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Judgment
ORDER Per: Mr. Shri Krishna, Member (A)
The present OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"8(a) This Hon'ble Tribunal will be pleased to call for the records of the proceedings which led to the passing of the impugned order No.55 of 2017 dated 05.10.2017 and relieving order dated 14.10.2017 i.e. Annexure "A1" and "A2 respectively, and after going through its proprietary, legality and constitutional validity be pleased to quash and set aside the same with all consequential benefits of seniority, promotion, pay fixation, arrears of pay etc.
(b)This Hon'ble Tribunal will be pleased to order and direct the respondents to absorb the applicant in NON-SAFETY POST wherein medical category B1 with Colour Blindness is permissible such as Ministerial or Clerical Post or Ticket Collector and/or Booking Clerk with appropriate Pay Band and Grade Pay as per Rules.
(c)Any other and further orders as this Hon'ble Tribunal may deem fit, proper and necessary in the facts and circumstances of the case.
(d)Cost of this Original Application be provided for."
Brief facts as stated in the OA are that the applicant was appointed as Assistant Loco Pilot (hereinafter referred as 'ALP') which is a running staff category. After completion of the training, he was absorbed as ALP on 13.01.2013 in Solapur Division of the Central Railway on regular basis. After working for 4 years, he was sent for Periodical Medical Examination (PME) on 10.01.2017. However, he was declared medically unfit because of colour-blindness as per Medical Board's report dated 06.06.2017.
It is the case of the applicant that after colour blindness, the applicant has made a request of appropriate absorption in the alternative category which is a statutory right of the applicant as he was declared fit in B1 category. After medical decategorization, the respondents have issued a letter of absorbing him as Fitter Grade-III in the Carriage and Wagon Department.
It is the case of the applicant that this absorption of the applicant is wrong and illegal in as much as the post of Fitter Grade III is also a Safety Category wherein the requirement is that the person should pass the test of Colour Vision, Binoculor Vision, Field Vision and Night Vision and that he should not be colour-blind.
It has been averred that Fitter Grade III is a safety category wherein the persons are promoted from the lower ranks and also employees are directly recruited.
The applicant has placed reliance on Railway Recruitment Board Mumbai's Advertisement i.e Employment Notice No.01/2008 (BCT) for filling up the posts on Western/Central/South East Central Railway dated 05.07.2008 wherein it has been clearly stated that medical category B1 should be physically fit in all the respects, visual standards - Distance Vision - 6/9, 6/12 with or without glasses (power not be exceeded +/-4D), Near Vision SN 0.6, 0.6 with or without glasses when reading or close work is required, Colour Vision-Binoculor Vision, Field of vision and Night Vision must be present. This was an Advertisement for Category No.44 which included Mechanical Fitter Grade III/Fitter Grade.II/Mechanical C&W & W/S Mechanical with Medical Standard in B1 Category.
It has been submitted that the applicant has been found FIT in medical standard B1 category with defective colour vision and as such he cannot be absorbed in the category of Fitter Grade-III, which is a Safety Category. The applicant placed reliance on the said Advertisement for appointment as Fitter Grde III through RRB (Railway Recruitment Board), Mumbai.
It has been further submitted that he ought to have been absorbed by counting 30% of the Running Allowance towards the fixation of pay and as such his pay should have been fixed accordingly. He should also be absorbed in a category where the grade pay is Rs.2400/- i.e by adding 30% of Running Allowance in the minimum and maximum of the Pay Band of Rs.5200-20200/-. After his decategorization, he was not immediately sent to work as a Fitter Grade III and he was allowed to work on the clerical post under the respondents in the Loco Department though his official designation remain as Assistant Loco Pilot (ALP).
It has been submitted that he made a representation (Non-Statutory) against his absorption as Fitter Grde-III under his letter dated 11.10.2017 (Annexure A-6). He has not received any reply to his said representation dated 11.10.2017. But his representation is deemed to have been rejected by absorbing the applicant against the Rules. On the contrary, without deciding his representation and without taking adequate correctional measures, he has been relieved to join the post of Fitter Grade III, which according to the applicant, is against the Rules and against Safety aspects. The relieving impugned order is dated 14.10.2017 (received by the applicant on 17.10.2017).
It has been averred that the applicant has joined the post under protest thereby taking no responsibility against the illegal action of the respondents as he being a poor employee. The applicant is a graduate and is fully fit and suitable to work as a Clerk or any other similar post wherein Medical Category B1 is permissible with colour-blindness.
Aggrieved by the impugned order dated 05.10.2017, the applicant has filed this OA.
After issuance of notice, the respondents have filed their reply and contested the OA.
It has been submitted that the applicant is aggrieved by his own appointment letter dated 14.10.2017. According to the applicant, he was wrongly absorbed into the category of Fitter Grade III in Carriage and Wagon Department in alternative post/category consequent to the applicant's medical decategorization as an Assistant Loco Pilot (ALP). The applicant claims that he has been medically decategorized because he has been declared and found as Colour Blind. According to the applicant, both categories are safety categories and, therefore, as per the Rules, the applicant is unfit for both. Thus, the absorption of the applicant as C&W Fitter is wrong and illegal and void-ab-initio.
