Central Administrative Tribunal - Chandigarh
Pawan Kumar vs Northern Railway on 12 November, 2024
1- O.A. No. 101/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/101/2022
Pronounced on: 12.11.2024
Reserved on: 08.10.2024
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
Pawan Kumar aged 37 years GROUP-C, resident of 71/a, Old Railway
Colony, Ambala Cantt (Haryana) -133001
.... Applicant
By Advocate: Mr. Karnail Singh
Versus
1. Union of India through General Manager, Northern Railway, Baroda
House, New Delhi-110001 email: [email protected].
2. Divisional Railway Manager, Northern Railway, DRM Office Complex
Ambala Cantt (Haryana) Pin- 133001
... .Respondents
By Advocate: Mr. Sanjay Goyal, Sr. CGSC
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-
(i) To quash and set aside the impugned order dated 19.01.2022 (Annexure A-5).
(ii) To order the respondents to absorb the applicant as Office Clerk (in Ministerial Cadre) in any deptt., as the applicant has been Medical de-categorized on account of 'Hearing impairment & Severe Headache ' and keeping view of his academic qualifications, with all consequential benefits. 2- O.A. No. 101/2022
2. The summarized facts of the case are that the applicant was appointed as Constable in Railway Protection Force (in short referred as RPF) under Respondent No. 2 on 24.3.2006. In the year 2017, the applicant was facing hearing impairment and on examination the applicant was declared medically unfit on the ground of 'Hearing Impairment & severe Headache', vide certificate dated 29.12.2017 issued by Medical Board (Annexure А- 1) and the applicant was provided with an 'Alternative Job' of Commercial Clerk under Sr. Divisional Commercial Manager, Ambala Cantt and was posted at Dholkot Railway Station. During the performance of duties as Commercial Clerk at Dholkot Station, the applicant was facing lot of difficulties on account of loss of hearing impairment resulting some wrong Ticketing / Booking issues, public complaints etc. In the year 2018, the applicant also faced public complaint on this count only and a minor penalty of 'Censure' was imposed on the applicant, vide order dated 18.3.2019 (Annexure A-3). Thereafter, the applicant was ordered to work in the office of Sr. DCM/ UMB itself since 2019 on temporary basis. The applicant made a representation dated 08.01.2019 (Annexure A- 2) to Respondent No. 2 requesting for an alternative Job from Commercial Clerk/Dholkot to any other Deptt./Branch as Clerk (Ministerial staff) where there is no/less public dealing involved, which was strongly recommended by the controlling officer of the applicant. The respondents, vide impugned order No. 729-E/20/ Pawan Kr. / CC/ Comml / EC dated 19.1.2022 (Annexure A-
5), rejected the representation of the applicant.
3. The contention of the applicant is that since he is well qualified and good knowledge of computer applications as well, therefore, the 3- O.A. No. 101/2022 applicant is eligible for absorption in Ministerial staff and the action of the respondents rejecting his request for change of category from commercial clerk to that of ministerial cadre is arbitrary and illegal. He has relied upon The Persons with Disability Act, 1995 and the Rules (Annexure A-5). He has also relied upon RBE 121/2007 in support of his averment that the administration has powers to absorb surplus staff and medically decategorized staff in any category as per procedure. It is also his contention that since he is experiencing practical difficulties in discharging his duties of Commercial Clerk, therefore, his request to change the category from commercial clerk to office clerk is legitimate and the respondents have illegally rejected it.
4. The respondents filed written statement contesting the claim of the applicant. It has been stated therein that the applicant was appointed as constable in RPF Department on 08.04.2006 and was declared permanently unfit from the Constable RPF and Medical category Bee-One and Bee-Two. He is found fit in medical category Cey-One and below with hearing aid without glasses for AEMG glasses vide letter dated 18.12.2017 (Annexure R-1) and was offered the post of Commercial clerk G.P 2000/L-03 on AEMG (Alternative employment on medical ground) vide office letter dated 16.05.2018 (Annexure R-2) and posted as commercial clerk at Dholkot. After a gap of 02 years from his joining at Dholkot station as commercial clerk, he requested for his change of category to office clerk which has been correctly rejected by the office in terms of RBE No. 121/2007 (Annexure R-3). As per Annexure A-6, the request should not be entertained for change of category to commercial and other non-technical popular categories like Clerk, Account Clerk, Ticket Collector, Commercial Clerk, Senior 4- O.A. No. 101/2022 Clerk, Junior Accounts Assistant, Commercial Apprentice, Traffic Apprentice, ECRC etc. (Annexure R-4).
5. The respondents further submitted that change of category cannot be claimed as a right. However, applicant‟s request for change of category was duly considered and was rejected as per RBE No. 121/2007.
6. The applicant filed rejoinder reiterating his contentions while relying heavily upon RBE 175/1987 (Annexure A-7), RBE 121/2017 and para 1306 of Indian Railway Establishment Manual.
