ORAL ORDER
(As per Hon'ble Mr. Justice P. Lakshmana Reddy, Vice-Chairman)
Heard Mr. M. Venkanna, learned counsel for the applicant and Mrs. A.P. Lakshmi, learned standing counsel for respondents.
2. This application is filed seeking for a declaration that the action of the respondents in terminating the services of the applicant vide memo dated 19.09.2008 and the memo dated 17.09.2008 as arbitrary, illegal, violative of principles of natural justice and violative of Articles 14 and 16 of the Constitution of India and to set aside the same and for a consequential direction to the respondents to reinstate the applicant with all consequential benefits.
3. Relevant facts in brief are as follows:
The applicant has been working as Licenced Porter in Railways for the past 30 years. The railways have introduced a scheme for rehabilitating the railway porters by way of appointing them as Trackman, provided they are fit for B1 category. The applicant and several other Porters were screened for the said purpose and they were put to medical test. After the medical test was over, the applicant was given appointment order as Trackman and his name is shown against Sl. No. 27. He worked for about two months. Later, the Railways terminated the services of the applicant on the ground that Keshaboina Iylaiah is not the real person who passed the B1 test and on the other hand, Keshaboina Iylaiah did not pass the B1 test and that by mistake, the medical certificate relating to one K. Iylaiah is attached to the Keshaboina Iylaiah, the applicant herein and that in fact, the present applicant is found not fit for B1 category.
4. Aggrieved by the said termination, the applicant filed the present O.A. contending that he was found fit for B1 category and therefore, he was included in the final select list. According to the applicant, he complied with all the formalities required for appointment as Trackman. He contended that while he was discharging his duties as Trackman since the day of his appointment, the impugned termination notice was issued on 19.09.2008. He asserted that the necessary medical test was conducted on him and he was medically fit in B1 medical classification.
5. The respondents contested the application and filed their reply statement stating that the Railway Board issued instructions vide letter dated 01.04.2008 and 07.05.2008 for absorption of licenced porters as Gangman indicating conditions of eligibility and in compliance of the said instructions of the Railway Board, 557 licenced porters of Secunderabad division were screened and placed on panel vide memorandum dated 22.05.2008 for appointment to the post of Trackman in Civil Engineering Department, out of which, there were two candidates by name Sri K. Iylaiah (Sl. No. 10 Badge No.51) and another Sri K. Iylaiah (Sl. No. 333 Badge No. 219) who were empanelled for the post of Trackman. Both of them reported during the first week of June 2008 and both of them were sent for medical examination. The candidate by name Sri K. Iylaiah (Badge No. 219) was declared medically fit while another candidate by name K. Iylaiah (Badge No. 51) was declared medically unfit for the post. Since the process of screening of the licenced porters for the suitability as Trackman, placing them on panel and issue of offer of appointment to the empanelled candidates was time bound, staff were deputed from different sections to assist in the recruitment process to complete the work in addition to their normal regulated work and since the names of both the candidates were similar, Sri K. Iylaiah (Badge No. 51) who was declared medically unfit was given the posting orders inadvertently when he visited the office after medical examination was over whereas, as a matter of fact, it was Sri K. Iylaiah (Badge No. 219) who was found medically fit. Thereafter, Sri K. Iylaiah (Badge No 219) approached the office after three months claiming that he was medically found fit and he was not given posting. Then, the mistake was detected and necessary corrective action was taken and the present applicant with Badge No. 51 and who was medically found unfit in B1 classification category was terminated. The respondents further pleaded that the candidates are under probation for two years and their services can be terminated during the period of probation without assigning any reasons and in this case, it was a mistake of identification and orders were issued to wrong candidate who was declared medically unfit and the said mistake was rectified by terminating the services of the applicant and by giving appointment to K. Iylaiah (Badge No. 219) who was found medically fit for B1 category. Therefore, the termination does not suffer from any illegality or irregularity.
