S. Raghuraman, Clerk vs Union of India (UOI) and The Registrar, Central Administrative Tribunal

Elipe Dharma Rao, J.—Aggrieved by the order dated 22.11.2001 passed by the Central Administrative Tribunal (in short ''the Tribunal''), dismissing the Original Application, the original applicant has filed the present Writ Petition. The writ petitioner, who was working as Station Master in the Chennai Division of Southern Railways in the pay scale of Rs. 5000-8000, was found to be medically unfit on 3.2.1997 and, therefore, he was offered an alternative employment as Head Train Clerk in the same pay scale of Rs. 5000-8000. The writ petitioner, however, did not accept the offer. Thereafter, he was offered the employment of Clerk Grade in the Integral Coach Factory (in short ICF) with a condition that he will be placed at last in the seniority list of Clerk Grade.

Claiming that he should be given the pay protection as well as seniority protection, the writ petitioner filed an Original Application (O.A. No. 534 of 1998) before the Tribunal. The said Original Application was disposed of on 18.4.2000 with a direction to the respondents therein to consider the claim of the writ petitioner and pass suitable orders. The respondents considered the claim of the writ petitioner, but rejected the same by order dated 7.6.2000.

Challenging the order dated 7.6.2000, the writ petitioner filed the Original Application (O.A. No. 1441 of 2000) seeking the relief of direction to the respondents to place him in the grade of Rs. 5000-8000 in the Clerk Grade with effect from 19.9.1997; to fix his seniority with effect from 8.11.1991 when he has been promoted as SM-II in the pay scale of Rs. 1400-2300 (now Rs. 5000-8000 with effect from 1.1.1996). The Tribunal dismissed the Original Application by observing that since the applicant had joined the post in the ICF on his own volition and knowing fully well the consequences after satisfying with the conditions set forth therein, under such circumstances it was not open to the applicant to claim protection of his pay and seniority. Aggrieved by the order passed by the Tribunal, the original applicant has filed the present Writ Petition.

Learned Counsel for the petitioner submitted that the Tribunal has erred in not considering the plea of the writ petitioner that he is entitled to the benefits of grade protection and consequential benefits including seniority in terms of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Paragraph 1304 read with Paragraph 1314(a) and (c) of the Indian Railways Manual provides for an alternative employment in the equivalent grade even after accepting an offer made in the lower grade either permanently or temporarily even by creating a supernumerary post Paragraph 1310 of the Indian Railways Manual enables the petitioner to decline an offer duly reserving his right seek alternative employment in equivalent grade. When paragraph 1306(6) of the Indian Railways Manual provides for making an option for alternative employment in a specific category, the finding of the Tribunal that the petitioner had joined the post in the ICF on his own volition and therefore it was not open to him to claim protection of his pay and seniority is unsustainable. Further, the Tribunal went wrong in holding that the petitioner was accommodated in the ICF by way of inter-railway transfer since there was no post other than Head Train Clerk was available is untenable since even after declining to accept the offer as Head Train Clerk, the petitioner was still holding the right for alternative employment in equivalent grade, for such an alternative employment there is no need for existence of a vacancy since the offer may be against a permanent or temporary even by creating supernumerary and a transfer at request could be made only when the petitioner was holding a post in the office clerk category at the time of making such request.

