Orissa High Court
Prabhata Bihari Mohapatra vs Union Of India And Other on 30 June, 2021
W.P.(C) No.17362 of 2021
PRESENT: SHRI S.K. MISHRA,J.
AND
SHRI B. P. ROUTRAY,J.
Prabhata Bihari Mohapatra ... Petitioner
vs.
Union of India and other ... Opposite Parties
For the petitioner ... Mr. Prasanta Kishore Ray, Adv.
For the opp. parties ... Mr. Dhanoj Kumar Sahoo, Adv.
ORDER
02. 30.06.2021 This matter is taken up through video conferencing.
2. Heard Mr. P.K. Ray, learned counsel for the
petitioner and Mr. D.K. Sahoo, learned counsel for the East
Coast Railway.
3. In this writ application, the petitioner, an employee
of the East Coast Railway (ECoR), has assailed the final order
passed by the Central Administrative Tribunal (CAT), Cuttack
Bench, Cuttack on 21.04.2021 in O.A. No.87/2021 dismissing
the original application of the petitioner.
4. The applicant by filing the aforesaid O.A. prayed
before the Tribunal to pass the following order:
" (i) That the impugned speaking order No. ECoR/
Pers/Gaz/CC/OA-328/20/PBM Dtd.23.12.2020
passed by GM, East Coast Railway, Respondent
No.1 under Annexure-10 rejecting applicant's prayer
for granting proforma seniority/ promotion may be
quashed.
(ii) That the Respondents Railway authorities may
be directed to grant proforma seniority/ promotion
to the applicant in Group B AEN Post with effect
from his due date in the year 1998 like similar
situated person keeping in view of the fact and
ground of this case as well as in view of decision of
Apex Court in Union of India -vs- Debendra Kumar
Pant & others reported in (2009) 14 SCC 546
within time frame.
(iii) That the respondents may be further directed to
provide all consequential service benefits by
granting proforma seniority/promotion w.e.f. 1998
to the applicant."
5. The case of the petitioner, in brief, is that in the
year, 1997-98, his case for promotion was considered but was
rejected and he was not granted promotion to Group-B
Assistant Engineer due to defective colour vision. He preferred
an application before the CAT, which was disposed of in favour
of the petitioner. Thereafter, the ECoR filed W.P.(C)
No.8731/2004, which was disposed of on 19.04.2007 with
certain directions. Though the Division Bench of this Court did
not set aside the refusal of the opposite parties to promote the
petitioner to AEN Group-B post, it directed his promotion to a
post, in which the petitioner's deficiency of vision may not be a
bar. Thereafter, he was given promotion. But later on, on being
directed by the CAT, Cuttack Bench, vide order dated
07.09.2020 in O.A. No.260/328/2020 his case was considered.
The petitioner claims that since two other employees, namely,
Ch. Vishnumurty and K. Pravakar Rao were given promotion,
he should be given promotion with retrospective effect.
However, it is borne out from the record that while the ECoR
has carved out as new railway zone, volunteers sought from
among the Indian Railways employees to opt for working in
ECoR because a new staff cadre has to be constituted. Sri K.
Pravakar Rao and Sri Ch. Vishnumurty opted to join the new
ECoR cadre. The present petitioner did not choose to volunteer.
On being found suitable under due process, Sri K. Pravakar
Rao and Sri Ch. Vishnumurty were transferred to ECoR on
administrative ground with their seniority. In contrast, the
present petitioner, being a staff of South East Railway (SER),
was promoted to Group-B Junior Scale in SER. Later on, he, for
his personal need, requested to transfer ECoR on bottom
seniority citing his personal requirement. The competent
authority accepted his request and ordered for his transfer from
SER to ECoR as Junior Scale Group-B officer on bottom
seniority as per his application. Similarly, the case of employee,
Ashwini Kumar Behera is different from the case of petitioner,
as he is a Group-C employee of the ECoR and he was promoted
to Junior Scale Group-B in ECoR by ECoR. Therefore, the
General Manager, ECoR held that the claim for retrospective
promotion with seniority of the petitioner is not tenable. This
order was challenged in the original application before the CAT.
