Central Administrative Tribunal - Ernakulam
Satheesh M K vs M/O Railways on 22 January, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00918/2016
Monday this the 22nd day of January 2024
CO RAM :
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Satheesh.M.K.,
Aged 28 years,
S/o.Kanakaraj,
Assistant Station Master,
Southern Railway, Kozhikode.
Residing at Moochikal House,
Kannaki Nagar, Koduvayur (P.O.),
Palakkad - 678 501. ...Applicant
(By Advocates M/s.Elvin Peter P.J., Mr.T.G.Sunil
& Mr.K.R.Ganesh)
versus
1. The General Manager,
Southern Railway, Chennai - 600 001.
2. The Chairman,
Railway Recruitment Board,
5, Dr.P.V.Cherian, Crescent Road,
Behind Ethiraj College, Egmore,
Chennai - 600 008.
3. The Additional Railway Manager,
Southern Railway, Chennai - 600 001.
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4. The Senior Divisional Personnel Officer,
Divisional Office, Personnel Branch,
Southern Railway, Palakkad - 678 002. ...Respondents
(By Advocate Ms.O.M.Shalina)
This application having been heard on 29th November 2023, the
Tribunal on 22nd January 2024 delivered the following :
ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant has filed the Original Application seeking the following relief :
1. To call for the records leading to Annexure A-6, Annexure A-9 and Annexure A-13 and set aside the same.
2. To declare that the applicant is entitled to continue in the post equivalent to that of Assistant Station Master in accordance with Paragraph 1301 of Annexure A-7.
3. Award costs of and incidental to this application.
4. Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.
2. The applicant was selected and appointed as Helper-II/Ele/GS in the Divisional Office of Southern Railway, Palakkad pursuant to a selection conducted by the Railway Recruitment Board (RRB). It is submitted that a person seeking appointment to any category of posts in -3- the Railways has to initially establish physical fitness after a medical examination. The medical fitness level for different posts are classified by a standard description on the basis of the level of fitness required as Aye One (A-1), Aye Two (A-2), Aye Three (A-3), Bee One (B-1), Bee Two (B-2), Cee One (C-1) and Cee Two (C-2). A description of requirements in respect of medical classification for A-2, B-1 and B-2 level posts, as produced at Annexure A-1 in the O.A., relevant for this case is as follows :
A-2 Physically fit in all respects. Visual Standards - Distance vision : 6/9, 6/9 without glasses. Near vision : Sn : 0.6, 0.6 without glasses and must pass test for Colour Vision, Binocular Vision, Field of Vision & Night Vision.
B-1 Physically fit in all respects. Visual Standards - Distance Vision : 6/9, 6/12 with or without glasses (power of lenses not to exceed 4D). Near Vision : Sn : 0.6, 0.6 with or without glasses when reading or close work is required and must pass test for Colour Vision, Binocular Vision, Field of Vision & Night Vision.
B-2 Physically fit in all respects. Visual Standards - Distance Vision : 6/9, 6/12 with or without glasses (power not to exceed 4D). Near Vision : Sn : 0.6, 0.6 with or without glasses when reading or close work is required and must pass test for Field of Vision.
3. It is submitted that an appropriate fitness level falling under one of the classifications shown at Annexure A-1 has to be satisfied by a prospective employee in the medical examination. The applicant submits -4- that he had been subjected to a medical examination by the Medical Board and was classified and placed in the A-2 category of medical fitness. It is further submitted that for appointment to a post of Helper, the minimum medical fitness required is only the B-1 category. The applicant submits that he was classified in the even higher A-2 level medical category. In any case, after clearing the medical fitness test he was appointed as a temporary Helper Grade II in the Southern Railway, Palakkad Division. This was done by order dated 08.03.2012, a copy of which has been produced at Annexure A-2 in the O.A. The Annexure A-2 order indicates that the candidates listed therein, who have been selected for appointment as Helper-II/Ele/GS by the RRC and who have accepted the terms and conditions stipulated have been appointed as temporary Helper-II in Pay Band Rs.5200-20200 with Grade Pay Rs.1800/-. The applicant appears at Sl.No.9 of the list of candidates and in column 5 he is shown as "Fit in Aye Two and below MC No.51/2012/SRR dated 13.01.2012". Hence, he contends that the appointment order shows that he was found to be fit for jobs requiring the medical fitness category A-2 in the medical classification. -5-
4. As per the provisions of the Indian Railway Establishment Manual (IREM), Helpers Grade II are entitled to seek further appointment in the posts of Assistant Station Master, Ticket Examiner, Commercial Clerk, Traffic Potter etc., subject to certain conditions. The standard of medical fitness required for these posts are different and they fall under different medical classifications. The medical classification required for the post of Ticket Examiner is only B-2. However, the medical classification required for the post of Assistant Station Master is A-2. The applicant submits that while working as Helper he came across a notification inviting applications for taking part in a departmental test for appointment to the post of Assistant Station Master, in the quota reserved for Railway employees who clear the departmental test and who are medically classified in the A-2 category. He competed in the said test and having came out successful, he was appointed as Assistant Station Master on completion of training. He was placed on probation as per order dated 04.07.2014, produced at Annexure A-5 in the O.A. The order at Annexure A-5 dated 04.07.2014 indicates that the candidates mentioned therein are selected under GDCE for the post of Assistant Station Master by RRB/CEN and after having accepted the terms and conditions stipulated in the offer of appointment have been absorbed as -6- Assistant Station Master in PB Rs.5200-20200 with Grade Pay Rs.2800/-. Further, it is also declared in the order that they are medically fit in the medical classification of A-2. The applicant's name appears at Sl.No.8 of the list of candidates and he is shown as posted as Assistant Station Master, MDKI. It is submitted by the applicant that ever since his appointment by Annexure A-5, he has been working in the post of Assistant Station Master.
5. While continuing in the post of Assistant Station Master, it is submitted that the applicant underwent a periodical medical examination in accordance with the procedure laid down in the IREM. As per this procedure all Railway employees have to undergo a periodical medical examination on completion of 4 years of service. The applicant on completion of 4 years service after his appointment in 2012 underwent the medical examination. He submits that during the medical examination, it was found that his eyesight had deteriorated in as much that he had contracted defective colour perception. He submits that he had contracted this affliction after his appointment as Helper in the Railways. A certificate of the medical examination indicating that he has defective colour perception and hence placed in the B-2 medical -7- classification was issued. A copy has been produced as the impugned communication at Annexure A-6. This Annexure A-6 communication is issued by the Additional CMS, Palakkad, addressed to the Senior Divisional Personnel Officer, Palakkad on the subject of "Special Medical Examination of Shri.M.K.Satheesh, ASM/KLGD, Medical Committee". It states that the applicant is found to have defective colour perception during PME which has been concurred by other doctors. The case was put up to the Divisional Medical Committee at Railway Hospital, Palakkad and the Committee declared that the applicant, ASM/KLGD is 'UNFIT' in safety category, but 'FIT' for a job in 'BEE TWO AND BELOW' in view of defective colour perception. It is also indicated in the said communication at Annexure A-6 that the applicant did not propose to appeal against the decision and a declaration to this effect is also enclosed. (It may be noted however that the applicant has not enclosed a copy of this declaration along with the communication at Annexure A-6 in the O.A).
