Central Administrative Tribunal - Kolkata
Md Ismail vs Eastern Railway on 16 May, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
Date of Order: 16.05.2023
Coram: Hon'bleMr.Jayesh V. Bhairavia, Judicial Member
Hon'bleMr. Anindo Majumdar, Administrative Member
No. O.A. 219/2019 Md. Ismail
With M.A. 464/2023
O.A. 170/2019 Srikant Maity
O.A. 171/2019 Raj Kumar Raj
O.A. 1327/2019 Md. Hussain
O.A. 220/2019 Buddhadeb Sadhukhan
O.A. 1328/2019 Rajiv Kumar Thakur
O.A. 502/2019 Animesh Adhikary
O.A. 503/2019 Krishna Kamal Sarkar
O.A. 504/2019 Rahul Ghosh
O.A. 516/2019 Nabin Kr. Bhaskar
O.A. 736/2019 Sangita Mistry
O.A. 1329/2019 Pawan Kumar Barnwal
O.A. 1375/2019 Abdul Mallick
O.A. 1385/2019 Ajoy Paul
O.A. 257/2021 Chinmoy Sharma
O.A. 1359/2019 Radhe Shyam Pal
O.A. 498/2019 Biplab Ghosh
O.A. 497/2019 Sanchita Adhikary
.........Applicants
- Versus -
2
1. Union of India through the General
Manager,
Eastern Railway,
Fairlie Place,
Kolkata - 700 001.
2. The Principal Chief Personnel
Officer,
Eastern Railway,
Fairlie Place,
Kolkata - 700 001.
3. The Chairman,
Railway Recruitment Cell,
Eastern Railway,
C.R. Avenue,
Kolkata - 700 012.
.......Respondents
For the Applicant(s): Mr. A. Chakraborty, counsel
Ms. P. Mondal, counsel
For the Respondent(s): Mr. S.K. Ghosh, counsel
Mr. T.K. Chatterjee, counsel
Mr. D. Chowdhury, counsel
Ms. E. Banerjee, counsel
Mr. S. Chatterjee, counsel
ORDER
Jayesh V. Bhairavia, Judicial Member:
At the outset it is required to mention that the applicants in the present Group of O.A.s, had participated in the recruitment process in response to Employment Notice bearing No. 0113 dated 4.10.2013 issued by Railway Recruitment Cell, Eastern Railway, Kolkata for filling up various Gr. 'D' posts under Eastern Railway, and they were declared 3 successful in Written Test, Physical Efficiency Test (PET) as well all their documents and antecedents were verified to the satisfaction of RRC.
Thereafter, they were called to appear in the Medical Examination and were declared medically fit in 'A/2 and Below' category and as per their merit position were provisionally empanelled in the year 2016 for selection against the post of Helper / Electrical for which medical category of 'C/1'has been prescribed. Since there was "stay" imposed by this Tribunal vide order dated 6.10.2016 in other O.A.s on operation of the panel prepared in respect to EN. 0113 of 2013, the final panel could not be published or operated by the respondents.
After the clearance for operation of panel was received from Railway Board vide letter No. E(NG)II/2009/RR-1/10 Pt.I (3007525) dated
2.8.2017, the applicants were called again to appear in medical examination. At this stage, the applicants were considered for the post of 'Shuntman' for which 'A/2' medical category has been prescribed in the employment notice. Since, the applicants were declared fit in 'A/3 and below' medical category in the said medical examination, they were not considered for the Gr. 'D' post of "Shuntman" and their names were not published in the final merit list published dated 5.10.2017 with respect to EN. 0113/2013.
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2. In these group of O.A.s, it is common grievance of the applicants that in the year 2016, after being declared successful in all the stages of the recruitment process, including the first round of their medical examination they were declared fit in 'A/2 and below' medical category and were considered for appointment to the post of Helper/Electrical for which the medical category 'C/1' has been prescribed, but, for no fault on their part, the applicants were not provided with appointment at that relevant point of time. Thereafter, in the year 2017, in second medical examination, they were declared medically fit in 'A/3 and below' category, which is much higher than the medical category of 'C/1' prescribed for the post of Helper/Electrical etc. Therefore, the respondents ought to have considered the applicants for the post of Helper/Electrical in the year 2017-2018 in connection with EN. 0113 of 2013 or alternatively, should have considered the applicants for appointment in 'A/3 below' or any medical category below to it instead the respondents have considered them only against the post of 'Shuntman' for which A/2 category is required. Thereby, the respondents have deprived them of their legitimate claim of being appointed. Hence, this O.As.
3. As noted hereinabove, the applicants share a common cause of action and common grievance and had filed the O.A.s under Section 19 of the AT Act, 1985, for the sake of brevity; the facts are delineated from O.A. 219/2019 (Md. Ismail v. UOI & ors. Notice to be served through General Manager, Eastern Railway).
3.1. The applicant in O.A. 219/2019 has sought following relief:
"(i) An order do issue directing the respondents to grant appointment in favour of the applicant in the Group D post 5 in connection with the selection process advertised through employment notice no. 01113 dated 4.10.2013."
