1. The applicant filed the present O.A. seeking for declaration that the letter dated 20.6.2003 issued by the respondent No. 3 is illegal, arbitrary and unconstitutional by holding that he is entitled to be placed in a supernumerary post created in the scale of pay of Rs. 825-1200/- 2750-4400/- for the period from 25.6.1996 to 27.3.1997 and for pay and allowances for the said period at the same rate he was drawing prior to medical decategorisation in the said scale of pay; and for absorption in the alternative post/grade in the scale of pay of Rs. 825-1200 / 2750-4450/- with effect from 28.3.1997 consequent on his medical decategorisation as per the provisions of Section 47(1) of the Persons with Disabilities Act, 1995 (for short, the "Act 1995") and also for grant of first stage financial upgradation under ACP Scheme to the scale of pay of Rs. 3050-4450/-with effect from 1.9.1998 along with arrears of pay and allowances, with all consequential benefits such as, arrears of pay and allowances, seniority etc.
2. The facts which are relevant for disposal of the present O.A. are briefly as follows: The applicant was initially appointed as Constable in the Railway Protection Force (RPF) in the pay scale of Rs. 225-308/- (RS)/Rs. 825-1200/- (RSRP) with effect from 17th April, 1983 on regular basis. He was medically decategorised on account of his serious illness with effect from 24th June, 1996. He was found to be unfit for B-1 category and found fit for C-1 category by the Medical Superintendent, Railway Hospital at Lallaguda and accordingly a certificate was issued on 24th June, 1996 to that effect. Thereafter he was forced to go on LAP for 35 days from 25th June, 1996 to 29th July, 1996 and 145 days Extraordinary leave without pay from 30th, July, 1996 to 12th December, 1996. However, the 4th respondent issued orders vide his letter dated 27th March, 1997 absorbing the applicant as Peon in the grade of Rs. 750-940/- and posted him in the office of the DME(P). SC. Since he was not getting salary for about a period of 9 months, he joined the said post on 28th March, 1997 in the lower grade though he is entitled to be absorbed in the higher grade of Rs. 825-1200/-. The applicant contended that his absorption in the lower grade of Peon is illegal and arbitrary. The applicant further contended that he is entitled to be kept on a supernumerary post in the grade of Rs. 2750-4400/- with effect from 24th June, 1996 to 27th March, 1997 with full pay and allowances which he was drawing prior to his medical decategorisation on 24th June, 1996, according to the provisions of Section 47 of the Act, 1995. The applicant, therefore, submitted a number of representations in this regard to the respondent Nos. 2 to 4.
However, there is no response for any of the representations from the said authorities. Recently he submitted a representation dated 23rd December, 2002 to the 4th respondent requesting for absorbing him in the equivalent grade with pay protection consequent on his medical decategorisation. In the said representation he also requested for grant of first stage financial upgradation under the ACP Scheme since he has completed 12 years of service by that date and also to treat him as placed on a special supernumerary post in the grade of Rs. 2750-4400/-(RP) with effect from 24th June, 1996 and for payment of salary for the period from 24th June, 1996 to 27th March, 1997. The same was forwarded by his officer vide his letter dated 24th December, 2002. The applicant also submitted a representation on 10th March, 2003 to the Senior DPO/SC. The said representation was also forwarded by his officer vide his letter dated 10th March, 2003. Thereafter the applicant submitted another representation dated 1st May, 2003 to the second respondent. Finally the second respondent vide his impugned letter dated 20th June, 2003 rejected the claim of the applicant for absorption and equivalent grade on his medical decategorisation with effect from 24th June, 1996 on the ground that his medical decategorisation and absorption in the lower post was prior to the Railway Board's letter dated 29th April, 1999. The applicant therefore challenged the said impugned orders passed by the third respondent in the present O.A. and sought for the above reliefs.