6. It is the contention of the applicant that in accordance with Paragraph 1301 of Chapter 13 of the IREM, Railway servants who fail in vision tests by virtue of disabilities acquired during service and become -8- physically incapable of performing the duties of the posts which they occupy should not be dispensed with or reduced in rank. Such railway servants have to be shifted to some other posts with the same pay scale and service benefits. A copy of the relevant extract of the Paragraph 1301 of Chapter 13 of the IREM has been produced at Annexure A-7 in the O.A and reads as follows :
"1301. A Railway servant who fails in a vision test or otherwise by virtue of disability acquired during service 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."
From the above provision of paragraph 1301 of Chapter 13 of the IREM it is clear that the applicant, who was initially categorized as A-2 in the medical classification on the basis of the medical examination conducted by the Medical Board of the Railways, having suffered defective colour perception after his appointment and on medical examination was found to be classified in the B-2 medical classification was entitled to be posted in another post carrying the same scale of pay of Assistant Station Master. It is submitted that he was not liable to be reverted. It is further submitted that, in accordance with this provision, the applicant was -9- posted in the same scale of pay of Assistant Station Master by creation of a supernumerary post as per order dated 26.04.2016, a copy of which has been produced at Annexure A-8. As per this order the applicant was posted under SMR/Calicut for gainful utilization in the Crew Management System (CMS) at Calicut on the same Pay Band and Grade Pay on administrative grounds, with immediate effect. It was also indicated in the order that he was transferred along with the supernumerary post but that his lien would be continued in the old unit.
7. The applicant had no issues upto this point with the respondents. However, later, while continuing in the said supernumerary post at Calicut on the basis of the order dated 26.04.2016 at Annexure A-8, he was served with a show cause notice dated 01.08.2016. This show cause notice informed him that his initial medical classification in the category of A-2 at the time of his appointment as Helper was as a result of a clerical mistake, since the Medical Board had actually found him at that time to be classified in the B-1 and not A-2 category. It was due to a clerical error that had crept into the appointment order of the applicant, that he had been shown with a medical classification in A-2 category. A copy of this show cause notice issued to the applicant has been produced -10- at Annexure A-9 as the second impugned communication. The communication stated that having been selected by the RRC for appointment in a Group 'D' post during 2012, the authorities had directed the applicant to undergo medical examination for A-2 fitness level (required highest medical examination for appointment in 'safety' category of Group 'D' posts) to the Railway Hospital at Shornur. After the said medical examination, the applicant had been found fit for only the B-2 and below category vide Additional CMS medical certificate dated 13.01.2012. Accordingly, he had been appointed as Helper in the Electrical General Service (EGS) of Palakkad Division, for which post the safety category required was only B-1 medical classification. He had joined the post on 09.03.2012 under the SSE/Electrical/Palakkad. The show cause notice further stated that, as in the case of any other candidate, the applicant was quite aware of the fact that he had defective colour perception and was thus fit for a job in which B-1 medical classification only was required. At this stage, however, when the Office Order for his appointment was issued after joining as Helper, a clerical error had crept in. There was an erroneous indication against his name that he was fit in the A-2 category, even though the certificate number and date that was referred showed that he was actually fit only for the -11- B-1 category. The show cause notice has alleged that the applicant did not take any effort at that stage to intimate the Divisional Office about the error in showing his classification in the A-2 category.
8. Further, knowing fully well that the post of Assistant Station Master (ASM) is a safety category Group 'C' post, requiring A-2 medical classification, it is indicated in the show cause notice that the applicant had volunteered taking advantage of the error in the Office Order, when volunteers were called for ASM GDCE quota vacancies by RRB Chennai. In addition, after having been selected as Assistant Station Master, it is now understood that the applicant had not been subjected to a new medical examination for clearing the classification of A-2 required for the post of Assistant Station Master during the appointment formalities. These formalities were done in the Madurai Division, the Division of the Southern Railway to which he was allotted initially after selection for post of Assistant Station Master. He was continued to be shown in the A-2 category based on the copy of records produced by him. Further, it is indicated in the said show cause notice that the applicant had willfully hidden the fact that he did not have the required medical fitness in the A-2 medical classification, at the time and he thus -12- got appointed as a Assistant Station Master. He had later got re-allotted to the Palakkad Division of the Southern Railway and having completed the training etc., he was absorbed as Assistant Station Master at MDKI. Later he was transferred to Kollengode on his request. It is further stated in the Notice that as per the latest Medical Certificate (referred to as Annexure A-6) he has been found unfit for the safety category, but fit for a job in the B-2 and below category in view of his defective colour perception. He had been placed in a special supernumerary post in the Assistant Station Master category in Pay Band Rs.5200-20200 with Grade Pay Rs.2800/- and had been utilized in the Crew Management System/Calicut pending an alternative appointment. However, since he had been found not fit in the A-2 category from the time of appointment as Assistant Station Master and is in the B-1 category, it was proposed to revert him to the post of Helper and to place him as Helper/Electrical (SNP) in Grade Pay Rs.1800/- the category from which he had got selected as Assistant Station Master. However, he is given an opportunity to show cause as to why this action should not be initiated against him. It was indicated further that the reply should reach the office on or before 12.08.2016.
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9. The applicant submits in the O.A that the above Annexure A-9 show cause notice is illegal, arbitrary and discriminatory and the facts stated therein are incorrect. It is submitted that the Medical Board during the initial medical examination had actually correctly classified him as falling under the A-2 medical classification. Any statement to the contrary contained in the show cause notice at Annexure A-9 that he had been actually classified in the B-1 medical classification is incorrect. The fact that he had been correctly certified by the Medical Board is also evident from the medical certificate pasted in his Service Book available with the respondents. It is submitted that what the respondents have done is that after the Medical Board had certified him as falling under the A-2 medical classification and had endorsed the same correctly in the medical certificate, they made another endorsement in red ink at the bottom of the said medical certificate that he fell under the B-1 category. It is submitted that the Annexure A-9 show cause notice issued to the applicant is hence based on an interpolation made by the authorities/respondents in the medical certificate, which was against the findings of the Medical Examination Board. The applicant had sent a reply to the show cause notice on 08.08.2016, a copy of which is produced at Annexure A-10, where all the above allegations had been -14- responded to. He had stated that he should not be faulted for a mistake of the respondents. He was not aware of the result of the medical test etc., and had not taken any advantage. He had further made a claim that he is now declared fit for jobs in the B-2 and below category and since persons like him were eligible to get appointments in the clerical and Ticket Checking cadre etc., he may be adjusted against the said clerical/ticket checking cadre, by protecting his service and grade.
