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Judgment
By Justice Rajiv Joshi, Member (Judicial)
Heard Shri Santosh Kumar Kushwaha, learned counsel for the applicant and Shri Anil Kumar, learned counsel for the respondents.
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, challenging the order dated 20.08.2025 passed by Respondent-3, whereby, consequent upon his medical de-categorisation, he has been offered alternative employment as Helper in Level-1, though immediately prior to his medical de-categorisation he was working as Blacksmith-I in Level-5, Grade Pay of Rs.2800/-.
The brief facts, as borne out from the pleadings, are that the applicant was initially appointed as Track Maintainer-IV on 18.06.2013 after being found medically fit in A-3 medical category. He was thereafter promoted from time to time and ultimately came to be working as Blacksmith-I in Level-5/Grade Pay of Rs.2800/- w.e.f. 11.08.2023.
While working on the aforesaid post, the applicant was subjected to medical examination and was declared medically unfit for the post of Blacksmith-I. He was, however, found fit for alternative employment in the prescribed lower medical category, subject to the condition that the alternative work should not involve strenuous duties such as movement over uneven surfaces, squatting, bending forward, lifting heavy weight, etc.
Consequent upon the aforesaid medical opinion, the respondents considered the applicant for alternative employment and by the impugned order dated 20.08.2025, offered him the post of Helper in Level-1, while extending pay protection. The applicant has challenged the said action primarily on the ground that his absorption in a post carrying a substantially lower level and status is contrary to the statutory protection available to a medically de-categorised employee.
In support of his case, learned counsel for the applicant submits that the applicant was holding Level-5/Grade Pay Rs.2800/- immediately before his medical de-categorisation and, therefore, he cannot be reduced to a post in Level-1 merely by protecting the amount of pay which he was drawing. It is submitted that the relevant provisions of the Indian Railway Establishment Manual (IREM), particularly Paras 1301, 1303, 1304 and 1305, require the administration to provide alternative employment in the same pay scale and service benefits and where immediate absorption is not possible, to continue the employee on a supernumerary post in the grade in which he was working before medical de-categorisation.
It is further submitted that the Railway Board itself, vide communication dated 21.01.2013, has clarified that absorption of a medically de-categorised Railway employee, even with his/her willingness, in a grade pay lower than the one held at the relevant time is not consistent with the spirit of the statutory protection available to such employees and the employee may be continued against a supernumerary post carrying identical Grade Pay till suitable absorption.
Learned counsel for the applicant has also drawn our attention to the vacancy position placed on record as Annexure A-13, wherein, amongst other posts, Senior Clerk in Grade Pay of Rs.2800/-/Level-5 is shown against 9 sanctioned posts, 2 actual incumbents and 7 vacancies. It is contended that despite availability of posts in the same level, the respondents have offered the applicant a Level-1 post without disclosing any proper consideration of such vacancies or the applicant's suitability for any equivalent post.
Learned counsel has placed reliance upon the judgments in Vallamsetla Shankar Rao v. M/o Railways, O.A. No.823/2015, decided on 30.11.2021 by the Hyderabad Bench of this Tribunal; D. Janardhanan v. M/o Railways, O.A. No.1579/2019, decided on 24.03.2023 by the Madras Bench; Nem Singh v. Union of India & Ors., W.P.(C) No.10927/2019, decided on 21.11.2024 by the Delhi High Court and reported as 2024:DHC:9054-DB; and Ch. Joseph v. Telangana State Road Transport Corporation & Anr., 2025 INSC 920, decided on 01.08.2025, order dated 18.08.2026 passed by Principal Bench in OA No.2765/2026 (Ashok Vs. Union of India) as well as the order dated 29.01.2026 passed by Chennai Bench in OA No.222/2023 (N.S. Harmesha Rao vs. Union of India). He further states that the case N.S. Harmesha Rao has also been implemented by the respondents therein.