It has been submitted that the applicant was working as Assistant Loco Pilot and after medical decategorization, he has been provided with an alternative job in same grade. The Medical Board has declared that the applicant is unfit to work in Aye-one, Aye-Two and Aye-Three categories, but fit to work in Bee-one and Lower unattractive post. As per Annexure IV(Para 510) of the Indian Railway Medical Manual 2000, the medical classification for the post of fitter including diesel fitters (mechanical) and electrical fitters is B-1. They further submitted that only after taking into consideration the suggestion of Medical Board, the Three Member Screening Committee, who has declared the applicant is fit in B-1 and below medical category and recommended for alternate job as a Fitter-III in same grade, so the applicant is rightfully absorbed in C&W Fitter-III.
It has been further submitted that the applicant has been provided alternative job as per the recommendation of the Medical Board as well as the Three Member Screening Committee. It is clearly mentioned in the Para 512(2)(ii) of Indian Railway Medical Manual, 2000 that the employee should be provided alternate job in unattractive post.
It has been submitted that the applicant was never promoted. The running staff pay fixation is to be done by adding 30% of Running Allowance. There was no change in grade pay of the applicant.
It has been submitted that the applicant was working as Assistant Loco Pilot in Group of Rs.5500-20200+1900 GP and after medical decategorization, he has been provided alternate job in same Grade Pay group. Since the Medical Board has declared the applicant unfit to work in Aye-One, Aye-Two and Aye-Three categories but fit to work in Bee-One and below, on an un-attractive post vide Para 512(2)(ii).
It has been submitted that the Medical Board and three members Screening Committee have suggested the applicant is suitable for Bee-one and Below category and, accordingly, the applicant was appointed in the category of Fitter Grade-III, Rs.5500-20200 +1900 Grade Pay.
The applicant has not filed rejoinder to the reply submitted by the respondents.
During arguments, learned counsel for the applicant, in addition to reiterating the submissions made in the OA, has placed reliance on the Railway Board Circular RBE No.92/2015 dated 18.08.2015 and order of this Tribunal in OA Nos.473/2010, 106/2011 & 64/2013 dated 27.09.2013 wherein a similar issue was involved and the same was decided in favour of the applicants therein. Learned counsel for the applicant submitted that the facts of the applicant's case are also similar to the applicants in the above OAs and, therefore, the applicant deserves the relief.
Learned counsel for the respondents, Shri Rajpurohit, has argued and supported the action of the respondents on the basis of reply affidavit.
We have heard learned counsel for the parties and perused the pleadings and documents filed on record.
The undisputed facts are that the applicant was working as Assistant Loco Pilot (ALP) in the pay band of Rs.5200-20200. He was medically decategorised due to colour blindness and absorbed as Fitter Grade-III vide impugned office order No.55/2017 dated 05.10.2017 in the pay band of Rs.5200-20200 + Grade Pay of Rs.1900/-.
It is the case of the applicant that Fitter Grade-III is also a safety category post and, therefore, he could have not been appointed in the safety category post as he has been medically decategorized due to colour blindness. He has placed reliance on the Railway Recruitment Board, Mumbai's Advertisement published in Employment Notice No.01/2008 (BCT) dated 05.07.2008 in which for the post of Fitter Grade-III, the medical standard has been categorised as B-1, physically fit in all respects, Visual Standards - Distance Vision-6/9, 6/12 with or without glasses (power not to exceeded +/-4D), Near Vision SN 0.6, 0.6 with or without glasses when reading or close work is required. Colour vision-Binoculor vision, Field of vision and Night Vision must be present. Since he has been declared medically unfit for B-1 category due to colour blindness, he could have not been posted in the Fitter Grade-III which is a safety category post. The respondents in their reply have not disputed the above facts. However, they have contended that in the recommendation of Medical Board, they have declared that the applicant is unfit to work in Aye-one, Aye-Two and Aye-Three categories but to fit to work in Bee-One and lower unattractive post. Therefore, the applicant was provided an alternative job as Fitter in the same grade pay. The medical classification for Fitter is B1. Hence, the applicant is rightly provided the post of C&W Fitter-III.
The applicant has placed reliance on the order of this Tribunal in OA Nos.473/2010, 106/2011 & 64/2013 dated 27.09.2013. We find that the issue involved in OA No.106/2011 was that the applicant was placed in the grade of Junior Clerk on his "Medical decategorisation" in April, 2001 in the pay scale of Rs.3050-4590. The prayer of the applicant was that he should have been placed in the pay scale of Rs.4000-6000 at the time when he was posted as junior Clerk on "Medical Decategorisation". Therefore, referring to RBE Order No.254/1999 dated 01.10.1999 regarding equivalence of grades of running staff with grades of stationary staff for the purpose of promotion for the stationary categories where both running and stationary staff are eligible and considered together, the Tribunal quashed the reversion order dated 06.07.2010. However, in the case at hand, there is no reversion to lower category. The applicant has been placed in the same pay scale in which he was working as Assistant Loco Pilot before medically decategorisation.
The issue at hand is that whether the applicant could have been placed after medically decategorisation in Fitter Grade - III for which B-1 category is required with the colour vision. Admittedly, the applicant was medically decategorized because of the colour blindness. Therefore, we are of the considered view that the applicant should have been absorbed in the post in the same pay scale in which colour vision is not required. The respondents are, therefore, directed to consider and post the applicant in a post where medical standard of colour vision is not required.
In view of the above, the impugned order posting the applicant in the Fitter Grade-III which requires medical standard of colour vision cannot be sustained and liable to be quashed and are, accordingly, quashed and set aside. The respondents are directed to comply with the order within a period of three months from the date of receipt of a certified copy of this order.
The Original Application is partly allowed with the above order and direction. Pending MAs, if any, stand closed. No costs.