The CAT taking into the observations made by this Court in
W.P.(C) No.8731/2004 on 19.04.2007, dismissed the original
application.
6. This Court, in its order dated 19.04.2007 in the
aforesaid Writ Petition, has held as follows:
"Considering the aforesaid stand of the
railway authorities, we modify the order of the
Tribunal to the extent that instead of
according promotion to the opposite party to
any AEN Group B post, the opposite party's
case may be considered for promotion to any
Group B post in which the opposite party's
deficiency in vision may not be a bar. Such
consideration of the opposite party's case for
promotion in the light of the observation made
above should be made by the Railway
authorities as early as possible, preferably
within a period of three months from the date
of service of the order upon the Railway
authorities. If any promotion is given to the
opposite party in accordance with aforesaid
direction, such promotion will be a prospective
one and not retrospective." (underlined to
emphasize)
7. So, it is clear that the order passed by this Court
has attained its finality as it has not been challenged by any of
the parties before the Hon'ble Supreme Court. In pursuance of
such order passed by this Court, the ECoR has already granted
him promotion with prospective effect.
8. The learned counsel for the petitioner submits that
the decision taken by the ECoR is incorrect in view of some
latest decision of this Court as well as of the Supreme Court. He
argues that colour perception is not within the definition of
blindness, and therefore, the petitioner should not have denied
promotion.
The learned counsel for the petitioner relies upon
the judgment of the Division Bench of this Court in the case of
Puspak Ranjan Nayak vs. Union of India and others,
W.P.(C) No.5260/2009, dated 17.03.2020. However, after going
through the aforesaid judgment, we do not find any relevancy to
this case. It is on the some other point not on the question of
physical disability. He further relies upon the case of Union of
India vs. Devendra Kumar Pant and others, Civil Appeal
No.4668/2007, wherein as per the judgment dated 09.07.2009,
the Hon' ble Supreme Court has examined physical disability
and right to promotion. The Hon'ble Apex Court too examined
Section 47 of the Persons With Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995, hereinafter referred to as 'the Act' for brevity. In the case
of Union of India vs. Devendra Kumar Pant and others (supra),
the Hon'ble Apex Court has considered the aforesaid provision
of Section 47 of the Act and has held as follows:
" 15. Sub-section (2) of section 47 deals with
non-discrimination in promotion and provides
that no promotion shall be denied to a person
merely on the ground of his disability. This
would mean that a person who is otherwise
eligible for promotion shall not be denied
promotion merely or only on the ground that he
suffers from a disability. Thus section 47(2)
bars disability per se being made a
disqualification for promotion. But the position
is different if the disability would affect the
discharge of functions or performance in a
higher post or if the disability would pose a
threat to the safety of the co-employees,
members of the public or the employee himself,
or to the assets and equipments of the
employer. If promotion is denied on the ground
that it will affect the safety, security and
performance, then it is not denial of promotion
merely on the ground of his disability, but is
denial of promotion by reason of the disability
plus something more, that is adverse effect of
the disability upon the employee's performance
of the higher duties or functions attached to the
promotional post. It is significant that section
47(2) does not provide that even if the disability
comes in the way of performance of higher
duties and functions associated with the
promotional post, promotion shall not be
denied. Section 47(2) bars promotion being
denied to a person on the ground of disability,
only if the disability does not affect his capacity
to discharge the higher functions of a
promotional post. Where the employer
stipulates minimum standards for promotion
keeping in view safety, security and efficiency,
and if the employee is unable to meet the higher
minimum standards on account of any
disability or failure to posses the minimum
standards, then section 47(2) will not be
attracted, nor can it be pressed into service for
seeking promotion. In other words where the
disability is likely to affect the maintenance of
safety and security norms, or efficiency, then
the stipulation of standards for maintaining
such safety, security and efficiency will not be
considered as denying a person with disability,
promotion, merely on the ground of his
disability.