On the other hand, learned Counsel for the respondents submitted that the Writ Petition is liable to be dismissed for non-joinder of Southern Railway as a party-respondent to this Writ Petition because ICF is in no way concerned with this case. Learned Counsel further submitted that Section 47 of the Persons with Disability Act is not applicable to the petitioner since he had already been offered the alternative employment in the same grade consequent to his medical decategorisation, but the petitioner did not accept the same and insisted for his posting in the clerical grade, which could not be done in view of the ban in filling up the clerical vacancies. His case was forwarded to ICF for consideration against the vacancies, if any, and as there were some vacancies in Clerk Grade II in the scale of pay of Rs. 950-1500 at the relevant time, the petitioner''s request was considered for posting him as Clerk Grade II in ICF as an inter-Railway transfer subject to the conditions that he will ranked as junior-most to all permanent and temporary Clerks Grade-II in scale of Rs. 950-1500 as on the date of his joining ICF; at any point of time, he should not represent seeking fixation of seniority or absorption in any other higher grade other than Clerk Grade II in scale of Rs. 950-1500; and his request if any for re-transfer to Southern Railways at a later date will not be considered under any circumstances. Accepting all these conditions, the petitioner has joined ICF as Clerk Grade-II. After joining ICF in the cadre of Clerk Grade-II, the petitioner made representation dated 29.11.1997 requesting for accommodating him in the cadre of Head Clerk in the pay scale of Rs. 5000-8000. The said representation was forwarded to Southern Railway for disposal as he was medically decategorised only in Southern Railway. The Southern Railway has replied that the petitioner was originally offered alternative appointment as Head Train Clerk in the equivalent grade of Head Clerk in the scale of Rs. 1400-2300 (now Rs. 5000-8000) in Southern Railway cannot be agreed to and the same was informed to the petitioner by the ICF by letter dated 16.4.1998. The petitioner thereafter filed O.A. No. 534 of 1998 before the Tribunal praying for a direction to post him in the grade of Rs. 5000-8000 in the clerical category with effect from the original date of absorption on medical decategorisation and to pay all the consequential benefits. The Tribunal by order dated 18.4.2000 disposed of the Application with a direction to the respondents to consider his claim and pass suitable orders in the light of paragraph 1304 of Indian Railway Establishment Manual within a period of three months. The representation was considered, but the claim was rejected. The Contempt Petition filed by the Petition was also dismissed by the Tribunal, reserving liberty to the petitioner to file a separate Application, if he was so advised.

Learned Counsel further submitted that the transfer of the petitioner from Southern Railway to ICF was an inter-railway transfer (one way) subject to certain conditions regarding his seniority and pay. Accepting these specific conditions, the petitioner had joined ICF as Clerk Grade-II and his request for posting him as Head Clerk in ICF, which is equivalent to Station Master Grade II prior to his medical invalidation, cannot be agreed to. The Southern Railways had already offered the post of Head Train Clerk in the same pay scale of Rs. 1400-2300 (5000-8000) which he was holding before being medically invalidated. The petitioner did not accept the same and made a representation to post him as Head Clerk/Senior Clerk/Clerk. His application was then forwarded to ICF and ICF agreed to take him in the clerical grade-II with the scale of pay of Rs. 950-1500. The petitioner accepted the above post with the conditions imposed by the ICF Administration. Therefore, it is not open to the petitioner at this stage to make a representation for absorption in the post of Head Clerk in ICF, which is equivalent to the post of Station Master Grade II.

Considering the above facts and circumstances of the case, the objection for not posting the petitioner in the grade of Head Clerk in the ICF is that when the petitioner was medically invalidated to hold the post of Station Master in the Southern Railway, he was offered alternative equivalent employment in the grade of Head Train Clerk, but when he refused to accept the said post, on his request, he was given employment in the clerical grade in the ICF. The petitioner accepted the employment and jointed and thereafter after a period of six months, the petitioner made a representation to appoint him as Head Train Clerk with the scale of pay of Rs. 5000-8000. The request made by the petitioner was not accepted by the respondents. The reasons given by the respondents is that the petitioner was accommodated in the ICF on the basis of inter-railway transfer and the petitioner had also accepted the terms and conditions set forth therein when he was accommodated in the ICF. The petitioner having accepted the conditions when he was accommodated in the ICF on inter-railway transfer, his claim for pay and seniority protection cannot be sustained.

Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 reads as follows:

Non-discrimination in Government employment.--

(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or, he attained the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this Section.

Chapter XIII of the Indian Railway Establishment Manual (IREM) deals with the absorption of medically incapacitated staff in alternative employment. Clause 1301 provides that a railway servant who fails in a vision test or otherwise becomes physically incapable of performing the duties of the post which he occupies should not be discharged forthwith but every endeavor should be made to find alternative employment for him as expeditiously as possible. Such employment must be of suitable nature and on reasonable emoluments having regard to the emoluments previously drawn by the railway servant. Clause 1303 deals with railway servant totally incapacitated for further service. It provides that a railway servant in group (I) above cannot be retained in service and is not, therefore, eligible for alternative employment. If he is on duty, he shall be invalidated from service from the date of relief of his duty, which should be arranged without delay on receipt of the report of medical authority. If, however, he is granted leave, he shall be invalidated from service on the expiry of that leave or extension of leave. The leave or extension of leave that may be granted to him after the report of the medical authority has been received, will be so limited that the amount of leave, as debited against the leave account, together with any period of duty beyond the date of the medical authority''s report does not exceed six months. Note 2 to Clause 1304 says that in the matter of absorption of a medically incapacitated staff in alternative post, Railway administrations, should take care to ensure that the interests of staff in service are not adversely affected as far as possible. The alternative appointment should be offered only in posts which the staff can adequately fill.