4. The brief facts of the case are summarized as under:-
4.1. Employment Notice No. 0113 for Railway Recruitment Cell (RRC), Eastern Railway was published on 4.10.2013 for filling up various posts in specified categories of Eastern Railway & Chittaranjan Locomotive Works (CLW) in Pay Band - 1 (Rs. 5200-
20200/-) with G.P. Rs. 1800/-.
4.2. The RRC, Eastern Railway vide EN. 0113 dated 4.10.2013 had notified various vacancies along with the breakup of the vacancies reserved for different categories.
5. Ld. Counsel for the applicant mainly submits as under:-
5.1. In response to EN. 0113 dated 4.10.2013, the applicant had submitted his application in prescribed format wherein he had also submitted his order of preference for more than one categories of post by mentioning the Sl.No./Post code of notified vacancies for different categories of the post. As per the Column No.14 of the Application form, the candidate has to submit his order of preference (Post Code) (upto 5 preferences). Accordingly the applicant had given/mentioned his 5 preferences for the post code being/Sl.No. 1, 2, 6, 8 & 12 in Column No.14 of his application.
5.2. The applicant was declared successful in Written test, PET as well as he completed successfully the stage of document verification and antecedents. Thereafter, as per the terms of notification, he was called for medical examination and was declared medically fit in 6 'A/2 and below category'. Accordingly, as per the merit position, his name was published in provisional panel for selection against the post of Helper/Electrical/Mechanical /Mechanical -1 etc published by the respondents in the year 2016. It is stated that and for the said post (i.e. Helper Electrical etc.) the medical category 'C-1' has been prescribed under the Employment Notice which is lower than the medical category 'A-2 and below'.
5.3. The applicant was fully eligible to be appointed as Helper.
However, as noted hereinabove, due to various litigations, the respondents have not offered him the appointment. 5.4. Subsequently, on clearance from the Railway Board in the year 2018, the respondents had revised the provisional panel which was prepared in the year 2016 and had considered the applicant herein for being empanelled against the post of Porter/Optg, Shuntman etc. for which the medical category earmarked is 'A/2'. At the same time, the respondents asked the applicant for re-medical examination.
5.5. In the said re-medical examination, the applicant was declared medically fit in 'A/3 and below category'. Since the medical category prescribed for the post of Shuntman is A/2, and as the applicant herein was declared medically fit in 'A/3' category, the respondents have denied him appointment to the post of Shuntman. 5.6. It is submitted that initially in the year 2016 the respondents had sent the applicant for medical examination and was declared medically fit in 'A/2' category. It is stated that as per the said result of medical examination wherein the applicant was found fit in A/2 7 category and as per the said A/2 category, he was in fact eligible to be considered against the post of Porter/Transport etc. as well for other posts for which he has given preference.
5.7 It is submitted that as per the merit order in the year 2016, the respondents had considered the applicant for the post of Helper /Electrical for which the medical category has been prescribed 'B/2' and for post code 13 i.e. Helper I / Electrical the category is B/2 and for post code 14 the category has been prescribed as C/1. Accordingly the applicant was waiting for his appointment. However, for no fault on the part of the applicant, the appointment could not be made at the relevant time.
5.8 According to the Ld. Counsel, since the applicant has been declared fit in second medical examination in A/3 and below category, he is entitled to be considered against the post for which the medical category 'A/3 and below' is required. However, the respondents have treated the applicant's candidature only for the post of 'Shuntman'/Porter arbitrarily and placed his name only against the post of 'Shuntman'.
Learned Counsel vehemently submits that the applicant/s herein in his application form, had given preference for more than one post for which medical category has been prescribed 'below to 'A/2' medical category'. Therefore, he should have been considered against those posts also. However, the respondents arbitrarily considered the applicant's candidature only against one post and failed to consider his preferences for the post as mentioned in his application.
85.9 Ld. Counsel would argue that the applicant was even otherwise wrongly sent for re-medical examination in the year 2018. In this regard, it is submitted that Para 514 of IRMM provides for re- medical examination in respect of the employees who are in Railway service. The "Periodical Medical Examination" as stipulated in the IRMM is applicable only to serving Railway employees, in order to ensure the continuous ability of Railway employees in Class A-1, A- 2, A-3, B-1 and B-2 to discharge their duties with safety. The Railway employees of the particular category are required to appear for re-medical examination at the intervals throughout their service. However, in the case of applicant, though he was not Railway employee as on date, he was sent for re-medical examination, which is not permissible under the Rules. 3.10 Learned Counsel reiterated that the applications were invited for filling up of various posts in specified Group 'D' categories and to that effect preferences were also obtained by the Railway from the candidates at the time of submission of their application against employment notification. 5.10. According to Learned Counsel, each post requires separate medical standard. If the applicant is not declared eligible for appointment to a particular post for not having required medical standard or category, he should have been considered for appointment to the other post against which he has requisite medical standard. Therefore, Ld. Counsel submits that the respondents ought to have considered the applicant for appointment to the post of Helper as per the first panel published by the respondents. The representation submitted by the applicant was not considered by the respondents.
