Calcutta High Court (Appellete Side)
Priyadarshini Swarnalata Pradhan vs Union Of India & Ors on 13 September, 2019
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No. 18071 (W) of 2013
Priyadarshini Swarnalata Pradhan
-Versus-
Union of India & Ors.
For the Petitioner : Mr. Krishna Deo Das
Mr. Achin Kumar Majumder
For the Respondent : Mr. Maloy Kumar Das
Hearing concluded on. : 01.08.2019 BEFORE ABHIJIT GANGOPADHYAY, JUDGE. Date of Judgment : 13.09.2019 ABHIJIT GANGOPADHYAY, J. :-
1. The writ petitioner was appointed on compassionate ground as a Constable in Railway Protection Special Force (RPSF, in short) under the 6th Battalion and joined her service on 1st October, 2007. Subsequently she was transferred to 8th Battalion of RPSF, and joined said Battalion on 3rd March, 2008. While in the 8th Battalion she was medically decategorised by a Medical Board of Railways by its order dated 10th May, 2012 which is annexure P-2 of the writ application. By such decategorisation she was declared as not fit for 'B-1' category in RPSF and she was declared as unfit to perform her duties in her original 'B-1' category (in RPSF) on medical ground and was declared fit in 'C-1' category for sedentary job.
2. Thereafter, the petitioner was placed under special supernumerary post with effect from 11th May 2012 wherein she is still posted. She has not been absorbed in any alternative post.
3. By this writ application the petitioner has prayed for such alternative engagement in Group-'C' suitable post as per her qualification and also prays for pay equivalent to her basic pay along with grade pay which she was drawing before medical decategorisation; all of her prayers in the writ application relates to alternative appointment and regular posting for a sedentary job in 'C- 1' category post.
4. The respondents have filed affidavit-in-opposition, inter-alia, stating that the authority had desired that her case was required to be reviewed by the concerned medial authority as the total length of service of the petitioner was too less.
5. In the said affidavit-in-opposition the respondents have categorically stated that in respect of some other cases of medical de- categorization according to the advice of the Vigilance Directorate of Railway Board based on field inspection medical re-examination were arranged as their medical decategorisation were found irregular.
6. The petitioner has vehemently opposed to this endeavour of medical re-examination.
7. Therefore, the crux of the controversy in this matter has been precipitated to the stand taken by the RPF for medical re- examination of the petitioner and its vehement opposition by the petitioner.
8. In the said affidavit-in-opposition the respondents have also stated that the petitioner was sent letter dated 3rd June, 2013 for review of her case and also letter dated 20th June, 2013 and one information cum call letter dated 25th June, 2013 at the petitioner's known address i.e. Railway quarter No. 2/A in RPSF Colony of Chittaranjan Locomotive works (commonly known as CLW) were sent but the petitioner refused to receive the said information-cum-call letter and she submitted a representation on 5th July, 2013 stating that she was not against the order of medical review but as she had filed a writ application being W.P. No. 18071 (W) of 2013 (i.e. the present writ application) she was unable to go through the medical review and she would not receive any letter for medical review till the final disposal of the said writ application.
9. During the course of the hearing the learned advocate of the petitioner placed chapter XIII of Indian Railway establishment manual volume-1 (revised Edition -1989) first re-print edition 2009 and my attention has been drawn to paragraph 1303 in the said chapter of the above named manual which is as follows:
"The railway servants both in group (i) and group
(ii) of Para 1302 cease to perform the duties of the posts they are holding from the date they are declared medically unfit for the present 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.
[Authority: - Ministry of Railway's letter No. E(NG)I-2004/RE-3/9, dated.07.12.2005-ACS No.179]".
10. Referring to the said paragraph 1303 it has been submitted by the petitioner that in one Division Bench judgment of this Court reported in (2002) 8 CHN 718 (Tejen Mitra and others -versus- Union of Indian and others) in paragraph 20 it has been observed:
".......we are inclined to take the view in line with paragraph 1303 to the effect that once a Member of a force under a para-military service has been declared medically unfit and if he cannot immediately be adjusted or absorbed on any suitable alternative post, then he has to be kept on a supernumerary post in the grade in which he was working before being declared medically unfit. The rule does not provide that once declared medically unfit, the instructions as contained in paragraph 1303 can be bypassed and instead, the concerned decategorised/already declared medically unfit staff can be once again sent for "re-medical examination...."
