Central Administrative Tribunal - Delhi
R.K. Sharma S/O Shri H.K. Sharma vs Union Of India on 1 December, 2008
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1320/2008 O.A. No.1355/2008 O.A. No.1367/2008 New Delhi, this the 1st day of December 2008 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) OA 1320/2008 R.K. Sharma s/o Shri H.K. Sharma Working as Sr. Section Engineer (Works/Plg.) Northern Railway, Delhi Division New Delhi R/o 29/1, Railway Colony, Kishanganj New Delhi ..Applicant (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India through the General Manager Northern Railway, Baroda House, New Delhi 2. The Divisional Railway Manager Northern Railway, Delhi Division State Entry Road, New Delhi 3. The Member (Engg.) Railway Board, Railway Bhawan New Delhi ..Respondents (By Advocate: Shri Satpal Singh) OA-1355/2008 Niraj Kumar s/o Shri Satya Pal Singh Working as Section Engineer (Works/Estate) Northern Railway, Tis Hazari, Delhi R/o Flat No.102, Pocket 23, Sector 24 Rohini, New Delhi ..Applicant (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India through the General Manager Northern Railway, Baroda House, New Delhi 2. The General Manager (P) Northern Railway, Baroda House, New Delhi 3. The Divisional Railway Manager Northern Railway, Delhi Division State Entry Road, New Delhi 4. The Member (Engg.) Railway Board, Railway Bhawan New Delhi ..Respondents (By Advocate: Shri Satpal Singh) OA-1367/2008 Anil Kumar s/o Shri Karam Singh Munda Working as Section Engineer in Northern Railway At present on deputation in KRC Ltd. R/o Plot No.188 Sector 3, Pocket 16, Dwarka New Delhi ..Applicant (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India through the General Manager Northern Railway, Baroda House, New Delhi 2. The General Manager (P) Northern Railway, Baroda House, New Delhi 3. The Divisional Railway Manager Northern Railway, Delhi Division State Entry Road, New Delhi 4. The Member (Engg.) Railway Board, Railway Bhawan New Delhi ..Respondents (By Advocate: Shri Satpal Singh) O R D E R
Shri Shanker Raju:
Founded on an identical question of law being founded on similar facts, it is necessitated to pass a common order on disposal of the present OAs (OA Nos.1320, 1355 and 1367 of 2008).
2. Disability is not a curse. Article 14 of the Constitution of India envisages equality in law. Disabled persons are in fact provided some special privilege under the Constitution with an object to make a special provision for integration of the increase of persons with disabilities into the social mainstream and to lay down strategy for comprehensive development of programmes and services as well as equalization of opportunities for persons with disabilities. Indian Parliament as promulgated passed The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter referred to as Disability Act). Unless an organization is exempted from the purview of the Act, it is binding. Disability is defined under Section 2 (i) of Disability Act as blindness and low vision apart from other factors but we are concerned in the present case as to the blindness, which is further clarified in 2 (b) of Disability Act as visual acuity not exceeding 6/60 or 20/200 in the better eye with correcting lenses. Section 32 of the Disability Act, which concerns with employment, lays down identification of posts to be reserved for persons with disabilities and 1% each is reserved for blindness or low vision.
3. Section 47 of Disability Act forbids any discrimination in Government employment on account of the disability acquired during service. However, such a person when not found suitable for the post could be shifted to some other post with the same pay scale and service benefits.
4. Section 47 (2) of the Disability Act provides that the promotion cannot be denied to a person on account of disability. However, with regard to type of work carried on in an establishment, appropriate Government by notification, subject to conditions to be specified, exempt any establishment from the provisions of this section.
5. Section 72 of the Disability Act makes the Act as a special one, as the provisions of the Act shall have to be read in addition to and not in derogation of any other law for the time being in force or any rules, order or any instructions issued for benefits of persons with disabilities. The Act has an overriding effect over any other general Act.
6. In Kunal Singh v. Union of India and another, 2003 (3) SCC (L&S) 482, a person, who incurs a disability during service, cannot be disallowed protection available under Section 47 of Disability Act. Meticulously discussing the background on promulgation of the rules, as regards Section 2 (i) of the Act, following observations have been made:-
10. The argument of the learned counsel for the respondent on the basis of the definition given in Section 2 (t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired disability, within the meaning of Section 2 (i) of the Act and not a person with disability.
