Madhya Pradesh High Court
Union Of India Thr. vs Moh. Sabir Siddiqui on 17 September, 2019
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
M.P. No.3361/2018
HIGH COURT OF MADHYA PRADESH
M.P. No.3361/2018
(Union of India & Ors.Vs.Moh. Sabir Siddiqui )
Gwalior, dated: 17.09.2019
Per Justice Vivek Agarwal
Shri Sunil Kumar Gupta, learned counsel for the petitioners.
Shri Satish Chandra Sharma, learned counsel for the
respondent.
This Miscellaneous Petition under Article 227 of the Constitution of India has been filed by Union of India through the General Manager, North Central Railway, Subedarganj, Allahabad and others challenging order dated 10 th July, 2017, passed by Central Administrative Tribunal, Jabalpur Bench, Circuit Sitting, Gwalior in Original Application No.202/00164/2015, whereby learned Central Administrative Tribunal has allowed the O.A. filed by the applicant seeking quashment of orders dated 23.12.2014 Annexure A-13, A-14.
2. Brief facts of the case are that the applicant before the Central Administrative Tribunal and respondent herein was appointed as Assistant Station Master (ASM) Baroda Division, Western Railway in the Grade of 1200-2040 on 01.07.1988. He was promoted to the post of ASM in the Grade of 1400-2300/G.P. 4200/- on 16.07.1990. Vide order dated 22.06.1993, applicant was transferred from Baroda Division, Western Railway to Bhopal 2 M.P. No.3361/2018 Division, Central Railway (now Western Central Railway). On account of ill health, applicant was on medical leave from 12.08.1995 to 23.02.1996 and in this duration he took treatment from Railway Medical Doctor at Bhopal. He was referred to the Railway Hospital Byculla, Mumbai for further investigation and treatment where he was diagnosed to be suffering from Nephrotic Syndrome (kidney disease), as a result Railway Doctor at Mumbai advised him to perform light job. Copy of such certificate is enclosed as Annexure A/2 alongwith the Original Application.
3. In terms of such recommendations, respondent was on periodic checkup in the hands of Railway Doctor at Bhopal and was medically de-categorized vide certificate No. M 18B dated 26.09.1996 with a remarks; Unfit A2 as ASM and Fit A2 for sedentary job subject to review after six months.
4. Thereafter, Divisional Railway Manager (Personnel) Bhopal, Central Railway conducted screening of applicant for alternative appointment on 31.12.1996 and applicant was appointed on the post of Senior Clerk in the Grade Pay of 1200-2040/G.P. 2800/- under Electrical Department Bhopal, Central Railway. Copy of this appointment order has been enclosed by the applicant as Annexure A/5 alongwith the original application.
5. For the sake of convenience and reference, order, as 3 M.P. No.3361/2018 contained in Annexure A/5 is reproduced herein as under:
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i=akd%Hkks@iks@163@r`rh;@prqFkZ@fp-ijh-@HkrhZ@96 fnuakd % 22-01-97 dk;kZy; v/kh{kd Vh-vkj-Mh-@Vhvkj,l-
fo"k; %& fpfdRlk ijh{kk esa vuqRrhZ.k deZpkfj;ksa dks oSdfYid deZpkfj;ksa dks oSdfYid dk;Z iznku djus ds laca/k esa A
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mijksDr fo"k; esa vkidks lwfpr fd;k tkrk gS fd r`rh; ,oa prqFkZ Js.kh dks fpfdRlk ijh{kk vuqRrh.kZ deZpkfj;ksa dks oSdfYid dk;Z iznku djus gsrq p;u izfd;k fnuakd 31-12-96 dks iw.kZ dh xbZ A p;u lfefr }kjk fuEufyf[kr deZpkfj;ksa dks muds uke ds le{k ikl fd;s x;s fjekZDl ds vuqlkj mi;qDr ik;k x;k gS A 1- Jh gjfoanj flag dakLVscy v/khu vkj-ih-,l-Hkksiky os-eku :-
825&1200 vkjih,l dks prqFkZ Js.kh gsYij [kyklh os-eku :-800&1150 (vkjih,l) esa mi;qDr ik;k gS ,oa o-iq-a fo|qr vfHk;Urk (Vhvkj,l) ds v/khu inLFk fd;k tkrk gS A 2- Jh ,e-,l-fl)hdh ,-,l-,e- Hkksiky os-eku :-1400&2300 (vkjih,l) v/khu ,l-,e-Hkksiky dks r`rh; Js.kh vdkfeZd ofj-fyfid os- eku :-1200&2040 (vkjih,l) gsrq mi;qDr ik;k x;k ,oa fo+|qr foHkkx esa ofj-ea-fo|qr vfHk;Urk (Vh-vkj-Mh-) ds v/khu inLFk fd;k tkrk gS A d`i;k deZpkfj;ksa ds inLFkkiuk ls lacaf/kr vkxkeh vkns'k tkjh djsa ,oa mldh ,d izfr bl dk;kZy; ds HkrhZ vuqHkkx dks nsosa A bu vkns'kksa dks l{ke vf/kdkjh dh Lohd`fr izkIr gS A d`rs e.My jsy izc/a kd(dk) Hkksiky-
izfr %& ofj-ia-fo|qr vfHk;Urk (VhvkjMh)@(Vhvkj,l) Hkksiky dks lwpukFkZ &*& vkj ih ,Q Hkksiky A &*& LVs'ku eSustj Hkksiky A d`rs e.My jsy izca/kd (dk) Hkksiky-
6. Thereafter applicant had made an application for transfer from Bhopal Division to Sitholi Spring Factory Gwalior under Jhansi Division, as contained in Annexure A/6, on the basis of which applicant was transferred from Bhopal Division to Rail 4 M.P. No.3361/2018 Spring Factory Sitholi, Gwalior at his own expenses without entitling him for any privilege applicable on such transfer and was relieved in April 1998.
