Central Administrative Tribunal - Madras
B Durairaj vs M/O Railways on 16 February, 2024
1 OA No. 772/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00772/2016
Dated the 16th day of February Two Thousand Twenty Four
CORAM : HON'BLE MS. LATA BASWARAJ PATNE, Member (J)
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
B.Durairaj, S/o. V. Balasubramanian (late) HC/RPF/ICF,
Old No. 32, New No. 10, KMP Koil Street,
Aynavaram, Chennai 600023. .....Applicant
By Advocate M/s. P. S. Ganesh
Vs.
1.Member Secretary,
Railway Board, Rail Bhavan,
New Delhi 110001.
2.The General Manager,
Southern Railway,
Chennai 600003.
2 OA No. 772/2016
3.Chief Personnel Officer/MIS,
Southern Railway,
Chennai 600003.
4.Workshop Personnel Officer/GOC, Central Workshop,
Southern Railway, Personnel Branch,
Ponmalai 620004.
5.Personnel Officer/GOC,
Central Workshop Personnel Branch,
Southern Railway,
Ponmalai 620004.
6.Assistant Personnel Officer/SEM,
Southern Railway, Divisional Office, Madurai 4.
7.Chief Medical Officer,
Southern Railway,
Chennai 600003.
8.Medical Officer,
Southern Railway,
Chennai 600003.
3 OA No. 772/2016
9.Shanthi Rajabhoj,
Dy. Chief Personnel Officer/M&E/Chief Personnel Officer,
(designation of the 9th respondent shown as stated in the order, dated
26.11.15, served to the applicant). ....Respondents
By Advocate Dr. D. Simon
4 OA No. 772/2016
ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A)) This OA has been filed by the applicant seeking the following relief:-
"i. To call for the records pertaining to the order of the 9 th respondent dt. 26.11.2015 vide No. P(S)353/IV/Court Cases/GOC along with the re-medical examination report and to set aside the same and consequently direct the respondents 2 to appoint the applicant in C1 category.
ii. To pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of this case and thus render justice."
2. The facts of the case, as submitted by the Applicant, are as follows, in brief:-
i. The applicant submits that the Southern Railway has been imparting technical training to prospective applicants, establishing centres all over. Vocational training is given in different technical fields and certificates are being issued. Persons completing such technical training are absorbed in their respective fields by the Southern Railway. The training varies from 2-3 years in different fields.
ii. The applicant is a disabled person, suffering from Post Polio Residual 5 OA No. 772/2016 Paralysis of the left leg and the percentage of disability has been assessed at 48%. The applicant completed secondary school and is also a certificate holder in all types of Electrical Wiring, Transformer Wiring, Motor Rewinding (Coil Winding), having undergone 1 year skill training/ implant training in the Government of India - Directorate General of Employment Training at the Vocational Rehabilitation Centre for Handicapped, in the year 1991 itself. The applicant completed the Apprentice and Technical Training, at the Electrical Workshop of the Southern Railway, Perambur, as armature winder, for 3 years, from 1994 to 1997.
iii. The Applicant was subjected to medical examination by the Southern Railway and was declared orthopedically handicapped by the Divisional Medical Officer, Southern Railway Hospital, during the apprenticeship period itself and was allowed to continue the apprenticeship. He was subjected to medical re-examination at the Government Institute of Rehabilitation Medicines, Chennai - 600083, and the medical officer issued a permanent disability certificate to the extent of 48%. By the letter, dated:
05/12/05, of the 6th respondent (Assistant Personnel Officer), the applicant was called for appointment in the Southern Railway and was advised to appear before the Screening Committee on 29/12/05, for verification of 6 OA No. 772/2016 testimonials and physical endurance test. The applicant indicated the order of preference for engagement in C1 category, vide his letter, dated 29/12/05. iv. The applicant submits that the 6th respondent, by letter, dated 23/05/06, intimated the selection of the applicant for engaging him as Substitute Helper Gr-II in the Electrical Department and directed the applicant to undergo medical re-examination. He was subjected to medical re-examination on 13/05/06 and, by letter, dated 18/08/06, of the 6th respondent, the applicant was advised that he was found medically unfit for B1 category. However, the applicant sought to be employed in C1 class. v. By the representation, dt. 14.09.2006, addressed to the 3rd respondent, the applicant requested for consideration for employment, sympathetically, in the PH category. Based on this representation, the applicant was directed to report at the office of the 6th respondent, to be engaged as Substitute Helper, vide the letter, dated 28/05/07. Once again, the applicant was subjected to medical examination and was found unfit for B1 category. vi. The applicant submits that, as the engagement of the applicant was not made under PH category, in B1 class, the applicant sought to be engaged in C1 Class. By the letter, dated 30/06/07, of the 6th respondent, it was advised 7 OA No. 772/2016 that the applicant was unfit for C1 category also and the applicant was not considered for engagement.