10. At this stage we observe that the stand taken in this representation seems somewhat at odds with the line taken in this O.A that he was correctly placed in the A-2 medical category as indicated earlier. In addition, the applicant has produced another medical certificate dated 12.05.2009 issued by the Civil Surgeon of the District Hospital, Palakkad at Annexure A-11. It is submitted that this certificate was issued in connection with his appointment to the post of Police Constable under the Police Department of the State of Kerala. After undergoing a medical examination, the Civil Surgeon had certified in the Annexure A-11 certificate against the 'standard of vision' at Sl.No.4 'Colour Blindness' as 'Nil'. He submits that in other words the Civil Surgeon in the Annexure A-11 medical certificate had certified that he had no colour blindness. -15- Further, this certificate had been issued at a time when the appointment of the applicant as a Helper in the Southern Railway was not even on the anvil. Thus, he submits that the Annexure A-11 certificate is not a new document 'procured' by him to nullify the findings of the 4 th respondent that he has colour blindness, but that it is a document that would buttress and corroborate the original finding of the Medical Board in 2012 that he came under the A-2 medical category.
11. The applicant further submits that he has approached this Tribunal apprehending that he would be reverted on the basis of the show cause notice at Annexure A-9, even before the consideration of his representation at Annexure A-10. He had earlier filed O.A.No.180/695/2016 which had been disposed of by this Tribunal by Annexure A-12 order dated 11.08.2016 directing the 4 th respondent to consider the Annexure A-10 representation before reverting the applicant. After this order was passed, the 4 th respondent had issued on 24.10.2016 the impugned Annexure A-13 order, which has rejected his claim that he had been originally classified by the Medical Board, as falling under the A-2 medical category. This order states that the Medical Board had actually classified him as falling under the B-1 -16- medical classification and that Office Order No.9/2012 dated 08.03.2012 mentioning that he fell under the A-2 classification was 'an inadvertent clerical error'. Even now, in the second medical examination, since he is found to be medically categorized under the B-2 classification, he cannot be allowed to continue in a post carrying the same scale of Assistant Station Master. He has, therefore, to be reverted to the post of Helper. It is submitted by the applicant that the impugned Annexure A-6, Annexure A-9 and Annexure A-13 communications/orders are illegal and violative of Article 14 and 21 of the Constitution. Annexure A-9 and Annexure A-13 are violative of Article 14 of the Constitution as they have been issued on the premises of existence of a fact, which is in fact non-existent, and are vitiated by an abuse of power and malice in law.
12. The matter first came up before this Tribunal on 03.11.2016. An order sought for an interim stay to all further proceedings pursuant to Annexure A-13. This was considered by this Tribunal and a detailed order was passed on the same day, ie, 03.11.2016. In the operative portion of the order, this Tribunal found as follows : -17-
" xxxxx The applicant had approached this Tribunal earlier by filing O.A.No.695/2016 when he apprehended reversion on the ground that he does not have the medical fitness. Then this Tribunal directed the respondents to consider and dispose of the representation. That representation was considered and a detailed order was passed vide Annexure A-13. All aspects were considered and it was stated that the test that is required is standard in the initial medical examination for all the candidates who seek appointment in Railway Service. It was specifically stated that the Chief Medical Superintendent had confirmed that defective colour perception was present (mild form) at the time of initial medical examination prior to appointment itself and it was not acquired or detected later. Therefore because of that reason the ACMS/RR has given fitness in Bee One category and not in Aye category.
Evaluating all the aspects relevant in the matter it was found that the applicant had actually concealed the fact that he was fit only in Bee Two category and not in Aye Two category and that he does not have the required medical fitness to the post of Assistant Station Master. Considering all the aspects of the case, representation was rejected.
Learned counsel for the applicant now submits that no action for reversion should be allowed to be taken by the respondents. Respondents are yet to pass an order in that regard. The respondents' counsel submits that without allowing the respondents to file statement objecting to the claim made by the applicant for interim relief, no order can be passed. Considering the totality of the circumstances, we are not inclined to pass interim order restraining the respondents from passing appropriate orders before getting the statement of the respondents. If any order is passed, the applicant can -18- very well challenge the same at that point of time. Hence, interim order as requested by the applicant cannot be now granted.
For filing reply statement/counsel statement, list on 02.12.2016.
Issue a copy of this order to learned counsel for parties."
(Emphasis added)
13. The matter was subsequently posted for completion of pleadings etc., on a few occasions. Meanwhile, the applicant filed O.P.(CAT) No.288/2016 in the Hon'ble High Court of Kerala against the order dated 03.11.2016 passed by this Tribunal. The Division Bench of the Hon'ble High Court after touching on some aspects, directed as follows in the operative part of its judgment :
" xxxxx An interim relief was also sought for to intercept the reversion finalized as per Annexure A-13. The challenge is mainly against Annexure A-6 finding of the Medical Board, Annexure A-9 Show Cause Notice and Annexure A- 13 final order passed by the Railways, ordering reversion.
7. When the matter came up for consideration before the Tribunal, it appears that a different picture was projected from the part of the Railways, as if the proceedings were still to be finalized with regard to the proposal for reversion, as disclosed from paragraph 3 (un-numbered), operative portion of Ext.P2 order and elsewhere.
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8. The learned counsel for the petitioner submits that, in respect of Assistant Station Master, as per Annexure A-1 Medical Classification, the level of visual capacity required is only at the level of A-2. But in the case of Ticket Examiner and Counter Clerk, which are still higher posts for promotion to the Helper Class, it is only at 'B-2' level and nothing more. As a matter of fact, the visual level in the case of the petitioner was certified by the Medical Board as per Annexure A-2 dated 08.03.2012 as 'Aye Two' and as such, the petitioner was entitled to participate in the selection process to be appointed as Assistant Station Master. It was accordingly, that the petitioner was appointed to the said post after completing the stage of selection, as revealed from Annexures A-4/ A-5 and is occupying the post from 04.07.2014.
9. By virtue of the mandate of Annexure A-7, particularly paragraph '1301', if any Railway servant is found as possessing only lower Medical Classification Level during the course of his employment, he shall not be reverted and shall be accommodated against an equivalent post, without any reduction in salary. It was in the light of the said provision that the petitioner (pursuant to Annexure A-6) was accommodated against a different post (supernumerary post) vide Annexure A-8 dated 26.04.2016, without any change in pay. All these happened at the hands of the Railways and it was much thereafter, that Annexure A-9 was issued on 01.08.2016. Pursuant to Annexure A-12 direction by the Tribunal, Annexure A-10 reply was considered and final order was passed as per Annexure A-13, which made the petitioner to challenge Annexure A-6 finding of the Medical Board, Annexure A-9 Show Cause Notice and Annexure A-13 final order. There is absolutely no lapse or fault on the part of the petitioner in any manner and the so called mistake, which is stated as an 'inadvertent clerical mistake' (as pointed out by the Railways), is not correct. The learned counsel submits that the entries in Annexure A-2 affixed in the Service Book were consciously -20- manipulated by some Departmental officials, making adverse entries in 'red ink', absolutely without any notice to the petitioner and hence the same is not liable to be acted upon. The Railway has not sought to substantiate the stand by filing any reply affidavit before the Tribunal, but for making some oral submissions, that too contrary to the actual facts, which led to Ext.P2 order declining the reliefs sought for.
