Central Administrative Tribunal - Gauhati
Jibanendu Saha vs Union Of India (Uoi) And Ors. on 8 July, 2005
Equivalent citations: 2006(2)SLJ47(CAT)
ORDER
G. Sivarajan, J. (Vice Chairman)
1. The applicant was originally appointed as an Assistant Station Master on 7.9.1962. Later he was promoted as Station Superintendent in the scale of pay of Rs. 7450-11,500 in the year 1993. The applicant was medically decategorised on 4.8.1998 and was declared fit for appointment to C/one and C/two medical categories. The applicant was directed to appear for a suitability test for medically decategorised staff on 12.8.1998. Accordingly the applicant appeared before the authority and on finding him suitable, he was absorbed as Chief Controller (Control) in the scale of pay of Rs. 7450-11500 against the existing vacancy on 6.10.1998 (Annexure-I). The applicant joined the said post on 8.10.1998, but from 10.10.1998 he was not allowed to work and his name was struck off from the attendance register. The applicant then submitted a representation dated 30.10.1998 for allowing him to perform his duties followed by a reminder request dated 20.11.1998 (Annexures-II and III series). The applicant then received a letter dated 6.5.1999 from the respondent No. 3 cancelling the earlier appointment. Another letter dated 6.5.1999 was received from the respondent No. 3 ad vising the applicant to appear for the second time in a suitability test for medically decategorised staff. Thereafter, the applicant received a letter dated 18.5.1999 (Annexure-V) from the respondent No. 3 absorbing the applicant in the post of Commercial Supervisor in the scale of pay of Rs. 6500-10500 since he was found suitable for the said post. According to the applicant the respondents were not justified in cancelling the earlier appointment of the applicant and appointing him to the post of Commercial Supervisor which carries a lower time scale. He, therefore, made a representation dated 21.5.1999 (Annexure-VI) to the respondent No. 3. However, the applicant received the posting order dated 23.6.1999 (Annexure-VII). He filed appeal against the said order on 9.7.1999 and 21.11.2000 (Annexures-VIII and IX). Then the applicant received communication dated 2.1.2001 (Annexure-X) from the respondent No. 3 fixing his pay in the post of Commercial Supervisor in the scale of pay of Rs. 6500-10500 at Rs. 10,500 with effect from 7.7.1999. The applicant, according to him, had accepted the post of Commercial Supervisor only under protest and subject to the decision on the appeal. The applicant has thereafter filed this O.A. seeking for direction to the respondents to absorb the applicant as per rules in an alternate post which is equivalent with the post that the applicant earlier held in rank, pay and other service benefits with all consequential benefits. Here it must be noted that the applicant has not specifically challenged the order cancelling his appointment as Chief Controller (Control) on 6.5.1999. The applicant only seeks for an alternate employment equivalent to the post earlier held by him in all respects. According to the applicant he is entitled to the same in view of the relevant Rules (Annexure-IX) to the application).
