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Judgment
O R D E R
By Justice Rajiv Joshi, Member (Judicial)
Heard Shri Rakesh Kumar Dixit, learned counsel for the applicants and Mr. P.K. Rai, learned counsel for the respondents at the time of hearing of the case.
Present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following main relief(s):-
“a. ……… Issue an order or direction in the appropriate nature to quash and set aside the impugned order dated 23.04.2025.
b. ……… to extend the benefit of order dated 15.12.2022 passed by this Tribunal in OA No.179/2020 (Ram Babu Sharma vs. Union of India & Ors) being applicant is similarly situated person.
c. …….. to issue an order or direction in the nature of mandamus directing the respondents to re-screen and absorb the applicant on the suitable non safety cadre post as per provisions of Master Circular No.25 with all consequential benefits.”
d. To direct the respondents to permanently absorb the applicant on the post of office superintendent under RDI/Incharge, Idgah, Agra Cantt. Agra considering the health condition of the applicant as the applicant is suffering with Motor Neuron Diseases (MND), which is a non curable diseases and in MND, mechanism of controlling of nervous system of body became weaker day by day which causes failure of body parts.
e. Any other relief, which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
The case of the applicant lies within a narrow compass. He was initially appointed to the post of Loco Pilot Mail on 20.04.2009. While working as Loco Pilot Goods, Agra, in the pay grade of Rs. 4200/-, the applicant fell ill and was admitted to the Divisional Railway Hospital, Agra, where he was diagnosed with Motor Neuron Disease (MND), which is non-curable. Subsequently, a Medical Board was constituted to examine the applicant, wherein the Medical Board gave its opinion that the applicant was unfit in Aye-1 Medical Category and fit in Aye One (A-1) and below medical category for a job not involving or avoiding heavy/frequent use of the left limb on AEMS.
In pursuance thereof, the Chief Crew Controller, North Central Railway, Agra, vide order dated 17.05.2019, engaged the applicant to work in the RDI/IDH Department temporarily, and the applicant has been working as Office Superintendent under RDI/Incharge. Subsequently, screening was conducted on 14.06.2019, and the applicant was deployed/absorbed to the post of Traction Loco Controller (TLC), Agra Cantt., vide order dated 20.06.2019, which is against the report of the Medical Board. Aggrieved by the same, he submitted a representation before the respondents on 08.07.2019, refusing to join the said post and requesting that he be absorbed to the post of Office Superintendent.
On 20.09.2022, the respondents issued a direction regarding the re-screening of medical de-categorized staff and also disclosed the fact that many employees were not working on their proper posts and the name of the applicant was also mentioned in the list. The respondents again, on 24.01.2024, issued a direction regarding the screening of medical de-categorized staff and intimated that Loco Pilots of Agra Division had been de-categorized in the past and, after their screening, the employees were posted to the posts of PCOR/CCOR/TLC, but no employee had accepted the said posts. All the employees had submitted applications refusing to accept the posts, which were sent to the Office Branch for necessary action, and the name of the applicant was mentioned at Sr. No. 4.
The applicant again submitted a representation before the respondents on 10.04.2025 seeking re-screening. Respondent -4, vide order dated 23.04.2025, intimated the applicant that the order of the Competent Authority remained intact. Hence, this Original Application has been filed challenging the order dated 23.04.2025.
Learned counsel for applicant assailed the impugned order on the ground that that the Railway Board issued a consolidated instructions through Master Circular No. 25 on the subject of "Absorption of Medically de-categorised non-gazetted staff in Alternative Jobs" in which it is clearly mentioned under para 6.8 that Medically decategorised staff should be absorbed in suitable alternative posts in regular cadre only and not in tenure posts.
Learned counsel for the applicant further submitted that point 6.8 of the Master Circular 25, clearly provides that "Medically decategorised staff should be absorbed in suitable alternative posts in regular cadre only and not in tenure posts", whereas respondents have absorbed the applicants on tenure post by which, applicants will be debarred from the future seniority, chance of promotions and will suffer irreparable monetary loss not only during service period, their pensionary benefits will also be affected.
Learned counsel for applicant also relied upon on the judgment and order passed by this Tribunal in O.A. No.179/2020 (Ram Babu Sharma vs. Union of India & Ors.), OA No.180/2020 (Devendra Singh vs. Union of India & Ors), OA No.184/2020 (Ashok Kumar vs. Union of India & Ors, OA No.42/2020 (Sayyed Aijaz Ali and others vs. Union of India & Ors)and stated that in similar facts and circumstances this Tribunal allowed all the O.A.s and directed the respondents to post the applicants of that O.As in a suitable alternative post except the PC/TC/CC and if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol. 1 and Section 47 of Act 1 of 1996 and in the light of point No. 6.8 of the Master Circular No. 25.