10. After hearing both the sides, this Court is of the view that a prima facie case has been established by the petitioner, to have an interim order, as sought for. In the said circumstance, we modify Ext.P2 order passed by the Tribunal, making it clear that 'status quo' shall continue till the proceedings are finalized by the Tribunal in the O.A., which is stated as pending.
11. The respondent Railways shall file a proper affidavit producing copies of the relevant documents and it is for the petitioner to rebut the same, if it is detrimental to his rights and interests. We hope that the proceedings pending before the Tribunal will be finalized, in accordance with law, as expeditiously as possible.
The Original Petition is disposed of as above."
(Emphasis added)
14. We note that the above interim direction in O.P.(CAT) No.288/2016 passed by the Hon'ble High Court of Kerala on 08.11.2016 that status quo shall continue till the proceedings are finalised by the Tribunal has, thus, continued till date. The applicant continues to draw the salary against the supernumerary post created for him vide Annexure A-8. When this Bench heard the matter in full on 07.11.2023, it was -21- observed that having considered all facts and by virtue of the interim order passed by the Hon'ble High Court in O.P.(CAT) No.288/2016 on 08.11.2016, the applicant has been continuing in the said post and also considering that he cannot be assigned to any post which involved safety aspects, one more opportunity was given to the respondents to ascertain whether he can be accommodated in some posts which would not involve safety aspects, before passing final orders on merit. Learned counsel for the respondents on instructions from the respondents submitted on the next date of hearing on 20.11.2023, that the Railways would be able to comply with these directions only after the applicant undergoes a medical examination afresh. After this, the matter was taken up on 29.11.2023. Learned counsel for the applicant, on instructions from the party, submitted that the party was not willing to undergo medical examination afresh due to personal reasons. The matter was then heard and reserved.
15. The respondents filed two reply statements in the O.A. In the first reply statement which was filed on 10.01.2017, they drew attention to Rule 222 Paragraph 1 of the IREC Vol.I in which it has been laid down that "no person shall be substantively appointed to a permanent post in -22- Railway Service without the production of medical certificate of health in accordance with the rules prescribed by the President in the case of Group A & B Railway Servants and by the Railway Ministry in the case of Group C & D Railway servants". It is submitted by the respondents that during his initial appointment to the Railways as Helper II/Electrical/GS the applicant had been sent for medical screening for the A-2 fitness. He was, however, found fit for the B-1 and below vide the Certificate - Physical Fitness of Candidate No.004771, No.51/2012/SRR dated 13.01.2012. The 'counter foil' of this certificate has been attached with the reply statement at Annexure R-1. It is submitted that this counter foil clearly shows that the applicant was having defective colour perception. The remarks against the colour perception is recorded as "ISH-Defective, EGL-Normal, BV" and it is declared that the candidate is fit in 'B-1 and below'. Further, the respondents have also produced a copy of the 'foil' side or the certificate itself at Annexure R-2, which is the certificate showing the Physical Fitness of the candidates. It is recorded on the top and in the middle of this certificate as 'Fit in Bee One and Below'. It is submitted by the respondents that Annexure R-1 and Annexure R-2 conclusively prove that the candidate had been found 'not fit' for the A-2 and below as claimed but found fit for B-1 and below -23- only. It is also submitted that the applicant had failed the "Ishihara" test to ascertain the colour perception and had been declared as fit in B-1 and below as per the provisions under Paragraph 512, Indian Railway Medical Manual (IRMM), Vol.I., dealing with Vision Tests. A copy of the extract of these provisions has been produced at Annexure R-3 along with the reply statement. Further, they have produced an extract (page
58) of the Gazette Extraordinary 2013 Part 1 Sec.1 Note (2) at Annexure R-4 dealing with grade of colour vision required for safety posts. Hence, it is a wrong claim on the part of the applicant that he was fit for Aye- Two (A-2) and below.
16. The respondents submitted that the medical categorization mentioned in Annexure A-2 appointment order as Helper against the applicant's name was an inadvertent error which cannot be held authoritative to support his claim. His actual medical categorization was B-1 and below as is evident from the Annexure R-1 and Annexure R-2. He has not been found fit for the A-2 and below category, and thus, his claim that he had been decategorized from A-2 and below to B-2 and below category is without any basis and cannot stand the test of law. Further, in order to be appointed as an Assistant Station Master, which is -24- a post associated with the safe running of trains and train operations, a candidate should possess A-2 and below medical fitness category as prescribed by the Indian Railway Medical Manual (IRMM). The applicant, having always been in the B-1 and below category, cannot rely on an inadvertent clerical error in an Office Order for claiming that he had had the requisite medical standard to be appointed as an Assistant Station Master. It is submitted that he is trying to take advantage of a situation of an apparent error in the Annexure A-2 Office Order of appointment, as his basis for seeking a benefit extended to medically decategorized employees under paragraph 1301 of the Indian Railway Establishment Manual (IREM). It is submitted that he cannot be treated as a medically decategorized employee from A-2 and below category as he was not fit in A-2 and below right from his initial appointment.
17. The respondents also draw attention in the reply statement to paragraph 517 of the IRMM, wherein, it has been laid down that "a railway employee must not be engaged to work, whether temporarily or permanently, in a class higher than that for which he/she has been certified fit, unless she/he has obtained a certificate of competence in -25- respect of medical category of the new employment". The post of Assistant Station Master is directly associated with train operations and belongs to the safety category. The appointment of a person with lesser medical fitness, especially when he has a congenital colour perception defect, is not possible. The safe running of trains being very crucial, an appointment cannot be 'perpetuated' to a person with congenital colour perception defect as it would endanger the lives of travelling public and lead to destruction of public property in case of an accident, which is a possibility with defective colour perception. The respondents also draw attention to the Gazette Extraordinary, 2013 Part I Sec. 1 (page 58) Note 2, produced at Annexure R-4 wherein it has been stated that "For Railway Engineering Services (Civil, Electrical, Signal and Mechanical) and other service connected with the safety of the public, Higher Grade of colour vision is essential but others lower grade of colour vision should be sufficient."