2. The respondents have filed a written statement wherein it is stated that the appointment of the applicant as Chief Controller (Control) in the scale of pay of Rs. 7450-11500 by way of alternate employment was cancelled by the General Manager (P), Maligaon as per his letter dated 27.11.1998 and based on the same, a communication dated 6.5.1999 cancelling the earlier Office Order dated 6.10.1998 was issued to the applicant. It is also stated that the applicant had expressed his willingness for the post of Commercial Supervisor (Coaching) in the scale of pay of Rs. 6500-10500, that his pay was fixed in the said scale at Rs. 10,500, and that the difference in total emoluments is only below 25% of his original pay which is in accordance with Rule No. 1309 (iii) of IREM Vol. 1 (1989 edition). It is further stated that as Chief Controller the basic pay of the applicant in the scale of pay of Rs. 7450-11500 was Rs. 10825 and 25% of his basic pay comes to be Rs. 2706 and hence the fixation of pay of the applicant in the absorbing category in the scale of pay of Rs. 6500-10500 may be done upto Rs. 8119, but the respondents have fixed his pay at Rs. 10,500 which is the maximum of the absorbing scale and higher than the admissible limit of fixation, i.e. Rs. 8119. It is also stated that since the applicant was medically decategorised on 4.8.1998 before the issue of Railway Board's order No. E(N.G.) 1/96/RE 3/9(2) dated 29.4.1999 the period from 4.8.1998 to 6.7.1999 from the date of his decategorisation to his absorption on 8.7.1999 as Commercial Supervisor at Hojai had been regularized in terms of Rule No. 1304(a) of IREM Vol.1 (1989) edition. It is further stated that the Advance Correction Slip No. 77 is applicable only to the case of those staff who have been medically decategorised on or after 29.4.1999, i.e. the date of issue of the Board's letter dated 29.4.1999 and therefore, the same is not applicable to the applicant who was medically decategorised with effect from 4.8.1998. The Advance Correction Slip No. 77 of IREM Vol.1 (1989) has substituted the Rule 1308 stating that the staff who have been medically decategorised on or after 29.4.1999 are eligible to have the benefit of fixation of pay which they have previously drawn before acquiring disability/medical decategorisation. The respondents further stated that the Hon'ble Supreme Court has laid down that there is no right in any employee of the State to claim that the rules governing conditions of service should be forever the same as the one when he entered service for all purposes and a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
3. We have heard Mr G.K. Bhattacharyya, learned Counsel for the applicant and Mr. B.C. Pathak, learned Railway Counsel appearing for the respondents. Mr G.K. Battacharya submitted that the applicant was holding the post of Station of Superintendent in the scale of pay of Rs. 7450-11500 from 1993 till 1998 when he was medically decategorised due to defective vision. The Counsel submitted that as per the rules in vogue the applicant is entitled to be retained in service and to accommodate him in an alternate post which carries the same scale of pay as held By him. Counsel submitted that the respondents after conducting suitability test had appointed the applicant as Chief Controller (Control) in the every scale of pay of Rs. 7450-11500 against an existing vacancy, but the same after the applicant had joined duty, was unilaterally cancelled without assigning any reason. The Counsel submitted that the post of Commercial Supervisor is a post carrying a lower scale of pay of Rs. 6500-10500 and the appointment made to the said post is against the rules in vogue. The Counsel further submitted that the service benefits including pension had been substantially reduced by the illegal act of the respondents in appointing the applicant to a post which carries a lower scale of pay. Counsel further submitted that even assuming that the rule contained in Annexure-IX to the application was an amendment to the existing Rule (Annexure-R9 to the written statement) and the amendment was subsequent to the medical decategorisation of the applicant on 4,8,1998, still, since the amendment was made for the benefit of medically decategorised persons the benefit of the said amendment must be extended to all persons who are yet to be accommodated in alternate employment. Counsel submitted that in the instant case the applicant was appointed to the post of Commercial Supervisor only on 23.6.1999 well after the Advance Correction Slip No. 77 amending paras 1301 to 1311 by Railway Board's order dated 29.4.1999. The Counsel submitted that this being a beneficial provision it ought to have been extended to the applicant. The Counsel submitted that the applicant has retired from service and is incurring a monthly loss of more than Rs. 275 in the pension.