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Further it is stated that a good number of vacancies are lying vacant for appointment to the advertised posts. However, the respondents arbitrarily denied the right of applicant to be considered for appointment.
6. Per contra, on receipt of notice issued by this Tribunal, the respondents have filed their reply and denied the claim of the applicant. Ld. Counsel for the respondents mainly submitted as under:-
6.1 In the case of applicant, though initially he was empanelled in the year 2016 after his medical examination but for various reasons including the court order, the respondents were restrained to offer appointment.
6.2 It is submitted that in the meantime, due to election, model code of conduct was imposed and after the same, clearance for operation of panel was received from Railway Board vide letter dated 2.8.2017 and as per the instructions contained therein, it becomes obligatory upon the RRC to first operate the residual panel of Employment Notice No. 0112 and on completion of the same, to operate the subsequent panel i.e. with respect of Employment Notice No. 0113.
6.3 It is stated that Para 9.2 of the Employment Notice clearly stipulates that, "the number of vacancies shown is provisional and is liable to increase or decrease." In this regard, it is also submitted that before operation of the residual panel E.N. No. 0112 and the panel of E.N. No. 0113, the vacancy position of categories and departments were revised by General Manager/Eastern Railway. 10
Accordingly, revised posting as per revised vacancy position was indicated and panel prepared were distributed to Units. Same was the process for the present Employment Notice 0113. 6.4. It is submitted that due to re-distribution in few departments, vacancies increase and vice-versa in other departments. Hence, many of the provisionally empanelled candidates, who are fit in medical category 'A-2 & below' are re-posted as Porter / Optg, Shuntman (A+B)/Optg. & Pointsman (I&II) / Optg., for which the earmarked medical categories is 'A2'.
6.5. Since the applicant herein was among one of those candidates who were indicated 'posting as Shuntman (A+B)/Optg.' at Sealdah Division and his panel papers were sent to Sealdah Division at the first instance.
6.6 Learned counsel for the respondents would argue that the Railway is an Organization where safety standards are of paramount importance. The huge network of tracks, running of numerous non- stop trains, its maintenance require competent and medically fit employees.
6.7 It is stated that, if the aspect of competence and medical fitness of candidates is compromised, then it can have a fatal repercussion with regard to safety of thousand of train passengers. Therefore, in order to adhere to medical fitness for the allotted post, the respective Head of the Unit had decided to conduct Medical Examination of the candidates as per pre-recruitment formalities 11 prescribed under Para 513 of Chapter V of Indian Railway Medical Manual. (R/1 refer).
Undisputedly, the applicant was not appointed before the revised panel of successful candidates was prepared in the year 2017-18. Therefore as pre-recruitment formalities as per Para 513 of IRMM it was the decision of the respective Head of the Unit regarding conduct of Second Medical. Accordingly applicant was sent for medical examination on inclusion of his name in said revised panel against the post of Shunt man. Therefore, it is not correct on the part of the applicants to state that he was sent for re-medical examination in contravention of provisions of the IRMM.
6.8 It is submitted that in terms of the conditions stated in Para 24 of the Employment Notice, posting of the selected candidates may be made as per requirement of the Indian Railways at the appropriate time. No particular place/post/category or Division of posting can be assured or assumed. Vacancies and categories indicated in the notification are purely tentative and subject to change as per discretion/decision of Railways. Therefore, it is not open for the applicant to dispute for sending him to medical examination. Even otherwise, the applicant has no vested right to be appointed in Railways only because he has participated in a recruitment process.
6.9 Therefore, the respondents have followed the procedure prescribed under the Rule 513 which includes conducting medical examination of the candidates before offering appointment to him and same cannot be treated as periodical re-examination which is 12 mandatory for existing railway employees in terms of the provisions of Rule 514 of IRMM.
6.10. Ld. Counsel submits that as per CPO (Eastern Railway) letter dated 1.6.2009; there is no provision for any alternative re- appointment for the candidates declared unfit in the prescribed medical category. Hence, the case of the applicant cannot be considered as per extant rules.
6.11. Ld. Counsel would argue that the provisional panel was published on 6.10.2016 and the final panel of Employment Notice 0113 was published strictly as per merit on 5.10.2017. The currency of panel is for two year from the date of publication of the final panel. In the present case, the panel of with respect to Employment Notice No.0113 expired long back on 04.10.2019 in terms of instruction contained in Para 7.11 of RBE 121/2005.
Learned counsel for the respondents would argue that in case there is any grievance of any candidate regarding implementation of the said panel, the cause of action arose immediately after publication of final panel on 5.10.2017 and the instant O.A. was filed in the year 2019 almost after expiry of one and a half years from the date of publication of the panel, hence, the present O.A. is barred by limitation and for that reason also the applicant is not entitled to any relief as sought in this O.A. 6.12 Further it is submitted that subsequent to the publication of Employment Notice No. 0113 /2013 next Employment Notices i.e. CEN-01/2015, CEN-02/2018 were also published and provisional panel of all Employment Notification was also published. Therefore, 13 at this juncture there is no scope to roll back the stone. It is reiterated by the Counsel for the respondents that there is no scope to keep one or more post vacant (R/3 to R/7 refer).