7. During his tenure at Rail Spring Factory, Sitholi, applicant was promoted to the post of Head Clerk, Vide order dated 19.07.2004 w.e.f. 01.11.2003. It will not be out of place to mention that respondent/applicant was promoted after undergoing selection/ suitability test. Thereafter, while respondent was working at Rail Spring Factory Sitholi, communication dated 01.03.2014 was issued by the Deputy Chief Vigilance Officer on behalf of the General Manager Vigilance, North Central Railway, Allahabad as contained in Annexure A/11 recording a fact that Medical Board in the year 1996 while de-categorizing him had directed to review his medical condition after a period of six months and accordingly applicant was required to be presented before the Medical Board for review but Administration instead of sending the applicant for review before the Medical Board provided him a post of Head Clerk on a permanent basis. Therefore, it was proposed that it be ensured that applicant, who was working as Office Superintendent Grade-II, Rail Spring Factory, Sitholi, be sent for medical review and it be ensured that if applicant is permanently medically de- categorized, then only alternate post be given to him. This communication is enclosed with Original Application as Annexure 5 M.P. No.3361/2018 A/11. Thereafter, Senior Personnel Officer acting for the Chief Factory Manager Rail Spring Factory, Sitholi relieved the applicant for medical examination vide communication dated 17.09.2014 where he was classified as fit for medical category Aye 2 with glasses for DV and NV (distant vision and near vision).
8. In this backdrop impugned orders were passed necessitating the applicant to approach Central Administration Tribunal and to quash orders dated 23.12.2014, 02.02.2015 and 05.02.2015 seeking repatriation of the applicant to the Commercial Branch where he was initially appointed as ASM.
9. Learned Central Administrative Tribunal vide impugned order noted that applicant after being medically de-categorized in West Central Railway was subjected to down-grading of status and was appointed to a sedentary job, then, came to Gwalior and was absorbed. After having spent 17 years, he has been allegedly declared medically fit and concerned respondent No.4 sought to repatriate him back to the post which he held earlier in Western Central Railway for which rule does not permit. Invoking Doctrine of Legitimate Expectation, impugned orders were set aside and O.A. was allowed, also taking into consideration fact of applicant's earning three promotions after being down graded from his parent grade of ASM consequent to medical de-categorization. 6 M.P. No.3361/2018
10. Learned counsel for the petitioner/Union of India submits that since applicant/respondent was required to undergo medical examination after six months on his first de-categorization, and since he had not undergone such medical examination, act of the petitioner - Railway Authority i.e. respondent before Central Administrative Tribunal is justified in repatriating the applicant to his parent cadre of ASM.
11. Two issues emerge; one is of absorption of the applicant consequent to his medical de-categorization and second issue is that his order of selection, as reproduced above, as contained in Annexure A/5, does not make any stipulation in regard to applicant undergoing medical examination to adjudge his suitability to continue in such cadre of clerical staff giving rise to legitimate expectation.
12. In the present case, as is apparent from order dated 22.01.1997 (Annexure A/5), selection process was adopted for those, who were medically de-categorized to provide them legitimate employability and upon such selection process applicant was posted as Class-III Non-Personnel Senior Clerk in the pay scale of 1200-2040 though he had already earned a promotion in the cadre of ASM to the pay scale of Rs.1400-2300, therefore, he had on account of his medical condition accepted financial loss on 7 M.P. No.3361/2018 such selection upon medical de-categorization. He was absorbed in the cadre of Senior Clerk and earned his promotions in that cadre therefore, such absorption resulted in a severance from erstwhile cadre of ASM and in light of such severance from his erstwhile cadre of ASM for which admittedly he had paid a huge financial cost, that benefit could not have been reversed specially for the fault of the employer in not sending the employee i.e. applicant for medical examination as per the stipulation contained in order of de-categorization given by the concerned medical authority.
13. It is also apparent from order of applicant's selection to the cadre of Senior Clerk that it was effected in terms of a policy of the Railway and therefore, a selection process was adopted, which applicant had admittedly undergone and had completed on 31.12.1996, therefore, there was a legitimate expectation of the applicant that the Government would abide by such policy or guideline. Therefore, we have no hesitation to hold that in absence of any circular issued by the Railway Board or the policy of the Railway Board on record (learned counsel for the Railways, admits that no such policy has been brought on record) a deviation from the policy would be arbitrary and violative of Article 14 of the Constitution, as has been held in the case of Narendara Vs. Union of India [(1990) Suppl.SCC 440].
8M.P. No.3361/2018
14. Legitimate expectation is a corollary to the concept of estoppel, and it can arise where there is existence of a regular practice which the claimant can reasonably expect to continue; and where such expectation is reasonable, as has been held in the case of Madras City Wine Merchant Association Vs. State of Tamil Nadu [(1994) 5 SCC 509], then it should not be reversed arbitrarily and abruptly.
15. Thus, on the touchstone of both legitimate expectation and arbitrariness, we have no hesitation to uphold the order passed by learned Central Administrative Tribunal. Consequentially challenge to such order is devoid of merits and there is no illegality in exercise of the jurisdiction by the Tribunal, necessitating exercise of authority of this Court under Article 227 of the Constitution. Thus, petition fails and is dismissed.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
shanu
SHANU
RAIKWAR
2019.09.23
10:49:12 -07'00'