Madras High Court
Chief Security Commissioner vs Uday Singh Meena on 18 June, 2021
W.A. No.1452 of 2021 and
C.M.P. No.9025 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.06.2021
CORAM
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A. No.1452 of 2021 and
C.M.P. No.9025 of 2021
1.Chief Security Commissioner
Railway Protection Force
Southern Railway
6th Floor, Moore Market Complex
Park Town, Chennai - 600 003.
2.Additional Chief Security Commissioner
Railway Protection Force
Southern Railway
6th Floor, Moore Market Complex
Park Town, Chennai - 600 003 ... Appellants
vs
Uday Singh Meena
C/o.All India RPF Association
2nd Floor, NGO Canteen Complex
Park Town, Chennai - 600 003 ...Respondent
***
Prayer: Writ Appeal filed under clause 15 of the Letters Patent
against the order dated 21.09.2020 made in W.P. No.10078 of 2013.
***
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For Appellants : Mr.P.T.Ramkumar
For Respondent : Mr.N.G.R. Prasad
for M/s.Row & Reddy
****
JUDGMENT
(delivered by PUSHPA SATHYANARAYANA, J.)
The above appeal is preferred by the Railway Protection Force,
as an employer aggrieved by the order passed by the learned single
Judge dated 21.09.2020 made in W.P. No.10078 of 2013, quashing
the order of termination of services of the respondent herein dated
10.10.2012.
2. The respondent herein had applied for the selection conducted
by the Appellants Force for the post of Sub Inspector in Railway
Protection Force (RPF). The respondent qualified in the physical
endurance test, written test, interview and also the medical test on
09.04.2009. He was also sent for the training for the post of Sub
Inspector at the RPF Academy, Kharagpur. After completion of the
training on 10.06.2010, he was appointed as a temporary Sub
Inspector at RPF at Trichirapalli with effect from 22.04.2010. He was
put on probation for two years.
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3. On 29.07.2011, the respondent was directed to undergo
training in Weapon and Tactics course and also for medical
examination. He was examined by the Medical Board of Railways on
09.12.2011. On 10.02.2012 he was found not fit for the post of Sub
Inspector in RPF in BEE One category as glasses were not permitted
for RPF for such category, but he was found eligible for Bee One level
and below for other jobs. In view of the the same, a show-cause
notice was issued on 18.04.2012 by the second appellant as to why
the probation of the respondent should not be terminated. The same
was replied by the respondent by enclosing a copy of the certificate
issued by the Government Eye Hospital, Egmore, certifying that his
vision was correct. Accordingly his probation was extended on
14.06.2012 by another six months. In fact a supernumerary post was
created on 16.07.2012 and the respondent was accommodated. On
30.07.2012, he was once again referred to the Medical Board, which
confirmed its earlier report dated 10.02.2012. Based on the same, the
respondent was terminated on 10.10.2012. The respondent had filed
an appeal before the first appellant on 29.10.2012, which was
dismissed on 08.03.2013. The said orders were challenged by the writ
petitioner in W.P. No.10078 of 2013.
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4. The writ petitioner had mainly contended that he was entitled
to be appointed under the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995.
According to the petitioner, the Medical Board had found him to be
unfit only for the post of Sub Inspector in RPF in Bee One category, as
glasses were not permitted for the RPF. However, the writ petitioner
was found fit for Bee One and below for other jobs. Thereafter only,
the probation of the writ petitioner was extended by six months and a
supernumerary post was created to accommodate the writ
petitioner/respondent.
5. The appellants herein resisted the writ petition contending
that on 09.12.2011, the Medical Board at Railway Hospital, Perambur,
examined the respondent and found him that he had distant vision.
However, the Board has stated that he was found medically unfit for
Bee One category and fit in Bee One and below for other jobs as
glasses were not permitted only for RPF. The respondent had
produced the certificate issued by the Medical Officer from the State
Government, which was not acceptable to the appellants, as medical
fitness of the Railway servant, can be certified only by the competent
authority, namely the Railway Medical Board. Despite the same, the
medical fitness certificate submitted by the respondent was referred to
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the Chief Medical Director, Southern Railway for obtaining clarification.
Accordingly, reexamination was done on the petitioner on 30.07.2012.
Once again it was certified that the respondent was medically unfit for
the post of Sub Inspector in RPF.
6. It was further contended that as he was already appointed
and was in probation, the probation period was extended by six
months in terms of Rule 57.1 of Railway Protection Force Rules, 1987.
Admittedly, a supernumerary post was created in the same grade only
in order to accommodate the writ petitioner and facilitate him to get
the salary, since he was found to be not fit for the post of Sub
Inspector in RPF. Since he was unfit, his probation could not be
confirmed contrary to RPF Service Rules and he was terminated in
terms of Rule 57.3 of RPF Service Rules.