11. We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pension Rules. The Act is a special legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further, Section 72 of the Act also supports the case of the appellant, which reads:
72. Act to be in addition to and not in derogation of any other law The provisions of this Act, or the rules made thereunder shall be in addition to and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefit of persons with disabilities.
7. In the matter of promotion under the Disability Act, right to be promoted is held to be a must as ruled in Mahesh Gupta and others v. Yashwant Kumar Ahirwar and others, 2007 (10) SCALE 485 with the following observations:-
12. Disability has drawn the attention of the worldwide community. India is a signatory to various International Treaties and Conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset, but, as noticed hereinbefore, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Castes and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates. It is a travesty of justice that despite the State clarified its own position in its order dated 1.01.2004 and stated that the posts were vacant under the handicapped quota but it completely turned turtle and took a diagonally opposite stand when a contempt petition was filed. In its reply in the said proceedings, reference was made to the aforementioned order dated 1.01.2004 but within a short time, viz., on 4.02.2004 it opined on a presumption that as the word handicapped was not mentioned in the heading of advertisement they were meant only for Scheduled Caste and Scheduled Tribe candidates. Rule of Executive Construction was given a complete go bye. Reasonableness and fairness which is the hallmark of Article 14 of the Constitution of India was completely lost sight of. It prevaricated its stand only because a contempt proceeding was initiated. If the State was eager to accommodate the writ petitioner respondent, it could have done so. It did not take any measure in that behalf. It chose to terminate the services of some of the employees who had already been appointed. Such a course could not have been taken either in law or in equity. The State is expected to have a constitutional vision. It must give effect to the constitutional mandate. Any act done by it should be considered to have been effected in the light of the provisions contained in Part IV of the Constitution of India. The State in terms of the provisions contained in Part IV should have given effect to the principles embodied in Article 39 of the Constitution of India. Whereas a reasonable reservation within the meaning of Article 16 of the Constitution of India should not ordinarily exist, 50%, as has been held by this Court in Indra Sawhney v. Union of India [1992 Supp (3) SCC 212: AIR 1993 SC 477], reservation for women or handicapped persons would not come within the purview thereof.
13. Furthermore, when the decision was taken, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (for short the 1995 Act) had come into force. In terms of the 1995 Act, the States were obligated to make reservations for handicapped persons. The State completely lost sight of its commitment both under its own policy decision as also the statutory provision.
8. In the above backdrop, applicants in these OAs, who have been medically de-categorized in A-3, B-1 and B-2 categories due to low vision, have been declared fit in C-1 and C-3 categories. Presently, they are working in the Construction Organization. A selection was notified for promotion from Group C to Group B to the post of AEN/NR against 70% quota on 10.10.2007. A written test was conducted on 6.12.2007 of which the result was declared on 16.5.2008. All the applicants have qualified the test. A viva voce was to be held on 25, 26 and 27.6.2008. However, before viva voce, a medical examination was to be undergone as per para 530 (A) of Indian Railway Medical Manual (IRMM) Volume I and as per the instructions in P.S. No.11149 where the candidates considered are to be declared fit for Group B gazetted Technical for civil Engineering Department. However, as per Railway Boards instructions issued on 9.4.2007 with an advance correction to para 532 of IRMM 2000, it is provided that relaxation of medical standards of promotion for Group B AEN post available to all categories and to be considered for specific post. As such it was decided that anyone of the conditions may be relaxed in favour of the candidates. The relaxation in each category should have specific approval of the concerned Board Member of Railway Board. A representation preferred for seeking relaxation but without acceding their request and taking a final decision, a viva voce was conducted on the due date but on completion of the selection process, the panel was soon to be declared. However, by way of an interim order passed on 7.7.2008, selection of the last candidate in the category of the applicants has been kept in abeyance.
