Union Of India & Others vs Syed Qzair Ahmad & Another
2017 Latest Caselaw 6100 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                       RESERVED ON 23.10.2017
 
                                       DELIVERED ON 1.11.2017     
 

 
Case :- WRIT - A No. - 42362 of 2002
 
Petitioner :- Union Of India & Others
 
Respondent :- Syed Qzair Ahmad & Another
 
Counsel for Petitioner :- Sushil Kumar Srivastava
 
Counsel for Respondent :- Vikash Budhwar,S.C. Budhwar,SC
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Siddharth,J.

(Delivered by Hon. Siddharth,J)

Heard Shri Sushil Kumar Srivastava, learned counsel for the petitioners and Shri Vikas Budhwar, learned counsel for the respondent no.1`.

The above noted writ petition has been filed by the petitioners praying for quashing of the impugned order dated 30.4.2002 passed by the respondent no.2, Central Administrative Tribunal, Allahabad Bench, Allahabad in O.A. no. 888 of 1995.

By the aforesaid order tribunal has directed the petitioners to grant the grade payscale of Rs.1600-2660 to the respondent no.1 for the post of Head Coaching Clerk with effect from the date he was posted on that post instead of the pay- scale of Rs. 1400-2300 granted to him pursuant to medical de-categorison.

The brief facts of the petition are that while respondent no.1 was working as Assistant Yard Master in Railway at Allahabad in the pay-scale of Rs. 1600-2600, he was medically de-categorised on 18.12.1992 due to constant decline in the eyesight standards. The respondent no.1 attributed this decline due to constant and round the clock strenuous work of the petitioners. At the time of de-categorisation respondent no.1 was drawing the pay-scale of Rs. 1600-2660 and was about to get pay-scale of Rs. 2000-3200 in accordance with the Railway Board's letter dated 27.1.1993. However he was accommodated on the post of Head Posting Clerk(Coaching Cadre) in Parcel Wing in the pay-scale of Rs. 1400-2300 in violation of Master Circular of the petitioners which provides that while absorbing de-categorised staff in alternative employment, the interest of staff in service in that cadre shall not be adversely effected as far as possible.

The post on which respondent no.1 was posted was held by Shri Z.U. Ahmad, who was holding pay-scale of Rs. 1600-2660 by virtue of upgrading , but the respondent no.1 was deliberately provided the pay-scale of Rs. 1400-2300 which he never opted . One Shri S.D. Masood, who was junior to the respondent no.1 was also medically de-categorised on 8.12.1993 and his grade pay-scale was protected and he was also promoted and was allowed the pay-scale of Rs. 2000-3200

Against the aforesaid discrimination respondent no.1 preferred original application no. 888 of 1995 before the Central Administrative Tribunal which was allowed by the order dated 30.4.2002 and challenging the same, the above noted writ petition has been filed by the petitioners.

The case of the petitioners' is that medical de- categorisation of an employee only entitles him to be considered for alternative employment in such category under which he is found fit on the basis of available vacancies. The respondent no.1 was accordingly appointed on the post of Head Coaching Clerk in the pay-scale of Rs.. 1400-2300 on the basis of vacancy and his fitness for the post.Since as per provisions of paragraph 573 of the Indian Railway Medical Manual, Shri S.T. Masood was found fit in his own medical category his pay was protected and the respondent no.1 was found fit for another medical category of C-1 and C-2, therefore, there is no discrimination.

Further respondent no.1 has wrongly stated that he was posted in place of Shri Z.U Ahmad. The fact is that Shri Z.U. Ahmad was retired on 30.4.1994 in the payscale of Rs. 1400-2300. Respondent no.1 was posted in place of Shri J.P. Banerjee, who was drawing payscale of Rs. 1400-2300. Shri Z.U. Ahmad was promoted from the payscale of Rs. 1400-2300 to 1600-2660 on 1.3.1993 on account of restructuring of cadre and therefore petitioner was rightly absorbed on the post of Head Coaching Clerk in the payscle of Rs.1400-2300.

Learned counsel for the petitioners has relied upon Chapter XIII of Indian Railway Establishment Manual 1989(1) which provides the procedure of absorption of disabled/medically de-categorised of the staff in alternative employment.

The aforesaid provisions of Indian Railway Establishment Manual do not support the case of the petitioners. Clause 1303 thereof provides that de-categorised staff shall be absorbed in any suitable alternative post immediately and in case it is not possible a special supernumerary post in the grade in which the employee concerned was working should be created till the alternative post is located and such post will stand abolished as soon as alternative employment is located.

Likewise Clause 1308 of Indian Railway Establishment Manual provides that pay of the disabled /medically de-categorised employee will be fixed on absorption in alternative post at a stage corresponding to the pay previously drawn in the post held by them on regular basis before acquiring disability/medically de-categorisation.