Per contra, learned counsel for the respondents has opposed the claim of the applicant by filing his Counter Affidavit and in support thereof, it is submitted that the applicant has been offered suitable alternative employment in accordance with the applicable Railway rules and instructions. The applicant has been offered the post of Helper in Level-1 with protection of the pay which he was drawing in the post of Blacksmith-I and, therefore, there is no financial loss to the applicant.
It is further submitted that the respondents have acted in accordance with Master Circular No.25, particularly Paras 5.2, 9.4 and 10.1, as well as Paras 1301 to 1310 of IREM. According to the respondents, where an equivalent post is not available, a medically de-categorised employee may be offered a post carrying lower emoluments, with protection of pay in accordance with the applicable rules.
Learned counsel for the respondents has also submitted that the Railway Board communication dated 21.01.2013 relied upon by the applicant is merely an administrative correspondence and cannot override the provisions contained in the IREM and Master Circular No.25.
We have considered the rival submissions advanced by learned counsel for both the parties and have carefully perused the pleadings on record, including the Original Application, Counter Affidavit and Rejoinder Affidavit, as well as the judgments relied upon by learned counsel for the applicant.
There is no dispute about the fact that the applicant was working as Blacksmith-I in Level-5/Grade Pay Rs.2800/- immediately before he was medically de-categorised. There is also no dispute that he was not found fit for performing the duties of the said post but was found fit for alternative employment, subject to the medical restrictions mentioned in the medical advice.
At this stage, the statutory protection available to an employee who acquires disability during service assumes significance. Section 20(4) of the Rights of Persons with Disabilities Act, 2016 reads as under:
“(4)No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:
Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall 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 attains the age of superannuation, whichever is earlier.”
The aforesaid provision makes it clear that the statutory protection extends not merely to protection of the monetary pay being drawn by the employee at the time of medical de-categorisation, but also to the same pay scale and service benefits. Thus, where the employee is not suitable for the post held by him, the alternative post is required to carry the same pay scale and service benefits, and where such adjustment is not possible, the statute contemplates continuation against a supernumerary post.
The relevant provision contained in Para 1301 of Chapter XIII of the Indian Railway Establishment Manual (IREM), Volume-I, dealing with absorption of disabled/medically de-categorised Railway servants in alternative employment, reads as under:
“1301. A Railway servant who fails in a vision test or otherwise by virtue of disability acquired during service becomes physically incapable of performing the duties of the post which he occupies should not be dispensed with or reduced in rank, but should be shifted to some other post with the same pay scale and service benefits.
The relevant provisions contained in Para 1303 of Chapter XIII of the Indian Railway Establishment Manual (IREM), Volume-I, read as under:
1303. 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.
Para 1304 of IREM, which deals with the nature of alternative employment to be offered to medically de-categorised staff, reads as under:
1304. Disabled Medically decategorised staff to be absorbed in posts they can adequately fill: In the matter of absorption of disabled/medically decategorised staff in alternative posts, Railway administrations should take care to ensure that the alternative employment offered is only in posts which the staff can adequately fill and as far as possible should broadly be in allied categories where their background and experience in earlier posts could be utilized. While finding alternative posts for absorption of disabled/medically decategorised staff, the Railway Administration should ensure that the interests of other staff in service are not adversely affected and no reversion of any officiating Railway servant is made to absorb the disabled/medically decategorised staff. For this purpose, attempts should be made to absorb the disabled/medically decategorised Railway servant not only within the Unit/Division or Department, but in other Unit/Division or Department.”
Para 1305 of IREM, relating to absorption in posts identified for employment of physically handicapped persons and creation of supernumerary posts, reads as under:
“1305. Absorption in posts identified for employment of physically handicapped persons/creation of supernumerary posts: The Railway servants falling in group (i) mentioned in para 1302 above i.e. those who are declared unfit even for the lowest medical category, may be absorbed in a post/category identified as suitable for employment of physically handicapped persons and fresh recruitment to that post/category from open market from amongst physically handicapped withheld. In case the alternative post is not carrying the requisite pay scale, a supernumerary post may be created in appropriate scale of pay and the employee adjusted against the same keeping the lower grade post vacant by withholding fresh recruitment thereto. The supernumerary post so created to accommodate a disabled/medically incapacitated employee shall stand abolished as soon as a suitable post in the appropriate scale is found for the Railway servant concerned or the post is vacated by him for other reasons, whichever is earlier.”