9. Learned counsel for applicants would contend that whereas in the cadre of AEN there are about 140 posts, out of which 52 are in trolley section, 40 posts are in non-trolley section and remaining 40 posts are in headquarters with assignment of almost ministerial job. In such view of the matter, it is stated that the respondents should have relaxed the requirement and as the applicants, who are of low vision, have been declared medically unfit in the past and on medically de-categorization, they are well covered within the meaning of disability under Section 2 of the Disability Act. As such denial of relaxation of medical standards in the selection process and thereafter non-appointment for promotion not only violates Section 47 of Disability Act but also violates the Articles 14 & 16 of the Constitution. It is stated that a fair and equitable consideration for promotion, being a fundamental right, has been denied to the applicants.
10. Shri Yogesh Sharma, learned counsel for applicants relies upon the decision of Apex Court in Union of India v. Sanjay Kumar Jain, 2004 (2) SC SLJ 266 to contend that in case of a complete blind applying Section 47 of Disability Act, it is held that non-promotion can be denied to a person merely on the ground of disability.
11. On the other hand, learned counsel for respondents vehemently opposed the contentions and stated that as the post of Assistant Engineer falls in safety category, the applicants have to pass medical criteria in technical category under para 530 (A) of IRMM. It is stated that there are posts in Civil Engineering Department where relaxed medical standards can be permitted and any relaxation will compromise with the safety and productivity of works.
12. Learned counsel further states that the applicants were declared fit for C-I category with glasses and posted in Construction Organization and were promoted as JE II. It is also stated that under the proviso of correction para 532 in Engineering Department when Group B officers are required to go on line due to trolley etc., applicants are unfit to be appointed to that post.
13. Learned counsel would also contend that the disability of the applicants is not apparent and they have to qualify for establishing disability under Section 2 (i) of Disability Act.
14. We have carefully considered the rival contentions of the parties and perused the material placed on record.
15. Section 47 (2) of Disability Act forbids any denial of promotion on ground of disability. However, as regards duties attached to the post, if a disabled is not to be promoted, then by notification and conditions imposed, establishment has to be exempted from the provisions of Disability Act, failing which Section 47 (2) of Disability Act as per Section 72 is an addition to any other law in force. In the above backdrop, insofar as vision is concerned, IRMM defines, in para 503 for the purposes of visual acuity, the standards, which will apply to technical services in Railway Engineering Services (Civil, Electrical, Signal and Mechanical).
16. As per para 510 of IRMM for the purposes of visual acuity, vision test required in the interest of administration is categorized as classes C-1 and C-2.
17. As regards physically handicapped, para 511 of IRMM at the time of medical examination when 1% of the posts in groups C and D have been reserved, the medical officer has to determine individuals suitability for the appointment against the post nominated for the handicapped persons. There are certain posts earmarked for being filled up by only disabled persons.
18. Para 514 (C) of IRMM, categories C-1 and C-2 will not require any medical re-examination during the course of their service unless specifically provided.
19. Relaxation on de-categorization has been provided under para 523 (ii) wherein Junior Engineer (Tele-communication) not coming to the standards of A-3 and B-1, with restrictions of duties, be put to work on non-electrified sections where they do not have to use trolleys or in sedentary jobs. Physically handicapped persons are also accorded relaxation under para 511 (7).
20. Paras 529 and 530 of IRMM on introduction classify gazetted posts, which are divided in two categories, i.e., all posts in Mechanical, Electrical, Civil and S&T Engineering and Traffic; and the other is all posts in other departments, which are not connected with train working or use of trolley on open line. Vision tests are specified in para 523 of IRMM.
21. In the above backdrop, the Railway Boards letter dated 9.4.1997 made an addendum to para 524 of IRMM, which deals with vision test wherein it is ruled that all employees promoted to gazetted cadre from non-gazetted have to be examined for visual acuity as per their standards irrespective of their medical category in non-gazetted cadre. It is in this background advance correction to para 532 provides that relaxation of medical standards on promotion from groups C to B is applied to all categories considered for specific post where anyone of the conditions may be relaxed in favour of the candidates on approval by the Board Member of Railway Board by recording special reasons. A note appended also puts a condition precedent that on posting, the underlined medical condition shall not be compromised in safety and productivity of works.
