Paras Ram Kakkar vs Union Of India & Ors.
2025 Latest Caselaw 1567 Del

Delhi High Court

Paras Ram Kakkar vs Union Of India & Ors. on 23 January, 2025

Author: C. Hari Shankar

Bench: C. Hari Shankar

                  $~89
                  *        IN THE HIGH COURT OF DELHI AT NEW DELHI
                  +        W.P.(C) 6766/2022
                           PARAS RAM KAKKAR                                .....Petitioner
                                            Through:      Mr. S.P. Sethi, Advocate.

                                              versus

                           UNION OF INDIA & ORS.                     .....Respondents
                                         Through:         Mr. Himanshu Pathak, SPC.

                           CORAM:
                           HON'BLE MR. JUSTICE C. HARI SHANKAR
                           HON'BLE MR. JUSTICE AJAY DIGPAUL
                                              JUDGMENT (ORAL)

                  %                              23.01.2025

                  C. HARI SHANKAR, J.

1. The petitioner Paras Ram Kakkar had been working as Chief Ticket Inspector1, a Group C post, for 30 years. He applied for participation in a Limited Departmental Competitive Examination 2 for advancement to the grade of Assistant Commercial Manager3, a Group B post. He appeared in the written test on 21 May 2011 and a supplementary test on 15 July 2011.

2. In the test results which were declared on 26 July 2011, wherein the petitioner figured among 17 qualified candidates. The next stage in selection was to be a viva voce, preceding which the candidates were to be medically examined and declared fit for the post to which they sought promotion. The petitioner was subjected to a medical fitness

1 "CTI" hereinafter 2 LDCE

test on 16 November 2011. He was declared medically unfit for the post of ACM due to colour blindness.

3. The petitioner, through representations addressed to the respondents dated 25 October 2011 and 4 April 2012, sought relaxation of the criteria for medical fitness for selection to the post of ACM. These came to be rejected by the respondents vide letter dated 30 April 2014, stating that relaxation of medical standards was not available for technical categories, and that no vacancy for the post of ACM remained unfilled.

4. Aggrieved, the petitioner challenged the letter dated 30 April 2014 by means of OA 2391/2014 preferred before the Central Administrative Tribunal4. The Tribunal dismissed the OA on 2 July 2015, observing that the post of ACM fell in Category A, for which no relaxation of medical fitness criteria was permissible. RA 46/2016, filed by the petitioner seeking review of the said order, was also dismissed by the Tribunal.

5. The petitioner filed WP (C) 6897/2016 before this Court against the Tribunal's orders in OA 2391/2014 and RA 46/2016.

6. On 9 August 2016, this Court set aside the orders passed by the Tribunal and remanded the matter to the Tribunal for de novo adjudication, considering the Railway Board's letter dated 9 April 2007, and to determine whether the post of ACM was a safety, non-

3 ACM 4 "the Tribunal" hereinafter

safety, or non-technical category post. We deem it appropriate to reproduce the Railway Board letter dated 9 April 2007 thus:

"GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD)

No. 2005/H/5/13 New Delhi, dated 9.04.07

The General Manager, All Indian Railways (Including Production Units)

Sub: - Medical exam criteria for various categories for promotions from Group 'C' to Group 'B'.

The matter of relaxation of medical examination standard for Railway employees on promotion from Non-Gazetted to Gazetted posts have been under examination of the Board for some time. After careful examination of the issue the Board has approved the following clause: -

"any one of the conditions may be relaxed in favour of any candidate for special reasons. The relaxation in medical standards in each case should have specific approval of the concerned Board Member of Rly. Board."

In view of this relaxation, it is for the Zonal Railways to decide the post in the department where the employee can be absorbed on promotion from Non-Gazetted to Gazetted post.

A sub para under para 532 of IRMM, 2000 may be added as per advance correction slip enclosed.

Encl: ACS to para 532 of IRMM, 2000

(Dr. Hanuman Singh) Executive Director/Health Railway Baord."