7. Ld. Counsel for the applicant had submitted written notes of arguments on behalf of the applicant and reiterated the submission as contended in the O.A. 7.1 Additionally, the applicant submits that as on date a large number of unfilled vacancies of Group 'D'(erstwhile) post with respect to the Employment Notice No. 0113/2013 as well as subsequent Employment Notice as per information supplied by the respondents under the provision of RTI. Ld. Counsel for the applicant would argue that even otherwise as per the Second Medical Examination of the applicant, he was declared medically fit in 'A-3 and below' category and he is eligible to be considered for appointment for the post of Helper etc. for which the medical standard is prescribed as 'C-1' whereas the applicant was declared medically fit in higher medical category. Therefore, the respondents ought to have considered the case of the applicant for appointment in Group 'D'(erstwhile).
8. Heard the Ld. Counsel for the parties at length and perused the material on record.
9. It emerges from the record that total 2522 vacancies (excluding Ex. SM & PWD) were advertised by the RRC, Eastern Railway for filling up the post of Gr. 'D' (erstwhile) vide Employment Notice No. 0113 dated 4.10.2013. In the said Employment Notice, it has been stated that a candidate should submit only one application form, even if he/she intends 14 to be considered for more than one or all categories. The department wise 'medical categories' required for each posts has also been mentioned in the said notification, which reads as under:-
The number of posts to be filled on Eastern Railway with community-wise, PWD wise and ESM distribution, scale of pay and medical classification are indicated below :-
SN Post Deptt Grade Community-wise break-up Ex PWD Med UR SC ST OBC Total SM O V HH categ H H ory 1 Porter 5200- 79 20 9 34 142 28 2 2 0 A-2 2 Gateman Trans 20200/- 7 1 0 0 8 2 0 0 0 A-3 3 Safaiwala/ +GP Rs. 12 2 0 1 15 3 0 0 0 C-1 Peon/RR 1800/-
Cook/RR Bearer 4 Gate-Keeper 13 6 2 6 27 5 0 0 0 A-3 5 Track-man 5200- 143 45 20 72 280 55 3 2 1 B-1 6 Helper/ Engg 20200/- 13 4 1 5 23 7 1 0 0 Khalasi +GP Rs.
7 Velveman/ 1800/- 5 0 0 1 6 1 1 0 0 C-1
Chowkider/
Mali
8 Khalasi/ 240 62 36 88 426 85 3 2 2 B-1
Helper Mech 5200-
9 Helper-I 20200/- 116 35 17 62 230 46 3 2 2 B-2
10 Store +GP Rs. 306 182 169 158 820 165 3 0 3 C-1
Khalasi/ 1800/-
Helper/
Peon/
Safaiwala
11 Helper S&T 5200- 45 15 12 11 83 17 1 0 1 B-1
20200/- 35 10 5 19 69 14 0 0 0 B-2
+GP Rs.
1800/-
12 Helper 5200- 101 23 21 36 181 37 3 0 0 B-1
13 Helper-I Elect. 20200/- 48 14 7 25 94 19 1 1 1 B-2
14 Helper +GP Rs. 28 8 4 15 55 11 0 0 0 C-1
1800/-
15 Safaiwala/ Med 5200- 31 8 2 6 47 9 0 0 0 C-1
H.A./ Ayah 20200/-
+GP Rs.
1800/-
16 WRB/ WB Comm 5200- 11 1 0 1 13 3 0 0 0 C-1
Porter/ 20200/-
Khalasi/ +GP Rs.
Markman/ 1800/-
Sealman
17 Peon G. 5200- 1 0 1 1 3 1 0 0 0 C-1
Admn. 20200/-
+GP Rs.
1800/-
Grand Total 1234 441 306 541 2522 508 21 9 10
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The number of posts to be filled on CLW with community-wise and PWD wise distribution, scale of pay and medical classification are indicated below :-
SN Post Deptt Grade Community-wise break-up PWD Med UR SC ST OBC Total OH VH HH categ ory 18 Helper-II 5200- 121 36 18 65 240 03 02 02 C-1 Worksh 20200/-
op +GP Rs.
1800/-
19 Peon/ All 5200- 35 10 05 18 68 01 - 01 C-1
CKDR/ Deptt. 20200/-
Sanitary (outside +GP Rs.
Cleaner/ Worksh 1800/-
Helper, etc. op)
Grand Total 156 46 23 83 308 04 02 03
N. B. : As per CPO's SL Circular No. 13/2012 a sub quota of 4.5% for minorities as defined under section 2(e) of the National Commission for minorities Act, 1992 from within the 27% reservation for OBCs are to be maintained (Authority :- RBE No. 2/2012) Note :
1.1 Vacancies of Ex-Servicemen given in the table are not separate but included in the total number of vacancies.
1.2 Vacancies of PwD (PH) given in the table are not separate but included in the total number of vacancies.
1.3 Vacancies and categories indicated above are only tentative and are subject to change.
1.4 Candidates for Post SN-1 must meet the standard for vision and colour vision specified in Annexure-III. They should have their vision checked by competent eye specialist and obtain certificate as in Annexure-III, an attested Xerox copy of which should be attached with the application form.