18. It is submitted that the applicant, who had failed in the "Ishihara" test, was found with defective colour perception. The applicant had consciously taken advantage of an inadvertent error of the Annexure A-2 Office Order and is now trying to perpetuate it to his further advantage, -26- for which he is liable to be taken up under the Railway Servant's Discipline and Appeal Rules, 1968. His claim that he has contracted the defective colour perception after his appointment as a Helper in Railways is not true as the type of defective colour perception as found in him is congenital, a defect he was born with. In this regard, the respondents have quoted in detail from a publication by the American Academy of Ophthalmology in the reply statement which they state is required for a proper appreciation of the dispute in hand. It is submitted by them that during the "Ishihara Colour Vision Test" which is normally used for ascertaining colour perception, the examined person will certainly come to know about his/her ability/disability in colour perception. It is submitted that this test is standard in the initial medical examination for all the candidates who seek appointment in Railway Service in various departments and is a mandatory one for safety related posts. The respondents also submit that it is a matter under investigation as to how the applicant managed to evade the medical evaluation which was necessary prior to his taking over the charge as Assistant Station Master. The Chief Medical Superintendent vide his letter dated 19.09.2016 has confirmed that "defective colour perception (mild form) was present at the time of initial medical examination prior to appointment itself and it -27- is not acquired or detected later. Because of this reason ACMS/SRR has given fitness in BEE category and not Aye category. The Divisional Medical Committee which includes an ophthalmologist also has made him fit in B-2 category only after detailed evaluation, including psychiatric evaluation at Railway Hospital/PER in view of his defective colour perception." It is thus submitted that by evaluating all the facts leading to the applicant's appointment as Assistant Station Master, it can be reasonably discerned that by relying on the Office Order dated 08.03.2012, produced at Annexure A-2, the applicant made a conscious effort to avoid a necessary medical examination before being appointed as an Assistant Station Master. It is submitted that the Department has succumbed to the applicant's craft and appointed him as Assistant Station Master due to an inadvertent oversight.
19. It is contended by the respondents that the applicant's disability would not have been acquired after his entering into Railway Service. It is contended that he had congenital defective colour perception and that if he continues with the argument of later contraction of the same, he is bound to substantiate the claim. He should produce medical proof that he had acquired the defective colour perception after joining Railway -28- Service. Whatsoever be the reason for the clerical and administrative lapses that led to the erroneous appointment of the applicant to the post of Assistant Station Master, it is still a fact that he did not have the required medical fitness required for his appointment to the post. His claim that he has been medically decategorized cannot stand as there is no basis for it. The point is that he did not from the outset possess the higher medical fitness at any time to be appointed as Assistant Station Master and to get the benefit of decategorization from the post. Thus, the respondents deny his claim under Chapter 13, Paragraph 1301 of the IREM (produced at Annexure A-7) that he is entitled to be posted to another post, carrying the same scale of pay of Assistant Station Master. It is also submitted that he is liable to be reverted.
20. The respondents have also addressed the averment made at paragraph 4 in the O.A that they made an endorsement with red ink later that the applicant fell under the B-1 medical category. They completely deny the same and submit that it is clear from the counterfoil at Annexure R-1 and the certificate at Annexure R-2 that he had never been found fit for the A-2 and below medical classification. His allegation that there was a later interpolation made by the respondents -29- in red ink in the medical certificate is denied. In this connection, presumably to establish certain questions about the character of the applicant, the respondents have given details in respect of various departmental proceedings in relation to the applicant, while he was working as a Assistant Station Master. They submit that these shed light on his character and integrity. The proceedings are based on allegations of forged signature and memos etc. Further, the applicant was punished on two occasions for dereliction of duty with two separate penalties of withholding his annual increments for a period of six months without the effect of postponing the future increments. Hence, in light of these considerations, it is submitted by the respondents that the impugned orders at Annexure A-6, Annexure A-9 and Annexure A-13 are perfectly legal and do not warrant any interference on the part of this Tribunal. It is also submitted by them that in no way can the action taken by them be called arbitrary, unfair, unreasonable, discriminatory and violative of Article 14 and 21 of the Constitution. Further, his contention in the O.A that he did not apply for the post of Ticket Examiner, because he was satisfying the A-2 fitness category and was entitled to be considered for appointment as Assistant Station Master and that the action of the respondents to revert him based on the interpolation made -30- in the medical certificate after tinkering with the original finding of the Medical Board, is submitted to be a serious allegation against the integrity of the entire Railway Administration in collective. The applicant is to be put to strict proof in this regard. On the other hand, it is his own activities that proves his character.
21. The respondents also submit that the applicant's claim that he is now found fit for a job in B-1 and below category eligible for appointment/posting in the Clerical Cadre/Ticket Checking Cadre, cannot be considered. The provisions for a suitable alternate posting for medically decategorized employees are not at all applicable in his case. It is submitted that any action to this extent would actually be perpetuating an inadvertent mistake made by the Railway administration, which should not have happened in the first place. The Rule 105 of the Indian Railway Establishment Code Vol.I, Chapter I, Section I applies in the case of the applicant as his appointment as Assistant Station Master was contrary to the statutory rules as he was not fit for the A-2 category. There is no power or discretion to relax these Rules.
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22. The applicant filed a rejoinder in February, 2017 in response to the reply statement of the respondents. He reiterated his contention taken in the O.A that the Medical Board had originally classified and placed him after medical examination in A-2 medical classification. He submits that for the post of Helper, all that was required was the B-1 category. After medical examination he had been placed in the higher category of A-2. In relation to the statement of the respondents in relation to the counterfoil of the certificate dated 13.01.2012 recording his fitness for the B-1 and below, it is submitted that it is common knowledge that such counterfoils are available only in the hospital records. He had no occasion to verify the counterfoil. The applicant submitted that he doubts the genuineness and veracity of such counterfoils produced by the Railways as they might have been manipulated to fit the case put forth by the respondents. Further, even in relation to the certificate showing Physical Fitness produced at Annexure R-2, it is submitted that a perusal of the document makes it clear that the respondents had initially, after examining him, correctly categorized him as falling under A-2 medical classification. The Medical Board had correctly endorsed the same in the medical certificate. However, it is the respondents thereafter who made another endorsement with red ink at the bottom of the said medical -32- certificate that the applicant fell under the B-1 category. It is submitted that this is a clear case of later interpolation made by the respondents in the medical certificate against the findings of the Medical Board. It is clear that even though they made this subsequent interpolation stating that he is fit for the B-1 and below category, they had omitted to score off the original A-2 classification in the beginning given by the Medical Board to him. It is clear from this that he had been given A-2 right from the initial medical examination itself.