3. The respondents filed their reply statement contending that the present O.A. is barred by limitation as the cause of action arose to the applicant when he was medically decategorised on 24.6.1996 and he was offered the post of Peon at his request by the respondents. The applicant cannot take the shelter of the impugned letter dated 20.6.2003 issued by the 3rd respondent. The Act under which the applicant is claiming his reliefs is of the year 1995 and the present O.A. is filed in the year 2003 after a period of nearly 8 years. Hence the O.A. is barred by limitation. The respondents have admitted the fact that the applicant while working as Constable in the R.P.F. with a basic pay of Rs. 1040/- in the scale of Rs. 825-1200/- he was declared medically unfit for B-1 category and fit for C-1 and below category, vide medical certificate dated 15.4.1996 issued by the Medical Superintendent, Lallaguda, Secunderabad, copy of which is filed as Annexure-R/1. As per the provisions of Railway Establishment Manual circulated vide Railway Board's letter dated 24.4.1991, the medically decategorised employee should be examined by the Committee of two or three officers to determine his suitability to find a suitable alternative employment for him. Such employment must be suitable in nature and have responsible emoluments having regard to the emoluments previously drawn by the Railway servant. If a suitable job is not available, a job with lower emoluments may be offered, the suitable alternative post so offered should be with emoluments as nearer as possible to his earlier emoluments. As per the said provisions, the alternative post will be considered suitable if the emoluments of the same are at level not more than about 25% below his previous emoluments. Further the Railway servant must be given an opportunity to choose for himself whether he should accept the offer or reject it. The applicant was called for screening on 11.7.1996 and the Committee of officers who have examined the suitability of the applicant recommended him for the post of Khalasi Helper in Engineering department in scale of Rs. 800-1150/- with pay of Rs. 1030 + Rs. 10/- personal pay. The percentage of loss in emoluments offered in the alternative post of Khalasi Helper is 0.96%. The respondents also submitted that the applicant submitted his unwillingness for the post of Khalasi Helper in scale of Rs. 800-1150/- and requested to post him as Peon in any Divisional Office in the scale of Rs. 750-940/- which he is willing to accept vide his representation dated 23.10.1996. The applicant also submitted another representation dated 20.1.1997 that he is willing to accept the post of Running Room Bearer which is also in the scale of Rs. 750-940/-. The applicant was again called for screening on 5.3.1997 considering his request and the Committee recommended him for the post of Peon in the scale of Rs. 750-940/- in the Divisional Office of Mechanical Department duly fixing his pay at Rs. 940/-. As per the extant rules, if there is no such stage in the post in which he/ she is absorbed, he/she is to be given the stage below the pay previously drawn by him/her, subject to the condition that the employee is not entitled to a pay more than maximum of the absorbing grade though he might be drawing more pay in his parent department if decategorisation had arisen due to natural causes, such as, aging process, deterioration of visual acuity including colour perception in the ordinary course. In the present case, the applicant was declared medically decategorised due to epilepsy and as such his pay was fixed at the maximum of the scale of Peon i.e. at Rs. 940/- in the scale of Rs. 750-940/-. The percentage of loss in emoluments in the aforesaid alternative post of Peon is 9.6% and is in accordance with rules. The respondents also contended that the provisions of Section 47(1) of the Act, 1995 are applicable only in respect of a person whose disability is found to be not less than 40% as certified by a medical authority. Percentage of disability has not been certified by the medical authorities.
Therefore, the provisions of the above Act are not applicable to the present case.
4. The applicant was medically decategorised due to epilepsy which does not come under the list of disabilities. The rules framed under the Railway Board's letter dated 29.4.1999 are for medical decategorisation, whereas the Persons with Disabilities Act, 1995 provide for disabled persons. The Railway rules about medical decategorisation do not confine themselves with persons with disability but cater to a broader spectrum based on functional requirements. The instructions of the Railway Board formulated as modified scheme of rehabilitating the medically decategorised staff are effective from the date of issue of Board's letter dated 29.4.1999. When the applicant was medically decategorised on 24.6.1996 and offered the post of Peon by the Administration purely at his request, the applicant is not entitled for protection of grade and status. The applicant was accordingly advised vide letter dated 20.6.2003. The applicant was granted financial upgradation under the Assured Career Progression Scheme (ACP) to the next higher scale of pay i.e. Rs. 2610-3540/- with effect from 1.10.1999 i.e. from the date of Railway Board's order for which he is eligible. The respondents therefore prayed for dismissal of the O.A.5. We have heard the arguments advanced by the learned Counsel for the applicant Mr. V. Venkateswara Rao and the learned standing Counsel for the respondents Mr. V. Vinod Kumar.
