Central Administrative Tribunal - Madras
D Janardhanan vs M/O Railways on 24 March, 2023
'@ l O.A. 1579/2019 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA No. 1579/2019 Dated 24. day the Pri day of March Two Thousand Twenty Three CORUM: HON'BLE MR. T.JACOB, ADMINISTRATIVE MEMBER & HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER D.Janardhanan, soa Station Superintendent, (Supernumerary) Katpadi R.S Chennai Division, Southern Railway .. Applicant By Advocate M/S. Ratio Legis Vs. 1 The Union of India Rep. By The General Manager, Southern Railway Park Town, Chennai-600 003 2 The Senior Divisional Personnel Officer, Chennai Division, Southern Railway, NGO Annexe, Park Town, Chennal-600 003 . .Respondents By Advocate Mr.K.Vijayaragavan 2 0.A.1579/2019 ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:
".For the reasons given in paras 4 & 5 above, the applicant humbly prays before this Hon'ble Tribunal that this Hon'ble Tribunal may be pleased to call for the order M/P (&P) 268/M/15 dated 29.10.2019 and the impugned order No.M/P.4 (W)/563/IV/DRQ date 13.11.2019 made by the 2™ Respondent and to quash the impugned order alternatively appointing the applicant as Office Superintendent in Pay Matrix Level 6 as far as the applicant is concerned and further to direct the respondents to alternatively appoint him as a Chief Office Superintendent carrying Pay Matrix Level 7 and to pass such other order/orders as this Hon'ble Tribunal may deem fit and proper and thus render justice."
2. 'The brief facts of the case in nutshell are as under:
The applicant was working as a Station Superintendent in Pay Level-7. He was subjected to periodical re-medical examination and declared unfit to continue in the cadre of Station Master and thereby continued in Supernumerary capacity w.e.f.17.04.2019. medically incapacitated and offered and posted as Office Superintendent in Pay Matrix Level 6 by order dated 13.11.2019. Later on the applicant was directed to appear before a screening Committee on 29.10.2019 to assess the suitability and identification of the alternative post. The Screening Committee had recommended for an alternative posting as Office Superintendent in Pay Matrix Level 6 by reducing the rank and status which is violation of Section 20 of the the Persons with Disabilities Act,2016. Aggrieved against the said action of the 3 0.A.1579/2019 Respondents, the applicant had approached this Hon'ble Tribunal praying for the aforesaid relief,
3 After notice, the respondents have entered their appearance through their counsel and filed a detailed reply and submit that according to the rule only the applicant has been posted and appointed on alternative available post as Office Superintendent by protecting his pay in Pay Matrix Level 7 of bottom seniority and according to his own request. In the matter of absorbing the medically decategorized staff in alternative employment it has been dealt strictly in accordance with the guidelines in IREM Vo.I, Chapter III of para 313 (a).
Respondents also contended that the applicant's case does not fall under the ambit of 2 (i), 2 (s), 2(t) of the Disabilities Act as he is able to effectively participate in the society equal with others. The applicant's case is not covered with the these sections. Therefore, there is no violation of Rule 47 of Disability Act. The applicant has been put on the other posts in the service within the same scale after medical decategorisation and the applicant's case Section 20 of the right of the persons with disabilities act, 2016 do not apply to the applicant. Also para 1304 was not applicabie in the case of applicant. Therefore, the respondent prayed for the dismissal of the OA as devoid of merit. 4 Heard M/S. Ratio Legis for the applicant and Mr.K.Vijayaragavan for Respondents land perused the relevant records.
