Jayanta Kumar Khamari Vs. Railway Board, Ministry of Railways, Govt. of India, Through the Secretary - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - & physically handicapped candidate appeared in the engineering services examination- 2007 conducted by the union public service commission, new- delhi (in short, commission') & secured rank c-38 & was recommended as such by the commission as a physically handicapped candidate. it appears that the petitioner appeared before the medical board which observed about the amputation of 4 fingers of right hand & recommended him for field work. the commissioner after hearing the petitioner as well as the railway board by order dated 14.11.2008 directed the railway board to allot engineering service to the petitioner as per his position in the merit list. candidate for engineering services examination-2007 & secured rank c-38 & was recommended by the commission as physically handicapped candidate. it was further stated in the counter that as per the policy of allocation of candidate to various engineering services/posts under the government of india, the petitioner, who was admitted & recommended as a p. moreover, the notification dated 18.1.2007, which has been referred to by the chief commissioner in the order under annexure-4, clearly states that the job of a civil engineering at different levels in group-a posts is identified as suitable for persons with disabilities like the petitioner. both the submissions of learned counsel for the railways are mis-conceived precisely for the reason that the union public service commission (u.b.p. ray, j.1. the petitioner in this writ application under articles 226 & 227 of the constitution of india has prayed for issuance of writ of mandamus directing the opposite party-railway board to appoint him in indian railway service in accordance with his position in the merit list published for engineering services examination-2007.2. the case of the petitioner in brief is that he was a physically handicapped person inasmuch as the first finger of his right hand was half-amputed & other three fingers, namely, middle, ring & ladies finger, were amputed during his childhood. however, the thumb of the right hand remains intact. according to the petitioner, he was using his left hand for writing since his childhood & despite his physical disability he was doing all types of work. according to the petitioner, he passed diploma in civil engineering in the year 199,3. the petitioner was working as a junior engineer since 1.4 .1998 in central public works department (in short, 'c.p.w.d'). in december, 2002, the petitioner passed amie.the petitioner as an o.b.c. & physically handicapped candidate appeared in the engineering services examination- 2007 conducted by the union public service commission, new- delhi (in short, 'commission') & secured rank c-38 & was recommended as such by the commission as a physically handicapped candidate. it appears that the petitioner appeared before the medical board which observed about the amputation of 4 fingers of right hand & recommended him for field work. the railway board, which was the nodal authority & authorized to allot successful candidates for appointment for different group-a services/ posts, did not recommend the case of the petitioner as per his preference to indian railway service of engineers. it is the further case of the petitioner that he submitted written complaint on 1.9.2008 before the chief commissioner for persons with disability, new delhi & requested for deciding the matter for his appointment in the indian railways. his complaint was registered & notice was issued to the railway board. the commissioner after hearing the petitioner as well as the railway board by order dated 14.11.2008 directed the railway board to allot engineering service to the petitioner as per his position in the merit list. the order of the chief commissioner has been enclosed as annexure-4. in pursuance of the order under annexure-4, the deputy chief commissioner wrote a letter to the railway board under annexure-5 dated 26.11.2008 indicating therein that the order of the chief commissioner be implemented. despite the same, the order of the chief commissioner was not implemented for which the petitioner has filed the present writ application.3. a counter affidavit has been filed by the railway board in which it has been stated that the ministry of railways is the coordinating ministry for engineering services examination (ese) conducted annually by the union public service commission. before commencement of examination, the participating ministries place indents with the commission according to their requirement. it is admitted in the said counter that the petitioner was an o.b.c., p.h. candidate for engineering services examination-2007 & secured rank c-38 & was recommended by the commission as physically handicapped candidate. it is further admitted in the counter that the petitioner was physically examined as per the relaxed norms for p.h. candidates & as per the medical report, he was fit only for specified vacancies reserved for physically impaired for appointment to engineering service categories. it is stated in the counter that since no post for p.h. candidate was identified in the railway engineering services, the petitioner was allotted to civil engineering discipline in the military engineering services under the ministry of defence against an earmarked vacancy for p.h. candidate. the petitioner was allotted to military engineering services under the ministry of defence as per the existing policy of allocation. it was further stated in the counter that as per the policy of allocation of candidate to various engineering services/posts under the government of india, the petitioner, who was admitted & recommended as a p.h. candidates by the commission, was allotted military engineering services for which, one vacancy has been earmarked for an orthopedically handicapped candidate. the allocation list of candidate to services/posts other than the railway engineering services has been circulated amongst the respective ministries/departments for further action at their end along with the dossiers of the candidates, vide letter dated 1.1.2009. it was stated that because of the pendency of the present case, the dossier of the petitioner has not been sent to the ministry of defence. it has also been stated in the counter that the order of preference of the petitioner in e.s.e. 2007 was irse/irss/ces/ ces (roads)/mes. since there was no vacancy earmarked for p.h. candidate in irse/irss/ces/ces (roads), the petitioner was allotted to military engineering service under the ministry of defence in which there was one vacancy earmarked for persons with locomotor disability against an obc vacancy. according to the o.p. since the ministry of social justice & empowerment had not taken a final decision regarding grant of exemption to railway engineering services from the purview of persons with disabilities (equal opportunities, protection of rights & full participation) act, 1995 (herein after called, 'the act'). the petitioner could not be allotted to either indian railway services of engineers or indian railway stores services in which no post