Central Administrative Tribunal - Allahabad
S K Gupta vs General Manager N C Rly on 6 November, 2018
(Reserved on 12.10.2018)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Dated: This the 06th day of November 2018
Original Application No. 330/001444 of 2016
Hon'ble Mr. Gokul Chandra Pati, Member - A
Sanjay Kumar Gupta, aged about 25 years, son of Kishori Lal,
resident of Village - Chintawanpur, Post Office - Malahi, District -
Purvi Champaran Motihari, Bihar.
. . .Applicant
By Adv: Shri Amrendra Kumar Srivastava
VERSUS
1. Union of India through General Manager, North Central
Railway, Subedarganj, Allahabad.
2. Divisional Railway Manager, North Central Railway,
Allahabad Division, Allahabad.
3. Senior Divisional Personnel Officer, North Central Railway,
Allahabad Division, Allahabad.
. . . Respondents
By Adv: Shri V.S. Sisodia
ORDER
The applicant has filed this OA seeking the following main reliefs:-
"8.1. Issue a writ, order or direction in the nature of Certiorari to quash the impugned order dated 27.05.2016 contained as Annexure No. A-1......
8.2. issue a writ, order or direction in the nature of mandamus commanding the respondents to consider the case of the applicant for appointment on compassionate ground."
2. Briefly, the facts of the case are that the father of the applicant, who was working as Track Man in the Engineering Department under Assistant Engineer (Line) at Allahabad became visually handicapped by 75% as per the report from AIIMS, New Delhi on 15.10.2014. Accordingly, he submitted an application dated 18.10.2014 (Annexure A-3) for voluntary retirement and for appointment of his son i.e. the applicant on compassionate grounds. Having received no response, the applicant filed OA No. 1175/2015 (Annexure A-2), which was disposed of by this Tribunal 2 vide order dated 18.03.2016 with direction to the respondents to decide the representation dated 18.10.2014 and in compliance thereto, the respondents have passed the order dated 27.05.2016 (Annexure A-1). Aggrieved by this order, the applicant has filed the instant original application mainly on following grounds: -
i. The father of the applicant was visually handicapped for last four years.
ii. The father of the applicant approached to Regional Eye Institute, Manohar Das Eye Hospital, Allahabad. iii. The railway hospital was not competent to decide the percentage of visually handicapped of the father of the applicant and after lapse of about one and half year, the North Central Railway, Allahabad referred the case to AIIMS, which declared his father to be 75% visually handicapped. iv. The respondents deliberately delayed the process of declaration of visually handicapped and did not reply to the voluntary retirement application submitted by the applicant's father to the respondents.
3. Respondents have filed Counter Reply, stating that the Railway Board had issued letter dated 14.06.2006 (Annexure A-7 to the OA), which provides that if an employee has been declared partially de-categorized before five years of his superannuation only then the claim for appointment on compassionate grounds can be considered. It is further submitted that as per para 536 to 562 of the Indian Railway Medical Manual Vol.I (Annexure CR-1), dealing with issuance of medical certificate and procedure about constitution of medical board with approval of the competent authority, who can issue invalidation certificate. In the present case, the certificate dated 15.10.2014, which was issued by the AIIMS does not mention whether the competent medical board was constituted for medical examination of the father of the applicant or not. Hence, it cannot be taken into consideration for the purpose of grant of medically invalidation.
4. Heard Shri A.K. Srivastava, learned counsel for the applicant. He also submitted the following judgments in support of his contentions : -
3i. Judgment of Hon'ble Supreme Court dated 11.03.2011 in Civil Appeal No. 5101/2005 - Bhawani Prasad Sonkar Vs. U.O.I & Ors.
ii. Judgment of Hon'ble Delhi High Court in Shri Het Ram and Others Vs. UOI & Ors - 2002 (61) DRJ 754 iii. Judgment of CAT, Allahabad Bench dated 27.09.1994 in OA No. 1306/1993 - Suraj Lal & Another Vs. UOI & Ors.
5. Learned counsel for the respondents mainly reiterated the respondents' stand as stated in the Counter Reply.
6. I have considered the submissions and perused the pleadings of the parties. The impugned order dated 27.5.2016 (Annexure A-
1) stated following reasons while disposing of the representation dated 18.10.14 of the applicant:-
"(i) Your father, Shri Kishori Lal was found 75% visually handicapped by the Doctor of AIIMS, New Delhi as per certificate issued on 15.10.14. He retired from railway service on attaining the age of superannuation on 29.12.15. He has not been medically decategorised / incapacitated by the competent Railway medical authority before his retirement from service.
(ii) That compassionate appointment is admissible to the wards of only those Railway employees who have been declared medically unfit for all categories.
Your father has not been medically invalidated from Railway service by the competent Railway Medical Board. Therefore, the compassionate appointment was not admissible in your case.
