Union Of India Represented By General ... vs K.Rajendraprasad
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Kerala High Court

Union Of India Represented By General ... vs K.Rajendraprasad on 3 July, 2024

Author: Amit Rawal

Bench: Amit Rawal

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR. JUSTICE AMIT RAWAL
                              &
           THE HONOURABLE MR. JUSTICE EASWARAN S.
  WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
                  OP (CAT) NO. 146 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 23.01.2019 IN OA NO.140 OF
  2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS:

    1    UNION OF INDIA REPRESENTED BY GENERAL MANAGER
         SOUTHERN RAILWAY, PARK TOWN P.O, CHENNAI 600 003.
    2    DIVISIONAL PERSONNEL OFFICER,
         DIVISIONAL OFFICE, SOUTHERN RAILWAY, TRIVANDRUM
         695 014
         BY ADV C.DINESH


RESPONDENT/APPLICANT:

         K.RAJENDRAPRASAD,
         S/O. KUNJIRAMAN, RETIRED HEAD TICKET EXAMINER,
         SOUTHERN RAILWAY, RESIDING AT "THIRUVATHIRA",
         CHERUKUNNAM, VARKALA 695 141.
         BY ADV SRI.MARTIN G.THOTTAN

     THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 03.07.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (CAT) NO. 146 OF 2019
                                         2




                 AMIT RAWAL & EASWARAN S., JJ.
                    ------------------------------------
                     OP (CAT) No.146 of 2019
                    -------------------------------------
                 Dated this the 3rd day of July, 2024

                              JUDGMENT

Amit Rawal, J.

The order of the Central Administrative Tribunal dated

23.01.2019 in Original Application No.140/2016 allowing the following

claims of the respondent/applicant has been challenged by the

respondents therein in this Original Petition:

"I) Declare that the denial of the rights and protection available to the applicant under Section 47 of the Disabilities Act, amended Chapter XIII of Indian Railway Establishment Manual and other relevant orders, is unjust, illegal and unconditional and; quash Annexure-A3 order.

II) Declare that the applicant is entitled to the benefits available under the rules cited in sub para (a) above with effect from 8.4.1998 similar to A11 orders passed in the case of V.Mohanan, with all consequential benefits including pensionary benefits and; direct the respondents accordingly."

2. The respondent/applicant while working as Carriage &

Wagon Fitter, Grade II/Quilon in the scale of Rs.4000-6000/- was,

while on duty on 8.4.1998 grievously injured. He suffered a fracture in OP (CAT) NO. 146 OF 2019

inter capsular neck of Femur right side and injury to hip joint and

undergone prolonged treatment from 9.4.1998 to 4.1.1999. On

examination of Medical Board, he was declared medically unfit in

Class-B1 and fit in Class-B2 for a sedentary job. He was on leave on

average pay from 21.1.1999 to 20.7.1999 and thereafter was on loss of

pay as the Department, in accordance with the averments in the claim,

did not provide any alternate job. While so, he was offered and

accepted the job of Ticket Collector in the scale of Rs.3050-4500/-

with effect from 6.1.2000. Later on, the respondent/applicant was

promoted as Traveling Ticket Examiner, further, as Head Ticket

Examiner and retired in the year 2010. The grievance, in short, is that

the Department was required to grant the benefit by protecting his pay

scale under Section 47 of the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995

which came into force with effect from 7.2.1996 and had in this regard

submitted representation in 2014. Since the representation remained

pending, approached the Tribunal vide OA No.927/2014, and on

ascertaining the facts, the learned Tribunal allowed the original

application vide order dated 8.7.2015, Annexure-A1, directing the 1 st OP (CAT) NO. 146 OF 2019

respondent therein to consider the representation in the light of the

circular/letter of the Railway Board No.E(NG)I/2004/RE/3/9 dated

31-5-2005, Annexure-A2.

3. Sri.C.Dinesh, learned Standing Counsel appearing for the

petitioners/respondents raised objection qua maintainability with

regard to doctrine akin to delay and latches as no claim was preferred

for a period of twelve (12) years after the injury, as representation for

the first time was submitted on 10.3.2010, which was rejected. The

representation remained pending and sought its adjudication by

intervention of the Court. No plausible explanation has been offered

for the delay of almost eleven (11) years in making a representation

and approaching the Court in 2014, but did not deny Annexure-A2

circular/letter of the Railway Board dated 31.5.2005, whereby

Government of India, Ministry of Railways issued directions to all the

Departments of Railways to comply with the provisions of the 1995

Act.

4. On the other hand, learned counsel appearing on behalf of

the respondent/applicant countered the argument by submitting that

the Tribunal had considered all the aforementioned objections, OP (CAT) NO. 146 OF 2019

including the delay, of the respondents/petitioners herein, and had

assigned reasons for not accepting the same. There is no illegality or

perversity in the order of the Tribunal.

5. We have heard the learned counsel for the parties and

appraised the paper book.

6. Annexure-A2 in the original petition, Annexure-R1 in

O.A.No.927/2014, dated 31.5.2005 reads as under:

"GOVERNMENT OF INDIA (BHARAT SARKAR) MINISTRY OF RAILWAYS/RAIL MANTRALAYA (RAILWAY BOARD)

No.E(NG)I/2004/RE-3/9 dated 31-5-2005

Sub:- The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995- Absorption of disabled/medically decategorised Staff in alternative employment- Date of effect of the revised scheme Question regarding.

