1. This application is filed by the applicant seeking for declaration that denial of protection of pay scale of Rs. 4500-7000 and the protection of basic pay of Rs. 4875/- as on 23.1.1998 to him is illegal, arbitrary, unconstitutional and violative of Articles 14 and 16 of the Constitution of India and the impugned action of the respondents is violative of Section 47 of the "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" and that the said action is also violative of instructions in Serial Circular No. 68/ 97, Circular letter No. P(R) 347/PDA dated 15.4.97, Copy of Board's letter No. E(LL) 96/AT/PDA/1 dated 21.2.1997 of the Railway Board and to quash the impugned letter dated 28.11.2000 issued by the 4th respondent as illegal, arbitrary and unconstitutional and to declare that he is entitled for absorption in the alternative job on medical decategorisation in the scale of Rs. 4500-7000 with pay protection in his basic pay of Rs. 4875/- with effect from 23.1.1998 and seniority with all consequential benefits.
2. The facts which are relevant for the disposal of this application are briefly as follows: The applicant was initially appointed as a Group-D employee in South Central Railway with effect from 27.1.1969. His services as a Group-D employee were confirmed with effect from 28.4.1971.
Thereafter he was promoted to Group-C in the clerical cadre and his services were confirmed with effect from 1.1.1981. While the applicant was working as Skilled Grade-I Fitter, he developed serious physical disability i.e., stiffness in both the knees and as a result, the movement of his legs has completely stopped.
Thereafter the 3rd respondent directed special medical examination of the applicant in C-ONE medical classification vide his letter dated 22.5.1997. Accordingly, medical examination was held and he was declared as unfit for the post of Fitter and was recommended for sedentary job in C-ONE category by the Railway Medical Department on 19.6.1997. Thereafter, the 4th respondent vide memo dated 1.12.1997 granted extra-ordinary leave without pay for 180 days from 28.7.1997 to 23.1.1998. The applicant was drawing his pay in the scale of pay of Rs. 4500-7000 as Fitter HSK. I at the time when he was subjected to medical examination for absorption in an alternative job in C-I category. However, he was absorbed as Junior Clerk in the scale of pay of Rs. 3050-4500 with effect from 23.1.1998 in the office of the Deputy Controller of Stores M&G, Guntupally. The applicant contended that as per the instructions issued by the Railway Board, he is entitled to be absorbed in the equivalent grade in the alternative job in the scale of pay of Rs. 4500-7000 which he was drawing as Fitter HSK-I prior to his medical decategorisation. As such he should have been absorbed as Senior Clerk which carries the same scale of pay instead of Junior Clerk which scale is lower than the one held by him. The maximum pay of Junior Clerk was only Rs. 4500/- whereas he was drawing the basic pay of Rs. 4875/- at the time of medical decategorisation. The applicant also contended that absorbing him in the alternative lower grade of post without protection of grade and pay, is contrary to Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Railway Board's instructions in Serial Circular No. 68/97, Circular letter dt.
15.4.1997, Copy of Board' s letter dated 21.2.1997. Therefore, he submitted a representation to the 4th respondent on 10.4.2000 to review his case and for conferment of benefits to which he is entitled to as a medically decategorised employee. Since there was no reply to the said representation, he submitted another representation dt. 6.11.2000 making specific request for protection of his grade and pay as the holder of the scale of pay of Rs. 4500-7000 and the basic pay of Rs. 4875/- at the time of his medical decategorisation and absorption into alternative job with effect from 23.1.1998. He also requested for protection of seniority in the alternate job on medical decategorisation. But the 4th respondent rejected his claim by the impugned letter dated 28.3.2000. The applicant, therefore, approached this Tribunal seeking for the above reliefs.
3. The respondents filed their reply statement contending that on a voluntary request made by the applicant, he was decategorised and his case does not come under the category of medical decategorisation.
Therefore he was not entitled to the benefits of the above referred instructions issued by the Railway Board or provisions of Section 47(1) of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995". The applicant was directed for special medical examination on his own request. Since he was not entitled to Gr. I Fitter, he became fit in Gr. II prior to joining the workshop. The staff belonging to any medical category when brought into categories of C-1 or C-2 on revision may not be required to undergo any medical re-examination as per Rule 1018(3) of IREM of 1968. The applicant was brought to the medical category of C-1 soon after joining the workshop and hence it was mentioned in the letter dated 22.5.97 addressed to the Chief Medical Superintendent, Railway Hospital, Vijayawada that he should be examined for C-l medical category only.