1.5 Physically challenged candidates should go through the details given in Annexure-V to Annexure-VII."
10. In the present case, undisputedly, the applicant(s) herein had applied for the various posts in response to the said Employment Notice by submitting their five option/order of preference for different categories of posts as requisite in column no. 14 of the application form. For ready reference and better understanding of the claim of the applicant(s), the order of five preferences for different category of posts along with 16 respective Post Code/Sl. No. submitted by the applicant in his application, is mentioned as under :-
"14. Order of Preference (Post Code upto column 5 preference) :
1st Preference 2nd Preference 3rd Preference 4th Preference 5th Preference Post code/ sl. Post code/ sl. No. Post code/ sl. No. Post code/ sl. No. Post code/ sl. No. - 1 -2 -6 -8 No. - 12
"Porter", "Gateman", "Helper/Khalasi", "Khalasi/Helper", "Helper", Deptt. - Trans Deptt.- Deptt. - Engg. Deptt. - Mech. Deptt. -Electric Medical Transport. Medical Medical Medical category- A-2 MedicalCategory- Category- B-1 Category- B-1 Category- B-1 A-3
11. It is the case of the applicant(s) that he had given his option to be considered for more than one category of post.
11.1. It is apt to mention that the respondents have not refuted the contention of the applicant(s) that he/they had applied for more than one category of post. Therefore, in our considered view, it cannot be said that applicant had exercised his option only for one category of post in terms of Employment Notice. Since the applicant(s) had applied for more than one category of post, we are in agreement with the submission of Learned counsel for the applicant(s) that the respondents ought not to have considered their candidature only against one post i.e., Shuntman.
12. It is noticed that the selection procedure has been prescribed in para No.17 of EN 113 of 2013. Further, by following the said prescribed selection procedure, the respondents had prepared a provisional panel of candidates who were duly qualified in the written test as well as PET in the year 2016, and after document verification the said selected candidates were sent for Medical Examination including the applicant/s herein. In the said medical examination which was held in 2016, undisputedly the 17 applicant was declared medically fit in 'A-2 & below' category. Further, it is noticed that as per the Employment Notice, 'A-2 medical category' has been prescribed for the post of Porter/Transport department. However, at the relevant time according to the merit position, name of applicant was placed in panel against the post of "Helper-Electrical etc.", for which 'B- 2 or C-1' medical category has been prescribed which is admittedly below to 'A-2' category.
12.1. As noted hereinabove, though the applicant was found successful at all the stages of selection and was declared medically fit in Ä-2 and below"category and their names were included in the panel for appointment for "Helper-Electric Deptt.", but, the said panel could not be operated by the respondents due to a 'stay' order granted by this Tribunal with respect to the said Employment Notice in an another O.A. filed by some other candidates.
12.2. As noted hereinabove, subsequently, on receipt of clearance from the Railway Board, the respondents have restarted the selection process in the month of August 2017 and had prepared revised panel of the candidates with respect to EN. 0113. In the said revised panel of 2017-2018, as per the merit position therein, the applicant was considered against post of "Shuntman (A+B)" for which 'A-2' medical category has been prescribed in EN. 0113. 12.3. According to respondents herein, on receipt of revised panel, the concerned Head of Unit/department as per pre-recruitment formalities prescribed under Para 513 of Chapter V of Indian Railway Medical Manual (IRMM) had again sent the applicant herein for Medical Examination.18
In the said medical examination, the applicant has been declared medically fit only in 'A-3 & below' category. Since the name of the applicant was considered against the post of "Shuntman" for which 'A-2' medical category has been prescribed, the respondents have not offered any appointment to the applicant.
13. On the other hand, according to the ld. counsel for the applicant/s the provision of re-medical examination of IRMM would be applicable only for the existing railway employees and not in the case of applicant. Therefore the respondents ought not to have sent him for re medical examination on receipt of revised panel.
14. To appreciate the aforesaid submission of Ld. Counsel for the parties, at this stage, it is apt to refer to the provision of Para 513 of IRMM, which stipulates the condition for "medical examination of candidate" who is selected for appointment in Railway, which reads as under:-
"513. Time when candidates are to be sent for Medical Examination:-
(1) The medical examination of the candidates selected for appointment against posts for which initial training has been prescribed should be conducted immediately prior to their being deputed for training.
(2) In the case of candidates to be appointed against posts for which no training is necessary, the medical examination should be conducted at the time of their appointment.
514. Periodical Re-examination of serving Railway employees :- (1) In order to ensure the continuous ability of Railway employees in Class A-1, A-2, A-3, B-1 & B-2 to discharge their duties with safety, they will be required to appear for re-examiation at the following stated intervals throughout their service.