16. When invoking or applying the provisions of
the Act, it is necessary to keep in view that the
intention of the Act is to give a helping hand to
persons with disability so that they can lead a
self-reliant life with dignity and freedom. But
the intention of the Act is not to jeopardize the
safety and security of the public, co-employees,
or the employee himself or the safety and
security of the equipments or assets of the
employer nor to accept reduced standards of
safety and efficiency merely because the
employee suffers from a disability. In this case,
office order No.4/1990 makes it clear that the
minimum medical standards have been fixed
taking into account the requirements in the
medical manual with reference to interest of
public safety, interest of the employee himself
and fellow employees and in the interest of the
administration. If any employee or group of
employees are of the view that a particular
minimum medical standard prescribed does not
serve the interest of public safety, interest of the
employee and fellow employees or the interest of
administration, but has been introduced only
with the intention of keeping a person with
disability from securing the promotional post, it
is always open to him or them to give a
representation to the employer to review/revise
the minimum medical standards. On such
representation the employer will refer the issue
to a committee of experts to take appropriate
decision, if that was not already done. But once
a decision regarding medical standards has
been taken by the management bonafide and in
the usual course of business on the
report/recommendation of an expert committee,
the same cannot be found fault with on the
ground that it affects the right of a person with
disability for promotion.
17. xxx
18. xxx If a person not having a colour
perception is denied appointment to the post of
a driver, he cannot complain that he is
discriminated on the ground of his disability.
Same would be the position where the colour
perception is a required minimum standard for
a particular post. A person not possessing it is
not being denied appointment or promotion on
the ground of disability. The denial is on the
ground of non-fulfillment of a minimum
required standard/qualification. Viewed
accordingly, it will be seen that section 47(2) is
not attracted at all."
9. On such observations, the Hon'ble Apex Court has
held that Section 47 of the Act provides that a person, who is
otherwise eligible promotion, shall not be denied promotion
merely on the ground that he suffers from disability. The use of
word "merely on the ground" shows that the Section does not
provide that if the disability comes in the way of higher duties
and functions associated with the promotion post, the
promotion shall not be denied. In other words, promotion shall
not be denied to the person on the ground of disability only if
the disability does not affect his capacity to discharge the higher
functions of a promotional post.
10. In fact, the judgment relied upon by the learned counsel
for the petitioner goes against the petitioner. It is the case of the
ECoR that because of defect in colour perception, the petitioner
should not be promoted to AEN Group-B post. However, by
virtue of the order of this Court in W.P.(C) NO.8731/2004 on
19.04.2007, he has been given a promotion to a different post,
where defect in colour perception does not affect the discharge
of his duty and, as per the order passed by this Court in the
aforesaid Writ Petition, promotion has to be prospective not
retrospective. It can also be well perceived that a person with
defective colour perception can cause great harm to the people if
he is kept in charge of duties regarding railways traffic etc.
11. So, we are of the opinion that petitioner has no case
as the very provision of law and the precedence relied by him are
not applicable to this case to give him retrospective promotion.
Moreover, once a lis is settled by the judgment of this Court,
which is not challenged in a Special Leave Petition before the
Apex Court, it cannot be allowed to be re-adjudicated the matter
again.
For the aforesaid reasons, we do not see any merit
in the writ application. Hence, the writ petition is dismissed.
As the restrictions due to resurgence of COVID-19
are continuing, learned counsel for the parties may utilize a
printout copy of this order available in the High Court's website,
at par with certified copy, subject to attestation by Mr. Prasanta
Kishore Ray or Mr. Dhanoj Kumar Sahoo, Advocates along with
his seal, in the manner prescribed vide Court's Notice No.4587
dated 25th March, 2020 as modified by Court's Notice No.4798
dated 15th April, 2021.
pcd
........................
S.K. Mishra,J.
...........................
B.P. Routray,J.
pcd