was earmarked for p.w.d. candidates. however, it is stated that the petitioner was allotted to military engineering services under the ministry of defence as per list no. 4.4. a rejoinder affidavit has been filed by the petitioner refuting various allegations made in the counter affidavit filed by the opposite party.5. the sole question that arises for consideration is as to whether the petitioner is entitled to be appointed because of his selection in the engineering services examination - 2007 conducted by the commission in which the petitioner secured 38th rank in the merit list in civil engineering. the chief commissioner for persons with disabilities is an authority constituted under the provisions of the act. section 33 of the act provides that the appropriate government. in every establishment shall appoint such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent shall be reserved for the persons suffering from:(i) blindness or low vision;(ii) hearing impairement;(iii) locomotor disability of cerebral palsy, in the posts identified for each disability.the proviso to section 33 of the act states that the appropriate government is at liberty to exempt any establishment from the provisions of this section by notification. from the order of the chief commissioner it appears that there is no notification exempting the railway from the purview of section 33 of the act. therefore, section 33 of the act applies to the establishment of the railway in full force.6. it appears from the order of the chief commissioner that the appropriate government in this case is the ministry of social justice & empowerment which has the power to exempt an establishment from the applicability of the provisions of section 33 of the act by issuing a notification in terms of section 33 of the act. the ministry of social justice & empowerment has not exempted any of the engineering services under the ministry of railways & has identified the job of civil engineering as suitable for persons with disabilities including those whose arms are affected. on the contrary, the ministry of social justice & empowerment, which is a nodal ministry to consider exemption, vide its office memo dated 24.10.2008, which has been annexed as annexure-8 to the rejoinder, has made it clear that until exemption is granted for any post of engineering service under section 33 of the act, it is mandatory for the ministry of railways to provide three per cent reservation for persons with disabilities & the complainant should be provided a suitable job in the railways as per his merit. the chief commissioner while passing the order under annexure-4 has taken into consideration the directions of the ministry of social justice & empowerment contained in the letter under annexure-8. the chief commissioner after taking into all relevant facts into consideration has directed the railway board to allot engineering services to the petitioner as per his position in the merit list published for engineering services examination-2007. there appears to be no error in the said order apparent on the face of the record. be that as it may, this order under annexure-4 has not been challenged by the railway board & therefore, the order under annexure-4 has reached its finality.7. the railway board in its counter has stated that the order of the chief commissioner was erroneous for the reasons stated in the counter affidavit. but the railway board has not challenged the order of the chief commissioner. it is not open to the railway board to find fault with the order of the chief commissioner in absence of any challenge to the same. however, we ourselves have examined the correctness of the order of the commissioner to find out as to whether any irregularity or illegality has been committed by the commissioner while passing the order under annexure-4. but we are unable to find any error in the said order inasmuch as the order of the chief commissioner is in consonance with the provisions of section 33 of the act. section 33 of the act in its sweep makes reservation for persons with disability & every establishment is obliged to make reservation for persons with disabilities in terms of section 33 of the act unless exemption is granted by issuance of notification.8. therefore, the provision contained in section 33 is intended to protect the interest & rights of the persons with disabilities. the act was enacted with louder object to protect the rights of these sections of people & therefore, the object of the act can not be whittled down by the concerned authority at their whims. therefore, section 33 of the act is mandatory & the railway board is expected to act in terms of provision of the act.9. undisputedly, the petitioner was a candidate selected for the engineering services examination-2007 being placed at 38th rank of the merit list. the petitioner is a physically handicapped person & is working as a junior engineer in c.p.w.d. for last ten years & the disability has not interfered with the physical requirement of the job. moreover, the notification dated 18.1.2007, which has been referred to by the chief commissioner in the order under annexure-4, clearly states that the job of a civil engineering at different levels in group-a posts is identified as suitable for persons with disabilities like the petitioner. therefore, we do not find any error with the chief commissioner in directing the railway board to allot the petitioner the engineering services as per his position in the merit list of the engineering services examination-2007 published by the commission.10. a submission has been made by the learned counsel for the railway board that since the appointment refers to a civil post in railway, the present writ petition is not maintainable & further it is urged that this court lacks the territorial jurisdiction to entertain the writ application. both the submissions of learned counsel for the railways are mis-conceived precisely for the reason that the union public service commission (u.p.s.c.) had conducted engineering services examination-2007 in different parts of the country including a center at orissa from which centre the petitioner appeared. therefore, this court do not lack any jurisdiction to entertain this writ petition. the other objection regarding maintainability is also equally untenable because the petitioner essentially challenges the inaction of the railway board to implement the order of the chief commissioner.11. having reached the aforesaid conclusion, we are of the view that the action of the railway board to allot the petitioner to military engineering service under the ministry of defence against the earmarked vacancy for p.h. candidates on the plea that no post identified for p.h. candidate was available in railway engineering service is absolutely incorrect & unjustified. the railway board is required to act in terms of section 33 of the act. accordingly, we direct the railway board to issue necessary orders in favour of the petitioner in terms of the order of the chief commissioner within a period of two months from the date of receipt of this order. with the aforesaid observations, the writ petition is disposed of. there shall be no order as to' costs.b.p. das, j.12. i agree.