The above said clauses in Chapter XIII of IREM are in consonance with Section 47 of the above said Act. Therefore the provisions of Section 47 of the Act as well as the above said clauses of IREM deal with the protection of employment of medically incapacitated staff by absorbing them in alternative suitable employment with the protection of pay and other service benefits. Therefore, the stand taken by the Railway Administration that the petitioner is not entitled for the relief''s sought for by him is incorrect and against the spirit of Section 47 of the Act and the above said clauses of IREM. Therefore, we are not able to accept the contention raised by the respondents.

In the result, the impugned order passed by the Tribunal is set aside and the Writ Petition is allowed. The respondents are directed to fit the petitioner in the grade of Rs. 5000-8000 in the clerical cadre with effect from 19.9.1997 and to reckon the petitioner''s relative seniority with effect from 8.11.1991 when the petitioner has been promoted as Station Master Grade II in the scale of pay of Rs. 1400-2300 (Rs. 5000-8000 with effect from 1.1.1996) and to pay all other attendant benefits, including seniority. No costs.

K. Suguna, J.

The above Writ Petition has been filed challenging the order dated 22.11.2001 passed in O.A. No. 1441/2000 by the Central Administrative Tribunal.

The petitioner, while working as a Station Master Gr. III in the Chennai Division of Southern Railways in the pay scale of Rs. 1400-2300, was medically decategorised and was declared unfit for safety categories under medical classification A-1, but found fit for A-2 classification and below according to visual standards. As per paragraph 1304 of Indian Railway Establishment Manual (in short "IREM"), the petitioner was offered alternative appointment in equal cadre such as Head Train Clerk, which was an identical grade to that of the post which the petitioner was holding before his medical decategorisation by letter dated 4.7.1997. But, by letter dated 17.7.1997, the petitioner requested to give posting as a Head Clerk/Senior Clerk/Clerk in Southern Railway/or in Integral Coach Factory (in short "ICF"). As there were no vacancies to consider his request and there was a ban on filling up clerical vacancies by the Southern Railway Administration, his case was forwarded to ICF for consideration against the vacancies, if any. Since, at the relevant point of time, some vacancies were available in Clerk Grade II in the scale of Rs. 950-1500, the petitioner''s request was considered for posting him as a Clerk in ICF, as an inter-railway transfer subject to the following conditions:

(i) He should rank junior-most to all permanent and temporary Clerk Grade II in scale Rs. 950-1500 as on the date of his joining the new seniority unit viz. Personnel Department in ICF.

(ii) At any point of time, he should not represent seeking fixation of seniority or absorption in any other higher grade other than Clerk Grade II in scale Rs. 950-1500, and

(iii) His request if any for re-transfer to Southern Railway at a later date will not be considered under any circumstances.

Accepting these conditions, the petitioner had joined as Clerk Grade II in ICF vide office order No. PB/S1-C/2157 dated 27.9.1997. In the said order, it has been clearly stated that the petitioner, who was working as a Station Master in the scale of pay of Rs. 1400-2300 has been transferred from Southern Railway to ICF on one way Inter-Railway Transfer. After joining in ICF, the petitioner filed a representation dated 29.11.1997 with a request to accommodate him in the equivalent cadre of Head Clerk in the scale of Rs. 5000-8000 (new scale). The said representation was forwarded to Chennai Division of the Southern Railway for disposal as he was medically decategorised only in the Southern Railway. The Southern Railway has replied that the petitioner was originally offered alternative appointment as Head Train Clerk in the equivalent scale. But, the petitioner had declined to accept the same and as per his request, his case was forwarded to the ICF and at his own request for posting as a Clerk Grade II, he was posted as Clerk Grade II, which he had accepted. Therefore, the request for absorption in the equivalent cadre of Head Clerk in the scale of Rs. 1400-2300 (Rs. 5000-8000) in Southern Railway cannot be granted and this has been communicated to the petitioner by letter dated 16.4.1998. Challenging the same, the petitioner had filed O.A. No. 534/1998 before the fourth respondent. But, by order dated 18.4.2000, the same was disposed of to consider the above said claim of the petitioner and pass suitable orders in the light of paragraph 1304 of IREM within a period of three months from the date of service of the order. Accordingly, the representation of the petitioner was considered by the ICF Administration and by order of the second respondent dated 7.6.2000, the petitioner''s request was rejected and challenging the said order, the petitioner had filed O.A. No. 1441/2000 praying for a direction to the respondents to fit him the grade of Rs. 5000-8000 in the clerical cadre with effect from 19.9.1997 and to reckon his relevant seniority with effect from 8.11.1991 i.e., the date on which he was promoted as Station Master in scale of Rs. 1400-2300 (Rs. 5000-8000) and to pay the attendant benefits. But the same has been rejected by order dated 22.11.2001. As against that, the present Writ Petition has been filed.