vii. The applicant submits that the nature of handicap of the applicant is only in one leg, with 48% disability. The applicant ought not to have been disqualified for C1 class engagement. Hence, a representation was made by the applicant on 06/08/08. The sixth respondent directed the applicant to prefer an appeal seeking medical re-examination. The applicant submits that, along with the physical fitness certificate issued by the Civil Surgeon, Government General Hospital, and the Disability Certificate issued by the Government of Tamil Nadu, along with medical reports, the applicant sought medical re-examination. The applicant remitted necessary charges for medical examination also. The applicant was subjected to medical examination and the report of the same was not given/forwarded till date. viii. As there was no correspondence from the 2nd, 3rd or 6th respondent, the applicant made a representation on 20/04/09, for the applicant to be considered in C1 class post, in the light of the provisions of the Persons with Disability Act, 1995.
ix. The applicant also submits that, even though the applicant's engagement was rejected, similarly (PH) placed person was engaged by the 8 OA No. 772/2016 respondent, for C1 post. On 30/08/2014, the applicant made a detailed representation to the second and the third respondents, seeking his engagement in a C1 category post. As there was no reply and as the copy of the medical certificate was also not issued, the applicant sought information under the RTI Act. The applicant was forced to prefer the first appeal under RTI Act. The 6th respondent came forward to give the certificate of physical fitness of the re-medical examination, but the same was pertaining to his earlier medical examination. Subsequent appeals made under the RTI Act went in vain.
x. The applicant submits that respondent nos. 2, 3 or 6 must have adhered to the Railway's Board Circular in PBC No. 71/13, dated 08/07/2013, filed as A-48. Further, the Railway Board has issued guidelines for reservation of posts for persons with disabilities and identification of suitable posts also, vide circular, dt 14/02/14, filed as A-49. The subject of medical re-examination and constitution of 3 member Committee has also been deliberated upon by the Railway Board and policy direction issued vide circular, dated 05/06/2014, filed as A-50. The Applicant has alleged that all the above 3 circulars were not adhered to in considering the representations of the applicant.9 OA No. 772/2016
xi. This Tribunal disposed of his Original Application No. 1337/2015, on admission, on 28.09.2015, without going into the merits of the case, and directed the second respondent herein, to dispose of the representation, dt. 30.08.2014, of the applicant within 6 weeks. According to the Applicant, without even considering the nature of his representation, wherein the grievance was that the applicant was not subjected to medical examination for Cl post and that the report of the medical re-examination of C1 was also not furnished, the 9th respondent rejected his representation seeking engagement in the Southern Railway.
3. The main grounds raised by the Applicant are as follows:-
i. The act of the 9th respondent in disposing of the representation, when specific direction had been given to the 2nd respondent, is in violation of the direction, vide order, dt. 28.09.2015, of this Tribunal, in OA 1337/2015, as the 9th respondent is not the competent authority to dispose of the representation of the applicant.
ii. The 9th respondent has not applied his/her mind while rejecting the representation made by the applicant and failed to appreciate that the applicant is medically fit for C1 post. The 2nd respondent ought to have 10 OA No. 772/2016 directed the applicant to undergo medical examination before the competent authority.
iii. The act of the respondent, in engaging similarly placed person, like the applicant, and not employing the applicant, is in violation of Articles 14 and 16 of the Constitution of India. The act of the 9th respondent, in not considering the circulars, dated 05/06/2014, 14/02/2014 and 08/07/2013, is highly illegal and arbitary. He has also violated the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
iv. The act of the 8th respondent in declaring the applicant unfit for C1 category is an error of judgment, when qualified medical officer of the State Government has issued the certificate that the applicant is fit for C1 post.