Accordingly, the medical examination was held and the applicant was declared fit in C-ONE for sedentary job only, vide letter dated 23.6.1997 a copy of which is Annexure R-III. The respondents further contended that the applicant was neither decategorised from medical category CEY-ONE as per visual/physical standards nor found unfit for the present post held by him as advised in other cases, but is recommended for sedentary job in CEY-ONE only. So a reference was made to the Chief Medical Superintendent, Vijayawada vide Office letter dated 28.6.97 a copy of which is Annexure R-IV and the applicant was directed for re-examination. Further it was also declared by the Chief Medical Superintendent, Railway Hospital, Vijayawada that he was not suitable to work as a Fitter. On clarification, he was also advised to avoid manual labour in view of shortening and O.A. changes of both knees due to physical standards vide Chief Medical Superintendent, Railway Hospital, Vijayawada's letter dated 28.7.1997 a copy of which is filed by the respondents as Annexure R-V. Therefore, the applicant was sanctioned 180 days extra-ordinary leave vide Office Memo dated 1.12.1997 (Annexure R-VI). A screening test was conducted on 9.1.1998 by the committee consisting of 3 officers and the applicant was found suitable for absorption as Junior Clerk in the scale of Rs. 3050-4590 in Stores Department on bottom seniority. Accordingly Office Order dated 20.1.1998 was issued and the applicant reported for duty in Stores Department as Junior Clerk on 23.1.1998 without any protest or demur. The applicant accepted the alternate job of Junior Clerk in Stores Department provided to him and reported to duty and he never represented against the decision of the Committee. However, the applicant accepted all the terms and conditions stipulated in Office Order dated 20.1.1998. The respondents therefore contended that the applicant is estopped from contending now that he should be given seniority and higher grade. According to the respondents the request of the applicant was considered only for change of category at his own request but not one under medical decategorisation. The respondents therefore prayed for dismissal of this application.
4. We have heard the arguments advanced by the learned Counsel for the applicant and the learned standing Counsel for the respondents.
5. It is seen from the above undisputed facts that on a request made by the applicant by letter dated 24.4.97 a copy of which is produced by the respondents, the 3rd respondent who is Deputy Chief Mechanical Engineer, Personnel Branch, Wagon Workshop, Guntupally directed the applicant to subject himself to special medical examination by letter dated 22.5.1997 a copy of which is produced by the respondents. In the request letter dated 24.4.97 the applicant submitted that on 7.11.1994 he was examined by the Medical Superintendent/Division/BZA as well as by the Chief Medical Superintendent/RH/BZA and both the doctors have given their opinion that his case is a "Post Polio Palsy of left leg, wasting of left leg muscle and weak." He further submitted in that letter that he was on Railway Medical Authorities' sick list from 2.11.1994 to 26.12.1994 and was discharged from sick list. After resuming duty, he was given job writer work on humanitarian grounds but the same problem is recurring due to shorting of left leg and he was getting severe pains in both the legs. While accepting the request of the applicant, the 3rd respondent permitted the applicant to subject himself for special medical examination and in his letter dated 22.5.97 he mentioned that as the applicant is working in C-ONE Medical Classification at that time, he has to be examined in the C-ONE medical category only and the report of the medical examination has to be sent to his office. After subjecting the applicant for special medical examination, the chief Medical Superintendent, Vijayawada submitted his report dated 23.6.1997 a copy of which is produced as Annexure R-III stating that the applicant subjected to medical examination and he was found fit in Class CEY-ONE for sedentary job only and that he should avoid manual labour in view of shortening and O.A. changes both knees.
On receiving the said report, the 3rd respondent has addressed another letter dated 28.6.1997 to the CMS/RH/BZA seeking for clarification regarding medical report submitted and copy of that letter is produced as Annexure R-IV. It is seen from the said letter dated 28.6.1997 that the 3rd respondent stated in that letter that the applicant is neither decategorised from medical category C-ONE as per visual/physical standards nor found unfit for the present post held by him, as advised in other cases, but is recommended for sedentary job in C-ONE only and as there is no provision for sedentary natured jobs in his workshop, the applicant was redirected in the office of the CMS/RH/BZA for re-examination. Accordingly the applicant was re-examined by the CMS/RH/BZA and he submitted report dated 28.7.1997 a copy of which is produced as Annexure R-V stating that the applicant is not fit to work as Fitter as he is advised to avoid manual labour in view of shortening and O.A. changes of both knees due to physical standards, but fit in CEY-ONE as per visual standards. He therefore furnished his opinion that the applicant was advised a sedentary job only. On the basis of the said report of the CMS, the 3rd respondent granted 180 days extra-ordinary leave to the applicant for the period from 28.7:1997 to 23.1.1998 in terms of Rule 1304 of IREM (1989 Edition). Subsequently, the impugned order has been issued by the 3rd respondent absorbing him in the alternative post as Junior Clerk in in the scale of 3050-4590 RS (RP) and posting him as Junior Clerk in that scale on pay of Rs. 4590/- (Maximum) in Stores Department/WWS/Guntupalli on bottom seniority with immediate effect. It is also clarified in that letter that the above cadre change/transfer is subject to the following conditions: (a) He will rank junior to all the permanent and temporary employees working in the grade of Clerks in scale Rs. 3050-4590 RS (RP) on the date of his joining in the new seniority unit; (b) His seniority as a Clerk in the stores department will commence only from the date he joins as Clerk in stores department; and (c) He should report to DCOS/M&G/WWS/Guntupalli on or before 23.1.1998 for further posting orders.