From a conjoint reading of the aforesaid provisions, it is evident that the Railway Administration is required to make immediate efforts to locate suitable alternative employment for a medically de-categorised employee in accordance with his medical fitness, qualifications and experience, while protecting the pay scale and service benefits attached to the post held by him on regular basis immediately before medical de-categorisation. Where immediate absorption in a suitable alternative post is not possible, Para 1303 contemplates continuation of the employee against a special supernumerary post in the grade in which he was working on regular basis, pending location of suitable alternative employment carrying the same pay scale and service benefits.
Similarly, in Vallamsetla Shankar Rao, the Hyderabad Bench of this Tribunal considered a case of a medically de-categorised Railway employee who was offered a lower grade. The Tribunal held that the statutory protection under Section 47 of the 1995 Act required consideration of an alternative post in the same pay scale and executive instructions could not be applied so as to defeat the statutory protection.
The Delhi High Court in Nem Singh v. Union of India & Ors., W.P.(C) No.10927/2019, decided on 21.11.2024 and reported in 2024:DHC:9054-DB, has also dealt with the protection available to a medically de-categorised Railway employee. The Delhi High Court, after considering Para 1303 of IREM, held that consequent upon medical de-categorisation, the Railway servant is entitled to be placed in the grade in which he was working on regular basis before being declared medically unfit and directed placement in a post commensurate to the said scale.
The respondents have placed considerable reliance upon the fact that the applicant's pay has been protected in the alternative post. In our considered view, however, pay protection and preservation of the pay scale are not necessarily synonymous. If a medically de-categorised employee is placed permanently in a substantially lower level, his future promotional avenues, status, career progression and other service consequences may be affected notwithstanding protection of the pay being drawn on the date of absorption. Therefore, the respondents were required to examine the applicant's case in the light of the statutory requirement of the same pay scale and service benefits.
The respondents have also relied upon the provisions of Master Circular No.25 regarding offering a lower grade where an equivalent vacancy is not available. However, an administrative instruction has to be construed consistently with the statutory protection available to an employee who acquires disability during service. It cannot be interpreted in a manner as to permit reduction in rank or absorption in a lower pay scale without firstly satisfying the statutory requirement of consideration of a suitable post in the same pay scale.
The record before us assumes greater significance because the applicant has placed on record Annexure A-13, which indicates that against the sanctioned strength of nine posts of Senior Clerk in Grade Pay Rs.2800/-/Level-5, only two were shown as occupied and seven posts were shown as vacant. The respondents have not, in the pleadings placed before us, satisfactorily explained why these vacancies were not considered while determining the applicant's alternative employment.
We are conscious of the fact that mere existence of a vacancy in a particular post does not, by itself, confer an automatic right upon the medically de-categorised employee to be absorbed against that post. The administration is entitled to examine the nature of duties, medical suitability, requisite qualifications, cadre position, recruitment rules and other relevant conditions. However, once the record itself discloses availability of vacancies in the same level as the post earlier held by the applicant, the administration is required to demonstrate that such vacancies were duly considered and, for legally sustainable reasons, could not be utilised for the applicant's alternative absorption.
In the present case, no such exercise is evident from the impugned order. The impugned order proceeds to offer the applicant a Level-1 post, but does not disclose a reasoned consideration of the availability of the Level-5 vacancies reflected in Annexure A-13, nor does it demonstrate why the applicant could not be accommodated against any suitable post carrying the same pay scale.
The principle underlying the aforesaid statutory and Railway provisions is also reflected in the Railway Board's communication dated 21.01.2013, relied upon by the applicant. The said communication records the Railway Board's view that absorption of a medically de-categorised Railway employee, even with his/her willingness, in a Grade Pay lower than the one held at the relevant time is not consistent with the spirit of the statutory protection and contemplates continuation against a supernumerary post carrying the identical Grade Pay, where necessary. Though the respondents contend that the said communication is merely administrative in nature, the same lends support to the interpretation that mere protection of the existing monetary pay cannot, by itself, justify permanent absorption in a substantially lower grade.