4. The respondents have filed their reply opposing the relief prayed for by the applicant. They have submitted that the Hon'ble Supreme Court in SLP (C) No.28709 of 2013 (later converted as Civil Appeal No. 1909/15) filed against the orders of the Hon'ble High Court of Madras in WP No. 8821/2007, have ordered to maintain status quo, vide order, dated 06.08.2013. Accordingly, no further regularization/engagement of Course Completed Act Apprentices as "Substitute Helpers" is possible. In regard to 11 OA No. 772/2016 his present request to consider him for a suitable post against the post reserved for Persons with Disability (Physically Handicapped Quota), he has to apply through the Railway Recruitment Cell, as and when notification for the same is issued calling for applications from eligible candidates. The Personnel Branch Circular No.71/2013, dt. 08.07.2013, and Railway Board circulars, dt. 14.02.2014 and 05.06.2014, issued regarding constitution of a Committee for re-medical examination came into effect only from the year 2013 and 2014, whereas, the case of the applicant pertains to the year 2006 to 2008. Hence, constituting a Committee in the year 2016, for a case of 2006 to 2008, in terms of the above PBC/RBCs is not permissible. Accordingly, the respondents have prayed for dismissal of the OA.
5. Heard both sides and perused the records.
6. The Learned Counsel for the Respondents summarized his arguments in a written submission, as follows:-
i. The applicant, Shri B.Durairaj, was imparted training as an Act Apprentice at Electrical Workshop - Perambur - Chennai, from 31.10.1994 to 30.10.1997. During the year 2006, it was decided to engage the course completed Act Apprentice as "Substitute Helper" and the applicant was allotted to Madurai.12 OA No. 772/2016
ii. Offer of appointment, dated 23.05.2006, was issued by the DPO/Madurai, with the stipulation that he has to pass "Medical Examination for BEE one classification". (A-15).
iii. He was found unfit for BEE one. Since he could not be utilized at the MDU Division, as a gratis, he was re-allotted to the Central Workshop, Ponmalai, by letter, dated 17.05.2007 (R-1).
iv. At Ponmalai Workshop, the applicant was subjected to Re-medical Examination in order to assess his suitability for lower medical standards on 12.06.2007. The applicant was found unfit even for "Cee One", vide Annexure R2, dated 19.06.2007.
v. As per the provisions of Para 506 of the Indian Railway Medical Manual, the applicant was extended another opportunity to prefer appeal for re- medical examination.
vi. Based on his appeal, the applicant was re-examined by the Chief Medical Superintendent / Ponmalai and found unfit for Cee One. In view of his physical handicap, viz., left post polio residual palsy with short limb, paralytic gait with drop foot, he could not be engaged for the post. Therefore, the allegation that he was not subjected to re-medical examination is false.
13 OA No. 772/2016vii. As regards the allegation of non-application of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the applicant had applied for the post of Substitute Helper against the "General Quota" and not under physically challenged persons quota. For considering the applicant under the physically challenged persons quota, he has to apply through the RRC, as and when notification is issued for the same.
viii. It is further submitted that, in respect of the claim of the applicant, regarding constitution of a Committee for re-medical examination, it came into effect, only from 2013 and 2014, vide Personnel Branch Circular No.71/2013, dated 08.07.2013, (Annexure A-49) and Railway Board Circulars, dated 14.02.2014 and 05.06.2014 (Annexures A- 50 & 51), whereas the case on hand pertains to years 2006 to 2008. Hence, the argument for constituting a Committee is not valid.
ix. On behalf of the respondents, it is further submitted that, as per Rule No.522 of the Indian Railway Medical Manual, there is no right of appeal for candidates declared unfit.