(iii) Beside above your father was partially declared visually handicapped by the AIIMS and not by the Medical Board of the Railways. In terms of Para 4(a) & (b) of Railway Board's letter No. E (NG)II/95/RC- 1/94 dated 14.06.2006 annexed as Annexure A-5 in subject OA, compassionate ground appointment to the wife/ward/dependents of partially medically de- categorized staff who seeks voluntary retirement may be given subject to the following provisions
(a). The appointment will be given in the eligible Group 'D' categories. 'Eligible' would mean that in case Group 'D' recruitment is banned for any particular category, the same would also apply for the compassionate ground appointments.
(b).Such an appointment should only be given in case of employees who are declared partially decatgorsed at a time when they have atleast 05 years or more service left."
47. The para 543 of the Indian Railway Medical Manual, Vol. I (in short IRMM), as enclosed by the respondents with the Counter Reply pertaining to Invalidation certificate states as under:-
"543. Invalidation Certificate (1). For the invalidation of a non-gazetted railway employee, a medical board is necessary.
This medical board should be headed by the CMS/MS of the division. The recommendations of the medical board will be forwarded to the Chief Medical Director who is the competent authority for acceptance.
(2). When a Railway employee appears before a competent Railway doctor to obtain a certificate under this section or presents a certificate from a non-Railway registered medical practitioner and in the opinion of the Railway Medical Officer, there is no reasonable prospects that the Railway employee will be fit to resume the duties of his post, the case should be referred to the CMS/MS in-charge of the division, who will decide about the examination of the case by a Medical Board."
From above, it is clear that for medical invalidation of non- gazetted railway servants, it is necessary to have the report of the medical board and the certificate regarding his medical invalidation from the competent Railway Doctor as stated in para 543 of the IRMM. No such certificate for medical invalidation has been issued in favour of the applicant's father.
8. The certificate issued in favour of the applicant's father was 75% visually handicapped, which is issued by the AIIMS, which cannot be considered to be medical invalidation. On the other hand, the applicant's father was partial visually handicapped since he was 75% visually handicapped as per the medical certificate issued by AIIMS. As stated in the impugned order, the compassionate appointment if the employee concerned is allowed voluntary retirement on the ground of partial medical handicap and at that time at least 5 years of service should have been left. At the time of declaration of partial medical handicap of the applicant's father vide the certificate dated 15.10.2014 (Annexure A-6 to the OA), when the applicant's father had only less than one year of service left as his normal retirement date was 28.2.2015.
59. The circular dated 14.6.2006 of the Railway Board (Annexure A-7 to the OA) also mentions the requirement of 5 years of residual service and the case of the applicant's father at the time of his partial visual handicap had less than 5 years of service left. Learned counsel for the applicant has cited the judgment of Hon'ble Apex Court in the case of Bhawani Prasad (supra), where the concerned employee was retired prematurely by the competent authority on the ground of partial medical de- categorization and the request for compassionate appointment was refused on the ground that as per the Railway Board letter referred in that case, the compassionate appointment is not permissible for partial medical de-categorization of an employee. Hon'ble Apex Court allowed the appeal mainly because of the fact that the respondents did not offer the benefit of alternative appointment as per the circular dated 29.4.1999 before retiring him. Clearly, the facts in the case of Bhawani Prasad (supra) are quite different from the facts of the present OA, where the applicant's father was not retired by the respondents before his normal date of retirement.
10. In the case of Shri Het Ram (supra), the judgment dated 16.8.2001 of Hon'ble Delhi High Court, the father of the petitioner lost his leg while in service before his retirement. In the judgment, the provision of the Master circular of the Railway Board governing compassionate appointment has been discussed. The said provision stated that the compassionate appointment will be available when a railway employee became crippled while in service or develops ailment like heart disease, cancer etc. or medically de-categorized for the job they are holding and no alternative employment can be offered to them. It was observed by Hon'ble High Court that the reason mentioned by the respondents that compassionate appointment is possible in case of retirement due to physical incapacity, is not as per the provisions of the Master Circular. In this judgment, the Railway Board circular dated 14.6.2006, which has been relied upon by the respondents for passing the impugned order dated 27.5.2016, has not been referred or examined in the judgment in the case of Shri Het Ram (supra), which will, therefore, not be applicable to the present OA.
611. The case of Suraj Lal & another (supra) decided by Allahabad Bench of this Tribunal, the railway employee was retired on the ground of medical unfitness, which is not the case in the present OA. Further, the respondents in the case of Suraj Lal & another (supra) did not mention any reason while refusing compassionate appointment ot he son of the applicant. Hence, the present OA is factually distinguishable from the cited case.
12. In view of the facts and circumstances and the provisions of the circular dated 14.6.2006 of the Railway Board, I am of the considered opinion that the applicant has failed to furnish adequate justifications before this Tribunal to interfere in the matter. Accordingly, the OA is dismissed. No costs.
(Gokul Chandra Pati) Member - A Anand...