23. It is submitted by the applicant that the averment that he had failed in the "Ishihara" test to ascertain the colour perception and had been declared as fit in B-1 and below, as per the provisions of IRMM, was absolutely incorrect. It is submitted that if he had actually failed in the colour perception test he would have been put under the B-2 and not B-1 medical category even as stated by the respondents, which exposes the hollowness of the claim made by them. Further, the respondents themselves, after having been convinced of his medical categorization of A-2, had created a supernumerary post in the scale of pay in accordance with paragraph 1301 of Annexure A-7. They had also posted him to the said supernumerary post as per Annexure A-8. He is, at present, working -33- in the said supernumerary post. It is submitted that there is no work involving safety of the passengers and general public attached to this post. He is, in fact, only doing clerical work even though the post is named as Assistant Station Master. Hence, the Annexure R-4 Gazette Extraordinary 2013 produced in relation to colour perception etc., has no application to his case. It is again submitted that he had contracted the defective colour perception some time after his appointment as Helper in the Railways. Further, the statement that the matter as to how he had managed to evade medical evaluation prior to his appointment as Assistant Station Master is under investigation is made only with an intention to fit the case to the one projected by the respondents. The averment that he made a conscious effort to avoid necessary medical examination before being appointed as Assistant Station Master and that the Department had succumbed to his craft and appointed him as Assistant Station Master by oversight is an utter falsehood and is denied. Finally, it is submitted that none of the details in relation to the disciplinary proceedings drawn up etc., against him is connected with the present case of the applicant in this O.A. -34-
24. The respondents clearly felt the need for filing another additional reply statement after the above rejoinder. In the additional reply statement they denied that they had any special interest in the applicant being barred from any of the rights that he would otherwise possess. The charge that the Railway Administration had manipulated the records to deny him his proper medical categorization was termed as 'childish and against facts' in the statement. It is submitted that doubting the genuineness of the counterfoil was a frivolous argument, which has no iota of truth. His allegation that he had been initially found fit in A-2 category and the respondents, thereafter, interpolated the statement in the records to show that the applicant was fit in the B-1 and below category was incorrect. The Annexure R-2 certificate showed that the applicant had been subjected to a test to find out whether he was fit in A-2 and below category. His actual fitness was then recorded after the medical examination as B-1 and below. It was once again categorically asserted by the respondents that on the basis of the medical certificates issued by the Medical Department of the Railway Administration, the applicant right from his initial medical examination had not been found fit in the A-2 and below category. He had failed in the "Ishihara" test and he did not possess A-2 and below medical classification. There was no anomaly -35- in placing him in a job with requirement of a B-1 and below category. He would not, however, been considered for safety related posts in B-1 and below category. The Paragraph 512 to Note (i)(ii) of the IREM clarifies this position.
25. The claim of the applicant that he had normal colour perception during the initial medical examination and developed the defective colour perception subsequently was also denied by the respondents. The applicant had been found fit only in B-1 and below category it was reasserted. He had accordingly been appointed as a Helper II in Pay Band 1 in pay scale Rs.5200-20200 plus Grade Pay of Rs.1800/- on 08.03.2012. He had applied for the post of Assistant Station Master in the medical fitness category of A-2 and below in PB-1 pay scale Rs.5200-20200 plus Grade Pay Rs.2800/- on 20.07.2012, just four months after he had joined. This was in response to the notification dated 22.06.2012 of the Southern Railway. After being selected for the post of Assistant Station Master, he had signed the offer letter dated 30.01.2013 accepting the terms and conditions. Among these conditions in paragraph 9, it is inter alia, stated that the applicant would have to undergo medical examination in class A-2 for the post of Assistant -36- Station Master. It is contended by the respondents that the applicant managed to avoid the prescribed medical examination by using the inadvertent error that was in the Annexure A-2 Office Order. It is contended that the applicant was well aware that if he managed to get appointment as Assistant Station Master, without subjecting himself to a medical examination before being appointed, he would, in any case, be invariably later been found unfit for the A-2 category in the next periodical medical examination. It was known that the periodical medical examination would have been scheduled in the 4 th year after initial appointment. At that stage, because he had already worked as Assistant Station Master, it would make him eligible for alternate appointment to a post equal in pay and status of an Assistant Station Master.
26. It is submitted by the respondents that much is at stake for the applicant, as the 7th CPC had recommended that the Assistant Station Master in PB-1 be upgraded in Pay Band-2 Rs.9300-34800 plus Grade Pay of Rs.4200/-. This would have been a quantum jump in pay and allowances for the applicant which, otherwise in the normal case, he would not have been eligible for in such a short span of time. He would -37- be jumping from a Grade Pay of Rs.1800/- to a Grade Pay of Rs.4200/- in four years ie., from a Helper in Pay Level 1 to a Assistant Station Master/equal supernumerary/regular post in Pay Level 6. It is submitted that the applicant is misrepresenting the matter in order to draw undue benefits. Further, he had also been putting pressure through the Railway Unions for considering him for posting in the category with Grade Pay of Rs.4200/-. It is submitted that the respondents had found out the irregularity in the applicant's appointment when the record was perused after he was placed in the supernumerary post. He was then served with a show cause notice for reversion to his original post but he was being allowed to continue in the supernumerary post after the Hon'ble High Court's direction dated 08.11.2016 in O.P.(CAT) No.288/2016 ordering status quo. It is submitted that the respondents have initiated procedures to fix responsibility and further disciplinary action on the staff, responsible for issuing the Annexure A-2 order showing the medical classification of the applicant erroneously. Further, they have also initiated procedures to fix responsibility and disciplinary action on the staff responsible for absorbing him as Assistant Station Master solely by relying on the medical fitness mentioned in Annexure A-2 order, without sending him for a proper medical -38- examination to ascertain fitness. Copies of the letters issued in this regard have been produced in the additional reply statement at Annexure R-8.
27. It is submitted by the respondents that the standard of medical fitness for the supernumerary post is no longer a point of contention. The applicant is not eligible for this post which carries equal pay scale and status of an Assistant Station Master (ASM) as he had been appointed erroneously as an ASM. He had been placed in the supernumerary post only by virtue of his occupying the post of Assistant Station Master by way of an erroneous appointment. Hence, since the very foundation of his appointment is not there, his claim for continuing in the supernumerary or any equivalent post does not have any basis. It is submitted that the respondents are well within their rights to take action against a Railway Servant, who has violated the Railway Servant Service Conduct Rules. It is submitted that the applicant may be called to prove medically as to how and under what circumstances he had developed defective colour perception in a span of four years. It is submitted that a person with normal colour perception is likely to remain as such, unless otherwise he had contracted a pathological condition of -39- the optic nerve. As stated in the first reply statement, defective colour perception is congential and there is no medical evidence to support the applicant's claim of contracting the defective colour perception after joining as Helper.
28. It is also submitted by the respondents that the veracity of the Annexure R-1 and Annexure R-2 documents, which the applicant is questioning, can be checked by comparison with the original documents which they are ready to produce. The applicant's wild allegation that the Railway Administration has done an interpolation in the original document only establishes that he is ready to stoop to any level to protect his benefits. The character and antecedents of the applicant also shows that he is not a person with clean hands. In this regard the respondents have relied on the law laid down by the Hon'ble Supreme Court in Ram Chandra Singh vs. Savitri Devi, AIR (2004) SC 4096. The applicant has approached various authorities in order to avoid being reverted to the post of Helper/Electrical (SNP) in Grade Pay Rs.1800/-, from which category he had got selection as Assistant Station Master. It is submitted that the Tribunal should 'clearly discern' that his appointment as Assistant Station Master had been contrary to statutory rules as he was not fit in -40- the A-2 medical classification and that he was granted this appointment only due to an inadvertent clerical error that mentioned him as fit in the said A-2 category.
