Thirumalai Ravanan, v. Union Of India,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2015
CORAM:
THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR W.P.No.1201 of 2015 & M.P.No.1 of 2015 Thirumalai Ravanan ... Petitioner Vs.
1. Union of India Rep. By Secretary Railway Board Rail Bhavan, New Delhi
2. General Manager
3. Chief Personnel Officer
4. Assistant Personnel Officer Chennai - 38 ... Respondents Writ petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus to call for the records in O.A.No.621 of 2012 on the file of the Central Administrative Tribunal, Madras Bench, Chennai and quash the order dated 24.09.2014 passed thereon and thereby to call for the records of the respondents 2 to 4 herein pertaining to selection for the post of Assistant Electrical Engineer (Gr.B) through LDCE Selection and quash the order of invalidation of the candidature of the petitioner which was intimated to him vide order No.PB/GS/5/2/LDCE/2011 dated 05.06.2012 and direct the respondents to promote the petitioner as Assistant Electrical Engineer (Gr.B). For Petitioner : Mr.G.Saravanan For Respondents : Ms.V.Bhavani Subharayan
ORDER
(Judgment was delivered by V.RAMASUBRAMANIAN,J) Aggrieved by the dismissal of his application by the Central Administrative Tribunal, Madras Bench, upholding the rejection of his candidature for promotion to the post of Assistant Electrical Engineer, the petitioner is before us.
2. Heard Mr.G.Saravanan, learned counsel for the petitioner and Mrs.V.Bhavani Subharayan, learned standing counsel for the respondents.
3. The petitioner is a physically challenged person orthopaedically, having been afflicted by polio. He was originally appointed as "Skilled Grade-III/Trainee" in the Integral Coach Factory way back in 07.03.1996. It was under the quota reserved for physically challenged persons. Subsequently, he passed the necessary examinations and given promotions to further higher posts such as i)Skilled Grade III/Electrical Fitter with effect from 07.03.1996 ii)Junior Engineer Grade II/Electrical with effect from 16.10.1997, after being selected for Apprentice Mechanic trainee and after undergoing a training for 18 months iii)Junior Engineer Grade-I with effect from 01.10.2002 iv)Section Engineer with effect from 28.02.2008 in non-gazetted service (Group -C).
In other words, the petitioner had secured further higher promotions to four tiers of posts after passing necessary tests and had also undergone sufficient training. Therefore, when the respondent issued a notification on 25.07.2011 for empaneling eligible candidates for promotion to the post of Assistant Electrical Engineer (Gazetted 'A' post in Group B), the petitioner applied. The selection to the said post was through a limited Departmental Competitive Examination. The petitioner wrote the written examination and also participated in the viva-voce. It is stated that the petitioner stood at Rank 1 in both the written examination and the viva-voce.
4. However, without appointing him to the post of Assistant Electrical Engineer, the respondent issued an order dated 05.06.2012 holding that the petitioner was issued with medical fitness in Gazetted-A (Technical) erroneously and that therefore, the candidature of the petitioner in the viva-voce held on 08.05.2012 was invalidated in terms of the instructions issued by the Railway Board on 31.10.1991.
5. Challenging the said order, the petitioner filed an application in O.A.No.621 of 2012 on the file of the Central
Administrative Tribunal, Madras Bench. The said application was dismissed by the Tribunal by an order dated 24.09.2014, forcing the petitioner to come up with the above writ petition.
6. The facts are not in dispute. The respondents have disqualified the petitioner medically, on the ground that his original appointment was under the quota for the physically challenged persons and that the medical fitness in Gazetted 'A' Technical Post was issued erroneously.
7. But, it appears from the very medical certificate relied upon by the respondents and filed as Annexure R6 before the Tribunal that the said certificate was originally dated 24.04.2012. The call letter issued to the petitioner for viva-voce was dated 07.05.2012. But the order impugned in the original application dated 05.06.2012, does not take note of the medical certificate dated 24.04.2012. Strangely, at the bottom of the said certificate which bears the date 24.04.2012, affixed by way of a rubber stamp, there is a correction with a signature at the bottom made on 08.06.2012 subsequent to the order impugned in the original application. It is in that certificate, the Chief Staff Surgeon Administration is stated to have declared the petitioner unfit for Gazetted 'A' category.
8. Admittedly, Gazetted 'A' comprises of two categories, namely Group-A and Group-B posts. The present selection by way of promotion was to Group-B post in Gazetted 'A'. The post of Electrical Engineer falls under Group-A in Gazetted 'A' for which direct recruitment is the only method of recruitment. It is admitted by the learned standing counsel for the respondent that there is a quota for direct recruitment to the post falling in Group-A in Gazetted 'A' for those who are physically challenged. The post with which we are now concerned is in Group-B in Gazetted 'A'. The respondents relied upon one clause contained in the notification dated 25.07.2011 which reads as follows: "Those who qualify in the written test would be eligible to be called for the VIVA-VOCE, subject to their medical fitness under Para 530 (b) and 532 (2) of Indian Railway Medical Manual - 2000 edition."