Learned counsel for applicants prays that applicant of this O.A. is similarly situated person to that of O.A. No.179/2020, OA No.180/2020, OA No.184/2020, OA No.42/2020 and O.A. No.445/2025 and applicant would be satisfied, if the similar directions may also be issued in the instant case.
Per contra, learned counsel for the respondents submitted that the applicant was declared unfit by the Medical Officer/Board for the post of Loco Pilot Goods vide order dated 15.05.2019. As per the report of the Screening Committee, the applicant was posted to the post of TLC, Agra Cantt. Vide order dated 20.06.2019 itself, but the applicant refused to join the said post and made repeated representations. The representation of the applicant was rejected vide order dated 23.04.2025. There is no illegality or infirmity in the impugned order. As per para 1303 of IREM, the applicant was directed to be posted as TLC, Agra Cantt. Hence, the posting of applicants as TLC is strictly in line with the relevant Rules. The applicant was posted as per the Medical Report. Hence, original application is liable to be dismissed.
We have considered the rival submissions and have gone through the entire record.
It appears that the issue involved in this original application is now no more res integra as the similar issue fell for consideration before this Tribunal in O.A. No.179/2020 (Ram Babu Sharma Vs. UOI and others) and this Tribunal vide order 15.12.2022 decided the same, the relevant paras of the said order are reproduced below:-
"7.Point 6.8 of the Master Circular 25 clearly provides that "Medically decategorised staff should be absorbed in suitable alternative posts in regular cadre only and not in tenure posts", but Screening committee has recommended the case of the applicant for absorption for non -cadre post i.e. PC/TC/CC as per point No. 6.1 and 6.2 of the Master Circular 25.
8.Learned counsel for the applicant has submitted that in similar facts and circumstances, Cuttack Bench of this Tribunal in O.A. No. 434/2008 (Bibhuti Bhusan Pandey Vs. Union of India and others) relying on judgment and order passed by the same Bench in O.A. No. 910/2006 had allowed the O.A. and quashed the order dated 12.8.2008. The operative portion of para 4 and 5 of the judgment is reproduced below:-
"4.After giving our thoughtful consideration to the rival submissions of the parties, perused the materials placed in this OA as also the records of OA No.910/2006. On perusal of the earlier order of this Tribunal it is seen that the stand of the Respondents' counsel that there has been no decision on principle is not correct. In fact this Tribunal alter considering all aspects of the matter came to a positive finding which has binding effect to all similarly situated employees of the Railways. The operative part of the order dated 03.0 1.2008 in OA No.910/2006 reads as under:-
"38.We carefully examined the impugned order, the respondents have not assigned the reasons, the provisions of 47 of the said Act 1/96, i.e. Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, and other rules and instructions of the Railway Board are not taken into consideration. The objects of the provisions are very important and should be followed by the competent authority. The medically dccategorized staff can be shifted to any other post in the same pay scale or action to be taken to keep him in supernumerary post under the provisions of the said Act by the competent authority other than the authority who passed an order by L exercising his powers vested in him. The applicant's service is to bе protected as if he was getting all the benefits available to the running staff. 39. After careful consideration of the contentions of either side, citations referred to above and the relevant provisions of IREM, we are of the considered view that the applicant has made out a case for grant of relief and the stand taken by the respondents isabsolutely illegal. The respondents are not justified in considering the case of the applicant while issuing the impugned order and the applicant is placed in the list for screening to the post of PC/CC in Mechanical Department. We are of the considered view that the applicant is entitled for the relief as prayed for. Accordingly, we direct the competent authority i.e. respondents to delete the name of the applicant from the panel list dated 30.11.2006 (Annexure A-2) and post the applicant in suitable alternative post, if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol.1 and section 47 of Act 1 of 1996."
5.In view of the above, we have no hesitation in our mind to hold that the order dated 12.8.2008 is not sustainable. Hence the same is hereby quashed. As a result, the Respondents are directed to post the applicant in a suitable alternative post except the Power Controller! Crew Controller and if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol.1 and section 47 of Act 1 of 1996. The entire exercise shall be completed within a period of 60(sixty) days from the date of receipt of this order. In the result, this OA stands allowed in the aforestated terms. No costs."
9.In the instant matter, if the facts and circumstances disclosed by the parties are compared with the facts and circumstances of O.A. No. 434/2008 and O.A. No. 910/2006 as referred above by the learned counsel for the applicant, we are of the view that applicant is entitled to the benefit of point No. 6.8 of the Master Circular 25. Decisions rendered in the aforesaid O.As can safely be adopted to settle the issue involved in the present О.А.
10.In view of the above, we have no hesitation in our mind to hold that the orders dated 11.3.2019 and 21.1.2020 are not sustainable. Hence the same are hereby quashed. As a result, the Respondents are directed to post the applicant in a suitable alternative post except the PC/TC/CC and if suitable post is not available, create supernumerary post inaccordance with Chapter XIII of IREM Vol.1 and section 47 of Act 1 of 1996 and in the light of point No. 6.8 of the Master Circular No. 25. The entire exercise shall be completed within a period of 60(sixty) days from the date of receipt of this order.