29. We have heard both sides very carefully and have perused all the records provided. In the context of these records and explanations provided, we broadly accept the position of the respondents that there had been a clerical mistake that had crept into the initial appointment order of the applicant produced at Annexure A-2, which had shown his medical categorization as A-2. How we arrived at this conclusion will be gone into later. We do not have evidence to delve into further speculations as to how the applicant managed once again to get himself cleared for posting in the higher level safety category of Assistant Station Master. We should also note that this Tribunal had never been inclined from the initial stage on the basis of the facts provided to give the applicant the protection by way of an interim order of the status quo which later however the Hon'ble High Court was pleased to grant. In any case, the applicant has now continued on the strength of this status quo order, passed in November, 2016, for a period of 7 years in the post in the same pay scale with all the usual benefits.
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30. Returning to the facts and documents before us, prima facie, we do not find any error or subsequent interpolation in the medical certificate regarding physical fitness produced at Annexure R-2 along with its counterfoil at Annexure R-1 as alleged by the applicant. A careful look at the wording of the certificate at Annexure R-2 would simply show that it certifies that the Railway Medical Examiner has certified that he had examined the concerned Railway servant, a candidate for appointment as a Group 'D' in the class A-2 and below in the department, whose signature and thumb impression had been appended below in his presence. Under this particular entry as well as above it at the head of the certificate, it has been recorded in a different coloured ink as 'fit in B-1 and below'. It appears from a simple perusal of the certificate that it can be reasonably accepted that the 1 st part of the certificate as above is to be filled up by the office concerned and it is then the Railway Medical Examiner who does the entry in relation to fitness after the medical examination. He has entered this as 'Fit in Bee One and below' at the time of signing the certificate on 13.01.2012. Further, we note also the signature of the candidate himself on the left hand side of this certificate at Annexure R-2. The counterfoil at Annexure R-1 also clearly records "ISH Defective" against colour -42- perception and "EGL Normal BV". Even here, the fitness has been shown as fit in 'B-1 and below'. Again here, the basic details including the class as 'Aye Two and below' appears to have been filled up earlier by the office as that is in a different ink and the details after medical examination seem to be filled up by the Railway Medical Examiner. That the 'class' shown is 'A-2 and below' only indicates as was mentioned by the respondents that the applicant was being considered against medical categorization for the class of 'A-2 and below', but after medical examination has been found to be fit only in 'B-1 and below'.
31. It is our view that this is the right interpretation in the context of the certificate, which has been produced at Annexure R-1 and Annexure R-2. The counterfoil (2) has also been signed along with a thumb impression by the applicant. After this certificate was issued on 13.01.2012, it appears, therefore, that the first mistake was committed by the respondents by declaring the applicant in his Annexure A-2 appointment order in the column 5 as 'Fit in A-2 and below'. The respondents seek to explain this mistake by the fact that the previous candidates at Sl.Nos.7 and 8 just above the applicant as also the candidate at Sl.No.10 below him, were 'Fit in A-2 and below' and -43- possibly, by an inadvertent error there was a similar clerical copying of same categorization in the case of the applicant. Such a mistake is, of course, possible due to human error, though we note that the candidates at Sl.Nos.2, 3, 4, 5 & 11, for example, have been declared as fit in 'B-1 and below'. In any case, what needs to prevail is what was recorded in the medical fitness certificate produced at Annexure R-2, and that, clearly to our mind, had indicated that the candidate was only fit for the 'B-1 and below' category. Next, the question of how the applicant was able to utilize this defect in the appointment order at Annexure A-2 to his advantage once again during the time of his appointment as an Assistant Station Master, which the respondents says is a very high safety category post to avoid another medical examination in the Madurai Division at that relevant point of time, is something which requires more investigation and also hopefully, strict regular departmental action against those who ignored and allowed the applicant to join as an Assistant Station Master without the prescribed medical examination.
32. Be that as it may and whatever be the reasons for the same, it is clear to us that two consequent errors, one at the time of appointment and followed by another at the time of promotion, were committed in relation -44- to the correct medical categorization of this Railway employee. If such errors are committed so casually in a safety post with possible impact on the safety of passengers, surely it is something the Railways themselves have to be very concerned about. In any case, it is not for us to enter into this area as the motivations, reasons etc., are speculative. Suffice it to say, sufficient material has been produced by the respondents in the statements filed by them to show that the medical categorization of the applicant was correctly done but entered incorrectly into certain documents with consequent impacts which they have now sought to correct. From all the materials provided, it is clear that the true categorization of the applicant in the 'B-1 and below' category and which was confirmed by the subsequent medical test held in 2016, as per the certification provided at Annexure A-6. This found him fit for a job in 'B-2 and below' category in view of defective colour perception. Further, there is sufficient medical information which has also been produced to show that such defective colour vision is a hallmark of a congenital defect. We are also influenced in our conclusion in the absence of a clear contrary assertion with proof provided by the applicant on the claim that the illness was contracted during the period when he joined as Helper-II. -45-
33. Learned counsel for the applicant made an attempt during oral hearing to deflect the matter by citing the judgment of the Hon'ble Supreme Court in the matter of S.K.M.Haider vs. Union of India & Ors., (2011) 4 SCC 700. The Hon'ble Apex Court had found in the case of a Railway employee working in the Northern Railways that there can be sometimes a somewhat irrational medical test criterion prescribed in relation to various posts. It was found, therein, that there had been no rational basis after examining the classification provided at Paragraph 510 of Chapter V of the IRMM for categorising the post of Ticet Collectors under the Class B-2 medical categorization in Annexure IV. It was ordered that the respondents should have a fresh look insofar as medical categorization of posts pertaining to non-gazetted railway services in Annexure IV was concerned. It was found that the medical categorization of posts for the purpose of vision tests should have a nexus with the object set out in Paragraph 510. It was found that the post of Ticket Collectors, having regard to the objective of division of groups/classes for the purpose of vision tests under Paragraph 510 of IRMM, cannot be held to be covered by the medical Class B-2, but rather should be covered by the medical Class C-2. Further, it was held that any inconsistency -46- in categorization of railway posts in Annexure IV must not operate against the appellant therein in getting promotion to the post of Ticket Collector.