5 It is not in dispute that the applicant while working as Station Superintendent at Katpadi on pay Rs 7950 + GP Rs (p2) was declared medically unfit in categories of AYE ONE, AYE TWO, 4 0.A.1579/2019 AYE THREE, BEE ONE & BEE TWO but fit in CEE ONE and below category with glasses in a sedentary job w.e.f.17.04.2019. It is "to noted that the applicant who has requested by _ letter dt.9.7.2019 for posting at Katpadi on bottom seniority in the cadre of Engineering, Traffic, Personnel and Electrical on the ground of his ill-health. It is to be noted that the respondents have appointed the applicant on alternative post of Office Superintendent along with his Pay in Pay Matrix Level 7 on bottom seniority and posted him at Senior Section Engineer's Office, Permanent Way, Tindivanam by order dt.13.11.2019. It is to be noticed that the said alternative appointment though given by the Respondents however, as contended by the respondents that the same is agreed to the applicant's request. It is not correct to say that from the bare reading of the request letter dt.9.7.2015 submitted by the applicant requesting for posting on bottom senicrity ak Katpadi. However, the respondents have to give the said posting according to the rule position as well as law have to be placed with equal post and the same pay level which was equal to his last post and pay level. 6 It is to be noted that to consider the issue involved in the matter, we have to appraised the relevant Rules from Chapter 3 of the Indian Railway Establishment Code (Vol - I) Rule 304 reads thus:
304 = Termination of service on account of inefficiency due to failure to conform to the requisite standard of physical fitness.--(1) A Railway servant who fails in 2 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 dispensed with or reduced in rank, but should be shifted to some other post with the same pay scale and service benefits.
(2) A Railway servant falling in Clause (1) above ceases to perform the duties of the post he is holding from the date he is declared medically unfit for the present post. If such a Railway servant cannot be immediately adjusted against or absorbed in any suitable alternative post he may be kepl on a special supernumerary post in the grade in which the concerned employee was working on regular basis before being declared medically ss) 0.A,1579/2019 unfit, pending location of suitable alternative employment for him with the same pay scale and service benefits: efforts to locate suitable alternative emplcyment starting immediately.
{Authority : Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of rights and Full Participation) Act, 1995 and Ministry of Railways letter No. E(NG)VSE/RE3/9 dt.29-4-99} Note.--The term 'former emoluments' in the case of running staff will include 40% of pay in the revised scales of pay.
Railway Ministry's decisions. --(1) Where a temporary employee has become medically unfit for the post held by him on account of circumstances arising cut of and in the course of his employment, the employee should be granted leave due plus extraordinary leave so as to make 4 total period of 6 months within which altemative employment must be found.
(2) Where a temporary employee has become medically unfit for the post held by him on account of circumstances which did not arise out of and in the course of his employment, the benefit under this rule will not be admissible, It has, however, been decided that while it is strictly not obligatory to find alternative employment for such an employee, every effort should nonetheless be made to find alternative employment. The employee concerned should be granted such leave as is due to him plus extraordinary leave nol exceeding 3 months, the total not exceeding 6 months, If no alternative employment can be found in this period, the employee should be discharged from service.
(3) The above rule is applicabgle only to permanent staff and if alternative appointment is found for temporary staff it should be regarded as a purely ex-gratia measure.
(4) The Medically de-categorised Railway employee waiting for absorption in alternalive ast may be allowed to commute the period of LHAP on production of medical certificate, subject to certification that the employee is not fit to hold the post from which he proceeded on leave. The commutation will, however, be admissible only up to the slage that an alternative post is offered to him by the administration.
Chapter 13 Paras 1304, 1309, 1310 of IREM reads thus:
1304. Disabled Medically decategorised staff to be absorbed in posts they can adequately fill: - In the matter of absorption of disabled/medically decategorised staff in alternative posts, Railway administrations should take care to ensure that the alternative employment offered is only in posts which the staff can adequately fill and as far as possible should broadly be in allied categories where their background and experience in earlier posts could be utilised. While finding alternative posts for absorption of disabled/medically decategorised staff, the Railway Administration should ensure that the interests of other staff in service are not adversely affected 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.
