Full Judgment
Dr. A.K. Mishra, Member (A)
This application has been filed with a prayer that the case of the applicant for appointment in an alternative post according to his medical fitness should be considered by the respondents without any regard to the Circular of the Railway Board dated 25.05.2009 which communicated the policy decision not to consider medically unfit candidates for alternative appointments. The second prayer is to quash the Circular dated 25.05.2009 by declaring it as illegal and arbitrary.
2. The applicant was a candidate for the post of Technician-III (Mech.) which was advertised by the Railway Recruitment Board, Allahabad vide their advertisement No. 2/2006. The applicant passed the written test and was provisionally selected. His name was forwarded to General Manager (P), North Central Railway, Allahabad. At the time of medical examination, it was found that he is medically unfit for the post. The medical certificate dated 30.07.2008 declares him fit under ‘BEE TWO’ category not under ‘AYE TWO’ or ‘AYE THREE’. Therefore, he was not considered for appointment to the post of Technician-III.
3. The applicant submits that he made a representation to consider his case for any alternative post for which he was medically fit. He has not submitted a copy of the representation, nor the date of representation. He has stated that he did not have any copy as the only copy of the representation had been submitted by him to the competent authority. According to him, when there was no response, he approached the office of respondent No. 2 and after 10/11 months and was informed that the possibility of such alternative appointment is no longer available in view of the Railway Board Circular dated 25.05.2009 which had put a ban on such appointment on alternative posts. He sent a legal notice on 22.09.2011 to the respondent authorities seeking alternative appointment but there was no response; hence the present O.A.
4. At the time of hearing, learned counsel for the applicant placed reliance on the order of this Tribunal in OA-3765/2009 (Sunil Kumar Meena Vs. U.O.I. and Ors.) decided on 16.11.2010 in which a view was taken that the Railway Board Circular dated 25.05.2009 would have prospective application only; it would not apply to the facts prior to that date.
5. In the present case, the applicant appeared in the selection test of 2008 and was provisionally selected as per the letter of Railway Recruitment Board dated 24.04.2008. However, he could not be appointed as he was declared medically unfit on 30.07.2008 for the post of Technician-III.
6. In the case of Sunil Kumar Meena (supra) the applicant therein had immediately requested for his consideration against an alternative post for which he was medically fit. Although the applicant is making a statement that he had made such a representation, there is no document supporting his averment in this regard. It was only on 22.09.2011 that a legal notice was issued to the General Manager, North Central Railway seeking an alternative appointment.
7. Originally the respondents had raised objection on the ground of jurisdiction. However, the application for transfer was allowed by the Hon’ble Chairman in his order dated 07.03.2012 in PT No. 317/2011.
8. The applicant has filed an application for condonation of delay. Admittedly, the original cause of action arose on 30.07.2008 when he was medically declared unfit for the post of Technician-III Guard for which he had applied and was provisionally selected. The O.A. has been filed on 12.12.2011 after a delay of three years four months and 13 days. If his plea of having given a representation is accepted, it would give him only additional limitation of six months. Since no date of his representation is mentioned, this averment will not help him on this issue of limitation.
9. Learned counsel for the applicant has placed reliance on the following judgments to contend that an application should be considered on merit and not be thrown away on technical issue of limitation:-
i. Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Dev. Corp. and Anr., 2010(2) SCC (LandS) 50.
Improvement Trust Ludhiana Vs. Ujjawar Singh, 2010(6) SCALE 173.
MadrasPortTrust Vs. Hymanshu International, 1979(4)SCC 176.
State of Bihar Vs. Kameshwar Pd., 2000(2)ATJ 614.
10. On the other hand, Hon’ble Supreme Court in the case of D.C.S. Negi Vs. U.O.I. and Ors., [SLP (Civil) No. 7956/2011 decided on 07.03.2011] has given a categorical direction that the Central Administrative Tribunal is duty bound to consider the limitation issue as per the provisions of the Administrative Tribunals Act, even if this issue is not raised by the respondent authorities. The explanation offered by the applicant is that he belongs to Rajasthan State and came to know about benefits given to persons similarly situated in the judgment dated 16.11.2010 in OA-3765/2009 later in point of time. Only thereafter he could approach a legal practitioner for legal help and on his advice he had sent a legal notice on 22.09.2011 which is not yet responded to. It is seen that there is no valid ground to condone the delay. In the case of BSNL Vs. Ghanshyam Dass and Ors., AISLJ IV-2011(1) 472 it was held by the Apex Court that fence sitters cannot be given any benefit.
11. On merits also, we find that the applicant has not placed a copy of his representation for considering him for an alternative appointment. It is only the legal notice dated 22.09.2011 which speaks about his prayer for consideration against an alternative post. The Railway Board Circular dated 20.08.1999 on which the applicant is placing reliance for consideration against an alternative post reads as follows:-
“2. Board have reviewed the policy, keeping in view high cost of recruitment and the need to adopt uniform policy for all candidates and for all categories of recruitment. It has consequently been decided that the General Managers shall henceforth have the authority to consider request from candidates of non-technical categories also, who fail in prescribed medical examination after empanelment by RRB, for their appointment in alternative category, subject to fulfillment of the prescribed medical standard, educational requirement and other eligibility criteria for the same grade post in alternative category. Such consideration shall be on the same lines as hitherto done for technical categories. The decision of the General Manager regarding availability and identification of the vacancy in alternative grade, including other relevant factors required to be considered, shall be final.