14 OA No. 772/2016x. Even though, there was no right of appeal, the applicant was offered the privilege of re-medical examination on humanitarian grounds. Unfortunately, he could not get through in the re-medical exam also.
7. In the light of the available records and submissions, it is clear that the matter pertains to the year 2006 to 2008, where the Applicant was considered for the post of "Substitute Helper". He underwent medical examination on 17.05.2007, but was found medically unfit for BEE ONE. On 12.06.2007, he failed medical examination under CEY ONE, again, even though he was given a fresh charge at Ponmalai Workshop. On his appeal, under Para 506 of the IRMM, he was subjected to re-medical examination on 12.06.2007 and was again found unfit for CEY ONE, and, therefore, could not be engaged. The allegation that a similarly physically challenged person had been appointed by the respondents is also not found to be correct as the records enclosed by the Applicant himself show at Annexure A-37 that the Memo, dt. 14.08.2009, is for grant of Transfer Allowance to orthopaedically handicapped persons. This has the name of one A.Saravanan at Sl. No. 7. It is accompanied by the order, dt. 09.09.2008, wherein candidate at Sl. No. 6, A. Saravanan, was found fit in CEE-ONE. Thus, his selection cannot be said to be an instance of discrimination against 15 OA No. 772/2016 the Applicant who could not pass medical examination/re-examination despite being given three chances. Vide reply, dt. 11.11.2014, also, he has been informed that he had been found medically unfit (Annexure A-42).
8. The facts in this case show that they are different from those cited by the learned counsel for the Applicant, in the order, dt. 11.10.2023, of the Hon'ble Supreme Court in Civil Appeal Nos. ....../2023 under SLP (Civil) Diary No. 21319/2022, Union of India Vs. Uzair Imran & ors. Hence, the said order of the Hon'ble Apex Court is not applicable here.
9. The correspondence regarding appeal for re-medical examination is at A-31, that is, a letter, dt. 15.11.2008, from the respondent no. 4. The relevant portion is extracted below :-
"If you propose to appeal for re-medical examination on a possibility of error in Judgement, you should send your appeal to this office immediately together with a Medical Certificate from a Registered Medical Practitioner with the note that the certificate has been issued in full knowledge of the fact that you have already been rejected as UNFIT for service by the Railway Medical authority."
10. In response, we find A-32, which is the said Medical Certificate, dt. 26.11.2008, from the Civil Surgeon, Government General Hospital, Chennai. It contains a line as follows :-
"I/We do not consider this a disqualification for the employment he/she seeks."16 OA No. 772/2016
But, it is part of the printed proforma and does not specify what ailment/deformity "this" refers to.
11. The Railways had given him a chance for re-examination on reporting with a medical certificate from a Registered Medical Practitioner with a note, which is mentioned in A-33, whereby he had been referred for re- medical examination on 04.12.2008 (A-33). There is no record to show that the Applicant appeared for this re-examination on the strength of the letter, dt. 04.12.2008. Even under the RTI Act, vide his application, dt. 29.09.2014 (Annexure A-40), he sought the report, dt. 12/19.06.2007.
12. Though he had requested for re-medical examination, vide his letter, dt. 06.08.2008, the Applicant has not taken pains to get any report from the Railways, despite the referral, dt. 15.11.2008. He has been harping on the re- medical examination, on his appeal, which was held on 12/19.06.2007. The matter was revived by him in 2014, on the basis of the circulars issued in 2013 and 2014.
13. In this case, the order, dt. 25.04.2016, of the Hon'ble Madras High Court, in Writ Petition No. 9942 of 2016, is also not found applicable. The 17 OA No. 772/2016 application, dt. 30.08.2014, was disposed of vide the impugned order, dt. 26.11.2015 (A-1). The relevant portions are as under:-
"In compliance with the orders of Hon'ble Central Administrative Tribunal, Madras Bench dated 28.9.2015 in OA No.310/01337/2015, representation dated 30.8.2014, submitted by you, was considered by the General Manager and disposed as under:-
"Railways are providing Apprenticeship Training under Apprenticeship Act 1961 with the approval of Regional Directorate of Apprenticeship Training. As per the provisions of Apprenticeship Act 1961, it is not obligatory on the part of Rallways to provide employment to the Act Apprentices who have successfully completed the Course as upheld by the Hon'ble Supreme Court in their order dated 05.1.2005 in Civil Appeal No.30/2005 (in the case of Chairman/MD, Mahanadi Coalfields Ltd. and Ors. Vs. Shri.Sadashib Behera and Ors.). .......