7. The respondents filed additional affidavit. It has been submitted therein that the RBE120/2018 states that the requests should not be entertained for change of category to commercial and other non- technical popular categories like Clerks, Accounts Clerk, Ticket Collector, Commercial Clerk, Sr. Clerk, Jr. Accounts Assistant, Commercial Apprentice, Traffic Apprentice, ECR etc. It has been further stated that the clause 1306 of IREM Vol-I is applicable for those who are completely disabled for further service in any post in the Railways i.e. those who cannot be declared fit even in the "C" medical category, whereas the applicant was declared medically fit in the medical category C-1 and below with hearing aids without glasses for AEMG and was offered the post of Commercial Clerk on AEMG as per the approval of suitability committee (Annexure R-6).
8. We have gone through the pleading, perused the material available on record and considered the rival contentions of learned counsel for both sides.
9. Admittedly, the applicant, who was appointed as Constable in RPF department on 08.04.2006, was declared permanently unfit from 5- O.A. No. 101/2022 the Constable RPF and Medical Category Bee-One and below, however, he was fit in medical category Cey-one and below with hearing aid without glasses for AEMO. Accordingly, he was offered the post of Commercial Clerk. The case of the applicant is that due to hearing incapacitation he is facing problems while performing the duties of Commercial Clerk which is a public dealing seat, therefore, his request for change of category from Commercial Clerk to Ministerial staff in any other branch/office be considered by the respondents in terms of letter/order RBE NO. 121/2007 dated 25.09.2007 (Annexure A-6).
10. On the other hand, the respondents defended their action of rejecting the claim of the applicant for change of category from Commercial Clerk to Ministerial office on the basis of the same very order RBE No. 121/2007 (Annexure A-6) which deals with the request for change of category to Commerical and other non-technical popular categories like Clerk, accounts Clerk, Ticket Collector, Commercial Clerk, Sr. Clerk, Jr. Accounts Assistant, Commercial apprentice, Traffic apprentice, ECRC etc. The contents of the order RBE No. 121/2007 are reproduced hereunder for better understanding:-
"Sub: Change of category to Commercial and other non- technical popular categories.
Reference Instructions contained in this Ministry's letter No. E(NG)1-95/TR/16 dated 20.12.1995 placing restrictions on the change of category to the category of Ticket Collector in the Commercial Department.
2. The matter has been reviewed by the Board. In modification/ amplification of instructions contained in this Ministry's letter dated 20.12.1995 referred to above, it has 6- O.A. No. 101/2022 been decided that requests should not be entertained for change of category to Commercial and other non-technical popular categories like Clerk, Accounts Clerk, Ticket Collector, Commercial Clerk, Sr. Clerk, Jr. Accounts Assistant, Commercial Apprentice, Traffic Apprentice, ECRC etc. However, the Administration's powers to absorb surplus staff and medically decategorised staff in any category as per procedure in force remain unaffected. Please acknowledge receipt."
11. From the perusal of the above order, it is noticed that the instructions regarding not entertaining the request for change of category to Commerical and other non-technical popular categories like Clerk, accounts Clerk, Ticket Collector, Commercial Clerk, Sr. Clerk, Jr. Accounts Assistant, Commercial apprentice, Traffic apprentice, ECRC etc., were in general. Meaning thereby, the request for change of category to above-mentioned popular categories should not be entertained in a routine manner. Whereas, the case in hand is of a medically decategorised employee who is apparently facing difficulties in handling the public dealing seat and a public complaint has also been received to the railway authorities regarding issuance of wrong ticket by the applicant for which he has been issued a warning letter (Annexure A-5). Also, the order RBE 121/2017 (Annexure A-6), provides an exception for medically de-categorized staff mentioning therein that the Administration‟s powers to absorb surplus staff and medically decategorized staff in any category as per procedure in force remain unaffected. Thus, the respondents cannot validly reject the request of the applicant for change of category on the basis of 7- O.A. No. 101/2022 aforementioned letter RBE 121/2017 which specifically provides exception clause for decategorized staff.
12. Moreover, it is also seen from Annexure A-2 that the request of the applicant for change of category has been recommended by the Station Superintendent, Dhulkot for sympathetic consideration with specific mention that the applicant is facing difficulty in public dealing due to his medical deficiency. Otherwise also, the request of medically decategorized staff deserves special sympathetic consideration by the authorities, when the administration has been vested with the power to absorb the de-categorized staff to any category. The fair consideration of genuine request of the applicant would also be useful in the better administration of the department as well as public convenience, the smooth and better service to the passengers which the respondents are bound to provide.
13. In view of the facts and circumstances of the case, we deem it appropriate that the respondents be directed to re-consider the request of the applicant for change of category, with a positive and sympathetic manner and in view of the observations made hereinabove. Ordered accordingly. The impugned order dated 19.01.2020 (Annexure A-5) is hereby quashed and set aside. The necessary exercise be carried out within a period of two months from the date of receipt of a copy of this order. No costs.
(RASHMI SAXENA) (SURESH KUMAR BATRA)
MEMBER (A) MEMBER (J)
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