Chapter XIII of Indian Railway Establishment Manual, Vol.1, 1989 incorporating the scheme for absorption in alternative employment of medically de-categorised staff has been amended pursuant to Section 47(1) of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, vide ACS No.77 issued under this Ministry's letter number E(NG)I- 96/RE3/9 (2) dated 29-4-99 read with ACS Nos. 122 and 148 issued under their letters No.E(NG)I/2000/RE-3/5 dated 31-7-2001 and E(NG)1/2001/RE-3/8 dated 1-7- 2003, respectively.

2. The scheme so revised is being implemented in the Railways from the date of issue of the relevant instructions viz 29-4-99. Representations have been received to the effect that since the Act came into force with effect from the date on which it was notified in the Govt. of India Gazette viz 7-2-96, the benefit of OP (CAT) NO. 146 OF 2019

revised scheme should be made available from 7-2-96. The matter has been considered carefully by this Ministry. It has now been decided that the scheme contained in this Ministry's letter of 29-4-99 as modified may be made effective from 7-2-96. Accordingly in respect of cases in which the disabled/ medically decategorised employees on or after 7-2-96 and upto 28-4-99 were absorbed in alternative employment in accordance with the earlier scheme in grade(s) lower than the grade(s) held by them on regular basis at the time of disablement/medical decategorisation may be reviewed on representations received in this regard and decided at the level of the General Manager as per the revised scheme. In other type of cases wherein disabled/medically decategorised employees had opted to retire asking for appointment of eligible ward on compassionate ground, the question of review does not arise.

3. This issues with the concurrence of the Finance Directorate of the Ministry of Railways."

7. Section 47 of the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995

reads as under:

"Section 47. Non-discrimination in Government employments.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided 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:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

OP (CAT) NO. 146 OF 2019

8. On a perusal of the Annexure-A2 order and the provisions

of Section 47 of the 1995 Act, in case an employee is found on account

of disability, not suitable for the post he was holding, can be shifted to

some other post, but with the same pay scale and service benefits. In

this case, the applicant at the time of incurring injury was in the pay

scale of Rs.4000-6000, but when given the post of Ticket Collector the

scale of pay was Rs.3050-4500/-, with effect from 6.1.2000, thus pay

scale was not protected. Such an action, in our considered view, as

noticed by the Tribunal is not sustainable in the eyes of law as the

same is against the provisions of the statute. There has been many

cases where Departments were not sensitized with regard to the

applicability of the provisions of the 1995 Act, which came into force

with effect from 7.2.1996. The statutory claim in these circumstances

cannot be said to be stale on the ground of delay and latches. We do

not find any illegality or perversity in the order of the Tribunal. No

ground for interference is made out. Petitioners are directed to comply

with the order of the Tribunal dated 23.1.2019 in OA No.140/2016,

Ext.P3, as expeditiously as possible, at any rate, within a period of two

months from the date of receipt of a certified copy of this judgment, OP (CAT) NO. 146 OF 2019

failing which the respondent/applicant is entitled to get interest @ 6%

per annum from the date of the order of the Tribunal till the date of

payment.

The Original Petition is dismissed. No order as to costs.

Sd/-

AMIT RAWAL JUDGE

Sd/-

EASWARAN S. JUDGE jg OP (CAT) NO. 146 OF 2019

APPENDIX OF OP (CAT) 146/2019

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF O.A NO. 180/00140/2016 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH Exhibit P1(A3) TRUE COPY OF THE ORDER NO.P(S) 353/III/COURT CASE/MISC/TVC DATED 21.12.2015 Exhibit P1(A1) TRUE COPY OF THE ORDER DATED 8.7.2015 IN O.A.NO.180/927/2014 PASSED BY THE HON'BLE TRIBUNAL.

Exhibit P1(A2) TRUE COPY OF RAILWAY BOARD'S LETTER NO.E(NG)I/2004/RE-3/9 DATED 31.5.2005 Exhibit P1(A4) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 04.01.1999 ISSUED BY THE MEDICAL COLLEGE HOSPITAL, TRIVANDRUM Exhibit P1(A5) TRUE COPY OF THE MEMORANDUM NO. V/P 579/IV/VOL.III DATED 22.2.1999 ISSUED BY 2ND RESPONDENT.

Exhibit P1(A6) TRUE COPY OF THE EXTRACT OF O.O. NO.

47/2002/TC DATED 12.12.2002 ISSUED BY THE 2ND RESPONDENT.

Exhibit P1(A7) TRUE COPY OF THE ORDER NO.10/2010/TC DATED 03.03.2010 ISSUED BY THE 2ND RESPONDENT. Exhibit P1(A8) TRUE COPY OF THE APPLICANT'S APPEAL REPRESENTATION DATED 1.2.2014 ADDRESSED TO THE DIVISIONAL RAILWAY MANAGER, TRIVANDRUM Exhibit P1(A9) TRUE COPY OF MEDICAL CERTIFICATE DATED 13.9.2014 ISSUED BY DR. K. SREEKUMAR OF KUMAR CLINIC, KILIKOLLOOR, KOLLAM Exhibit P1(A10) TRUE EXTRACT OF SECTION 47 OF THE PERSONS WITH DISABILITIES ACT, 1995 Exhibit P1(A11) TRUE COPY OF LETTER NO.V/P.612/III/TC DATED 29.12.2009/4.1.2010 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A NO. OP (CAT) NO. 146 OF 2019

180/00140/2016 FILED BY THE RAILWAYS BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

EXHIBIT P3 TRUE COPY OF THE ORDER IN O.A NO.

180/00140/2016 DATED 23RD JANUARY, 2019 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.