Accordingly a panel of candidates based on the year of passing -the NCVT examination and percentage of marks obtained in the examination was formed for engagement as Substitute in Group'D' Safety Category posts as and when exigency arose subject to screening and fitness in required medical classification. Shri.B.Durai Raj, the applicant in the above OA was one among such candidates in the panel and he was allotted to Madurai Division/Electrical Department for post of Helper in the year 2006. On medical examination he was found unfit in BEE ONE medical category and hence he could not be engaged as Substitute Helper in Electrical Department of Madurai Division. (emphasis added). On humanitarian grounds, his case alongwith other similarly placed candidates was reviewed in the year 2007 and he was directed to attend medical examination again for the post of Helper in Goldenrock Workshops where the medical category is CEE ONE. As he was found unfit in CEE ONE also he could not be engaged as Substitute in any of the Group'D' posts in Safety/Essential Categories where posts were required to be filled up. (emphasis added) As the engagement of Course Completed Act Apprentices was only against vacancies under Safety/Essential Categories in order to meet the exigencies of service, he could not be considered for engagement due to his medical unfitness in BEE ONE as well as in CEE ONE medical classifications prescribed for these posts.18 OA No. 772/2016
Moreover, at present, the Hon'ble Supreme Court, in SLP(C) No.28709 of 2013 (later converted as Civil Appeal No.1909/15), which was filed against the orders of Hon'ble High Court of Madras in WP No.8821/2007, have ordered to maintain status quo, vide order dated 6.8.13. Accordingly, no further regularisation/engagement of course completed Act Apprentices as Substitutes is possible.
As regards the engagement of course completed Act Apprentices in Safety/Essential categories, it is advised that the same was undertaken in administrative exigencies, specifically to fill up the urgent requirements of manpower in Safety/Essential categories. Provision for reservation of vacancies for Persons with Disabilities is being made as and when vacancies are being filled through open market Notifications by Railway Recruitment Boards/Railway Recruitment Cells. This position had been considered and upheld by the Hon'ble Central Administratrive Tribunals of Madras and Ernakulam Benches in their orders dated 26.8.2015, and 3.11.2015 in OA No.1067/14 (filed by Shri.N.Sivakumar) and OA No.745/12 (filed by Shri.K.Prasad) respectively.
Thus in regard to his present request to consider for a suitable post against the posts reserved for Persons with Disability (Physically Handicapped Quota), he has to apply through Railway Recruitment Cell as and when notification for the same is issued calling for applications from eligible candidates."
14. Coming to the order, dt. 03.11.2015, of the co-ordinate Bench of this Tribunal, at Ernakulam, in OA No. 745/2012, the following passages are relevant :-
"5. The pleadings of the applicant gives an impression that the applicant while undergoing training in Signal and Telecommunications Workshop, Poddanur as an apprentice he acquired physical disability and hence he is entitled to a suitable posting as he was not medically found fit for the Group D posts in safety category for which he was considered for appointment. However, only from the pleadings of the respondents it becomes clear that applicant was only an apprentice under the Apprenticeship Act, 1961, who was given training by the Railway in the Signal and Telecommunication Workshop, Poddanur. Respondents contend that there is no obligation for the Railway to give appointment to candidates after training, under the Apprenticeship Act, 1961. 19 OA No. 772/2016 Respondents referred to Chairman/MD, Mahandi Coal Fields Ltd. and Others v. Shri Sadshib Behere and others (2005) 2 SCC 396 wherein it was held by the Apex Court that it is not obligatory on the part of the establishment that gives training under Apprenticeship Act to provide employment to the apprentices. Nevertheless, in this case the record shows that the respondents indeed did consider the applicant even for lower posts like, substitute Helper/Gr. II which required only lower medical classification, But unfortunately the applicant was found unfit for such posts also and hence he was not considered.