1309. Benefit of past service to be allowed: A disabled/medically decategorised Railway servant absorbed in alternative post, will for all purposes, have nis past service treated as continuous with that in the alternative post.8 6 0.A.1579/2019
1310. Fixation of seniority of disablec/medically decategorised staff absorbed in alternative employment : The disabled/medically decategorised staff absorbed in alternative posts should be allowed seniority in the grade of absorption with reference to the length of service rendered on non-
fortuitous basis in the equivalent or corresponding grade before being declared medically unfit. This is subject to the proviso that if a disabled/medically decategorised employee happens to be absorbed in the cadre from which he was originally promoted, he will not be placed above his erstwhile seniors in the grade of absorption.
It is to be noted that dealing into similar issue after considering the Reievant Rules, by the Hon'ble High Court of Madras in WP No.40730 of 2002 in the matter of S.Raghuraman vs. Union of India and others by its order dt.1.10.2007 observed thus "4. The relevant rules that apply to the petitioner are Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act.
1995 (Act 1 of 1996) ('Disabilities Act' in short), Paragraph Nos.312 and 313 of the Railway Establishment Manual (Volume-I) and Paragraphs 1301 to 1310 under Chapter XIII of the Absorption of Medically incapacitated Staff in Alternative Employment Rules. These are extracted hereunder:
"Section 47, Non-discrimination in government cmployment- (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. could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post. he may be kept on a supernumerary post until a suitable 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 regard 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."
"312. TRANSFER ON REQUEST :
The seniority of railway servants transferred at their own request from one railway to another should be allotted below that of the existing confirmed, temporary and officiating railway servants in the relevant grade in the promotion proup in the new establishment irrespective of the date of confirmation or length of officiating or temporary service of the transferred railway servants.
Note:- (i) This applies also to cases of transfer on request {rom one cadre/division to another cadre/division on the same railway.7 0.A. 1579/2019
(Rly.Bd.No. E(NG) I-85 SR 6/14 of 21/01/1986)
(ii) The expression "relevant grade" applies to grade where there is an element uf direct recruitment. Transfers on request from Railway employees working in such grades may be accepted in such grades. No such transfers should be allowed in the intermediates grades in which all the posts are filled entirely by promotion of stall from the lower grade(s) and there is no element of direct recruitment.
(No. E(NG) 1-69 SR 6/15, dated 24.06.1969) ACS-14)
313. MEDICALLY UNFITTED RAILWAY SERVANTS:
(a) (t) Medically decategorised staff may. as far as possible. be absorbed in such alternative posts which should broadly be in allied categories and where their background and experience in earlier posts could be utilised. For example, traffic running and operating staff need not necessarily be absorbed in the ticket checking cadre alone but they could also be absorbed in other commercial. statiun or yard categories.
i) The medically decategorised staff absorbed in alternative posts, whether in the same or other cadre, should be allowed seniority in the grade of absorption with reference to the length of service rendered in the equivalent or corresponding grade, irrespective of the rate of pay fixed in the grade of absorption under the extant rules. In the case of staff who are in grade higher than the grade af absorption at the time of medical decategorisation, total service in the equivalent and higher grade is to be taken into account.
Provided that if medically decategorised employee happens to be absorbed in the cadre from which he was originally promoted, he will not be placed ahove his erstwhile seniors in the grade of absorption.
(iii) While absorbing the medically decategorised Running Staff in alicrnative posts, @ percentage of basis pay representing the pay element in Running Allowance, as decided by the Government through administrative instructions from time to time, should be added to the minimum as well as maximum of the scale of pay for purposes of identifying 'equivalent' posts and their seniority should then be fixed in the equivalent absorbing posts.
(No. E(NG) f1/77/RE-3-2 OF 2-9-77 and E(NG} I-80-SR-6/83 of 5.3.1981)
(b) Railway servants whose services were terminated either because of the maximum limit of all leave including extraordinary leave having been exceeded or the medical authorities could not recommend the grant of extraordinary leave in the case of tuberculosis, pleurisy and leprosy patients and are re-zmployed in railway service after being declared fit to work by the medical authority should take their seniority below all permanent railway servants on the date of their re- employment provided they were permanent before medical unfitness or would have been confirmed in the meantime. Railway servants who were olficialing or temporary at the time of medical unfitness or would not have been contirmed in the meantime should be placed below the officiating or temporary employees as the case may be on the date of their re-employment.