7. The learned Single Judge, after elaborately considering the
medical reports submitted by the Medical Board of the Railway,
discussed the writ petitioner's eligibility for employment, as per
Persons with Disabilities Act, 1995. Placing reliance on a decision of
the Hon'ble Supreme Court in Kunal Singh vs. Union of India
reported in (2003) 4 SCC 524, the learned single Judge held that the
benevolent provisions of the Act, 1995 has to be read in favour of the
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employee for his survival and not otherwise. Thus holding that the writ
petitioner was entitled for appointment, the learned single judge
allowed the writ petition directing the respondents therein to reinstate
the writ petitioner in service in an equivalent post which in no way
affects the security and safety of the public, co-employees and the
employee himself and further also safeguards the interests of the
administration. Even, if such post is not available, the learned single
Judge has directed to create a supernumerary post and reinstate the
petitioner till such time any post falls vacant. The learned single Judge
had further held that the writ petitioner will be entitled to continuity of
service from the date of his termination, but would not be entitled to
back wages in view of the principle 'no work no pay'. Aggrieved by the
said order, the above appeal is preferred by the Railway Protection
Force.
8. Heard Mr.P.T.Ramkumar, learned counsel for the appellants
and Mr.N.G.R.Prasad, M/s.Row and Reddy, learned counsel appearing
for the respondent.
9. Learned counsel appearing for the appellants, pointedly
argued that the medical examination conducted by the Divisional
Railway Hospital found that the eye vision of the respondent was
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defective and no employee of RPF in Bee One category can wear
spectacles during the first six years of service. The medical re-
examination done by the Medical Board of Railway Hospital also found
that the respondent was medically unfit. It was pointed out further
that the extension of the probation for six months was done to the
respondent only considering the fact that he did not perform the duty
for more than six months due to medical reasons. The supernumerary
post was created only to facilitate him to get his salary as he could not
be given a regular posting, once he is declared medically unfit for the
post of Sub Inspector. To substantiate his contention, the learned
counsel relied on Rule 57.3 of RPF Force Rules. For better
appreciation, the same is extracted hereunder:
" 57.3. If, during the period of probation or any
extension thereof, as the case may be, the
appointment authority is of the opinion that the
member of the Force is not fit for permanent
appointment, the appointing authority may terminate
the services of a direct recruit or revert the member of
the Force to the post held by him prior to such
appointment:
Provided that in case of termination of service, a
probationer shall be given a notice of one month to that
effect or pay in lieu thereof:
Provided further that a notice or pay in lieu
thereof shall not be required where the termination of
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service results as a consequence of the failure of the
probationer to pass the initial training course or a
repeat course, if any."
10. As the respondent/writ petitioner was a direct recruit and he
was under probation, once he is certified to be unfit for a permanent
appointment, the appointing authority, may terminate the services of
the direct recruit or revert the member of the Force to the post held
by him prior to such appointment. As the writ petitioner was
terminated as a probationer who passed the initial training course, the
notice contemplated in the proviso is also not required. Attention was
also drawn to Rule 67.2 of the RPF Service Rules, where a direct
recruit selected for being appointed as enrolled member, till such time
he is not formally appointed to the Force, is liable to be discharged at
any stage if the Principal Chief Security Commissioner for reasons to
be recorded in writing, deems it fit so to do in the interest of the
Force. The above provision, namely Rule 67.2 of the RPF Rules, may
not be applicable to the present case, as the said rule is for taking any
disciplinary control of a staff or a trainee and in the present case, the
termination is not based on any indiscipline but on a physical
disability.
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11. However, the learned counsel appearing for the appellants
pointed out that the Agreement dated 16.04.2019 entered into
between the respondent and the appellants, which empowers the
Chief Security Commissioner without giving any notice under sub rule
(2) of rule 67 or under the second proviso to sub rule (3) of rule 57, to
terminate the services of the writ petitioner can be terminated at any
time.
12. The selection of the respondent/writ petitioner was intimated
on 09.04.2009 after which the above referred agreement was entered
into on 16.04.2009. On 28.05.2010, by an office order No.84/2010,
the writ petitioner was appointed as temporary Sub Inspector after
having completed 11 months of initial training including practical
training and allotted to Southern Railway. On 10.06.2010, the writ
petitioner was appointed as temporary Sub Inspector and was posted
to TC/KG/TPJ vide CSC/MAS O.O. There was yet another
communication on 11.06.2010 attaching the petitioner to TPJ division
until further orders. While so, the writ petitioner was nominated to
undergo Weapon and Tactics Course for RPF under CSWT, BSF
Indore(MP) from 08.08.2011 to 22.10.2011 and was further directed
to go for a medical examination. The Chief Medical Superintendent,
Golden Rock, Southern Railway, Trichy, had certified that the writ
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petitioner was diagnosed to have defective distance vision and he is
unfit for the duties of the original post as Sub Inspector and
recommended suitable alternative employment on medical grounds.