6. The applicant filed rejoinder stating that the scheme introduced for the benefit of the Licenced Porters in the railways is a social welfare measure to give opportunity to the unorganized staff of the establishment railway labourers who have toiled for the development of the railways for decades and hence, the construction of the scheme should be interpreted in favour of the beneficiaries. It is contended by the applicant that having given appointment to him, the respondents cannot remove him on the pretext that the appointment was given on the basis of mistaken identity and even for that an inquiry has to be held in as much as there was an averment of mistaken identity based on which foundation I was removed, hence, the removal is stigmatic and violative of principles of natural justice. It is further pleaded that even if he was not qualified in B1 medical examination, he can be tested for C1 examination and analogous post of Group D can be given to him as has been held by this Tribunal in M.A. No. 249/2009 in O.A. No. 389/2008 by order dated 11.06.2009 wherein in similar circumstances, the applicant therein was ordered to be kept in the live register to consider his case for a post for which C1 medical fit certificate is enough and hence, in this case, even if the applicant is not qualified in the B1 medical test, he may be found medically fit in C1 medical examination and therefore, applicant's case is a fit case to be considered for any other group D post keeping his name in the waiting list for absorption in the future vacancies.
7. During the course of hearing, learned counsel for the applicant reiterated the contentions made in the application and also in the rejoinder. On the other hand, learned standing counsel for the respondents contended that as per instructions of the Ministry of Railways, there is no provision for considering the licenced porters, who are found medically unfit for the post of Trackman, for any other alternative Group D post. She further submitted that the Hon'ble Apex Court in a catena of judgments held that any appointment made in violation of rules is not an appointment in the eye of law and therefore, the erroneous appointment does not give the applicant any right or protection provided under Article 311 of the Constitution and as such, the termination of the services of the applicant without notice is in order and the applicant is not entitled for the relief sought in the application.
8. The points that arise for consideration in this application are :
(i)Whether the applicant was really found unfit for B1 category? If so, whether the applicant is liable to be terminated? (ii) Whether the applicant has to be considered for any suitable post for which he is medically fit? (iii) To what result?
9. Point No. (i): The respondents have not filed any document along with the reply in order to determine as to who is the person who was found medically fit and who is the person who was medically unfit for B1 medical category. In order to verify as to who is the real person who was found medically fit for B1 category, we consider that the respondents can be directed to subject the applicant for further medical test in order to determine whether his contention that he was medically fit for B1 category is true and in case, it is found that the applicant is found fit for B1 category in the re-medical examination, he is entitled to be given appointment as Trackman. Instead of conducting of oral inquiry and instead of terminating his services, the applicant can as well be tested. Therefore, we are inclined to direct the respondents to subject the applicant for further medical test. We do not want to express any opinion whether the applicant is found medically fit for B1 category and whether there was any mistake committed by the respondents as contended by the applicant. The matter is kept open for determination after the further medical test of the applicant is concluded. Thus, this point is answered accordingly.
10. Point No. (ii): Learned counsel for the applicant submitted that the very scheme is introduced for the purpose of rehabilitation of the licenced porters who served in the railways for several years and therefore, even if it found that the applicant is not fit for B1 category, he can be rehabilitated by way of providing any other post for which he is medically found fit and there is no prohibition for the railways to consider such railway porters for appointment in any other suitable posts for which they are medically fit. On the other hand, learned standing counsel for the respondents submitted that there is no such provision for absorption of the porters in any alternative post in the event of they are found not fit for B1 category. Therefore, the Railways are unable to consider him for any alternative appointment. Admittedly, the scheme was introduced to absorb the porters who served Railways for several years. Of course, the scheme specifically mentioned about the post in which they can be accommodated i.e. trackman. The medical fitness required for doing the job of trackman is B1 category. C1 category is sufficient for certain posts which are lower than the trackman post. Therefore, we do not find any obstacle for the Railways for considering such people, who are found not fit for trackman, for the purpose of absorption as Group D. Therefore, it is for the Railways to consider such requests because even in the Railway Recruitment Board selections, candidates who are selected for a particular post, but not qualified in the medical examination, are being considered for some alternative post. As seen from the reply, there are no such instructions in respect of the absorption of the railway porters in alternative category. However, as there is no obstacle for the Railways, the respondents may consider the case of the applicant on his submission of a fresh representation after the medical examination is over, subject to the condition that he is found fit for at least C1 category. Thus, this point is found accordingly.
11. In the result, O.A. is disposed of directing the respondents to subject the applicant to further medical test to determine whether he is found fit in B1 category and in case he is found fit, he shall be reinstated and give effect to the appointment from the date of his original appointment and in case he is found not fit for B1 category, subject him for C1 category and in case the applicant is found fit for C1 category, the applicant is at liberty to submit a representation to the respondents within one month from the date of medical examination and on submission of the representation, the respondents shall consider the same sympathetically and pass appropriate orders within three months thereafter.
12. In the circumstances, there shall be no order as to costs.