(A) Category A-1, A-2 and A-3:-
(i) At the termination of every period of four years, calculated from the date of appointment, until they attain the age of 45 years, and then every two years until the age of 55 years and then there after annually, until the conclusion of their service. 19
(ii) If an employee in Medical category A has been periodically medically examined at any time within two years prior to his attaining the age of 45, his next medical examination should be held two years from the date of the last medical examination and subsequent medical examinations every two years until 55 years and then annually thereafter until retirement. If however such an employee has been medically examined at any time earlier than two years prior to his attaining the age of 45 years, his next medical examination should be held on the date he attains the age of 45 and subsequent medical examinations every two years thereafter. (B) Category B1 and B2:- On attaining the age of 45 years, and thereafter at the termination of every period of 5 years.
Note:- (i) The employees in Railway Protection Force will be re-examined for physical fitness at the termination of every period of three years, calculated from the date of appointment until the conclusion of their service. However, Inspectors, Sub-Inspectors, and Assistant Inspectors of the Railway Protection Force are to be re-examined for physical fitness and visual acuity on attaining the age of 45 years and thereafter at the termination of every period of five years. (C) CategoryC1and C-2:- Will not be required to undergo any re-examination during the course of their service, unless specifically directed.
(D) Any Railway employee in service may be required to undergo tests for vision and general physical examination in the event of his failure to comply with signals.
(E) Work shop staff and artisan staff in Loco shed and C&W depots would be exempt from P.M.E s except when such staff are promoted to depots requiring higher medical examination from safety angle.
(F) SpecialMedicalExamination: The staff in the categories A-1, A-2, A-3 should be sent for special medical examination in the interest of safety under the following circumstances unless they have been under the treatment of a Railway Medical Officer.:-
(a) Having undergone any treatment or operation for eye irrespective of the duration of sickness.
(b) Absence from duty for a period in excess of 90 days. In case of A-1, A-2 and A-3 an employee may be asked to give an undertaking to his supervisor when reporting back to duty after leave or absence, irrespective of the period, that he has not suffered from any eye disease or undergone an eye operation. "
15. It can be seen that prior to appointment of the selected candidates, medical examination has been prescribed under provision of Para 513 of IRMM. In the present case, undisputedly the applicant(s) could not be appointed in the year 2016 due to pending litigation. As noted hereinabove, on subsequent clearance from the Railway Board vide letter 20 dated 02.08.2017, the selection process again started and the vacancies position in different categories in the department were revised by the General Manager, Eastern Railway. Accordingly, a revised panel was prepared.
As per said revised panel, the name of the applicant(s) was empanelled against the post of "Shuntman". Since the respondents intend to appoint the applicant(s) for the said post i.e., Shuntman/ Porter/ Optg, he was sent for "medical examination" as per "pre-recruitment condition stipulated under Para 513 of IRMM".
In our considered view, the procedure adopted by the respondents in terms of para 513 of IRMM cannot be equated with the terms stipulated under para 514 of IRMM. It can be seen that para 514 of IRMM prescribed the condition for "Periodical Re-examination of serving Railway employees". As noted hereinabove, the applicant(s) was sent for "medical examination" prior to offering them appointment in terms of Para 513 of IRMM, and it cannot be said that they were sent for "periodical re-examination" which is prescribed only for the existing Railway employees. Undisputedly, the applicant(s) are yet to be appointed in Railways. Therefore the submission of Ld. Counsel for the applicant that the applicant(s) ought not to have been sent for "re-medical examination/periodical reexamination" is not tenable in light of clear unambiguous language contained in para 513 and 514 as referred hereinabove.
16. At this stage, it is reiterated that it is not in dispute that the applicant/s had also given their order of preference for the posts for which medical category prescribed is 'A-3 and below'. Since there exists unfilled 21 vacancies, the applicant/s made a representation dated 19.12.2018 seeking employment against said unfilled vacancies for which medical category prescribed is Á-3 and below. The said representation of the applicant(s) remained unanswered. Further, it is required to mention that the applicant(s) has filed the present O.A. on 12.2.2019, admittedly before the expiry period of panel on 4.10.2019.
It can be seen that the representation of the applicant dated 19.12.2018 was not considered by the respondents and the present O.A/O.A.s filed by the applicant(s) before this Tribunal was pending before so called completion of the two years of publication of the panel. Therefore, the submission of the respondents that the applicants have not raised any claim for being considered to be appointed in any lower post before completion of the two years of publication of the panel is not tenable.
17. It is a case of applicant(s) that since they have completed all the stages of selection procedure successfully; they were waiting for fair consideration of their candidature for the purpose of appointment against the different categories of post as per the options submitted by them that too in accordance with their respective medical category. However, the respondents has considered the applicant(s) only against one post i.e., Shuntman for which A-2 medical category has been prescribed instead of considering their order of preference for other category of post for which the medical category 'A-3 and below' has been prescribed. To substantiate their submission, the applicant/s have categorically contended that as on today, numbers of vacancies for which 'A-3 and below' medical category 22 has been prescribed, remain unfilled in the Eastern Railway, and against those posts the applicants can be suitably adjusted.