11.In the result, the OA stands allowed in the afore-stated terms."
It is further pertinent to note that the order passed by this Tribunal in O.A. No.42/2020 (Sayyed Aijaz Ali & Others vs. Union of India & Others) dated 31.01.2023, involving identical controversy relating to absorption of medically de-categorized running staff on the post of PC/TC/CC, was challenged by the Union of India before the High Court of Judicature at Allahabad in Writ–A No.8980 of 2023. The said writ petition has been dismissed vide order dated 23.05.2023. The High Court, while noticing that in identical facts Writ–A No.7949 of 2023 had already been dismissed, held that the Tribunal had rightly directed posting of the medically de-categorized employee to a suitable alternative post in non-safety category in terms of Chapter XIII of IREM Vol. I, Section 47 of Act 1 of 1996 and Para 6.8 of Master Circular No.25. The High Court observed that no illegality, infirmity or jurisdictional error was found in the order passed by the Tribunal and consequently dismissed the writ petition as being devoid of merit. The operative portion of the order passed by the High Court of judicature at Allahabad is reproduced as below:-
1.Heard Sri Piyush Tripathi, learned counsel for the petitioners and Sri Pradeep Kumar Mishra and Sri Rajesh Kumar, learned counsel for the respondents,
2.Challenge has been raised to the order passed by Central Administrative Tribunal, Allahabad Bench, Allahabad dated 31.01.2023 passed in Original Application No. 42 of 2020.
3.At the outset learned counsel for the respondents has pointed out, in identical facts, Writ-A No. 7949 of 2023 (Union of India and 3 others vs. Central Administrative Tribunal, Allahabad Bench, Allahabad and another) involving the exact same issue has been dismissed vide order dated 08.05.2022, that order reads thus below :-
"Heard Sri Piyush Tripathi, learned counsel for the Union of India/Railways and Syed Mushfiq Ali, learned counsel for the respondent/original applicant. The instant writ petition has been filed against the order dated 11 January 2023 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (for short 'Tribunal') in OA No. 894 of 2019 (Hukum Chand Versus Union of India and others), whereby, the original application came to be allowed directing the petitioners herein to post the applicant in a suitable alternative post in non safety category. The operative portion of the order reads thus:
"9.Considering the facts and circumstances of the case, orders dated 10.04.2019 and 23.03.2018 are not sustainable. Hence the same are hereby quashed. The O.A. is allowed. As a result, the respondents are directed to post the applicant in a suitable alternative post in non safety category and if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol. 1 and section 47 of Act 1 of 1996 and in the light of point No. 6.8 of the Master Circular No. 25. The entire exercise shall be completed within a period of 60(sixty) days from the date of receipt of this order."
It is not in dispute that the medical category of the respondent-employee on being assessed cannot be given a post falling under the safety category. As per the Railways Board Circular dated January 6, 2020, the post offered to the respondent i.e. Chief Crew Controller (CCOR)/Power Controller falls under the safety category which was earlier offered to the respondent in 2017.
In the circumstances, as per Circular, learned Tribunal directed the respondent to be posted on a suitable alternative post in non safety category.
Learned counsel for the petitioner submits that in the year 2017 the post of CCOR/Power Controller was under the non safety category, accordingly, the respondent/original applicant came to be posted on the said post, however, in 2020 as per the Railways Board Circular the post of CCOR/Power Controller has since been classified under the safety category. Accordingly, the respondent cannot continue on the post of CCOR.
In the circumstances, we do not find any illegality, infirmity or jurisdictional error in the impugned order. The writ petition being devoid of merit is accordingly dismissed."
Thus, the issue involved in the present Original Application stands squarely covered not only by the earlier decisions of this Tribunal but also by affirmation thereof by the High Court in the aforesaid writ petitions.
In the present case, the facts and circumstances are identical to those considered in O.A. No.179/2020, O.A. No.180/2020, O.A. No.184/2020, O.A. No.42/2020 and O.A .No.445/2025. It is not in dispute that the post of PC/TC/CC presently falls under safety category. In view of Para 6.8 of Master Circular No.25, medically de-categorized staff are required to be absorbed in suitable alternative posts in regular cadre and not in tenure/safety posts. The view taken by this Tribunal in earlier matters has already been affirmed by the High Court. Therefore, the applicant is also entitled for similar relief.
Accordingly, O.A. is allowed. As a result, the impugned order dated 23.04.2025 is quashed so far as it relates to the applicant only. The Respondents are directed to post the applicant in a suitable alternative post except the PC/TC/CC and if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol.1 and section 47 of Act 1 of 1996 and in the light of point No. 6.8 of the Master Circular No. 25. The entire exercise shall be completed within a period of two months from the date of receipt of this order.
There shall be no order as to costs.
All pending M.As, if any, shall be treated as disposed of.