My attention has also been drawn to paragraph 22 of the said reported judgment which is as follows:
"Interpreting and after having read the provisions of paragraph 1303 quoted above, we are of the view that once a Railway servant is declared medically unfit, he has to be given a suitable alternative employment but before that status is conferred, the person concerned has to be kept on a supernumerary post but he cannot be subjected to a 're-examination'. He can be ordered to be examined in accordance with law by the concerned authorities of only those departments in which such a medically declared unfit person is absorbed in an alternative status in terms of paragraph 1303 of the Railway Establishment Code quoted above".
Therefore, it has been submitted, the petitioner cannot be sent to Medical Re-examination.
11. The respondent though vehemently objected to such submission has not been able to show that the said observation of the Hon'ble Division Bench of this Court has been interfered with by any other competent Court of law.
12. However, after perusal of the materials on records in the writ application and on perusal of chapter XIII of the above mentioned manual and also the relevant Medical Examination Rules of Railways, with full respect to the view of the said Hon'ble Division Bench, most humbly I say that I am of a different view on the question whether medical re-examination of such an employee like the petitioner is permissible or not.
13. In my view, chapter XIII of the above mentioned manual is not relating to medical examination at all. The title of the said chapter shows and the provisions therein speak that it is related to the absorption of disabled/medically decategorised staff in alternative employment.
From annexure P-2 of the writ application, which is a letter of CLW Medical Department and on reading of chapter XIII of the above manual it is evident that Medical decategorisation means change of an employee from one category requiring a standard of physical fitness to other requiring a different standard of physical fitness to perform his duties.
In case of the petitioner she has been decategorised from 'B-1' category to sedentary job which comes under 'C-1' category. Decategorisation does not mean that the medical re-examination of the decategorised employee cannot be made by the Railway authority altogether.
In fact from the 'Medical Examination Rules' of Railway it is found that medical re-examination is a known, well established and recognized procedure. In Section B of the said Medical Examination Rules which deals with, inter alia, medical examination of non- gazetted Railway employees medical re-examination has been provided in different situations. For example:
(i) In respect of hearing impairment of the serving employees there is a specific provision of re-examination.
(ii) In respect of head injuries of the serving employees there is a specific provision of re-examination.
(iii) There is specific provision for standard at re-examination during service for employees with not less than six year service.
Apart from above, medical re-examination is also provided Under Rule 514 of Medical Examination Rules of Railways. There, in respect of the category 'C-1' and 'C-2' employees it is provided that the employees of these categories will not be required to undergo any re- examination during course of their service unless specifically directed.
(Emphasis mine).
From the above rules relating to medical examination of Railways employees it is clear that the medical re-examination is not only permitted but also a compulsory condition of service.
14. The Hon'ble Division Bench in the above judgment has not considered this aspect of the matter i.e. provision of medical re- examination in Medical Rules including 'C-1' and 'C-2' category employees when specifically directed. It appears that the facts of the case before the Hon'ble Division Bench were little different comparing to the present case but the observation of the Hon'ble Division Bench has general applicability in cases under the said chapter XIII when the question of medical re-examination of employees covered by the said chapter arises.
In my view question of Medical re-examination of 'C-1' and 'C-2' categories of employees when there is specific direction (as in the case of the present petitioner) cannot be negated even when such employees are in supernumerary posts. Supernumerary posts have no such speciality which can give them any protection from medical re-examaniation.
(Emphasis mine).
15. The petitioner has been decategorised to 'C-1' category and it cannot be said, in my view, that the petitioner cannot be subjected to medical re-examination despite specific direction.
16. Though I have expressed a different view of mine as above judicial discipline must be followed and therefore, despite having different view in respect of this particular question of medical re-examination I am bound by the said judgment of the Hon'ble Division Bench and I hold that petitioner's medical re- examination cannot be held while she is in supernumerary posting.
17. The authority should take appropriate steps for regular posting of the petitioner without any delay, in accordance with the rules and regulations for this purpose.
The writ application is allowed.
No costs.
(Abhijit Gangopadhyay, J.)