9. The above clause actually does not go to the rescue of the respondents. The above said clause merely states that persons who qualified in the written test shall be eligible for viva-voce subject to their medical fitness under Paragraph 530 (b) and 532(2) of the Indian Railway Medical Manual-2000 edition. The medical fitness itself appears to have been conducted on 24.04.2012 only after which the petitioner was invited for viva-voce by the proceedings dated 07.05.2012. But the letter dated 07.05.2012 was sought to be cancelled by the proceedings dated 05.06.2012 and it is only thereafter that the original medical certificate was sought
to be recalled. Even that certificate does not speak about the unfitness of the petitioner to Group-B in Gazetted 'A' category. The words "Group-B" written by hand, has actually been struck of. Therefore, we do not know how on the basis of the said certificate, the impugned order could have been issued.
10. As seen from the admitted facts, even as per paragraph 1 of the counter affidavit filed by the respondents, the petitioner was originally appointed as a Skilled Artizan in 1995. Thereafter, he has got promotions to four higher posts, after coming out successful in some examinations and after undergoing training at every stage. It is needless to point out that Group-C posts are actually field level posts or executive posts as they are called. It is needless to point out further that the post of Assistant Electrical Engineer is an Administrative and Supervisory post. To say that a polio afflicted person is eligible for appointment to four layers of field level posts, but not fit for an administrative and supervisory post, actually goes against the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Therefore, we are unable to uphold the order of the respondent, as well as the order of the Tribunal.
11. Ms.V.Bhavani Subharayan, learned standing counsel for the respondents placed heavy reliance upon the decision of the Supreme Court in Union of India Vs. Devendra Kumar Pant and Others reported in (2009) 14 Supreme Court Cases 546. But, unfortunately for the respondents, the said case arose out of the claim of a visually challenged person for promotion to the post of Chief Research Assistant in the Research Designs and Standards Organization of the Ministry of Railways. The Supreme Court found in that case that standards had been prescribed medically for promotion to the post of Chief Research Assistant. The claimant in the case before the Supreme Court did not satisfy the medical standards specifically prescribed for the said post. Therefore, the Supreme Court held that Section 47(2) of the Persons With Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 would not go to the rescue of the claimant therein.
12. In the case on hand, the respondents have not brought either to the knowledge of the Central Administrative Tribunal or to the knowledge of this Court, any specific medical standard prescribed for the post in question. The certificate itself shows that it was a general evaluation. Therefore, the decision of the Supreme Court may not be of any assistance to the respondents.
13. As we have pointed out earlier, the disability from which the petitioner is suffering, was not considered as a bar for four layers of executive / field level posts upto the level of Section Engineer. Therefore, to say that the disability is a bar for
promotion to the Administrative post cannot be accepted. As a matter of fact, the petitioner has raised a specific contention in Ground No.t in Paragraph 6 of his affidavit that there are several posts of Assistant Electrical Engineers in Group B of Gazetted 'A'. They are a) AEE (Designs), b) AEE (Planning), c) AEE/MPO (Material Planning Office), d) AEE/Liaison and e) AMM (stores). He has also pleaded that there are super numerary posts which are administrative in nature.
14. While responding to Ground No.t in Paragraph 6 of the affidavit in support of the writ petition, in paragraph 21 of the counter affidavit, the respondents do not deny the fact that there are several administrative posts in the very same category. It is not their case with specific reference to the duties and functions to be discharged by the petitioner in the promoted post that his disability is a bar. In such circumstances, the rejection of the candidature of the petitioner cannot be taken to be fair and proper.
15. As matter of fact there is a quota for in-service candidates upto the extent of 30% to be filled up from among departmental candidates. There cannot be a bar for the petitioner to participate in the direct recruitment since a quota is reserved for physically challenged for their recruitment.
16. In view of the above, the writ petition is allowed, the order of the Tribunal is set aside and the original application filed by the petitioner before the Tribunal shall stand allowed. No costs. Consequently, the connected miscellaneous petition is closed.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar gpa To
1. The Secretary Railway Board Union of India Rail Bhavan, New Delhi
2. General Manager
3. Chief Personnel Officer
4. Assistant Personnel Officer Chennai - 38 +1cc to M/s.V.Bhavani Subharayan, Advocate, S.R.No.16279 W.P.No.1201 of 2015 & M.P.No.1 of 2015 NM(CO) CA(16/04/2015)