Allahabad High Court
Kamlesh Kumar Sharma vs U.O.I.Thru.Director General ... on 17 October, 2024
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:69938 Court No. - 6 Case :- WRIT - A No. - 1561 of 2021 Petitioner :- Kamlesh Kumar Sharma Respondent :- U.O.I.Thru.Director General R.P.F.New Delhi And Ors. Counsel for Petitioner :- Praveen Kumar,Anand Kumar,Sudhanshu Srivastava Counsel for Respondent :- Mrs.Suniti Sachan Hon'ble Alok Mathur,J.
1. Heard Sri Praveen Kumar, learned counsel for petitioner as well as Sri Dev Rishit Kumar, learned Standing Counsel for Union of India.
2. It has been submitted by learned counsel for petitioner that petitioner was posted on the post of Head Contable RPF CIB Northern Railway and after serving on the said post for more than 20 years. On 29.03.2019 he fainted and fell down and was admitted in the Railway Hospital, Charbagh, Lucknow. Subsequently, he was referred to the KGMU in the Department of Neurology and thereafter referred to Dr. Ram Manohar Lohia Hospital, Neurology Department, Lucknow who diagnosed the petitioner suffering from Seizure-disorder (fexhZ) on 11.04.2019. The petitioner remained on treatment for Seizure-disorder (fexhZ) and was referred to Northern Railway Central Hospital, New Delhi.
3. It is during his treatment that the petitioner was transferred from Lucknow to New Delhi by means of order dated 25.07.2019 and as the petitioner was sick since 29.03.2019 neither could he be relieved nor could he join at the transferred place of posting. Considering the illness of the petitioner and also the fact that he was receiving treatment in the Northern Railway Central Hospital, New Delhi, he was asked to fill up the form known as MED-5. The petitioner had duly filled up the said form and he was subjected to a Medical Board in terms of paragraph No. 1302 of Indian Railway Establishment Manual Volume-I, 1989, to determine the nature of illness, and as to whether he was fit to continue further in Government Employment.
4. According to Clause 1302 of the Railway Manual 1989, an employee of the railways is subjected to a Medical Board where it is found that he is suffering from a disease which may take much time to be cured and according to Clause -(i) of paragraph No. 1302 if it is found that the person is completely disabled for further service on any post in the railway he would cease to perform the duties of the post or he is incapacitated for further service on the post they are holding but declare fit in a lower medical category and eligible for retention in service in posts corresponding to his lower medical category, a certificate in this regard is issued by the Medical Board.
5. It is in pursuance of Clause 1302 of Railway Manual of 1989 that the petitioner was subjected to a medical board on 30.06.2020. A medical certificate issued by the Chief Medical Superintendent of the Northern Railway Divisional Hospital Lucknow stating that the petitioner is a case of Seizure-disorder. He is on antiepileptic drugs. FEG (20.05.2019) is abnormal suggesting intericctal epileptioform discharges. It further opined that the members of Standing Medical Board are of opinion that Sh. Kamlesh Kumar Sharma(Petitioner), Head Constable/RPF/NR/Delhi Division is unfit for the post of Head constable and is fit in medical category Bee.one and below under restriction of duties defined in Para annexure III para 509,512) 12.9 page No. 100 of IRMM 2000. He should not handle firearm. He is advised to continue antiepileptic drugs.
6. From the above, it is clear that the Medical Board had duly considered the case of the petitioner in terms of para No. 1302 of Railway Manual 1989 and have found him to be fit in the category of (ii) of the aforesaid clause . It was opined that he was not fit to hold the post of Head Constable but found him fit to hold other post as mentioned in the order dated 30.06.2020.
7. Despite passing of the impugned order determining the illness of the petitioner, no further order was passed posting the petitioner to any lower post than the post of Head Constable. In this regard, it is relevant to notice the provisions of Clause 1302 which is provides as under:-
"The railway servants both in group (i) and group (ii0 of Para 1302 cease to perform the duties of the posts they are holding from the date they are declared medically unfit for the presnrt post. NO officer has the authority to permit the Railway Servant concerned to perform the duties in the post beyond that date. If such a Railway Servant cannot be immediately adjusted against or absorbed in any suitable alternative post he may be kept on a special supernumerary post in the grade in which the employee concerned was working on regular basis before being declared medically unfit pending location of suitable alternative employment for him with the same pay scale and service benefits, efforts to locate suitable alternative employment starting immediately. The special supernumerary post so created will stand abolished as soon as the alternative employment is located."
8. According to the aforesaid provisions, once it has been determined that the case of the petitioner falls in Clause 1302(ii), he ceases to perform the post of Head Constable and after considering his medical report, it was incumbent on the respondents to post him to a alternative suitable post in the category of Bee.one as mentioned in the order of Chief Medical Superintendent dated 30.06.2020. It is noticed that instead of passing any orders under Clause 1303, the respondents insisted the petitioner to join at New Delhi in pursuance of transfer order dated 25.07.2019.
9. It is in the aforesaid circumstances that the petitioner has filed present writ petition praying for a direction to the respondents to hold screening in terms of the provisions contained in para No. 1301 to 1311 of the Railway Manual of 1989 and offer suitable postings in terms of the decision given by Screening Committee and also for the direction to the respondents to release salary since July, 2019. In the aforesaid circumstances, this Court is of the considered view that according the provisions contained in Railway Manual, 1989, once the government servant has been medically examined under the provisions of Clause 1302 and he has found to be in category II then according to para 1303, the respondents are under mandate to offer him an alternative post or a supernumerary post in the grade in which the concerned employee was working in the regular post before he was being declared medically unfit.
10. There is no dispute that no order under para 1303 has been passed by the respondents but they are insisting upon him to join at New Delhi. This Court is of the considered view that the insistence of joining in terms of transfer order dated 25.07.2019 is clearly illegal and arbitrary inasmuch as there is a clear instruction provided under Clause 1303 of the Railway Manual 1989 wherein the petitioner cannot be permitted to join or discharge his duties on the post on which he was declared to be medically unfit. Once the medical opinion is on record and it has been duly noticed by the respondent authorities it was incumbent upon them to consider the provisions of clause 1303 of Railway manual, 1989 and pass a suitable order giving him a post as provided for as per the medical certificate dated 30.06.2020.
11. Not passing any order is clearly illegal and arbitrary and it is not contemplated in the Railway Manual of 1989. Accordingly, even in the counter affidavit, the facts aforesaid have not been disputed but there is only an insistence that the petitioner should first join in compliance of the transfer order dated 25.07.2019. Accordingly, this Court finds merits in the contention of the petitioner and respondent No. 3 is directed to pass necessary orders with regard to posting of the petitioner in terms of para 1303 of Railway Manual, 1989 expeditiously within a period of 4 weeks from the date a certified copy of this order is produced before him. While passing the said order, he shall also pass suitable orders with regard to payment of salary of the petitioner since the date he was hospitalized till the date he joins on the post for which necessary orders shall be passed by respondent No. 3.
12. With the aforesaid observations / directions, the writ petition stands allowed.
(Alok Mathur, J.) Order Date :- 17.10.2024 Ravi/