According to the learned Counsel for the petitioner, the petitioner is entitled for grade protection, pay protection and consequential benefits including seniority as per Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short "the Act"). That apart, according to the learned Counsel for the petitioner, the petitioner''s claim has been rejected erroneously by the Tribunal on the ground that having accepted the offer by the respondent Department for appointment in the grade of Rs. 950-1500, cannot aspire for grade protection. That apart, according to the learned Counsel, the Tribunal has failed to take cognizance of the statutory provisions in paragraph 1304 read with paragraph 1314(a) and (c), which provide for an alternative employment in the equivalent cadre even after accepting the offer made in the lower grade either permanently or temporarily. Besides, the finding of the Tribunal, since the petitioner had rejected the offer of alternative employment as a Head Train Clerk in the identical scale of pay and made a request to offer a post in the ICF, the respondent Department cannot be said to have failed to consider in a proper perspective the statutory provisions in paragraph 1310 of IREM cannot be accepted. That apart, according to the learned Counsel, while offering an alternative employment, the provisions of Section 47 of the Act have to be complied with and in the case of the petitioner, the respondent-Department, totally ignoring the same, has appointed the petitioner as a Clerk Grade II, contrary to the provisions of the above said Act.

On the other hand, learned Counsel for respondents 1 to 3 has contended that immediately on medical decategorisation, the petitioner was offered alternative job in accordance with the relevant provisions and in an identical cadre with pay protection by order dated 4.7.1997. Since the petitioner had refused to accept the same, by letter dated 17.7.1997 and requested to give a posting as a Head Clerk/Senior clerk/Clerk in Southern Railway or in ICF as an alternative appointment, after bringing to his notice that the pay of the post of Clerk Grade II is only Rs. 950-1500 and with the condition that he should not make any representation seeking fixation of seniority or absorption in any other higher cadre, this offer was made. Accepting the offer, the petitioner had joined duty. As such, according to the learned Counsel for respondents 1 to 3, the petitioner is estopped from making a request seeking pay protection and absorption in the higher grade (equal grade). That apart, as far as ICF is concerned, it is a different entity and Southern Railway is a different entity. As an employee of the Southern Railway, the petitioner can seek an alternative employment with pay protection in terms of Section 47 of the Act only in the Southern Railway and not in the ICF. That apart, when the petitioner had refused to accept the offer made by the Southern Railway, by letter dated 17.7.1997, his right to seek protection u/s 47 of the Act elapses. According to the learned Counsel, it is not the case, as if the petitioner was not given any alternative employment in terms of Section 47 of the Act. Besides, having accepted the offer in ICF and joined the service accepting the terms and conditions imposed therein, the petitioner is estopped from making the representation dated 29.11.1997 seeking pay protection and other benefits. According to the learned Counsel, the order of the Tribunal has to be sustained.

I have considered the above submissions of the learned Counsel for the petitioner as well as respondents.