{c) Seniority of medically unfitted staff mentioned in sub-para (a) above. on restoration to their original pasts should be determined as under:
(i) Railway servants who properly appeal within the time limit laid down for appeals or whose appeal is entertained in a reasonable period waiving the time limit and get declared fit, should not lose their seniority or their claim for 8 0.A.1579/2019 consideration for promotion for which they were eligible in the original cateporuy in which they were employed.
(ti) Seniority of railway servants who prefer delayed appeals and are declared fil ar who take treatment and consequently get declared fit, if they were formerly confirmed in the grades in which they were, would be affected to the extend of any persons who may have been confirmed before their re-absorption into the original category. If however, they were only officiating in the original catepory. then their seniority should be below the staff confirmed till then, but need not be affected vis-
a-vis their original juniors who happen to be till officiating.
(d) In the case of staff coming to a new unit on own request by accepting bottom senivrity and then getting medically decategorised, provision of sub-para (a){ii)} above will be applicable only to the extent of service in the new unit.
(Na. RONG)IE-7] SR 6/39 dated 31-5-1977)
(e) In the case of staff who are not required to undergo periodical Medical examination but who of their own accord request for change of category on grounds of health, and are recommended change of occupation by the medical authority. their change will be treated as transfer on own request and dealt with as per para 312, (No. E(NG)I - 76 SE 6/37, dated 18.09.1976)"
"CHAPTER XIII] ABSORPTION OF MEDICALLY INCAPACITATED STAFF IN ALTERNATIVE EMPLOYMENT 1301. A railway servant who fails ina vision test or otherwise becomes physically incapable of performing the duties of the past which he occupies should not be discharged forthwith but every endeavour should be made to find alternative employment for him as expeditiously as possible, Such employment must be of suitable nature and on reasonable emoluments having regard to the emoluments previously drawn by the railway servant.
1302. Classification of railway servants declared medically unlit - Railway servants declared medically unfit for further service are divisible into wo groups :
(i) Those completely incapacitated for further service in any post on the railway.
ie., those who cannot be declared fit even in the "C" medical category:
(it) Those incapcited for further service in the post they arc holding but declared {it in a lower medical category and eligible for retention in service in posts corresponding to this lower medical category.
1303. Railway servant totally incapacitated for further service : (Not Applicable) 1304. Railway servants incapacitated for service in posts held by them -
(a) Permanent Railway Servants : A permanent railway servant in group (ti) of Para 1302 above must also cease lo perform the duties of the post, he was holding [rom the date he is declared medically unfit. Here again, no officer has the authority to permit him to perform his duties in hat post beyond that date. He should be granted leave as admissible to him, under the leave Rules by which he is governed, fram that date he is incapacitated subject to the proviso that where the railway servant has not got six months leave to this credit, his leave shall be mace upto six months by the grant of extraordinary leave. If an alternative employment cannot be found for such a person within the period of leave so granted his service should, be extended by grant of extraordinary leave, subject to the condition that the total amount of extraordinary leave to be granted to the railway servant does not exceed six months. It should be possible within the period of leave thus extended to find 9 0.A.1579/2019 either a permanent or a temporary post for his absorption. If the railway servant is absorbed against a temporary post in a permanent cadre a supernumerary post may also be created and his lien counted against the post. It should, however. be noted that,
(i) the actual creation of supernumerary post will follow the acceptance of offer of alternative post;
(ii) the supernumerary post should be abolished as soon as a permanent post is found for the railway servant concerned.