18. Per contra, in the reply to the present O.A., the respondents attempted to deny the said claim of the applicant(s) since the unfilled vacancies were commuted in a decentralized manner at Unit and Headquarter level and subsequently same was communicated to the RRC, ER for publication in Employment Notice i.e. CEN No. 1/2015 and 2/2018 and the panel of the said Employment Notice has already been given effect to.
According to the respondents, after the selection process in question was over, two more recruitment cycle / selection processes were running concurrently in the year 2015 and 2018 and the vacancies were filled up in the said selection process.
At this stage, it is apt to mention that, except the aforesaid averments in their reply, the respondent Railway authorities have not placed on record any supporting documents to justify their stand that there remain any unfilled vacancies. Further, despite repeated assistance sought for by this Tribunal, the details of filled and unfilled vacancies of the Gr. 'D' in Eastern Railway has not been placed on record by the respondents.
It has been stated by the Counsel for the respondents that the RRC is not in a position to supply the details of filled/unfilled vacancy of the concerned Unit of department.
19. At the same time, the counsel for the applicant(s) by referring to the information supplied to them under RTI Act submitted that as on date a large number of unfilled vacancies of Group 'D'(erstwhile) post are 23 available with respect to the Employment Notice No. 0113/2013 as well as subsequent Employment Notice. It is apt to mention that the said submission of Ld. Counsel for the applicant(s) has not been refuted by the respondents, nor has any material contrary to it been placed on record.
Further, it emerges from the record that the respondents have not placed the details how they have prepared the final merit list of EN 0113. It is also not clear whether the respondents have considered the options offered by the applicants while filling up their application with regard to different category of posts or in which manner the respondents have considered the individual case according to the option/preference submitted by the said successful candidates. Suffice to mention that the respondents have not submitted any satisfactory explanation with respect to consideration of candidature of successful candidates after they were sent for medical examination.
20. At this stage, it will be appropriate to refer the dictum laid down by Hon'ble Apex Court in the case of Dinesh Kumar Kashyap and Ors vs South Central Railway and Ors, reported in (2019) 12 SCC 798 wherein the issue arose for the appointment of applicant/candidates whose name fell in the category of 20 percent extra candidates in the selection list against unfilled vacancies. The respondents therein i.e South East Central Railway (in short SECR) rejected the claim on the ground that the purpose of declaring the result of extra 20 percent candidate is to ensure that in the eventuality of some of the candidates who are higher up in merit not turning up for document verification or being declared unfit in medical examination the unfilled post can be filled from the reserved panel. Merely calling the candidate for document verification does not give any vested 24 right to the candidate to be appointed and after 10.01.2014 the system of maintaining replacement panel has been discontinued. Further it was the stand of the Railway before the Hon'ble Apex Court that after the selection process in question, two more selection process were concluded and the vacancies were filled up in the subsequent selections. The said submission / stand of the respondents (SECR) were rejected by Hon'ble Apex Court and the respondents were directed to consider the claim of successful candidates even enlisted in initial panel for the said unfilled vacancies.
21. It can be seen that in the aforesaid judgement, the Hon'ble Apex Court while considering the claim of the applicant(s) whose name were included in the list of 20% extra candidates, for their appointment against unfilled vacancies was accepted and the decision of the respondents to deny them for zone of consideration was set aside. In the present case, undisputedly the applicant(s) names were enlisted in the main panel but the respondents without considering individual case as per their options for different category of posts, rejected the candidature on the ground of not meeting with required medical category. Not only that, though there exists unfilled vacancies of different categories for which the applicant is stated to be fit in medical category, but against the said unfilled vacancies, the claim/representation of applicant(s) have not been considered by the respondents. Therefore, we are of the considered opinion that the dictum laid down by the Hon'ble Apex Court in the case of Dinesh Kumar Kashyap (supra) is squarely applicable with respect to the claim of the applicant.
21.1. At this stage, it is appropriate to refer to the judgement passed by the Hon'ble High Court at Calcutta (Constitutional Writ Jurisdiction) 25 Appellate Side in WPCT. 74 of 2022 Union of India & ors. v. Raju Ghosh decided on 26.9.2022. In the said case, the respondents had applied for appointment in Gr. 'D' post in respect of EN. 0110 dated 14.12.2010. He was declared successful in written test as well as PET and had successful completed the stage of document verification. However, he was not called for medical examination. It was the grievance of the candidate that in light of instruction contained in clause no. 7.8 of RBE No. 121 of 2005 which lays down that medical examination of the candidates who have passed the written examination and PET shall be done before their appointment. Further, it is stated in the said circular that only those who have passed the examination will be included in the final merit list. Therefore, they ought to have been called for medical examination. 21.2. It was also the case of candidate (s) i.e the respondents in WPCT that the instructions contained in RBE No. 73 of 2008 whereby the Railway Board issued further clarification in respect to RBE 121 of 2005, the said RBE No. 73 of 2008 provides the guidelines with respect to consider the names of candidates from the replacement panel for the purpose of documents verification and further selection.