Admittedly, the petitioner was medically decategorised while he was working as a Station Master in the scale of pay of Rs. 1400-2300 (revised as Rs. 5000-8000). He was found unfit for safety categories under medical classification A-1, but found fit for A-2 classification and below according to visual standards. Subsequent to this, it is not in dispute that by letter dated 4.7.1997, the Southern Railway has offered him alternative employment as Head Train Clerk, which is an identical cadre, compared to the one which he was holding before his medical decategorisation. But, the same was not accepted by the petitioner. On the other hand, the petitioner had submitted a representations dated 17.7.1997 and 4.8.1997 with a request to post him as Head Clerk/Senior Clerk/Clerk in the Southern Railway or in ICF. Basing on this, since there were no vacancies in the clerical cadre in the Southern Railway, his case was referred to ICF. Consequence of this, by letter dated 13.8.1997, the Chief Personnel Officer of the ICF has informed that vacancies are available in the clerical cadre in the scale of Rs. 950-1500 and this fact has been brought to the notice of the petitioner also and by proceedings dated 19.9.1997, the petitioner was directed to report for absorption in the post of Office Clerk in the scale of pay of Rs. 950-1500. Based on this, the petitioner was also relieved from the Southern Railway and he was directed to report before the ICF and in the office order dated 27.9.1997, it has been made very clear that the transfer and absorption of the petitioner is subject to the conditions mentioned therein. One of the conditions is that the petitioner should not represent seeking fixation of seniority or absorption in the higher cadre other than Clerk Grade II in the scale of pay of Rs. 950-1500. That apart, it has been made very clear to him that he will rank as the junior-most to all the permanent and temporary Clerk Grade II in the scale of Rs. 950-1500 as on the date of joining. Subsequently, the petitioner has submitted a representation dated 29.11.1997 for absorption in the higher cadre with pay protection and seniority.

As a medically invalidated person, the petitioner is entitled for protection u/s 47 of the Act and there is no dispute with regard to that. There is also no dispute that the petitioner was given that offer by letter of the Southern Railway dated 4.7.1997. But, the same was not accepted by the petitioner and at his request, and imposing certain conditions, he was offered employment in the ICF. Having accepted those conditions and joined the post, ignoring the acceptance given by him, the petitioner cannot seek either pay protection or seniority or grade protection. As far as protection u/s 47 of the Act and similar provisions in IREM are concerned, the same had come to an end when the petitioner had declined to accept the offer given by the Southern Railway. As far as the protection u/s 47 is concerned, it is a concession given to the employees based on their disability. But, that does not mean that gives a privilege to the concerned employee to seek employment at his choice and wherever he wants. As rightly contended by the learned Counsel for the respondents, the Southern Railway wherein the petitioner was working at the time of his medical decategorisation is a separate entity and ICF is a separate entity. If at all, the petitioner can get protection only in the Southern Railway and it is not in dispute that an order to alternative employment with pay protection was offered to the petitioner by the Southern Railway. On his refusal to accept the same, the petitioner lost his right to claim any protection either u/s 47 of the said Act or under similar provisions in IREM. The protection given u/s 47 of the Act, certainly, does not confer a right on the disabled employee to claim any post according to his own whims and fancies. If the contention of the learned Counsel for the petitioner has to be accepted, the concession given u/s 47 will amount to a privilege without any limitation and that it can be demanded at any time. In fact, by getting medical decategorisation, instead of getting an alternative employment, one will be able to get what he could not get otherwise as per the Rules. That apart, it is not the case of the petitioner that in spite of his refusal, he was compelled to accept the post in ICF. On the other hand, on his choice, the same was given to him and as referred to above, the benefits given either u/s 47 of the Act or under the provisions in IREM come to an end on his refusal to accept the offer made by order dated 4.7.1997 and the concession/protection u/s 47 is certainly not carried over to ICF where the petitioner was appointed basing on his choice. If it is held otherwise, sympathetic consideration will become a matter of right, which is not permissible u/s 47 of the Act. That apart, no provisions have been brought to the notice of this Court that even after accepting the offer in the lower cadre, the petitioner can seek absorption in the higher cadre, that too, in a different entity. Hence, I find no merit in the Writ Petition and the same is dismissed. The order of the Tribunal dated 22.11.2001 is confirmed. No costs. In view of the difference of opinion expressed by the Bench with regard to the applicability of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 read with Clause 1302 of the Indian Railway Establishment Manual to the issue involved in this Writ Petition, Registry is directed to place this matter before the Hon''ble The Chief Justice for referring the matter to a third Judge.

[In view of the difference in the decision between Dharmarao Elipe, J. and K. Suguna, J. with regard to the right of the petitioner to protection of his service conditions in terms of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, this matter was placed before Prabha Sridevan, J. Justice Prabha Sridevan pursuing with the Elipe Dharma Rao, J. and allowed the Writ Appeal and the decision of the Justice Prabha Sridevan is reported in S. Raghuraman, Clerk Vs. Union of India (UOI) .