The purpose of granting extraordinary leave envisaged tn this para is that in case the Railways administration is able to find a suitable alternative employment for a medically incapacitated employee, there should be no break in his service. Since the period of such extraordinary Jeave counts for the purpose of special contribution to P.P. in the case of a railway servant govemed by the stale Railway Provident Fund Rules but not in the case of pensionable Railway servant the letter employee may not like to avail of the extraordinary leave but may instead prefer to quit service on pension, immediately on the expiry of his period of leave with allowances. In such case extraordinary leave need not be granted to a railway servant, if he so desires.
2. In the matter of absorption of a medically incapacitated staff in alternative post, Railway administrations, should take care to ensure thal the interest of siulT in service are not adversely affected as far as possible. The alternative appoinunent should be offered only in posts which the staff can adequately fill.
(b) Temporary Railway Servants ; A temporary Railway Servant in group {ii} ol para 1302 above who becomes medically unfit for the post held by him on account of circumstances arising out of and in the course of his employment. the benefit admissible to permanent Railway servants as at (a) above should be given.
A temporary employee has become medically fit for the post held by him, on account of circumstances which did not arise out of and in the course of employment, the benefit of Rule 304 RI {of Fifth edition 1985) will not be admissible. While, therefore, it is strictly not obligatory to find alternative employment for such an employee, every effort would nevertheless, he made to find alternative employment. The employee concerned should br granted such leave as is due to him plus extraordinary have not exceeding three months: the total not exceeding six months. If no alternative employment be found in this period, the employee should be discharged from service.
1305. Alternative employment must be found in the case of permanent and temporary railway servants:
Medically decategorised staff may. as far as possible, he absorbed in such alternative posts which should broadly be in allied categories and where ther background and experience in earlier posts could be utilised. There should be no difficulty in providing such alternative employment and no reversion of am officiating railway servant for the purpose of absorbing the disabled railway servant should be necessary. For this purpose attempts should be made to absarh the disabled railway servant not only within the Districl/Division or Department but in another District/Division or Department.
1306. Steps to be taken for finding alternative employment :
1. With a view to determine the categories in which a medically incapacitated railway servant is suitable for absorption, a Committee should examine him. The 10 committee may consist of two or three officers under whom the medically incapacitated railway servant was working. the railway servant's immediate offiecr being one of the members of the Committee. After the Commitive 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 fird suitable alternative employment for him.
2. The officer concerned will prepare a list of vacancies within his jurisdiction in the categories for which the medically incapacitated railway servant has heen found suitable and a post with emoluments as near as possible to his earlier emoluments will be offered to him.
3. It will be the responsibility primarily of the officer under whom the railway servant is directly serving to find suitable alternative employment for him. This will be done first by trying to find alternative employment lor him. 'This will he done first by trying to find alternative employment in the afficer's own district. sub-district, sub-division, office. workshop and ec. and a register. Vide sub- paragraph (7) below will be maintained for this purpose.
4, [f there is no immediate prospect of employment in his own district, sub-district, sub- division, office and c. the name of the Railway servant with particulars as given in sub-paragraph (7) below, will be circulated to all other offices ar establishments where suitable employment is likely to be found.
(5) The names of railway servants likely to be suitable for clerical appointinents should be intimated to the Divisional Office as well as to the Headquarters Olfice.
(6) Nothing in the previous sub-paragraphs debars a railway servant from applying for a particular post for which he is likely to be deemed suitable and which is known to be vacant under any officer. Such an applicalion must be adkdyressed through the immediate officer of 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 communicated to the railway servant.
(8) A medically incapacitated railway servant who is permanent will be appuinted substantively to the alternative post subject to his suitability. His further chances of promotion thereafter will be in accordance with the normal channels of promotion. and he will not be entitled to consideration for out-ol-turn promations merely becatise of his absorplion int he post as a consequence of medication incapacitation.