We may also refer to the decision of the Hon'ble Supreme Court in Ch. Joseph v. Telangana State Road Transport Corporation & Anr., 2025 INSC 920, decided on 01.08.2025. The said case arose in a different service framework and its facts and governing conditions were not identical to the present case. Nevertheless, the judgment reiterates the obligation of the employer to make a meaningful effort to identify suitable alternative employment for an employee who becomes medically incapable of performing the duties of his original post. The said decision, therefore, lends persuasive support to the principle that medical unfitness for a particular post cannot, by itself, be treated as incapacity to continue in service.
In the present case also, the medical opinion does not suggest that the applicant is incapable of performing any Railway duty. On the contrary, he has been found fit for alternative employment subject to specified medical restrictions. Therefore, in terms of Para 1304 of IREM, the respondents were required to make efforts to identify a suitable alternative post which the applicant could adequately fill, keeping in view his medical fitness, qualifications, background and experience, and such exercise was not required to be confined only to the same Unit, Division or Department.
We are, therefore, of the view that the impugned order dated 20.08.2025, insofar as it offers the applicant alternative absorption in Level-1, cannot be sustained in its present form. However, on the material presently available, we are not inclined to direct the respondents to straightaway absorb the applicant against the post of Senior Clerk merely on the basis of the vacancy statement contained in Annexure A-13. The existence of a vacancy, by itself, does not establish the applicant's entitlement to that particular post. His medical suitability, requisite qualifications, cadre position and other applicable conditions are required to be examined by the competent authority. At the same time, the respondents cannot bypass consideration of the vacancies in the same pay level merely by offering the applicant a substantially lower post with protection of the monetary pay. Accordingly, the applicant's case requires reconsideration in accordance with the statutory mandate and the applicable Railway provisions.
In case no suitable post carrying the same pay scale and service benefits is available for immediate adjustment of the applicant, the respondents shall extend to him the protection contemplated under Section 20(4) of the Rights of Persons with Disabilities Act, 2016 and the corresponding Railway provisions relating to continuation against a supernumerary post, until a suitable post becomes available or he attains the age of superannuation, whichever is earlier.
In view of the foregoing discussion, the Original Application is allowed. The impugned order dated 20.08.2025, insofar as it offers the applicant alternative absorption in Level-1, is hereby quashed and set aside. The respondents are directed to reconsider the applicant's case for alternative employment against a suitable post carrying the same pay scale and service benefits as were attached to the post of Blacksmith-I, Level-5/Grade Pay Rs.2800/-, held by him immediately prior to his medical de-categorisation.
While undertaking the aforesaid exercise, the respondents shall specifically consider the vacancies reflected in Annexure A-13, including the posts of Senior Clerk in Level-5/Grade Pay Rs.2800/-, subject to the applicant fulfilling the applicable qualifications, medical requirements and other conditions prescribed for such post. The respondents shall also examine the availability of any other suitable post carrying the same pay scale and service benefits, in accordance with the applicable Railway provisions, including the requirement to explore suitable posts beyond the immediate Unit/Division/Department, wherever permissible.
Till the aforesaid exercise is completed, the applicant shall not be compelled to accept the Level-1 post offered under the impugned order dated 20.08.2025. In the event a suitable post carrying the same pay scale and service benefits is not immediately available, the applicant shall be dealt with in accordance with Section 20(4) of the Rights of Persons with Disabilities Act, 2016 and the applicable Railway provisions relating to continuation against a supernumerary post.
The entire exercise, as directed hereinabove, shall be completed by the competent authority by passing a reasoned and speaking order within a period of two months from the date of receipt of a certified copy of this order.
There shall be no order as to costs.
All pending M.As, if any, shall be treated as disposed of.