Per contra, Shri Vikash Budhwar,learned counsel for the respondent no.1has pointed out paragraph-13 of his counter affidavit mentioning the Clauses of Master Circular issued by the petitioners regarding absorption of medically de-categorized non-gazetted staff of the Railways and has relied upon Clauses 5.8, 6.3 and 6.4 thereof which are as follows:-

"5.8 The Railway Administration should ensure, while absorbing medically, de-categorised staff in alternative employment, that the interest of staff in service in that cadre are not adversely affected as far as possible.

6.3 If permanent Railway servant is absorbed against a temporary post in a permanent cadre, a supernumerary post may be created in lieu of the temporary post and his/her lien counted against the post. Actual creation of a supernumerary post should follow the acceptance of offer of alternative post and it is desirable that if the supernumerary post in lieu of a long term post, the latter should preferably be one which is expected to be converted into a permanent post very soon.

6.4 Where it is not possible to find a suitable alternative permanent post or even a suitable temporary post (convertible as supernumerary post) within the period of leave, permanent Railway servants may be absorbed against any temporary post for which they are considered suitable , within the period of leave as an interim measure. They may be shifted at the earliest opportunity against suitable permanent post or temporary post (convertible into supernumerary post). The period of service rendered against temporary post against which they are absorbed as an interim measure will not count for the purpose of seniority and fixation of pay. The pay on permanent absorption would be fixed with reference to the pay which they drew immediately before medical de-catetorisation."

He has further stated that petitioners never denied before the Tribunal that respondent no.1 was not posted as Head Coaching Clerk on the post held by Shri Z.U. Ahmad who was getting grade payscale of Rs. 1600-2300 and Shri S.T. Masood, who also medically de-categorized, was granted pay protection and was also subsequently promoted to the payscale of Rs. 2000-3200. He has alleged violation of own rules of the railway by the petitioners, discrimination against the petitioner by the railways in violation of Article 14 of the Constitution of India.

We have heard rival submissions advanced at bar and we find that as per provisions of Chapter XIII of Indian Railway Establishment Manual, which is annexed as S.A. 1 to the Supplementary affidavit dated 29.3.2012 filed by the petitioners, it is clear that the pay scale of respondent no.1 was legally protected even after his medical de-categorisation and, therefore, petitioners were not justified in posting him on the post having lower payscale.

The arguments advanced by the counsel for the petitioners that Shri Z.U Ahmad was holding the payscale of Rs. 1600-2660 was due to restructuring of cadre and that Shri S.T. Masood was belonging to different category of traffic inspector and, therefore, petitioner could not claim any benefit of granting of higher payscale to him was not raised before the Tribunal and clear finding has been recorded in this regard by the Tribunal. Therefore, the argument being factual in nature cannot be examined by this court under Article 226 of the Constitution of India. Even otherwise the question of discrimination is not of much significance when the provisions of Railway Establishment Manual are clear regarding the entitlement of pay scale payable to the petitioner without any prejudice to him.

The Apex Court while considering a case as per similar provisions in The Persons With Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995, vide (2003)4 SCC524, Kunal Singh Vs. Union of India and another, held that

"It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service."

As stated above the provisions of Indian Railway Establishment Manual as well as of The Persons With Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 are supporting the case of the respondent no.1 and therefore, the order of the Central Administrative Tribunal is correct and calls for no interference.

It has been brought on record that respondent no.1 has retired from service on 31.3.2012 and therefore,the petitioners are directed to pay the monterey benefits due to the respondent no.1 as per order dated 30.4.2012 passed by the Central Administrative Tribunal within a period of one month of filing of the certified copy of this order. Also 7 percent simple interest from the date of the order dated 30.4.2012 of the Tribunal shall be paid to the respondent no.1 and his pay and post retirement dues shall be recalculated and paid to him treating his accommodation on alternative post in the payscale of Rs.1600-2660 by the petitioners.

The interest of 7% awarded in favour respondent no.1 is in the nature of compensation as the respondent no.1 had right to use the said amount but on account of fault of the petitioners he was deprived of the same.

In Abati Bezbaruuah V. Depury Director General, Geological Survey of India, (2003) 3 SCC:AIR 2003 SC 1817:2003 AIR SCW 1266, the apex court held that interest is a compensation for forbearance from detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him.

In Secretary, Irrigation Department, Government of Orrisa V. G.C. Roy, AIR 1992 SC 732: 1992 AIR SCW 389: (1992) 1 SCC 508, the Constitution Bench of the apex court observed that a person deprived of use of money to which he is legitimately entitled as of right, to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages.

Since the respondent no.1 was dragged into litigation for no fault on his part and has suffered harassment on account of monitory deprivation on account of fault on the part of the petitioners, therefore, the petitioners are liable to be saddled with heavy cost. However, following dictum of the Apex Court in the case of "Rameshwari Devi Vs. Nirmala Devi, 2011 8 SCC 249", which provided that only realistic cost of litigation should be awarded, a conservative cost of Rs.50,000/- is awarded in favour of the respondent no.1. The same shall be paid to him by the petitioner concerned within the same period of one month alongwith his other dues.

In view of the above, the writ petition is dismissed but with costs as stated above.

Order Date :- 1.11.2017

Atul kr. sri.