4. Mr B.C. Pathak, learned Railway Counsel, for the respondents submitted that the applicant was decategorised from the post of Station Superintendent after conducting medical test on 4.8.1998 and that thereafter the applicant has no right to continue in the said post. The Railway Counsel further submitted that after cancelling the appointment of the applicant as Chief Controller (Control) the applicant was appointed as Commercial Supervisor as per his willingness and that his services had been regularized in the said post. The Railway Counsel pointed out that the Advance Correction Slip No. 77 amending the Indian Railway Establishment Manual came into effect only on 29.4.1999 and since the applicant was medically decategorised long before that date, namely 4.8.1998 the applicant is not entitled to the benefit of the amended provision. The Railway Counsel further submitted that though the applicant was appointed as Commercial Supervisor in the scale of pay of Rs. 6500-10500 his pay was fixed at Rs. 10500, i.e. the maximum in the scale and that the difference is much less than 25% of the total emoluments which was drawn by the applicant in the post which he was holding prior to his decategorisation. The Standing Counsel, in short, submitted that the applicant cannot get the benefit of the amended provisions. The Standing Counsel brought to our notice the decisions of the Supreme Court in P. Mahendran and Ors. v. State of Karnataka and Ors. , P.U. Joshi and Ors. v. Accountant General, Ahmedabad and Ors. as well as the decision in State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni and Ors. . The Standing Counsel submitted that the amended provisions have only prospective effect and that it cannot be applied to past events by giving retrospective effect. The Standing Counsel stressed that the applicant was appointed to the post of Commercial Supervisor strictly in accordance with the Railway Manual as it stood on the date of decategorisation of the applicant, i.e. 4.8.1998.
5. The undisputed facts are: the applicant was initially appointed as Station Master on 7.9.1962; he was promoted as Station Superintendent in the scale of pay of Rs. 7450-11500 in the year 1993; he was medically deeategorised on 4.8.1998; after medical fitness test he was absorbed as Chief Controller (Control) in the scale of pay of Rs. 7450-11500 on 6.10.1998; though he joined in the said post on 8.10.1998 he was not allowed to attend the office from 10.10.1998; the said appointment was later cancelled as per order dated 6.5.1999; he was later appointed as Commercial Supervisor in the scale of pay of Rs. 6500-10500; his pay was fixed at Rs. 10,500 which is maximum of the scale of pay of Rs. 6500-10,500 with effect from 7.7.1999. He retired from service on 28.2.2001. It is also an admitted position that the reason for the cancellation of the applicant's appointment as Chief Controller (Control) was not intimated to him at any time, not even stated in the written statement filed in this application. It is also not in dispute that the applicant had accepted the post of Commercial Supervisor in the scale of pay of Rs. 6500-10500 only under protest and subject to his appeal.
6. The applicant claims that he, on being medically deeategorised, is entitled to be posted in an equivalent post with the same scale of pay subject to medical fitness and that though he was appointed to such a post after medical fitness test the same was cancelled without any reason. His further contention is that his appointment to the post of Commercial Supervisor in the scale of pay of Rs. 6500-10500 is against the rules regarding alternate appointment of medically deeategorised employees. He has relied on the rules (Annexure-IX to the application) which is an extract of the amended rules contained in the Advance Correction Slip No. 77 (Annexures-R8 and R11 to the written statement). The Counsel for the applicant has claimed that the amended rules published alongwith Annexure-R8 to the written statement applies to the case of the applicant though it was not there at the time of medical decategorisation of the applicant from the post of Station Superintendent, because the provisions contained in the amended rules is a beneficial provision. It is also the case of the applicant that in view of the illegal stand taken by the respondents by applying the old rules contained in Annexure-R9 to the written statement the applicant is incurring loss to the tune of Rs. 275 per month in his pension apart from the loss of pay incurred during his service tenure.
7. The case of the respondents pleaded in the written statement as well as by the Counsel for the respondents, as already noted, is that the applicant has been appointed to the post of Commercial Supervisor in the scale of pay of Rs. 6500-10500 as per the rules of IREM which enabled the respondents to appoint the applicant even to a post lower to the one held by the applicant at the time of medical decategorisation provided the maximum emoluments in the said post does not involve reduction in emoluments beyond 25% of the total emoluments received by the applicant in the former post held by him. According to the respondents the applicant's pay was fixed at Rs. 10500, which is the maximum of the scale of pay of Rs. 6500-10500 and the reduction in emoluments did not exceed 25% of the total emoluments earlier received, and therefore, the applicant cannot have any valid objection to the said appointment. The Counsel for the respondents, as already noted, has pleaded that the amended provisions contained in the Advance Correction Slip No. 77 published alongwith the letter dated 23.6.1999 (Annexure-R8) cannot have any application to the applicant's case since, according to him the amended provision has got only prospective operation in that it would apply only in cases of medical decategorisation after such amendment. In order to substantiate the contention regarding the prospective operation of the amended rules the Standing Counsel has pressed in to service the three decisions of the Supreme Court referred to in para 4 (supra).