6. It is seen from the above admitted facts that the applicant while working as RPF Constable was medically decategorised on the basis of the medical certificate dated 15.4.1996 issued by the Medical Superintendent, Railway Hospital, Lallaguda, Secunderabad and he was declared medically unfit for B-1 category and fit for C-1 and below category of posts and at that time the applicant was drawing a basic pay of Rs. 1040/- in the scale of Rs. 825-1200/-. The applicant produced a xerox copy of the orders dated 2.7.1996 passed by the Divisional Security Commissioner, RPF, Secunderabad, as Annexure-I along with this O.A. to show this fact. In this order, it is clearly mentioned that the applicant has been medically decategorised and declared unfit for B-1 and fit for C-1 and below. Thereafter, the applicant has been granted 180 days leave--35 days LAP from 25.6.1996 to 29.7.1996 and 145 days extraordinary leave without pay from 30.7.1996 to 21.12.1996 under the above orders issued. It is, therefore, not open for the respondents to still contend that medical decategorisation of the applicant had not arisen due to natural causes such, ageing process, deterioration of visual acuity including colour perception in the ordinary course. In fact they have also admitted in their reply statement that the applicant was medically decategorised due to epilepsy. So it must be taken that the applicant was medically decategorised for valid reasons on the basis of the medical certificate furnished by the Medical Superintendent, Railway Hospital, Lallaguda, Secunderabad after subjecting him to medical examination.
7. It is next contended by the learned Counsel for the applicant that though the applicant has been absorbed in the lower grade of Peon in the scale of pay of Rs. 750-940/- with effect from 28th March, 1997 by the orders issued by the 4th respondent dated 27th March, 1997, the applicant is entitled for protection of his pay which he was drawing by the date of his medical decategorisation in the post of RPF Constable.
He further submitted that the applicant is entities to be kept on a supernumerary post from 24th June, 1996 to 27th March, 1997 with full pay and allowances which he was drawing prior to his medical decategorisation on 24th June, 1996 and the same was denied to him illegally and arbitrarily by the authorities. In support of this contention, he has drawn our attention to the provisions of Section 47(1) and (2) of the Act, 1995 which are extracted hereunder as follows: (1) No establishment shall dispense with, or reduce in rank, an employee who acquired 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 later.
(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." 8. Thus it is clear from the above provisions of the Act that whenever a lower post is offered to a medically decategorised employee, he is entitled to same pay scale and service benefits which he was enjoying by the date of his medical decategorisation, and if no suitable post is available for him, he is to be kept on a supernumerary post until a suitable post is available. In the instant case, since the applicant has not been extended the same pay scale and basic pay which he was holding by the date of his medical decategorisation, we find that the said action of the authorities is in violation of the provisions of Section 47(1) of the Act, 1995 and the applicant is entitled to seek for payment of difference in the salary due to him taking into consideration the scale of pay he was holding and the basic pay he was holding in respect of the post of RPF Constable by the date of his medical decategorisation. Further the applicant is also entitled to seek for placing him in a supernumerary post created in the scale of pay of Rs. 825-1200/- 2750-4400/- for the period from 25th June, 1996 to 27th March, 1997 and for the pay and allowances for the said period on the same rate which he was drawing by the time of medical decategorisation in the said scale of pay. Instead of granting the said relief, the authorities have only forced him to go on leave for i.e.
LAP for 35 days from 25th June, 1996 to 29th July, 1996 and extraordinary leave without pay for 145 days from 30th July, 1996 to 12th December, 1996. The said action taken by the authorities is clearly erroneous and is in violation of the provisions of Section 47(1) of the Act, 1995.
9. However, the learned standing Counsel for the respondents submitted that the provisions of the Act, 1995 were adopted and given effect to by the Railway Administration only from 29th April, 1999 the date on which the said letter was issued by the Railway Board and therefore, the applicant was medically decategorised on 24th June, 1996 is not entitled for the benefits of the provisions of Section 47 of the Act, 1995. According to him, the said Railway Board instructions issued are prospective in nature. But it is pointed out by the learned Counsel for the applicant that the provisions of the said Act are binding on the respondent authorities and in fact, the Railway Board vide their letter dated 15th April, 1997 issued instructions to follow the provisions of the said Act while absorbing employees in the alternative post consequent on medical decategorisation. We agree with the above contention of the learned Counsel for the applicant that the provisions of the Act, 1995 are binding on the respondent authorities. Merely because the Railway Board issued instructions in the subsequent years follow the provisions of the said Act, it cannot be contended that the benefits of the provisions of the said Act are not applicable to the employees of the Railway Administration. It is not the requirement of law that the Act will come into force only from the date on which it was adopted by the Board, Establishment or Organisation of the Central Government. Since the Railway Administration is not exempted as per the notification issued under the provisions of the Act, 1995, therefore cannot be any doubt that the Act applies to the Railway Administration from the date the Act came into force in the year 1995.