7. By order dated 9 January 2020, the Tribunal once again dismissed OA 2391/2014. In doing so, the Tribunal relied on an

earlier order, passed by its Lucknow Bench in Lallan Ram v UOI5, which had been upheld by the Allahabad High Court in WP (SB) 717/20246. On the basis thereof, the Tribunal held that the ACM post fell in Group 'A', for which no relaxation of medical fitness criteria was permissible. Furthermore, the Tribunal observed that, even if Kakkar were to be allowed such relaxation, his promotion would be contingent on his clearance of the viva voce, for which steps could not be taken due to his superannuation on 31 July 2015.

8. Aggrieved thereby, the petitioner has re-approached this Court.

9. We have heard Mr S.P. Sethi, learned Counsel for the petitioner, and Mr Himanshu Pathak, learned Central Government Standing Counsel, at length.

10. Mr. Pathak repeatedly emphasized that this Court could not interfere with the decision of the respondent, as it was rendered in valid exercise of the discretion vested in the respondent. He also submitted, in passing, that the petitioner had not made out any case of illegal or arbitrary exercise of discretion.

11. Mr. Sethi relied on Circular No 2004-E (SCT) 1/25/20 dated 31 July 2013 issued by the Railway Board, which read thus:

Subject: Selection to the Group 'B' post· of ACM-

clarification regarding classification of post.

5 Order dated 9 January 2014.

6 Order dated 8 May 2014.

Reference: (i) Board's letter No. E(GP)2002/2/88 dated 31.1.2006 (Bahri's RBO 9/2006, p. 7).

(ii) Board's letter No. 2004-E(SCT)I/25/20 dated 11.1.2007 (Bahri's RBO 11/2007, p. 6).

(iii) Board's letter No. E(GP)2002/2/88 dated 30.4.2009 (Bahri's RBO 77/2009, p. 62).

(No. 2004-E(SCT)1/25/20, dated 31.07.2013]

Please refer to Board's letter dated 30.4.2009 quoted above regarding stream-wise selections (70% selection and 30% LDCE) for filling up Group 'B' vacancies in the Transportation (Traffic and Commercial) Department. Some of the Railways have sought clarification as to whether the post of ACM will continue to be under the safety category or otherwise for applicability of the scheme of "Best amongst failures".

In the light of instructions contained in Board's letter dated 30.4.2009 referred to above, it is clarified that the Group 'B' post of ACM in the Transportation (Commercial). Department shall be treated as a Non-Safety category post when the selections are conducted stream-wise for applicability of the scheme of "Best amongst failures"

12. To this, Mr Pathak's contention is that the Circular dated 31 July 2013, having been issued after the selection process in which the petitioner had participated for promotion as ACM, would not apply.

13. Mr Sethi submits, in this context, that, prior to 2009, there was a common selection for the post of ACM but that, vide letter dated 30 April 2009 - to which the Railway Board clarification dated 31 July 2013 makes reference - the post of ACM was bifurcated, after which separate selections were held for the post of ACM (Transportation). Inasmuch as the petitioner's selection had taken place after the said bifurcation, to the post of ACM (Transportation), Mr Sethi submits

that he would be entitled to the benefit of the clarification dated 31 July 2013.

Analysis

14. Having heard learned counsel for both sides, for the following reasons, we deem it appropriate to set aside the order of the Tribunal for the following reasons:

(i) This Court, while remanding the matter to the Tribunal for de novo adjudication on 9 August 2016, specifically noted the contention of the petitioner that he had been serving in the feeder post of CTI for 30 years in the non-safety category.

Having noted these facts and this contention, the Court directed the Tribunal to reconsider the matter and take into account the Railway Board's letter dated 9 April 2007, which enabled the Railway Board to grant relaxation in appropriate cases. The Tribunal was also directed to consider whether the post of ACM, to which the petitioner aspired was a safety, non-safety or non-technical category post.

(ii) The Tribunal unfortunately has not addressed itself to the issue of whether the post of ACM was a safety, non-safety or non-technical category post. It has only relied on a judgment of the Lucknow Bench of the Tribunal, which held the post to be in Category A.

