Union Of India & Ors vs Jugeshwar Dhrva
2011 Latest Caselaw 1732 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No.7888/2010

%                      Date of Decision: 25.3.2011

Union of India & ors                                    ...Petitioner
                    Through Mr.Kumar Rajesh Singh, Advocate

                                  Versus

Jugeshwar Dhrva                                            .... Respondents
                    Through None


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.   Whether reporters of Local papers may be
     allowed to see the judgment? No
2.   To be referred to the reporter or not? Yes
3.   Whether the judgment should be reported in
     the Digest? Yes



 VEENA BIRBAL, J.

*

1. By way of this petition under Article 226 of the Constitution of

India, petitioners have challenged the impugned order dated 16th

March, 2010 passed in O.A No.653/2010 as well as the order dated 26th

August, 2010 passed in R.A.No.212/2009 by the Central Administrative

Tribunal, Principal Bench, New Delhi (hereinafter referred to as `the

Tribunal‟).

2. Briefly the facts relevant for disposal of the present petition are as

under:-

In the year 1996-1997, an advertisement was issued for

recruitment against several posts under Railway through Railway

Recruitment Board, Allahabad (in short referred to as `the RRB‟).

Respondent had applied for the post of JE-II/Signal in scale of ` 1400-

2300 (pre-revised) against employment notice dated 3/96-97. An admit

card was issued to him. The examination was held on 30.1.2000 and

result was published on 25.4.2000 wherein respondent was declared

selected. On 9th May, 2000, a letter was issued to the respondent

informing that on the basis of selection conducted by the RRB, his

name had been placed on the panel and had been forwarded to Chief

Administrative Officer (P) Construction Office, Kashmiri Gate, Delhi.

Thereafter, vide letter dated 5th April, 2002, respondent was informed

that he had been declared medically unfit in A-3 category, as such,

was not fit for J.E-II/Signal in the scale of ` 5000-8000. He was further

informed that in case he wanted to opt for an alterative post, he was

required to give an application within one year of receipt of said letter.

Vide letter dated 5th June, 2002, respondent was informed that his

case for an alternative post had been referred to the Chief Officer and

was further asked to report to the office within 15 days of receipt of

letter so that his medical could be done. On 4th July, 2002, respondent

wrote a letter wherein he requested for an alternative post for which he

was medically fit. Thereafter on 22nd October, 2002, the office of

petitioner no.3 & 4 informed respondent that he had been declared fit

for B2 and below, as such his application dated 4.7.2007 had been

considered by the competent officer and in their division the post of

Commercial Clerk grade 3200-4900 (R.P.S.) ST, was lying vacant and

his case would be referred to the Chief Officer if he was ready for the

same. The respondent requested for issuance of appointment letter for

the aforesaid post. On 10th December, 2002, the Divisional Railway

Manager, Ambala, wrote a letter to the General Manager, Baroda

House, New Delhi informing that the post of Commercial Clerk was

lying vacant in their division and decision in that regard be informed to

him. Reminders in this regard were also sent by the Divisional Railway

Manager, Ambala on 9th November, 2006, 7th March, 2007 to the

General Manager, Baroda House, New Delhi. Finally on 14th August,

2008, petitioners informed the respondent that as per order of the

competent authority, for direct appointment against DMS-III Grade

5000-8000, there was no vacant position for S.T. and as such it was not

possible to consider his case for an alternative appointment.

3. Aggrieved with the same, respondent filed an O.A. before the

Tribunal challenging the rejection order dated 14th August, 2008

issued by petitioner nos.3 & 4.

4. The stand of the respondent before the Tribunal was that as per

Railway Board circulars dated 24.9.1999, 7.8.2000 and 29.12.2000

there are instructions for an alternative employment to the medically

unfit candidates against the below category post for which a candidate

was medically fit. Respondent also cited precedents contending that in

the past also, many such candidates who were medically unfit for B1

have been appointed in the alternative posts with medical fitness C1,

C2 and below category in different divisions of Railways and also

referred to various orders issued by petitioners in this regard (Annexure

A-15 (colly). Respondent also contended before the Tribunal that

through out he opted for an alternative post in the year 2002 and the

same has been rejected after a lapse of 6 years which has caused

serious prejudice to him in as much as he has become overage.