The further communication dated 10.02.2012 also certified that the
writ petitioner is unfit as Sub Inspector in Railway Protection Force in
BEE One category and is fit in Bee One and below for other jobs as
glasses are not permitted for RPF.
13. According to the learned counsel appearing for the
appellants, the Medical Superintendent is not a competent authority to
recommend for a suitable alternative employment, as his job is only to
certify the physical disability condition of a candidate. Even thereafter,
the probation period of the petitioner was extended by six months on
14.06.2012. Though it was stated that the extension was granted
considering the fact that the writ petitioner did not perform his duties
for more than six months on medical grounds, when the Medical
Superintendent had already certified that the writ petitioner was unfit
to be a Sub Inspector in RPF it is incomprehensible as to why the
extension of probation for six months was granted to the petitioner on
14.06.2012, four months later. Even though it was argued that the
Medical Superintendent of Golden Rock, Trichy was not competent to
recommend an alternative employment for the writ petitioner, on
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25.09.2012, the Chief Medical Superintendent, Golden Rock, had once
again found him to be unfit for BEE One category for RPF, but fit in
BEE one and below with glasses for distant vision categories with
effect from 30.07.2012.
14. When the order of appointment was issued to the writ
petitioner, he was only 25 years of age. The medical certificate issued
to him by the Medical Board at the time of joining the post had not
found any deficiency in his eyes and the said defective distance vision
has been acquired by him only during his services as a probationer
with the appellants. No doubt, in RPF no one can work with glasses for
the first six years of joining the post, as the rules enable the
appellants to terminate the probationer on the ground of fitness, the
case of the petitioner cannot be considered. In this regard, the learned
single Judge, in paragraph 48 of his order, has discussed in detail,
which is extracted below:
"48. It is to be pointed out at this juncture that once
the medical officer came to the conclusion that the petitioner
is a person unfit to hold the post of BEE One, as glasses are
not permitted and when certifying that the petitioner is unfit
for the said post and at the same time recommending his
case for alternative employment, the medical officer ought to
have assessed the percentage of deficiency of vision of the
petitioner for the purpose of recommending the case of the
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petitioner for alternative employment. Mere finding the
petitioner to be a person with distance vision, without
assessing the shortfall in the percentage of the vision, it is to
be pointed out that if the said assessment of the medical
officer is taken to be a condition of low vision, then such an
assessment by the medical officer would place atleast a third
of the population in the country to be persons suffering from
disability attracting the provisions of the Act, 1995. The
disability having not been assessed in terms of percentage by
the medical officer and more so, when distance vision having
not been prescribed as a disability under the Act, 1995, this
Court is of the considered view that the case of the petitioner
for attracting the provisions of the Act, 1995, for the purpose
of alternative employment would not stand the test of judicial
scrutiny and, therefore, the claim made by the petitioner for
an alternative employment invoking the provisions of Section
47 of the Act, 1995, does not deserve acceptance."
15. Though it has been found that the writ petitioner/respondent
cannot get the benefit under the provisions of the Persons with
Disabilities Act, 1995, he can be given an alternative employment.
Rule 57.3 provides for the competent authority to terminate the
services of the direct recruit when he/she is found to be not fit for
permanent appointment. In this case also, the writ petitioner is a
direct recruit, therefore, reverting him to the post held by him prior to
such appointment, does not arise. The said rule is silent about the
plight of a direct recruit as a Sub Inspector in the event he becomes
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medically unfit during the probation period, when such disability arises
out of employment.
16. Admittedly, the writ petitioner had already been in service
for more than 2-1/2 years. In such circumstances only, the learned
singe Judge has also directed the respondents to create a
supernumerary post and reinstate the petitioner till such time a post is
available to accommodate the writ petitioner. It is further stated that
the petitioner would not be entitled for any back wages for the period
he was not performing any duties, however, he would be entitled to
continuity of service from the date of his termination. The learned
Single Judge had elaborately considered the facts and circumstances
of the case and passed the well reasoned order. We do not find any
defect or infirmity in the order of the learned single Judge and the
same is liable to be confirmed.
17. Accordingly, the writ appeal is dismissed. However, there is
no order as to costs. Consequently, the connected civil miscellaneous
petition is closed.
[P.S.N., J.] [K.R., J.]
18.06.2021
Asr
Index : Yes/No
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W.A. No.1452 of 2021 and
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PUSHPA SATHYANARAYANA, J.
and
KRISHNAN RAMASAMY, J.
Asr
W.A. No.1452 of 2021 and
C.M.P. No.9025 of 2021
18.06.2021
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