(iii) As the petitioner has since retired from service and this

litigation has already spanned almost 18 years, we are not inclined to subject the petitioner to one more round of litigation or remand the matter again to the Tribunal. We, therefore, take an informed decision based on the material on record.

(iv) Railway Board Instruction No.2004-E(SCT) 1/25/20 dated 31 July 2013 issued by the Railway Board, clarified that the Group B post of ACM (Transportation) was to be treated as a non-safety category post. This fact was, in fact, not disputed by the respondents before us either.

(v) Mr. Pathak's attempt to wish away the Railway Board Circular on the ground that was issued in 2013, after the selection in which the petitioner participated had taken place, fails for the simple reason that the clarification was issued in the light of a letter dated 30 April 2009 of the Railway Board, which clarified the position which followed the bifurcation of the post of ACM after which separate selections were held for the post of ACM (Transportation). The clarification, therefore, applied to all selections to the post of ACM (Transportation) made after 30 April 2009. The petitioner's selection had taken place after 2009 and, therefore, the benefit of the clarification issued by the Railway Board on 31 July 2013 would be available to him.

(vii) Resultantly, the post of ACM (Transportation) would be liable to be treated as a non-safety category post.

(viii) As a result, the petitioner would be entitled to a dispassionate consideration of his case for relaxation in the light of the Railway Board letter dated 9 April 2007.

(ix) The rejection of the representation by the General Manager by letter dated 30 April 2014 did not consider the aspect of whether the post of ACM was a safety or non-safety category post. Nor did it take into account the clarification dated 31 July 2013 issued by the Railway Board.

(x) Keeping in view the fact that

(a) the petitioner had served for 30 years in a non- safety category post,

(b) the post of ACM was bifurcated on 30 April 2009 whereafter separation selections were made to the post of ACM (Transportation),

(c) thereafter, the Railway Board clarified, on 31 July 2013 that the post of ACM (Transportation) was liable to be treated as a non-safety category post,

(d) there is a specific dispensation in the Railway Board's letter dated 9 April 2007, permitting the Railway Board to grant medical relaxation in appropriate cases,

(e) these factors had been noted by this Court while remanding the matter to the Tribunal for reconsideration on 9 August 2016,

(f) The Tribunal, however, has not adverted to these aspects while passing the impugned order,

(g) the petitioner had otherwise succeeded in the

written examination and his candidature was cancelled solely on the ground that he was colour blind, and

(h) in any case, now that the petitioner has retired from service, there is no question of any prejudice being caused to the respondent, or to anyone at all for that matter, as a result of the petitioner's colour blindness, we are inclined to grant relief to the petitioner, especially keeping into account the fact that he has been litigating for almost 18 years as on date.

15. Mr. Pathak also sought to point out that even if the petitioner were to be considered medically fit, he would have to be subjected to a viva voce.

16. The Court has to be realistic in such situations. If the petitioner did not undergo the viva voce, it is only because he was disqualified at the pre viva voce stage as medically unfit, without being granted medical fitness relaxation to which we have found him to have been entitled. It would be a complete travesty of justice if at this late hour, we are to deny relief to the petitioner merely because he had not undergone the viva voce.

17. In view of the aforesaid, we are inclined to quash and set aside the impugned order passed by the Tribunal.

18. The petitioner would be liable to have been treated as medically fit and as having been appointed to the post of ACM consequent to the selection undergone by him. The petitioner would

be entitled to notional fixation of his pay on that basis. He would not be entitled to back wages for the period he was in service but would be entitled to have his pension and retiral benefits refixed on the basis of the afore-noted notional refixation of pay.

19. Let the resultant benefits to the petitioner, if any, be disbursed to the petitioner, within a period of eight weeks from today.

20. The writ petition stands allowed to the aforesaid extent.

C. HARI SHANKAR, J.

AJAY DIGPAUL, J.

JANUARY 23, 2025/yg Click here to check corrigendum, if any