11.1 This circular states clearly that the General Manager had the authority to consider requests from candidates. Now, the applicant is not in a position to establish that he had, in fact, given such a representation except for making a bland averment. As stated earlier, his request for consideration against an alternative post was specifically made in the legal notice dated 22.09.2011. By then, the policy had already been changed and the Railway Board had decided for cogent reasons set forth in their Circular dated 25.05.2009 not to entertain such applications any more. The reasons as set forth in paragraphs 2 and 3 of this Circular read as follows:-
“2. The genesis of the provision for considering alternative appointment primarily lies in the high cost of recruitment, short panels and filling up of vacancies where there is acute shortage of staff. However, the experience of the Railways over the years indicates that this provision is being misused. A large number of candidates empanelled for the post of ASM/Assistant Loco Pilot/Motorman had been failing in the prescribed medical examination thereby resulting in short panels. Board had, therefore, decided not to provide appointment in alternative posts to the medically failed empanelled candidates for these categories. These orders were issued in 2001 vide reference No.3 above.
3. Some of the Railways have brought to the notice of the Board that due to a large number of surplus/medically decategorized staff awaiting re-deployment, it is not feasible to consider cases of alternative appointment to medically unfit RRB/RRC empanelled candidates. Moreover, some candidates take this provision as a matter of right and misuse it for securing alternative appointment in Non Technical Popular Categories posts where the level of competition is much tougher. This matter was also discussed in the Conference of Chief Personnel Officers held in Board’s office on 01.05.2009 wherein the general consensus was that the policy of providing alternative appointment to the medically failed empanelled candidates both for Group ‘C’ and Group ‘D’ posts should be dispensed with.”
It is seen that on facts, this case is distinguishable from OA-3765/2009.
12. The Policy Directives of the Railway Board have the status of Rules. The imputation that the impugned Circular dated 25.05.2009 was illegal or arbitrary have not been established. On the other hand, we find sufficient justification for the circular.
13. Admittedly, any other alternative post has not been advertised; neither is there any selection of the applicant for any specific post belonging to the medical fitness category ‘BEE TWO’. In the absence of such selection, any direction for appointment of the applicant against any such post would not be in consonance with the ruling laid down by the Hon’ble Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi and Ors., Scale 2006(4) 197.
13.1 The issue of validity of Circular dated 25.05.2009 was considered by a Co-ordinate Bench in OA-3515/2011 decided on 22.03.2012 alongwith the clarification issued by the Railway Board in Circular dated 28.07.2010. The findings of the Tribunal read as under:-
“7.2 Even on merit, the case is not in favour of the applicant. The basic argument on behalf of the applicant in support of the claims in the OA rests on the contention about the RB circular dated 25.5.2009 being prospective in application. This relies on para 5 of the circular to the effect, ‘These orders supersede all earlier orders issued on the subject and will take effect from the date of issue.’ However, the contention of prospectivity/retrospectivity got clarified vide the RB circular dated 28.7.2010 referred by the respondents.
Specifically dealing with the same subject, the circular dated 28.7.2010 states:
“The discretionary powers earlier delegated to General Managers of all Zonal Railway/Production Units for considering such cases for providing alternative appointment in same grade to medically unfit empanelled candidates have been ceased to exist with immediate effect from the date of issue of Board’s Circular No.99/E(RRB)/25/12 dated 25.05.2009 (RBE No.90/RRCB No.01/2009).”
Elaborating the point further about the impact of the circular dated 25.05.2009 on such requests pending from before, it was clarified:-
“When the delegated powers ceased to exist with the issue of Board’s instructions ibid, it is immaterial whether case occurred before 25.05.2009 or after 25.05.2009. Therefore, in the above scenario, request for alternative appointment of medically unfit candidates should not be considered in any case.”
The reading of the circular dated 25.05.2009 read with the subsequent clarification vide the circular dated 28.07.2010 makes the position clear on this issue. Since the basic power as per the earlier circular was being exercised by the General Managers, by way of delegation of the powers of the RB; consequent to Boards decision vide the circular dated 25.05.2009 discontinuing the earlier policy, the power itself becomes non-existent, and hence, not available for considering any cases whatsoever.
7.3 The previous decisions of the Tribunal in some other OAs cannot also be pressed in support, as they are distinguishable in certain critical considerations. In those orders, the RB circular dated 28.7.2010 had never been brought to the notice of the Tribunal, and thus there was no occasion for its consideration. In its judgment in Collector of Central Excise, Calcutta Vs. Alnoori Tobacco Products and Anr. 2004(6) SCALE 232, while propounding the doctrine of circumstantial flexibility, the Hon’ble Apex Court frowned upon disposal of a case by placing blind reliance on a decision, since one additional or different fact may make a world of difference between conclusions in two cases.”
14. For the foregoing reasons, this O.A. is dismissed both on the grounds of limitation as well as merits. No costs.