1307. Absorption in alternative employment to be circularised.
1308. Before any post is filled or a promotion is ordered, officers concerned will réler io their registers and satisfy themselves that no medically incapacitated servant who is suitable for the post is available. Such medically incapacitated railway servant under all circumstances be given preference over surplus retrenched or demoted railway servant and shorter service.
1309, Alternative employment to be suitable. -
(i) The alternative post to be offered to a railway servant shoudl be the' best available for which he is suited, to ensure that the loss in emoluments is a minimum.
li (E(NG) [SO SR6/83 dt. 5.3.81).
NOTE :- Care should be taken by Railway administration to see that the interesls of the staff in service are not affected adversely as far as possible and alternative appointment should be offered only in post which the staff can adequately {ll. Their suitability for the alternative posts be judged by holding suitability test/interview as prescribed under the extent instructions.
1]. Learned senior counsel appearing for the Southern Railway repeatedly said that the petitioner should have made Southern Railway as a party since if is only from Southern Railway that he was transferred to [.C.F. The first respondent is the Union of India and both Southern Railway, Madras and Integral Couch Faetory are only field crganisations under the Ministry of Railways, The followir paragraphs of (2003) 4 $.C.C. 524 [Iunal Singh vs. Union of India] are relevant :
"8, The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize the objective that people with disabilities should have equal opportunities and keeping their hapes and aspirations in view a mectiny called the "Meet to Launch the Asian and Pacific Decaces of Disabled Persons" was held in Beijing in the first week ol December 1992 by the Asian and Pacific countries to ensure "full purticipation and equality of people with disabilities in the Asian and Pacific regions". his meeting was held by the Economic and Social Commission for Asia and Pacilie. A proclamation was adopted in the said meeting. India was a signatory to the said proclamation and agreed to pive effect to the same. Pursuant thereto this Act was enacted, which came into force on 1-1- 1996. The Act provides some sort ol succour to the disabled persons.
9. Chapter VI of the Act deals with employment relaling to persons wilh disabilities, who are yet to secure employment. Section 47. which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disubilits during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability'. [t 1s well settled that in the same enactment if two distinct definitions are given delining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service. is sought to he protected under Section 47 of the Act specifically. Such employee. acquiring disability, if nol protected, would not only suffer himself! but pussibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly :ndicate its mandatory nature. The ve ry opening part of the section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The section further provides that tf an employee after acquiring disability is not suitable for the post he was holdin. could be shifted to some other post with the same pay scale and service benelits: if it is not poss.ble to adjust the employee against any post he will be kept an a supernumerary post until a suitable post is available or he attains the age al superannuation, whichever is earlier, Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal oppertunilies. protection ol rights and full participation, the view that advances the object of (he Act and serves its purpose must be preferred to the one which obstructs the objeet and paralyscs the purpose of the Act. Language of Section 471s plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.
10. The argument of the learned counsel for the respondent on the basis of the definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because. the appellant was an employee, who has acquired "disubility" within the meaning of Section 2(i) of the Act and not a person with disability.
11. We have to notice one more aspect in relation to the appellant wetting inviticity pension as per Rule 38 of the CCS Pension Rules. The Act is a special legislation dealing with persons with disabilities to provide equal opportunities. pratection ol rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section -7ol' the Act. Further, Section 72 of the Act also supports ihe case of the appellant. which reads:
"72. Act to be in addition to and not in derogation of any other law .-The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or eny instructions issued thereunder, enacted or issued for the benefit of persons with disabilities."
12, Merely because under Rule 38 of the CCS (Pension) Rules, 1972, the appellant gol invalidity pension is no ground to deny the protection mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he waz holding. he could be shified to some other post with same pny scale and service benefits; if it was not possible to adjust him against any post. he could be kept on a supernumerary post until a suitable post was available or he altains the age of superannuation, whichever is earlier. [t appears no such efforts were mete by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act."
