Gujarat High Court
Shakilahmed S/O Harshadkhan Pathan vs Western Railway on 10 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/15731/2020 ORDER DATED: 10/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15731 of 2020
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SHAKILAHMED S/O HARSHADKHAN PATHAN
Versus
WESTERN RAILWAY
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Appearance:
MR PRABHAKAR UPADHYAY, ADVOCATE for MR UT MISHRA(3605) for
the Petitioner(s) No. 1
MS ARCHANA U AMIN(2462) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 10/03/2022
ORAL ORDER
1. Heard learned advocates for the respective parties.
Perused the record.
2. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 13.10.2020, by which, the Principal Chief Security Commissioner, Railway Protection Force / Western Railway, Churchgate, Mumbai refused the request of the Divisional Office, Ahmedabad to repatriate the petitioner to the RPF department.
3. The facts in brief would indicate that the petitioner was appointed in the year 1998 as RPF constable. In the year 2013, the petitioner was medically Page 1 of 6 Downloaded on : Mon Mar 14 20:43:28 IST 2022 C/SCA/15731/2020 ORDER DATED: 10/03/2022 decategorized in view of he being declared as unfit by virtue of a certificate of the Medical Department indicating that the petitioner was unfit for duties on his original post. The certificate indicated that the petitioner was fit for job not involving lifting weight etc. Based on the certificate, the petitioner was posted to the Commercial Department of the Railways. He was posted in the year 2013.
4. Mr. Prabhakar Upadhyay, learned counsel appearing for the petitioner would submit that on a re- examination by the Medical Board, a certificate was issued on 19.8.2014 opining that the petitioner is orthopedically fit. Based on this certificate, on 25.1.2013, a representation was made that he having been declared medically fit, he should be repatriated to the Medical Board. He would rely on the letter dated 25.1.2017 written on behalf of the Chief Medical Director indicating that the petitioner had brought a certificate of the Civil Surgeon and, therefore, on a fresh Medical Board being setup, the Page 2 of 6 Downloaded on : Mon Mar 14 20:43:28 IST 2022 C/SCA/15731/2020 ORDER DATED: 10/03/2022 petitioner be permitted to go back to the RPF Department. This was based on the petitioner's assertion that in between 2013 and 2017 the petitioner had participated in the Football tournament organized by the Western Railways. 4.1. It is in this background that by a letter dated 23.1.2020, the Divisional Office issued a memorandum that though the petitioner was medically decategorized from the post of constable RPF and employed to the post of Assistant Commercial Clerk in the pay band of Rs.5,200- 20,200/- and subsequently being found medically fit, he should be repatriated to the RPF department. By the impugned communication, the superior Officer refused the request on the ground that once the petitioner was offered the post in the Commercial Department which was accepted by him and having worked for 7 years and since his name was struck off, there was no reason to be repatriated that too without approval of the Cadre Controlling Authority. Page 3 of 6 Downloaded on : Mon Mar 14 20:43:28 IST 2022 C/SCA/15731/2020 ORDER DATED: 10/03/2022 4.2. Mr. Prabhakar Upadhyay, learned counsel for the petitioner would therefore assail the order of refusal to repatriate the petitioner on the ground that it is evident from the certificates placed on record that he having participated in 2 nd tournaments of football and being found orthopedically fit, the petitioner should be repatriated to the RPF. Not being allowed to resume his duty as constable is bad.
5. Ms. Archana Amin, learned counsel appeared for the respondent - Western Railways. She would submit relying on the affidavit-in-reply on behalf of the Railways that the petitioner was found unfit in the year 2013. Based on that certificate, the petitioner was relieved and was permitted to join the Commercial Department of the Railways in the post of Assistant Commercial Clerk. On being relieved from the RPF, the petitioner was in the pay band Rs.5,200-20,200/- + Rs.2,400/- Grade Pay, there was Page 4 of 6 Downloaded on : Mon Mar 14 20:43:28 IST 2022 C/SCA/15731/2020 ORDER DATED: 10/03/2022 no provision for the medical reexamination for going back to the post of RPF and the appeal therefore for re-absorption after a period of seven years was misconceived.
5.1. Based on the letter dated 23.1.2020, it was the Cadre Controlling Authority's opinion that the petitioner cannot be allowed to join RPF duties and once he was repatriated and was working in the Commercial Department with no financial loss, inasmuch as, his pay was protected, the petitioner would have no right to be so repatriated.
6. Considering the issue at hand, it is evident from the certificate dated 13.5.2013 that the petitioner was found to have a Right Knee Medical Meniscus Tear with PID L 4-5, L 5-S1 with Radicular Symptoms and was therefore unfit for duties. The advise was, that the petitioner should be given a job not involving lifting weight. Based on this certificate and on his request, the petitioner was placed as an Assistant Page 5 of 6 Downloaded on : Mon Mar 14 20:43:28 IST 2022 C/SCA/15731/2020 ORDER DATED: 10/03/2022 Commercial Clerk in the Commercial Department of the Western Railways.
7. After having been decategorized and having worked for seven years on the post as an Assistant Commercial Clerk based on a certificate obtained in the year 2018, it is not possible for the authorities to repatriate the petitioner to the post of a Constable in a Railway Protection Force.
8. It was in the background of these facts that the order impugned in the petition dated 13.10.2020 was passed. No fault can be found with the authorities in refusing to repatriate the petitioner after seven long years to the post of RPF Constable.
9. In view of above, the petition lacks merit and deserves to be dismissed and accordingly, it is dismissed. Notice is discharged. No costs.
[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA Page 6 of 6 Downloaded on : Mon Mar 14 20:43:28 IST 2022