22. The facts in these cases are not in dispute. Applicants were examined in 1987 for medical categories A-3, B-1 & B-2 but due to low vision, they have been declared fit only in C-1 and C-2 categories and were promoted to the post of Chief IOW designated as SAC (W) and have been working as Senior Section Engineer in Construction Organization.
23. No doubt, as per notification for promotion as AEN before viva voce, the candidates on medical examination are to be declared fit for group B gazetted Technical Civil Engineering Department. Applicants preferred a representation for relaxation of medical standards, however, vide order passed on 27.8.2003, it was ruled that medical category C-1 is not authorized to work trolley and not required to come in contact with signals in actual operation of their duty. Respondents are not allowed to approbate and reprobate simultaneously. When on being declared fit for C-1 category, applicants have been considered in past for promotion upto the post of Senior Section Engineer and when no infirmity has been found or impediment on account of visual acuity in their work, now non-consideration under the guise of disability on medical de-categorization is a denial of their promotion, which is considered as a fundamental right of fair and equitable consideration by the Apex Court in S.B. Bhattacharjee v. S.D. Mazumdar, 2008 (1) SCC (L&S) 21 and also A. Satyanarayana & others v. S. Purushotham & others, 2008 (2) SCC (L&S) 279.
24. We find from the records that despite being a safety category and the work attached to the post of AEN includes trolley and signal, yet about 48 posts of AEN have been attached with the headquarters where the incumbents, despite promoted to gazetted category, have been performing the work of ministerial nature. They neither go for any trolley work or signal inspection on line.
25. The contention put forth by the respondents would have any logic or rationale if the total cadre and the incumbents therein selected would have to be posted on open line signal as a safety category.
26. However, another aspect of the matter is that there has been a denial to a disabled with regard to the vision in the instant case, in respect of the applicants for promotion, yet there have not been any exemption on notification not to apply the Disability Act. For want of notification, the condition precedent for exemption under proviso to Section 47 (2) of the Disability Act would have no application.
27. In the above view of the matter, being a disabled, denial of promotion to the applicant is not only contrary to the dicta in Sanjay Kumar Jains case (supra) but also in Kunal Singhs case (supra). Sub-section of Section 70 and proviso to Section 47 of Disability Act ruled not to have operated in absence of the notification. Accordingly, we have no hesitation to rule that for want of a notification under proviso to Section 47 (2) of the Disability Act, applicants having disability as per the definition of Section 2 (i) of Disability Act have been deprived of equal opportunities and right to be considered on fair and equitable basis in promotion. Provisions of Section 47 (2) of Disability Act having an overriding effect over the provisions of Railway rules and manual and for want of notification, are paramount and to be followed in their vigour.
28. In Mahesh Guptas case (supra) the Railways have completely lost sight of the commitment both under the policy decision and the statutory provisions, which is denial of Articles 16 of the Constitution of India.
29. As regards disability of the applicants within the meaning of Disability Act, though while being examined in 1987 and declared fit in categories C-1 and C-2, there is no requirement on administrative side to re-medically examine them but the factum of their being disabled could be verified on medical examination.
30. The denial of participation in the selection for promotion and more particularly when the applicants have qualified the written test, non-admission to the viva voce has certainly deprived the applicants their fundamental right, which cannot be countenanced in law.
31. Non-grant of relaxation to the applicants in medical standards is also without any justification and basis when the correction applies to all the categories, which includes the category from which applicants belong and once the notification has not been issued regarding the post of AEN as per proviso to Section 47 (2) of Disability Act, respondents denial not to accord promotion to the applicants is against the rules.
32. In the result, for the foregoing reasons, these OAs (OA Nos.1320, 1355 and 1367 of 2008) are allowed to the extent that respondents shall consider the claim of the applicants for relaxation of medical standards for promotion to the post of AEN and thereafter conduct a supplementary viva voce test for promotion to the post of AEN, though subject to the satisfaction of disability of the applicants on medical examination. In such an event, on being found otherwise fit and meritorious, their promotion will relate back with all consequences from the date the similarly situated persons have been allowed the same, with pay and allowances. This shall be done within a period of two months from the date of receipt of a copy of this order. Till then, interim order dated 2.7.2008 passed by the Tribunal is made absolute. No costs.
Let a copy of this order be placed in each case file.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/