.....
7. According to Railway only when a recruitment notification is published by the Railway calling for applications from candidates belonging to the category of physically handicapped persons, applicant can be considered under that category, if he sends an application. True, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, PWD Act) mandates the Govt. departments to reserve 3% of posts for physically handicapped persons. Even such employment also has to be in tune with the Constitutional policy of Public appointments under Article 16 of the Constitution, giving equal opportunity to similarly situated candidates. In such cases the persons with disability will have to compete with similar persons and only after undergoing a selection process such vacancies can be filled up. Respondent Railway has produced Annexure R/5 series as instances of such notification by the Railway Recruitment Cell for filling up posts reserved for persons with disability.
8. Considering the facts and circumstances of this case we feel that applicant cannot, as a matter of right, be given a posting by way of alternate employment as contemplated in clause 47 of the PWD Act. The disability of the applicant cannot be treated as having acquired during the course of his employment under the Railway. He had never been a Railway employee. We feel that applicant is entitled to get appointment in the Railway only as per the provisions in Chapter 6 of the PWD Act, subject to his eligibility for the post as and when advertised for recruitment. Therefore we are of the view that the relief prayed for in this O.A. cannot be granted to the applicant. The O.A. is accordingly dismissed."20 OA No. 772/2016
15. The applicant had represented on 07.01.2010 (A-38) to be considered under the Persons with Disabilities Act, 1995. Thereafter, there has been complete silence till he submitted a representation, dt. 30.08.2014 (A-39) in which he has stated that medical re-examination was conducted "hastily" after he approached Mr. R. K. Mohan Narayanan, Workshop Personnel Officer, S. Rly., in person, on 04.12.2008. However, no report was given to him. He requested for appointment in a C-I category post or in a post reserved for PH person, according to his disability. This letter is also the subject matter of OA 1337/2015 filed by the Applicant, wherein this Tribunal ordered its disposal vide order, dt. 28.09.2015.
16. Thereafter, he sought particulars under the RTI Act, with respect to the Medical Certificates for the medical examination, vide requisitions, dt. 18.08.2006, 30.06.2007 and 04.12.2008, on 29.09.2014. It covers the period from 2006 to 2008. The Respondent furnished the Medical Certificates of the year 2006 and 2007, but replied that "No reply has been received from CMS/RH/GOC" with regard to the requisition, dt. 04.12.2008. Several representations followed from the Applicant thereafter. In the meantime, RBC No. 71/2013, dt. 08.07.2013, and the RBCs, dt. 14.02.2014 and 05.06.2014, came out.
21 OA No. 772/2016
17. For all intents and purposes, the matter should have been decided after the re-medical examination on 12-6/19-6/2007. The system of having a Review Committee in medical cases was introduced in the year 2013-14, hence, cannot be made applicable to this case. However, there is no clarity regarding the outcome of the medical re-examination for which the applicant was referred by the WPO on 04.12.2008 (A-33). Having called for the Medical Report from a Medical Practitioner and advised the candidate to remit Rs. 16/- towards the medical examination fee, the Railways should have got the process completed. This point has not been explained by the Respondents.
18. In the interest of justice, considering also the fact that the applicant is a physically challenged person, we deem it proper to direct the Respondents to ascertain the outcome of the Medical re-examination. The result of the medical re-examination on 04.12.2008 shall be shared with the Applicant, so that, in case, it was in his favour, he could seek remedy, as per law, with due deference to the order, dt. 06.08.2013, of the Hon'ble Supreme Court, for maintaining status quo, as cited by the Respondents in their reply (SLP (C) no. 28709 of 2013, later converted as Civil Appeal No. 1909/15). 22 OA No. 772/2016 Respondents are directed to take action within 3 months of the receipt of a copy of this order.
19. In these terms, the OA is disposed of.
20. No order as to costs.
(Varun Sindhu Kul Kaumudi) (Lata Baswaraj Patne)
Member (A) Member (J)
16.02.2024
SKSI