5. The stand of petitioners before the Tribunal was that as per

instructions contained in its circular P.S.No.13588 dated 25th May,

2009, no alternative appointment was permissible to the medically unfit

empanelled candidates and all the previous policies in this regard have

been discontinued. It was also contended that as per instructions

contained in its circular PS No.11931 dated 16.12.1999 which has been

relied upon by respondent, alternative appointment could be considered

only in the equivalent grade and as no vacancy for ST in the grade of

`5000-8000 was available for which he was provisionally selected, no

alternative appointment could be given to him. It was also contended

that in the past the candidates who were provided alternative post were

of Group „D‟ and were in initial grade of appointment.

6. After considering the rival contentions of the parties, the

Tribunal has held that the post of `Commercial Clerk‟ as well as the

post for which respondent was found provisionally selected are Group

C posts though in a different pay scale and if there was a policy laid

down by the Railway Board that a person who is selected for a post by

the RRB but is found medically unfit for the said post, could be

considered for an alternative appointment in the same grade only, then

why the petitioners have taken six years to decide the issue. The

Tribunal further held that as far as the Railway Board‟s circular/letter

dated 25th May, 2009 by which it has been decided to discontinue the

policy of alternate appointment to the medically unfit empanelled

candidates, the said circular is prospective in nature as it is specially

mentioned therein that it will take effect from the date of issue, as such

the same will not come in the way of respondent. Further the case of

respondent has already been taken up for alternative appointment in

the year 2002. Accordingly, the Tribunal vide impugned order dated

16th March, 2010 has directed the petitioners to reconsider the claim of

the respondent for any other alternative post against ST category in

case the respondent fulfills the eligibility conditions and the medical

category is B-2 and below for the said post or even against the post of

Commercial Clerk in Ambala Cantt in case that vacancy is still available

and communicate the decision to respondent.

7. Aggrieved with the aforesaid impugned order of the Tribunal,

petitioners had filed a review application i.e R.A.No. 212/2009 before

the Tribunal and contended that as per instructions contained in PS

NO.11931/99 dated 16th December, 1999, respondent cannot be given

an alternative appointment in lower grade and the said aspect of matter

was not considered by the Tribunal, as such review of impugned order

dated 16th March, 2010 was sought.

8. The review application was dismissed by the Tribunal vide

impugned order dated 26th August, 2010 holding that the petitioners

were trying to re-argue the matter which was not permissible and all

the points raised had already been considered and the Tribunal cannot

sit in appeal over its own decision.

9. Aggrieved with the aforesaid orders dated 16th March, 2010 and

26th August, 2010 of the Tribunal, present writ petition is filed.

10. Learned counsel for the petitioners has contended that the

Competent Authority has rightly rejected the claim of the respondent for

an alternative appointment. It is contended that as per instructions

contained in PS No.11931/99 dated 16.12.1999 an alternative

appointment can be provided only in the equivalent grade whereas post

of `Commercial Clerk‟ was falling in the lower grade and there was no

vacancy against the ST quota in the equivalent grade and same was

informed to the respondent vide letter dated 14th August, 2008 by the

Divisional Office, Ambala Cantt. It is further contended that as per

instructions contained in circular PS 13588/2009 dated 25.5.2009 the

policy of providing alternative appointments to the medically unfit

empanelled candidates selected through RRBs/RRCs for any Group „C‟

or Group „D‟ post has been discontinued. In these circumstances,

Tribunal ought not to have issued directions to the petitioners for

considering the case of the respondent for an alternative appointment.

11. On the other hand, the stand of respondent is that as per

instructions contained in its circular bearing no. PS 13588/2009 dated

25.5.2009 are not applicable in the case of respondent as the said

circular is applicable from the prospective date i.e. the date of issue. As

regards instructions contained in its circular PS No.11931/99 dated

16.12.1999 is concerned, it is contended that Tribunal has considered

the said circular while passing the impugned order and there is no

illegality in the impugned orders which call for interference of this court

in the exercise of writ jurisdiction under Article 226 of the Constitution

of India.