8. Thus the question that arises for consideration in this case is as to whether the amended rules contained in Annexure-R11, i.e. amendment to Rules 1301-1311 has any application to the present case.
9. As already noted, according to the applicant the said amendment has got application since it is a beneficial provision, but according to the respondents it has no application since the amendment is prospective in nature and applies only to cases where medical decagtegorisation is made after the said amendment. According to us it is unnecessary to consider as to whether the amended rules have got retrospective operation being a beneficial provision as canvassed by the Counsel for the applicant or only prospective operation so as to apply the said rules only to cases of medical decategorisation after the amended rules came into force as canvassed by the Counsel for the respondents. We are of the view that the question regarding applicability of the amended provision contained in Annexure-R11 can be decided on a different perspective.
10. Annexure-IX to the application issued by the General Manager (P), Maligaon on 19.5.1999 shows that the amendment to the Indian Railway Establishment Code, Vol.1 contained in Advance Correction Slip No. 71 is issued by the President in exercise of the powers conferred under the proviso to Article 309 of the Constitution. Advance Correction Slip No. 71 (Annexure-11 to the written statement) itself states: (Authority: Section 47(i) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Board's letter No. E(NG) 1/96/RE3/9(2) dated 29.4.1999. It is clearly acknowledged in the Circular dated 23.6.1999 issued by the General Manager (P), Maligaon that the Act mentioned above has necessitated modifications of the existing scheme of absorption in alternative employment of staff medically decategorised.
11. Let us now see the scope and ambit of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short The Act). The circumstances under which this Act happened to be enacted has been succinctly stated by the Hon'ble Supreme Court in Kunal Singh v. Union of India 2003(2) SLR 502 (para 8) thus:
The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realise the objectives that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This meeting was held by the Economic and Social Commission for Asia and Pacific. A proclamation was adopted in the said meeting. India was a signatory to the said proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons.
Article 253 of the Indian Constitution confers specific power on the Parliament to make any law for the whole or any part of the territory of India for implementing any treaty or agreement or convention with any other country/countries or any decision made at any international conference, association or other board. Thus the enactment of the Act is a Constitutional obligation also.
12. Now let us come to the relevant provisions of the Act. 'Disability' is defined in Section 2(i) of the Act. The relevant portion reads:
Disability' means-
(i) blindness,
(ii) low vision, ...
Section 2(k) of the Act defines "establishment" as follows:
(k) "establishment" means a corporate established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in Section 617 of the Companies Act, 1956 and includes Departments of a Government.
Section 47 of the Act reads as follows:
Non-discrimination in Government employment-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may to be specified in such notification, exempt any establishment from the provisions of this section.
13. The mandatory nature and effect of the aforesaid provision is discussed by the Supreme Court in Kunal Singh's case (supra) as follows:
...An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possible all those who depend on him would also suffer. The very framed and contents of Section 47 clearly indicate its mandatory nature. The very opening part of section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale ad service benefits, if it is not possible to adjust the employee against any post he will be kept on a supernumerary post and until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from Sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reducein rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and services its purpose must be preferred to the one which obstructs the object and pralyses the purpose of the Act. Language of Section 47 is plain and certain, casting statutory obligation on the employer to protect an employee acquiring disability during service.