Though the name of respondents (in the WPCT) were in the replacement panel and the selected candidate of the initial panel did not turn up, vacancy remained unfilled, but, the Railway authorities have not called or considered the candidature of the candidates.
The claim of candidates therein were rejected by the Railway on the ground that vide RBE No. 6 of 2014 dated 10.1.2014, the procedure for consideration of name from replacement panel has been terminated, in other words, the procedure of preparing the replacement panel came to an 26 end w.e.f. 10.1.2014. Accordingly, the claim of candidates were rejected by the Railways vide speaking order dated 20.3.2017. 21.3 Being aggrieved, the candidate(s) had approached this Tribunal by way of filing O.A. No. 1676 of 2017, the said O.A. came to be disposed of vide order dated 21.3.2022 by quashing and setting aside the speaking order issued by the respondents and liberty was granted to the applicant(s) therein to submit comprehensive representation before the Railway authority and directions were issued to consider the claim of applicant against unfilled vacancies of Gr. 'D'. 21.3. Being dissatisfied with the order and direction issued by this Tribunal dated 21.3.2022, the Writ Petitioner (Railways in WPCT) had approached the Hon'ble High Court by filing WPCT No. 74 of 2022. The Writ Petitioner challenged the order passed by this Tribunal mainly on the ground that the procedure of preparing the replacement panel has been discontinued vide RBE No. 6 of 2014 dated 10.1.2014 and the candidate whose name were placed in replacement panel with respect to employment notice dated 0110 dated 14.10.2010 are not entitled to claim any right to be considered for appointment against unfilled vacancies.
21.4. The Hon'ble High Court by referring to various judgment passed by the Hon'ble Apex Court held that the issue involved in the WPCT is guided by the decision in Dinesh Kumar Kashyap (supra) and vide judgment dated 26.9.2022 disposed of the said WPCT by upholding the order passed by this Tribunal and further directed the Writ Petitioner (Railways) to comply with the said order within three months. 21.5. At this stage, it is apt to mentioned that Ld. Counsel for the applicant (s) herein by relying upon the judgment passed in Dinesh 27 Kumar Kashyap (supra) as well as the judgment passed by Hon'ble High Court at Calcutta in WPCT No. 74 of 2022 dated 26.9.2022 would argue that the case of the applicant ought to have been re-considered by the respondents against the unfilled vacancies.
21.6. In view of the aforesaid, we are also of the considered opinion that the judgment passed by Hon'ble High Court is also applicable to the facts and circumstances of the present case and the applicants have correctly relied upon the same.
22. It can be seen that in the present case, undisputedly the names of applicants were again empanelled for appointment being selected candidates in the year 2018 and in the Second Medical Examination conducted by the respondents, they had found the applicants fit in medical category 'A-3' and below. Accordingly, they became eligible to be considered for appointment against the post for which medical standard prescribe 'A-3' or 'below A-3' which includes post of Helper or any Gr. 'D' (erstwhile) post for which the medical category prescribed is 'C- 1'which is admittedly below 'A-3' category.
23. At this stage it is also apt to mention that the respondents have admitted that unfilled vacancies of Gr. 'D' (erstwhile) for which the medical category prescribed is 'below A-3' have been placed before the RRC for further publication. However, the details of filled/unfilled vacancies of Gr. 'D' (erstwhile) for which medical category prescribe 'below A-3' or 'C-1' for the post of Helper as on today has not been placed on record by the respondent No. 2 i.e. the Principal Chief Personal Officer, Eastern Railway.
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24. At this stage, this Tribunal cannot ignore the submissions of the applicants that as on today, certain number of posts in various categories, for which they are eligible to be considered for appointment, remain unfilled as well as some of similarly place candidates case have been considered by the respondents for employment assistance against unfilled vacancies.
25. In light of the aforesaid discussion as well taking into consideration the law laid down by Hon'ble Apex Court in the matter of Dinesh Kumar Kashyap (supra) as well judgment passed by Hon'ble High Court in WPCT No. 74 of 2022 dated 26.9.2022, we deem it fit to dispose of the O.A. with a direction upon the respondents to re-examine the case of the applicants against any post which has remained unfilled and for which medical category prescribe 'A-3' or 'below A-3' and decide whether the applicants can be adjusted against unfilled vacancies, if they are otherwise eligible. Further, the case of applicant may also be considered as per their options for different categories of posts against unfilled vacancies and its respective medical category. It is expected that the competent authority shall complete the exercise of consideration of the case of the applicants as directed hereinabove preferably within four months from the date of receipt of certified copy of this order and intimate the decision thereon to the applicants forthwith.
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26. In view of the above discussion and direction, the O.As stand disposed of accordingly. M.A. (s), if any, also stand disposed of accordingly. There shall be no order as to costs.
(Anindo Majumdar) (Jayesh V. Bhairavia) Administrative Member Judicial Member sb