12. It is an admitted position that as per instructions contained in

circular in PS No.11931/99 dated 16th December, 1999 General

Managers Railways had the authority to consider requests from

candidates who fail in prescribed medical examination after

empanelment by RRB for an appointment in the alternative category

subject to fulfilment of eligibility criteria. The stand of the petitioners

is that as per instructions in the aforesaid PS, if a candidate is found

medically unfit, an alternative post can be provided in the equivalent

grade and as there was no vacancy in the equivalent grade, alternative

post was not offered to him.

Perusal of record shows that vide letter dated 9th May, 2000,

respondent was informed that his name has been placed in the panel of

selected candidates and thereafter on 5th April, 2002, respondent was

informed that he was unfit for A-3 post, as such he was not fit for JE-

II/Signal, Scale 5000-8000. He was further asked vide aforesaid letter

that if he wanted to opt for an alternative post then he should inform

the office. It is also an admitted position that petitioner applied for an

alternative appointment. Thereafter on 22nd October, 2002, respondent

was informed that his application has been considered by the

competent officer and the post of Commercial Clerk grade ` 3200-4900

was lying vacant and if he was ready, his case could be referred to the

Chief Officer. The letter dated 22nd October, 2002 reads as under:-

"S.No. 729E/1400/S&B/P.B/UMB Dated: 22.10.2002

Divisional Officer N.R. Ambala Cantt.

Sh. Jugeshwar Dhrva Sh. Nityananda Dhrva Village/P.O. Meghdaga, Rangodhama P.S. Sundargarh, Orissa-770002.

Sub:- In reference to appointment to alternative post other than A.P.P. J.E.T.T./Sig.

Ref:- Your application dated 04.07.02

After been declared unfit for A-3 grade by medical memo No. 231541, dated 4.7.02; and been declared fit for B2 and below; you by you said letter, have made request for suitable job. Your application has been considered by competent officer and it has been decide that in this division, the post of commercial clerk grade - 3200-4900 (R.P.S.), S.T., is lying vacant for this post, your case can be referred to Chief Officer, if in case you are ready for it. It you are not ready, then send your application to this office. Please send your application within 15 days of this letter, so that appropriate action may be taken.

Sd/-

DRM N.R., Ambala"

Thereafter vide letter dated 10th December, 2002, Divisional

Railway Manager, Ambala informed office of General Manager, Baroda

House, New Delhi that the post of Commercial Clerk, Grade 3200-4900

ST was lying vacant and requested for his decision as per memo no.

11931/99. The said letter reads as under:-

Divisional Office Ambala Cantt.

S.No. 729 E/1400/S& T/P.O. Ambala Dated: 10.12.2002 Office of General Manager, Baroda House New Delhi.

Sub: In reference to appointment of Sh. Jugeshwar/ Nityananda to post of alternative to Upper J.E. 11/sig. grade 5000-8000; through Memo no.11931/99.

The abovestated person was selected by virtue of R.R.B. for post of Upper J.E./sig.

However, he by medical examination done by DMO/UMB/Ambala through medical memo no. 23541, dated 4.7.02 was declared unfit for post of J.E. 11/sig. Grade and by medical memo no. 231541, dated 4.7.02, was declared fit for B2 post.

In this division at present the post of commercial clerk, Grade 3200-4900, S.T. is lying vacant. The applicant has made application for appointment to alternative post. Thus, by memo no.11931/99, the matter has been referred to General Manager for his decision it. Please inform the office with your decision on this matter, so that applicant may be given answer.

Sd/-

(Trilok Chawdhary) Divisional Railway Manager/ Acting, Ambala"

Again vide letter dated 7th March, 2007, General Manager, Head

Office, Baroda House was informed by the office of Divisional Railway

Manager, Ambala that the post of Commercial Clerk was still lying

vacant and appropriate directions were sought from the Head Office.

If appointment in the equivalent grade was not permissible then

why option was given to the respondent for an alternative appointment

for the post of „Commercial Clerk‟ in the scale of ` 3200-4900.

