Calcutta High Court (Appellete Side)
Union Of India & Others vs Pranab Kumar on 11 October, 2023
11.10.2023
rpan/A2
WPCT 150 of 2023
Union of India & Others
- Versus -
Pranab Kumar
Mr. Pulakesh Bajpayee,
Mr. Pradip Kumar Kundu
... for the Petitioners.
Mr. Ashok Chakraborty,
Mr. Ujjal Ray,
Mr. Arpa Chakraborty,
... for the Respondents.
The present writ petition has been preferred
challenging an order dated 22 nd November, 2022
passed in an original application, being O.A./ 350/
01757/ 2022.
Shorn of unnecessary details, the facts are that
while the applicant/respondent herein was working as
Constable in the Railway Protection Force in the Grade
Pay of Rs.2,000/-, he was sent for a medical
examination whereupon it was diagnosed that he was
suffering from 'low back pain with radiating pain in
both lower limbs' and it was opined that his medical
condition is not fit for his present job as Constable.
Accordingly, by an office order dated 31st August, 2022
he was recommended for appointment to a lower grade
post of Hammerman - II in Grade Pay of Rs.1,900/-
with all medical precautions as advised by the Medical
Board and with all pay protection as per admissible
rules since suitable alternative post in Grade Pay of
Rs.2000/- was not available. Aggrieved thereby, the
respondent submitted a representation on 9 th August,
2022 stating inter alia that he was not willing to join
the said post of Hammerman - II and he should be
given all the rightful entitlements in terms of Para
1303 of the Indian Railway Establishment Manual
Volume - I (in short, IREM). Such prayer was,
however, regretted by a memo dated 30 th September,
2022. Challenging the memoranda dated 31 st August,
2022 and 30th September, 2022, the respondent
approached the learned Tribunal.
Mr. Bajpayee, learned advocate appearing for the
petitioners submits that the learned Tribunal did not
adjudicate the dispute in its proper perspective. The
respondent was offered the post of Hammerman - II in
the Grade Pay of Rs.1,900/- with all pay protection as
per admissible rules in view of his disability but he
refused to join. Upon such refusal, he cannot turn
back and insist that his case needs re-examination so
that he can be absorbed in a suitable vacancy
equivalent to the scale of pay enjoyed by him prior his
medical unfitness. Such issue was glossed over by the
learned Tribunal and no finding was returned on the
said issue. Such infirmity in the order warrants
interference in the present writ petition.
Per contra, Mr. Ray, learned advocate appearing
for the respondent submits that clause 1303 of the
IREM confers a right upon the respondent to be
adjusted against or absorbed in a suitable alternative
post and in the event he cannot be immediately
adjusted he may be kept in a special supernumerary
post in the grade in which he was working on regular
basis before being declared medically unfit. In view
thereof, the respondent cannot be compelled to join a
lower grade post, as offered by the petitioners. Placing
reliance upon an unreported judgment of this Court in
the case of Bikash Roy Vs. Union of India & Anr. passed
in WPCT 56 of 2021, he submits that a meaningful
reading of the provisions of the IREM leaves no doubt
that the service of a Railway servant, who fails in his
medical test, should not be dispensed or reduced in
rank but he is to be shifted to some other post with
same pay scale and service benefits irrespective of
having accepted the lower grade post without prejudice
to his rights. The photocopy of the original
application, as produced by Mr. Ray, be kept on
record.
Heard the learned advocates appearing for the
respective parties and considered the materials on
record.
We do not find any reason to interfere with the
observation of the learned Tribunal that the order
dated 30th September, 2022 by which the respondent's
prayer for re-examination was rejected was a cryptic
one and the same has, accordingly, been rightly set
aside. The provisions of IREM, as placed before us,
need to be considered together and not in isolation. A
composite reading of the same reveals that a person
declared medically unfit cannot be placed in a lower
grade post. It is the obligation of the authorities not to
downgrade him but to adjust and absorb him in a
suitable alternative post in the grade in which he was
working on regular basis before being declared
medically unfit. The provisions further reveal that in
the event such post is not available, the employee
must be kept on a special supernumerary post in the
grade in which he was working on regular basis before
being declared medically unfit. In the said conspectus,
the learned Tribunal rightly directed that alternative
employment should be searched out and be offered to
the respondent within a specified period and that till
such time, as per the provisions of the RBE No. 89 /
99, the respondent should not be deprived of his
rightful entitlements.
The learned Tribunal, upon dealing with all the
factual issues arrived at specific findings and we do
not find any error, least to say any patent error of law
in the order impugned and the same does not suffer
from any substantial failure of justice or any manifest
injustice warranting interference of this Court.
Accordingly, the writ petition, being WPCT 150 of
2023 is dismissed.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties, upon
compliance of all requisite formalities.
(Rai Chattopadhyay, J.) (Tapabrata Chakraborty, J.)