6. A copy of the impugned order is produced as Annexure-VII. Thus it is seen from the above sequence of events that the case of the applicant clearly falls under the medical decategorisation through he was subjected to medical examination at his request. In fact CMS/BZA has made it clear after conducting the 2nd medical examination of the applicant, in the report submitted by him by letter dated 28.7.1997 (Annexure R-V), that the applicant is not fit to work as Fitter as he is advised to avoid manual labour and in view of shortening and O.A.changes of both knees due to physical standards and he is fit in CEY-ONE as per visual standards.
7. It is seen from the records that the applicant was initially appointed on 27.1.1969 as Group-D employee and he was subjected to medical examination by orders passed by the 3rd respondent on 22.5.1997 i.e., nearly after the applicant has completed 28 years of service and at that time he was working as Fitter HSK. I in the scale of Rs. 4500-7000. According to the applicant he was promoted to Group-C in the Clerk cadre with effect from 1.1.1981 and he has completed nearly 16 years of service in that cadre. It cannot, therefore, be said that the applicant has not developed the said serious physical disability viz., stiffness in both the knees during the course of his employment. So merely because the applicant subjected himself to medical examination on making a request to the 3rd respondent, in our view, it is not permissible to the respondents to contend that the case of the applicant is not one of medical decategorisation and that it is not only a case of decategorisation permitted at the voluntary request of the applicant. On the other hand, it is seen from the above correspondence that the applicant's request was not for mere change of cadre but it was one for medical decategorisation since he was unable to do job of a Fitter which has to be attended by standing all the time, on account of serious physical disability developed by him due to the stiffness in both the knees. The learned Counsel for the applicant has produced a copy of the Railway Board's letter dated 26.6.2002 wherein they have clarified that absorption of medically decategorised staff in grades lower than the grade held by them on regular basis at the time of their medical decategorisation is in contravention of the provisions of the "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" and that the provisions of Para 1305 of IREM should be strictly complied with. In this clarificatory circular No. 122/2002, the Railway Board has referred its earlier letter dated 29.4.1999 and the South Central Railway letter dated 21.9.2001. Since it is found from the above facts that the case of the applicant falls within the purview of medical decategorisation, in our view, he is entitled for the benefits under Section 47 (1) of "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" and the above circular instructions issued by the Railway Board based on Para 1405 IREM. The contention of the respondents that the applicant was neither decategorised from medical category CEY-ONE as per visual/physical standard nor found unfit for the present post of Fitter held by him, is without any merits since the above referred medical report of CMS/BZA dated 28.7.1997 (Annexure R-VI) clearly disclosed that he is not fit to work as Fitter and he is advised to avoid manual labour in view of shortening and O.A. changes of both knees due to physical standards though he was found fit in CEY-ONE as per visual standards. Further we are unable to pursuade ourselves to accept the contention of the learned standing Counsel for the respondents that if an employee is medically decategorised after subjecting him for medical examination at his request, he is not entitled to seek for the benefits of the above Railway Board's circular instructions and the provisions of Section 47 of the "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995," as no such distinction is made under the said provision and Railway Board's instructions between employees who voluntarily subjected themselves for medical examination and who were made to undergo medical examination by the employer without a request being made in this regard for the purpose of extending benefits of the said provisions of the Act and circular instructions of the Railway Board. In our view, when once it is found that the person has developed serious disability during the course of the employment on account of nature of duties performed by him and was medically decategorised after subjecting him for medical examination by the Medical Officer of Railways, the said benefit is to be extended to him and the employee is to be provided alternate job protecting his scale of pay and the actual pay drawn by him at the time of medical decategorisation and if it is not possible to adjust the employee against any post he is to be kept on supernumerary post until a suitable post is available or on attaining the age of superannuation whichever is earlier as per the provisions of Section 47 of the "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995." Since in the instant case the applicant is given a post lower than the post he was holding prior to medical decategorisation, he is entitled to seek for protection of his scale of pay and the actual pay drawn by him in the post which he was holding at the time of medical decategorisation.
8. For the above reasons, this application is allowed quashing the impugned letter dated 28.11.2000 issued by the 4th respondent declaring the same as arbitrary, illegal, unconstitutional and in violation of Section 47(1) of "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" and the circular instructions issued by the Railway Board in Serial Circular No. 68/97, Circular letter dated 15.4.1997 and the Railway Board's letter dated 21.2.1997 and directing the respondents to provide him an alternative job in the same scale of pay of Rs. 4500-7000 with protection of basic pay of Rs. 4875/- and seniority with effect from 23.1.1998 with all consequential benefits such as seniority, promotion etc. and if it is not possible to adjust the applicant against any post he has to be kept on supernumerary post until a suitable post is available or he attain the age of superannuation, whichever is earlier Time for compliance is three months from the date of receipt of a copy of this order. In the circumstances, we direct the parties to bear their respective costs.