2. In 2007 W.L.R. 256 [The State vs. K. Mohammed Mustafa], a Division Bench had held that the benefit envisaged under Section 47 of the Disabilities Act can be considered in addition to the benefits contemplated under the Act and observed thus :
"If in a given case the provisions contained in the G.O. are more beneficial notwithstanding any provision contained in the Act, such benelicial provision ol the G.Q. can be made applicable, and similarly, if the provisions contained in the Act are more beneficial as compared to the provisions contained in the C.0., benefit of such Act can be made available."
13. In Tamil Nadu State Transport Corporation (Villupuram Division-1) Limited vs. R. Jayakumar [Writ Appea! No.610 of 2007] decided on 13.4.2007, a Division Bench held that Section 47 of the Disabilities Act casts a mandalory duly on the part of the employer to provide an alternalive employment lo an employee who has suffered disability during the course of his employment, and the fact thal such an employee has received some compensation under the Matar Vehicles Act is nn ground to deny him the alternative employment, to which he is otherwise entitled under the Disabilities Act.
4. In A. Veeriya Perumal vs. Secretary to Government. Health & Irumily Welfire Deparument, Chennai [(2006) 4 M.L.J. 335], a Division Bench held that sub-
13section (1) of Section 47 of the Disabilities Act is clear in terms thal "no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service". The Division Bench held that the right to livelihood, which is an integral facet of the right to life as guaranteed under Article 21 of the Constitution of India, coupled with the protection under Section 47 of the Disabilities Act entitles the employee who was incapacilated during service for continuance of service in suilable alternative post with same scale ol pay drawn by him and other service benefits. 1t was also held that the appellant/employee's rizht to allernate employment cannot be deprived solely on ground of medical invalidation, as his right is protected under Section 47 of the Disabillties Act.
The Hon'ble High Court while allowing the prayer of the petitioner held that the right is given to him in law and the rules can also be construed so as to advance the objects of the Act and to protect the rights of the person who has been medically incapacitated.
9 it is to be noted that the said order was challenged by the. respondents by Union of India before the Hon'ble Supreme Court in Civil Appeal no.4625 of 2009 and the same has been dismissed on 6.8.2015. Accordingly, the order of the Hon'ble High Court has attained finality.
10 =©it is also to be noted that in the similar matter of The General Manager & Ors Vs. C.Gunasekaran, the Hon'ble Supreme Court dismissed the SLP No.21404/2019 on 13.9.2019.
11. Itis also to be noted that in the similar matter, this Hon'ble Tribunal in O.A. No.1387/2019 by order dated 21.10.2019 directed the respondents to consider the case of the similar employee A.Francis Augustine in the light of the relevant rules and reguiations and disposed of the matter.
12 It is to be noted that as held by the Hon''ble Fligh Court of Madras in the matter of S.Raghuraman that no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service. The Division Bench held that the {} 14 righ to livelihood, which is an integral facet of he right to life as guaranteed under Article 21 of the Constitution of India, coupled with the protection under Section 47 of the Disabilities - Act entitles the employee who was incapacitated during service for continuance of service in suitable alternative post with same scale of pay drawn and other service benefits. It was also helcl that the employee's right to alternate employment cannot be deprived solely on ground of medical invalidation, as his right is protected under Section 47 of the Disabilities Act.
13. In view of the same, it is to be noted that the applicant has been given with said alternate appointment against his medical decategarisation i.e, in accordance with the Section 47 of the Disabilities Act. As such he has been posted at Tindivunam. The Respondents action that he has been posted against the applicant's request. Moreover when law dees not permit the same. The applicant's prayer which was protected by way cif interim measure by order dt.27.11.2019 by keeping the Impugned order dt.13.11.2019 in abeyance. In view of the above, in our considered opinion, the Impugned order dt.13.11.2019 passed by the Respondent is against the law, hence, we hereby quashed and set aside the same. The Respondents are directed to appoint on alternate post which is equal to the post which the applicant held at the time of medical | decategarization at Pay Matrix Level-7. The OA is allowed in terms of the above as no order cost.
----