Laxmi Narayan Verma vs The General Manager & Anr.

ORDER

M.A No. 48/2016 :

O.A No. 73/2016 :

"8 (a) To quash and set aside the impugned letter dated 25.05.2009 issued by Railway Board and earlier circular issued in the year 1999 be restored and the respondents be directed to provide alternative job in terms of old rules as per his medical eligibility ;

(b)

To quash and set aside the impugned order dated 12.09.2012 directing the respondents to consider for granting alternative appointment;

(c)

To direct the respondents to provide job as per his medical category except the post category for which the applicant declared successful from all corners in the selection process.

(d)

Any other relief which this Hon’ble Tribunal deem fit and proper may also be passed in the facts and circumstances of the case in favour of the applicant.”

“A. Because the Railway Board letter dated 25.05.2009 is bad in law. It is submitted that this Railway Board Letter has been issued by Railway Board without application of mind as the right of blind people have been totally ignored as was earlier provided in Railway Board Letter issued in the year 1999.

B. Because the respondents failed to consider the disability Act established in the year 1995 which provides reservation for disabled person.

C. Because the impugned RRB dated 25.05.2009 has been issued by the Competent Authority to accommodate their own man who were in employment, the Competent Authority ought to have consider the right of new comer who were appointed after facing open market selection.

D. Because the rule was framed on 25.05.2009 and over five years have elapsed, it should be reviewed as after every five years, rules framed by authority should be reviewed.

E. Because the applicant is having with medical C-1 category and in examination, he was selected for Goods Guard for which A-2 category was required but was declared unfit. Moreover, the applicant can be accommodated in terms of Old Rules for providing alternative appointment. Applying the factum of a person with Disability Act, 1995, the applicant can be granted alternative appointment.

F. Because the impugned order/Railway Board letter is contrary to the law laid down by the Hon'ble Apex Court as mentioned in the body of the original application.

G. Because the impugned circular is contrary to the article 21 of the Constitution of India. It is very unfortunate, due to non provisions in the rules, a colour blind candidate who makes a grade in the pay scale of Rs. 4500-7000 is denied for his appointment, otherwise, giving relaxation, he could have been accommodated in their respective category as per medical examination.

H. Because the applicant passed throughout all examination through open market and he had not committed any fault if the God has gifted the disease of colour blind, being a human, the concerned authority should be accommodated given relaxation in the rules. There is no scope to get employment in other department as the applicant is over aged.”

“7 The learned counsel for the applicants submitted that similar matter was considered by Patna Bench of this Tribunal in OA.430/09 wherein vide order dated 30.11.2010, it has been held that the Railway Board letter dated 25.5.2009 (Annexure R-1 in the present case) is effective from the date of its issue i.e.25.5.2009. In this view of the matter, the respondents were directed in that case to consider case of the applicant for alternative appointment. In the present OA also the applicants were found medically unfit and thereafter submitted representations for alternative appointment on 16.1.2009, which was much before the date of coming into effect of Railway Board Circular dated 25.5.2009 (Annexure R-2). In these circumstances, the applicants should not be denied consideration for alternative appointment on the basis of this circular.”

5.

It is submitted that the applicant who reported to this office for medical examination was directed to Chief Medical Supdt./N.Rly. Hospital, Ambala Cantt for medical examination in category Aye Two. The applicant was examined by Sr. Divl./medical Officer and declared unfit for medical category Aye Two vide Memo No. 280537 dated 11-11-09.

6.

It is submitted that The applicant submitted his appeal for re-medical examination which was forwarded to Chief Medical Supdt/N.Rly. Hospital/Ambala cantt. Thereafter on the appeal of the candidate was again medically examined by sr. Medical Supdt/ N. Rly. Hospital, Ambala Cantt but again declared failed in medical category Aye Two vide memo No. 161534 dated 03.02.10 (Annexed as Annexure-R-3). In view of the medical examination declaring him unfit in Aye Two category.

7.

It is submitted that accordingly, the candidate was informed that his candidature for the post of Goods Guard has been cancelled and his name from the panel of Goods Guard by RRB/Chandigarh vide letter No. RRB/CDG/Confd/EN-01/2008 (Cat-11) dated 31.07.09 has been deleted & the applicant could not be appointed as Goods Guard in Railway Service.

8.

It is submitted that The claim of the applicant for alternative post is not tenable as the policy of consideration for alternative post has been discontinued by Railway Board vide letter dated 25-05-09 i.e. before the selection of the applicant as Goods Guard vide letter dated 31-07-09.

That in reply to paras 2 & 3 of the Original Application it is submitted that the present Original Application is not maintainable under Section 20 & 21 of the A.T. Act, 1985 and the same is highly time barred. It is further submitted that the Applicant has not filed Transfer Petition. Hence the present O.A. may be dismissed on the ground of Jurisdiction accordingly.

That para 4.4 of the Original Application is not admitted as stated by the Applicant hence denied. It is submitted that the applicant was fully aware in terms of RRB/Chandigarh letter RRB/CDG/Confd/EN-01/2008 (cat-11) dated 31-07-09, that his appointment to the post for which he has been selected. Since he was declared unfit in medical category Aye two as such has no claim for appointment to the post of Goods Guard. Instructions of the ministry of Railways (Railway Board) issued on 25-05-2009 which clearly states that the provision of alterative appointment is not to be taken as matter of right by the candidates. The Railway vide letter dated 25-05-2009 has discontinued, the policy of consideration of alternative appointment to medically unfit candidates empanelled by RRB in Group 'c' & 'd' categories. On the appeal of the applicant he was again medically examined by Sr. Medical Supdt/N.Rly. Hospital, Ambala Cantt but again declared failed in medical category Aye Two vide memo no. 161534 dated 03-02-10.”