The Supreme Court in the above case had granted relief to the appellant in that case based on the provisions of Section 47 of the Act in spite of the fact plea based on the said provisions was taken for the first time before the Supreme Court.
14. As per the provisions of Section 47 of the Act, the Railways being an establishment within the definition of the said expression quoted above cannot dispense with or reduce in rank an employee who acquires a disability during his lifetime. It says that if an employee after acquiring disability is not suitable for the post he was holding could be shifted to some other post with the same pay scale and service benefits. It further provides that if it is not possible to adjust the employee against any post he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation whichever is earlier. The expression "disability" is defined in Section 2(i) of the Act to mean, (i) blindness, (ii) low vision, etc. Section 47 of the Act is a mandate to the authorities manning the 'establishment' as defined under the Act. It has to be strictly complied with, The Act, as already noted, has come into effect with effect from 1.1.1996. The medical decategorisation in the instant case was only on 4.8.1998, long after the commencement of the Act.
15. As already noted, Annexure-R9 to the written statement was the relevant portion of the IREM Vol.1 (Rules 1301 to 1311). The said rule may have been enacted prior to the Act. After the commencement of the Act these rules, in so far as the said Rules are inconsistent with the provisions of Section 47 of the Act, cannot survive. It is in view of this that the Advance Correction Slip No. 77 was necessitated to make the provisions of the Manual consistent with the provisions of the Apt. The amended provisions, if it is applied, there cannot be any doubt that the applicant cannot be absorbed in a post carrying a lesser scale of pay and service benefits. In other words, the Railways and its officers were obliged to act in accordance with provisions of Section 47 of the Act mentioned above in the case of an employee who acquired disability during his service irrespective of any provisions to the contrary in IREM. Admittedly, the applicant has been absorbed in a post, which carries a lesser scale of pay and service benefits. The said action of the respondents is illegal and unauthorized.
16. In the light of the legal position discussed above, as already stated, it is unnecessary for us to consider the contentions regarding the retrospective/prospective nature of the amendment made to the IREM.
17. In the instant case though the applicant was medically incapacitated on 4.8.1998 he was appointed to the post of Chief Commercial Supervisor (Coaching) in the scale of pay of Rs. 6500 10500 only on 23.6.1999, i.e. after the commencement of the amended rules with effect from 29.4.1999. Looked at from any angle, the absorption of the applicant in the post of Commercial Supervisor in the scale of pay of Rs. 6500-10500 not being an equivalent post to the one held by him - Station Superintendent in the scale of pay of Rs. 7450-11500 is contrary to the provisions of Section 47 of the Act mentioned above and the amended rules which is made in consonance with the provisions of the Act.
18. Here it must be noted that though the applicant was appointed to an equivalent post - Chief Controller (Control) in the scale of pay of Rs. 7450-11500 the same was cancelled on 6.5.1999. The applicant did not challenge the said order in this proceeding. That apart, the applicant had accepted the offer of appointment as Commercial Supervisor (Coaching) in the scale of pay of Rs. 6500-10500, his pay was fixed in that scale at Rs. 10500 and his service has been regularized in the said post. The applicant has also retired. We are of the view that reliefs that can be granted to the applicant has to be moulded with reference to the aforesaid circumstances.
19. Considering all the facts and circumstances of the case we direct the respondents to fix the pay of the applicant for the purpose of retiral benefits such as pension etc, taking the scale of pay of the post held by the applicant at Rs. 7450-11,500, i.e. as if the applicant continued in the same scale of pay even after medical decategorisation and to give all retiral benefits to the applicant on that basis. In other words, the applicant will be entitled to all benefits other than back wages on the basis of the calculation as directed hereinabove. This will be done within a period of four months from the date of receipt of this order.
20. In the light of the above, we are net dealing with the three decisions of the Supreme Court relied on by Mr. B.C. Pathak, learned Railway Counsel, as the proposition canvassed by him has no application to the case on hand.
The O.A. is allowed as above. No costs.