13. Considering the above back ground of the case, the Tribunal has

held as under:-

"It is thus clear that as late as in March, 2007 also the Divisional Office had maintained that one post of Commercial Clerk in ST category was lying vacant with them. At this stage applicant again requested the authorities to allow him to join on the post of Commercial Clerk which is evident from page 50. However, all of a sudden vide letter dated 20.6.2008, applicant was informed that his case has been rejected for alternative appointment on the post of Commercial Clerk as it is in the lower grade. In the same letter applicant was informed that his case is under examination in the office of General Manager (P), NDLS. At this stage, applicant again gave a representation to the authorities but vide letter dated 14.8.2008 applicant was informed that there is no vacant post for direct appointment against DMS-III Grade Rs.5000-8000 against ST category, therefore, his case cannot be considered for alternative appointment meaning thereby that till March, 2007 applicant was given the impression that his case is still under consideration in the office of GM (P), Head Quarters, Baroda House, New Delhi. It is a specific case set up by the applicant that in the meanwhile he has become overaged and had not applied for any other post as his request was sub- judiced. If there was no provision for considering a person against a lower grade then applicant should have been informed as back as in 2002 itself that he cannot be considered for alternative appointment in the lower grade. The request made by the Divisional Office, Ambala Cantt. to the General Manager (P) in 2002 clearly stated that the post of Commercial Clerk in the grade of `3200- 4900 was available in ST category. Respondents

have not explained why it took them more than 6 years in deciding this issue. After all, there was a policy laid down by the Railway Board itself that a person, who is selected for a post by the RRB but is found medically unfit, could be considered for alternative appointment in the same grade, therefore, these facts would be known to the office of the General Manager. Keeping a person under a hope that he would be considered for the alternative appointment and ultimately rejecting the claim on the ground that it is in the lower grade after 6 years, cannot be sustained in law. In case he met the requirement of Commercial Clerk and the post was lying vacant in the ST category and there was no other claimant, respondents could always have considered the applicant for the said post. Simply because it was in the lower pay scale, the request of the applicant could not have been rejected because the post of Commercial Clerk is also a Group „C‟ post and the post for which applicant was found selected was also a Group „C‟ post though in a different pay scale."

The PS 11931 dated 16.12.1999 on which the petitioners are

relying contain the administrative guidelines having no legal force.

Despite the existence of aforesaid guidelines/instructions, the

petitioners had asked the respondent for his option for an alternative

post in the lower grade vide letter dated 5.4.2002 and the respondent

had opted for the said post and thereafter the office of petitioners no. 3

and 4 had been corresponding with the respondent for the alternative

post on a lower grade for the past 6 years. The correspondence on

record shows that respondent has been informed categorically by the

office of petitioners no. 3 and 4 that his application has been considered

by the competent officer and it has been decided in their division that

post of commercial clerk grade 3200-4900 (R.P.S.) ST was lying vacant

and if he was ready his case can be considered for that. The

respondent‟s request for issuance of appointment letter is kept pending

for 6 years. There is no explanation for the same. It is not denied that

when the case of the petitioner was under consideration, there was a

policy in existence for an alternative post. It is not the case of the

petitioner that post of commercial clerk in S.T. category is not lying

vacant. Respondent has also set up a case for the Tribunal that he had

become over age and had not applied for any other job. Taking into

consideration all the facts and circumstances, it is not open for the

petitioner either in equity or in the facts of the present case to deny the

respondent an alternative post on the ground that the same is in lower

grade. The petitioner itself had chosen to deviate from the aforesaid

circular and had been continuously stating that post of commercial

clerk is lying vacant and respondent can be considered for that. Under

these circumstances, it is not open for them to now contend that an

alternative post can be given only in the equivalent grade and not in the

lower grade.

As regards PS No. 13588/2009 dated 25.5.2009 by which it is

contended that policy to consider for alternative post has been

discontinued, the same is not applicable to the facts and circumstances

of the present case and the Tribunal has rightly held so. It is

categorically stated in the aforesaid circular that the same will take

effect from the date of issue. The date of issue of said circular is

25.5.2009 whereas the case of the petitioner relates to the year 2002

when there was no such circular in existence.

In view of above discussion as well as on equity, we do not find

any illegality or perversity in the impugned orders of the Tribunal.

The writ petition stands dismissed. The interim stay of the

impugned orders of the Tribunal granted by this court vide orders dated

25th November, 2010 stands vacated.

Considering the facts and circumstances, the petitioners shall

also pay a cost of ` 15,000/- to the respondent.

VEENA BIRBAL, J.

ANIL KUMAR, J.

March 25, 2011 ssb