruitment quota in the category of Commercial apprentice having medical category as C-2, Annexure A-2 refers. The applicant made further representation vide his letter dated 10.10.2008 reiterating his request for his appointment in any other alternate category viz. Commercial Supervisor or Inquiry cum Reservation supervisor but the same was again rejected by respondent No.1 vide his order dated 23.10.2008, Annexure A-3 refers. Applicants repeated request for alternate appointment has been rejected mechanically without any application of mind and absolutely no effort has been made to see as to whether applicant can be appointed on any of the other category.
(vii) By an amendment application, the applicant had stated that the respondent no.4, who is similarly situated to the applicant was empanelled by Railway Recruitment Board/ Chandigarh for the post of Traffic apprentice grade 5500-9000 vide GM/P letter dated 31.03.2004 sent for medical examination in A-2 category but he was declared fail in prescribed medical examination and he was declared fit for B-2. Shri Sanjeeb Kumar Saha (Respondent No.4) has been appointed in the alternative category of Commercial Apprentice Gr. 5500-9000/- and he is posted as Commercial Superintendent at Panipat but the same benefit is not being extended to the applicant, Annexure A-18 refers. Hence this O.A.
2. Respondents have contested the O.A.. They had made objection to the amendments proposed to be made by the applicant, whereby the applicant wanted to bring the fact of a similarly situated case to the knowledge of the Court. However, this Honble Tribunal allowed, after considering the entire case, the proposed amendments and also impleadment as Respondent No.4.
3. The respondents, in their counter affidavit categorically stated that the applicant did not stay for medical examination on 12.08.2008, again the respondents contended that as per the latest Rule position vide letter dated 04.06.2009 (stated to have been annexed to the Supplementary Counter Affidavit, but not so annexed), the Railway Board have decided to discontinue the Policy of providing appointment to the medically failed empanelled candidates selected through RRB for any Group C or Group D post. Though, after allowing the M.A. for impleadment sufficient time has been granted Counter Affidavit to the amendment application was not filed. However, written arguments were also filed by the counsel for the respondents. Supplementary Counter has also been filed by the respondents.
4. Counsel for the applicant vehemently argued that the applicant is No.1 in the merit list and it is only in the medical examination that he has been disqualified as he could not made the medical standard of C-1. However, precedents are available that in case of such medical standard not being met with, an empanelled candidates could well be considered for other equivalent posts, where the medical standard is of a lower category. It is the case of the applicant that initially itself, the medical authorities have, while disqualifying the applicant for C-1 category did endorse that the applicant is through for C-2 category, but immediately scored the same. According to the counsel for the applicant, the applicants fulfills C-2 medical category and as such by virtue of fact that he is No.1 in the panel list on merit, he should be considered for an equivalent alternate appointment for which the medical category is C-2.
5. Counsel for the respondents relied upon the contention made out in the Counter Affidavit to the M.A. for amendment as well as Supplementary Counter Affidavit and argued that as per the latest Railway Board Circular such alternate appointment are not being considered. The fact that the applicant failed to wait on the day he was called for medical examination was also mentioned by the counsel for the respondents.
6. Admittedly, the applicant has come out in merit in the examination and has been empanelled subject to only to medical examination. Unfortunately, he could not meet the standard of C-1 category, as such there is no question of the applicant being considered for those posts for which medical standard is C-1. It has been held by the Apex Court in Union of India v. Devendra Kumar Panth CA-466 of 2007 decided on 10.07.2009 prescription of a minimum medical standard for promotion should be considered as such and should not be viewed as denial of a promotional opportunity to a person with disability. The same law should apply A-1 for appointment.
7. The question now for consideration is whether the applicant should be considered for an alternate appointments in a comparable post in which lower medical standard has been prescribed. In this regard in the written argument as well as in the Counter Affidavit a submission was made by the counsel for the respondents that the Railway Board had decided not to consider any such alternative appointment vide Railway Board letter dated 04.06.2009 (Annexure SCR-2 -- no filed), This letter could have only prospective effect while the case of the applicant related to a period interior to 06.04.2009.
8. Vide the amendment application; applicant has referred to the case of one Sanjeeb Kumar Saha, Commercial Superintendent, N.R. Panipat, and in Para 4.34 referred to the same. The said Paragraph reads as under:-
4.34. That in this connection it is necessary to point out here that in similar facts and circumstances respondent no.4, who is similarly situated to the applicant was empanelled by Railway Recruitment Board/ Chandigarh for the post of Traffic apprentice grade 5500-9000 vide GM/P letter dated 31.03.2004 sent for medical examination in A-2 category but he was declared fail in prescribed medical examination but he was declared fit for B-2.
9. In ground 5(N) also the applicant has stated as under:-
Because by the GM/P vide letter No.220-E/Misc/Alternative Apptt/Traff.App. Rect. Dated 06.07.06 Shri Sanjeeb Kmar Saha has been appointed in the alternative category of Commercial Apprentice Gr. 5500-9000 and he is posted as Commercial Superintendent in Booking at Panipat but the same benefit is not being extended to the applicant.