10. In this connection, the learned Counsel for the applicant brought to our notice the decision of the Hon'ble Supreme Court reported in 2003(2) SLR page 502 in the case of Kunal Singh v. Union of India and Anr.
"9... It must be remembered that an employee does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possible all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of section reads: no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The section further provides that if an employee after requiring 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from Sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain, casting statutory obligation on the employer to protect an employee acquiring disability during service." In view of the above law laid down by the Apex Court, it is not open to the respondents to contend that the applicant is not entitled to the benefits of the provisions of Section 47 of the Act, 1995.
The respondents also submitted that the provisions of Section 47 of the Act, 1995 are applicable only in respect of the employees suffering from not less than 40% of any disability as certified by the medical authority and that in respect of the applicant, the medical authority has not certified percentage of disability suffered by him. It is, therefore, contended by them that the provisions of Section 47(1) are not applicable to the applicant. We are unable to accept this contention of the respondents. Since the respondents have not placed on record anything to show that the nature of disability suffered by the applicant is less than 40% and they have not obtained any such certificate from the competent medical authority. In fact, the Competent Authority has not taken any such contention in the reply letter dated 20.6.2003 that the disability suffered by the applicant was not 40% or that it does not come under any of the categories of the disabilities defined in the Act, 1995. On the other hand, the representation submitted by the applicant in this regard has been rejected only on the technical ground that the instructions issued by the Railway Board to follow the provisions of the Act, 1995 came into force with effect from 29th April, 1999, the date of the letter of the Railway Board, as could be seen from the impugned letter dated 20.6.2003, xerox copy of which is produced as Annexure-8 along with this O.A. Thus we find no merit in any of the contentions raised by the respondents in their reply statement. In fact, in the letter dated 21.9.2001 issued by the Railway Board it is clarified that the provisions of Para 1035 of IREM are to the same effect as the provisions contained in Section 47 of the Act, 1995. The learned Counsel for the applicant has brought to our notice a recent decision rendered by this Tribunal in O.A. No. 1368 of 2002 dated 10th December, 2002 wherein this Tribunal held that the applicant in the said case who was a Railway employee in the post of Skilled Gr. I Fitter was medically decategorised with effect from 19.6.1997 and he was entitled to the benefits of the provisions of Section 47 of the Act, 1995. He produced a xerox copy of the decision rendered by this Tribunal in that case dated 10th December, 2002 along with the copy of the Ministry of Railway's letter dated 4.3.2002 referring to the Railway Board's letter dated 21.9.2001. He also brought to our notice the decision rendered by the Chief Commissioner for persons with disabilities in Case No.873/2001 wherein the applicant who was a Railway employee also was medically decategorised with effect from 16.5.1996 was granted the benefits of provisions of Section 47 of the Act, 1995. We, therefore, find that the applicant in the present case is also entitled to the benefits of Section 47 of the Act, 1995 by way of the reliefs claimed by him in the present O.A.11. In the result, the O.A. is allowed declaring that the impugned letter dated 20th June, 2003 issued by the third respondent is illegal, arbitrary and unconstitutional and holding that: (i) the applicant will be placed in a supernumerary post created in the scale of pay of Rs. 825-1200/- 2750-4400/- for the period from 25th June, 1996 to 27th March, 1997 and he be paid the pay and allowances for the said period at the same rate he was drawing prior to his medical decategorisation in the said scale of pay.
(ii) the applicant will be absorbed in the alternative post/grade in the scale of pay of Rs. 825-1200/ 2750-4400/- with effect from 28th March, 1997 consequent on his medical decategorisation as per the provisions of Section 47(1) of the Persons with Disabilities Act, 1995; and (iii) the applicant will be granted the first stage financial upgradation under ACP Scheme to the scale of pay of Rs. 3050-4550/- with effect from 1st September, 1998 along with arrears of pay and allowances with all consequential benefits, such as, arrears of pay and allowances, seniority etc.
There shall be compliance with this order within a period of 3 (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.