34. However, such directions as above can be passed only by authorities at a higher level than this Tribunal. We have to go by the categorization provided for the post, which we note was not contested by the applicant in any of the pleadings. The fact of the matter is that as per Annexure A-6 medical examination dated 11.04.2016 he is found to be fit for a job in 'B-2 and below' medical categorization in view of his defective colour perception. The applicant has not provided any evidence of changes in the medical categorization for different posts consequent to the Hon'ble Supreme Court judgment in S.K.M.Haider (supra). Hence, the existing categorization is still valid and there is no other alternative criteria. Thus, in the given facts and circumstances and in the light of our earlier conclusions the proposed reversion of the applicant to the post of Helper and placing him as Helper/Electrical (SNP) in Grade Pay of Rs.1800/- from which category he got selection as Assistant Station Master, as indicated at Annexure A-9, is not interfered with.
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35. Learned counsel for the applicant also furnished another judgment of the Hon'ble Supreme Court in Shri.Krishan vs. The Kurukshetra University, Kurukshetra, AIR (1976) SC 376, where with reference to the Evidence Act, 1872 Section 3 (Contract Act 1872, Section 17) it was found that it is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It is neither a case of suggestio falsi or supressio veri. It is submitted that a mistake made by the department cannot be allowed to be reflected to the disadvantage of the applicant as by going along with the mistake they have acquiesced to the position. The creation of a supernumerary post would prove that they continued with the position. However, to use the finding in Shri.Krishan (supra) to justify the continuation of the applicant in a post or at a level that he was not entitled to, ab initio, if too much of a stretch. As soon as the error was detected, the respondents take action by issuing the show cause notice to correct the categorization. This is established by the fact that the Annexure A-6 medical certificate was issued on 11.04.2016 and, within four months, the respondents vide Annexure A-9 dated 01.08.2016 had already issued a show cause notice proposing to revert the applicant to the post of Helper. They had discovered in the meantime that there had -48- been a clerical error in keeping him in the A-2 medical category. We do not think that the action being taken by the respondents is covered by the principle of acquiescence etc., as is being sought to be made out by the applicant. In fact the applicant after the issue of the Annexure A-6 medical certificate never sought to challenge it with the authorities themselves before filing this O.A. It was also recorded in the Annexure A-6 medical certificate that the applicant did not propose to appeal against the decision and he had declared to that effect.
36. Thus, on all the above grounds, we do not find any reason to interfere with the action being proposed by the respondents. They may go ahead and take necessary steps as they have initiated for the reversion of the applicant to the post of Helper-II and to place him as Helper/Electrical (SNP) in Grade Pay Rs.1800/- as proposed vide Annexure A-9. Since his pay etc., had been protected by the interim direction of the Hon'ble High Court in O.P.(CAT) No.288/2016, we are not passing any separate orders in relation to any recovery for the salary drawn by him in the level of Assistant Station Master or in the equivalent supernumerary post. Though there are many questions in regard to the legitimacy of some of his actions including a case for suppression of -49- findings and taking advantage of an error, all of which are against the applicable Conduct Rules, we are refraining from passing any further orders on this.
37. The O.A is accordingly dismissed. We make no order as to costs.
(Dated this the 22nd day of January, 2024)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00918/2016
1. Annexure A-1 - A copy of the standard description for different medical classification issued by the Indian Railways.
2. Annexure A-2 - A copy of the Order No.J/P269/III/MES/Vol.V dated 08.03.2012 issued by the Personnel Officer (E), Southern Railway, Palakkad.
3. Annexure A-3 - A copy of the Memo No.RG/GDCE/ASM/SR/2013 dated 19.12.2013 issued by the Railway Recruitment Board to the applicant.
4. Annexure A-4 - A copy of the Order No.U/P.608/II/ASM/GDCE dated 25.02.2014 issued by the Assistant Personnel Officer, Southern Railway, Divisional Office, Personnel Branch, Madurai.
5. Annexure A-5 - A copy of the Order No.J/P.268/VIII/ASM/Vol.XII dated 04.07.2014 issued by the Sr.DPO/PGT, Southern Railway, Divisional Office, Personnel Branch, Palakkad.
6. Annexure A-6 - A copy of the Medical Examination Certificate No.J/MD.84/MKS dated 11.04.2016 issued by the Southern Railway, Divisional Office, Medical Branch, Palakkad.
7. Annexure A-7 - A copy of the relevant extract of paragraph 1301 of Chapter 13 of the Establishment Manual of the Railways.
8. Annexure A-8 - A copy of the Order No.J/P.509/VIII/J/E1765 dated 26.04.2016 issued by the Sr.DPO/PGT, Southern Railway, Divisional Office, Personnel Branch, Palakkad.
9. Annexure A-9 - A copy of the Show Cause Notice No.J/P.509/VIII/JE 1763 dated 01.08.2016 issued by the Sr.DPO/PGT, Southern Railway, Divisional Office, Personnel Branch, Palakkad to the applicant.
10. Annexure A-10 - A copy of the reply dated 08.08.2016 submitted by the applicant to Annexure A-9 show cause notice.
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11. Annexure A-11 - A copy of the Medical Certificate issued by the Civil Surgeon, District Hospital, Palakkad to the applicant.
12. Annexure A-12 - A copy of the Order dated 11.08.2016 in O.A.No.180/00695/2016 of this Hon'ble Tribunal.
13. Annexure A-13 - A copy of the Order No.J/POA695/2016 dated 24.10.2016 issued by the Sr.Divisional Personnel Officer, Southern Railway Palakkad Division to the applicant.
14. Annexure R-1 - A copy of the Counter Foil side of Certificate - Physical Fitness of Candidate No.004771, No.51/2012/SRR dated 13.01.2012.
15. Annexure R-2 - A copy of the foil side of Certificate - Physical Fitness of Candidate No.004771, No.51/2012/SRR dated 13.01.2012.
16. Annexure R-3 - A copy of the Indian Railway Medical Manual, Vol.I, PARA 512, Sub Para 2.
17. Annexure R-4 - A copy of the Gazette Extraordinary, 2013 Part I Sec 1 (page 58) Note (2).
18. Annexure R-5 - A copy of the Attendance Details provided by the Station Superintendent, Kottekkad.
19. Annexure R-6 - A copy of the Page No.4 & 5 the applicant's Service Register.
20. Annexure R-7 - A copy of the Recommendation Letter dated 26.08.2016 addressed to the Divisional Railway Manager, Palakkad from the Divisional Secretary, Dakshin Railway Karmik Sangh, Palakkad.
21. Annexure R-8 - A copy of the Letters dated 11.11.2016 and 09.11.2016.
22. Annexure R-9 - A copy of the Representation dated 29.10.2016 and enclosures.
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23. Annexure R-10 - A copy of the Letter dated 23.01.2017.
24. Annexure R-11 - A copy of the Memo dated 09.03.2016.
25. Annexure R-12 - A copy of the Certificate - Physical Fitness of Employee bearing No.567453, No.01/16-17 dated 11.04.2016.
26. Annexure R-13 - A copy of the Letter dated 14.10.2016 and enclosures.
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