10. The respondents, however, did not specifically deny the above contention of the applicant. The contention of the respondents in a feeble way that the alternative posts suggested by the applicant do not contain element of direct recruitment has to be rejected as provision for direct recruitment with a specific percentage, is available for such posts, which is evident from the details of channel on promotion in Group C and Group D, a commercial category pertaining to Northern Railway which the applicant has annexed. If the applicant has indicated a different designation inadvertently, the same cannot non-suit the applicant.
11. It may not be that alternate appointment given to respondent no.4 is by way of mistake, Obviously at the time when respondent no.4 was considered and appointed in 2004 provisions must be existed for such alternate appointments with a latest medical standard.
When alternative appointment has been provided for a similarly situated candidate, the same should be extended to the applicant. In Inder Pal Yadav v. Union of India, (1985) 2 SCC 648, the Apex Court has held as under:-
"... those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court.
The Apex Court as early as in 1975 in the case of Amrit Lal Berry v. CCE, (1975) 4 SCC 714 , held as under:-
We may, however, observe that when a citizen aggrieved by the action of a government department has approached the Court and obtained a declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to court.
The V Central Pay Commission in its recommendation, in regard to extension of benefit of court judgment to similarly situated, held as under:-
126.5 Extending judicial decisions in matters of a general nature to all similarly placed employees. - We have observed that frequently, in cases of service litigation involving many similarly placed employees, the benefit of judgment is only extended to those employees who had agitated the matter before the Tribunal/Court. This generates a lot of needless litigation. It also runs contrary to the judgment given by the Full Bench of Central Administrative Tribunal, Bangalore in the case of C.S. Elias Ahmed and others v. UOI & others (O.A. Nos. 451 and 541 of 1991), wherein it was held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties to the original writ. Incidentally, this principle has been upheld by the Supreme Court in this case as well as in numerous other judgments like G.C. Ghosh v. UOI, [ (1992) 19 ATC 94 (SC) ], dated 20-7-1998; K.I. Shepherd v. UOI [(JT 1987 (3) SC 600)]; Abid Hussain v. UOI [(JT 1987 (1) SC 147], etc. Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other identical cases without forcing the other employees to approach the court of law for an identical remedy or relief. We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of Government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee. In a latter case of Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P.,(2006) 10 SCC 346, , the Apex Court has referred to the decision in the case of State of Karnataka vs C Lalitha (2006) 2 SCC 747 as under:
29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently.
If the administrative authorities discriminate amongst persons similarly situated, in matters of concessions and benefits the same directly infringes the constitutional provisions enshrined in Art. 14 and 16 of the Constitution.
A feeble attempt was made to contend that the case of Respondent No. 4 is different in that he belongs to a different Zonal Railway. While it is appreciated that the G.M. of each zone could have his own Rules, when it comes to the question of policy, the same should be equally applicable for all the Railways. In this regard, support could be had from the decision of the Apex court in the case of Abid Hussain v. Union of India, (1987) 1 SCC 532, which reads as under:-
It is not disputed that the Air-conditioned Coach-In-Charges-Attendants are being paid overtime allowances for extra duty hours exceeding 96 hours in two weeks in the Western Railway, Central Railway and Eastern Railway. There is no justification for denying overtime allowances on the same basis to the Air-conditioned Coach-In-Charges-Attendants in the Northern Railway. We accordingly direct the Union of India and the Railway Administration to pay with effect from July 1, 1984 the overtime allowances to the Air-conditioned Coach-In-Charges-Attendants working in the Northern Railway on the same basis on which the Air-conditioned Coach-In-Charges-Attendants in the other three Railways, referred to above, are paid. All arrears of such allowances up to date shall be paid as early as possible and in any event not later than four months from today. The benefit of this order shall be extended to all such employees including those who have retired and those who have not joined as petitioners herein.
12. In view of the above, the contention of the respondents that the applicant cannot be considered for alternate appointment has to be rejected.
The next question to be considered as to whether the applicant thus fulfilled the requisite medical standard for C-2 for certain appointment with comparable pay scale of Rs.5500-9000/-. According to the applicant, he presented himself for medical examination on 12.08.2008 and was so examined but according to the department he has not undergone the re-medical examination . Whatever may be the situation as obtained hitherto, as on date, if the authorities require, they may subject the applicant to a fresh medical examination by Medical Board to ascertain whether the applicant meets the medical requirement of C-2 category. If, he fulfills the same, he must be considered for such an alternate appointment against the direct recruits Post for which the vacancies have arisen in 2008 but not filled in so far and in case no such vacancies up to 2008 existed in the vacancies available as on date for which direct recruitment process is on.
13. In view of the above, the O.A. is allowed to the extent that as in the case of Respondent No. 4, the applicant is entitled to be considered for alternate appointment to a post having exile pay scale of Rs.5500-9000/- in the commercial categories. The impugned order dated 11.07.2008 is therefore, quashed and set aside. Respondents are directed to constitute a Medical Board and inform the applicant to be present on a particular date for medical examination that may be prescribed by the Respondent/Medical Board and if the applicant meets the medical standard C-2 he will be considered for any one of the posts in the commercial category, against the direct recruit vacancy carrying the pay scale of Rs.5500-9000/- for which the medical examination is C-2. This drill be performed within a period of four months from the date of communication of this order.
14. No costs.
( S.N. Shukla ) (Dr. K.B.S. Rajan)
Member-A Member-J
Sushil