IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.07.2009 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.44603 of 2006 1. Union of India Rep. by its Chairman, Railway Board, New Delhi. 2. The General Manager, integral Coach Factory, Chennai-600 038. ... Petitioners Vs. 1. V. Guruswamy Chennai-600 038. 2. Central Administrative Tribunal, Madras Bench, Rep. by the Registrar, High Court, Madras-104. .... Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari calling for the records of the 2nd Respondent/Tribunal relating to its Order dated 22.02.2006 passed in O.A.No.366 of 2005 and quash the same. For Petitioner : Mr.V. Radhakrishnan For 1st respondent : No appearance O R D E R T.S.SIVAGNANAM J. Surprisingly the present Writ Petition has been filed by the Railway Administration, when in our opinion, the applicant/first respondent ought to have approached this Court seeking appropriate relief. Considering the facts and circumstances of the case, we https://hcservices.ecourts.gov.in/hcservices/ propose to deal with the matter in its entirety so as to give a quietus to the entire controversy. 2. The first respondent herein, as applicant, filed O.A.No.366 of 2005 before the Central Administrative Tribunal, seeking to set aside the order dated 15.4.2004 r/w orders dated 23.4.2005, cancelling the applicant's promotion to Senior Scale in Group B and reverting him to Group B while denying him promotion to Group A and for a further direction to continue the applicant in Senior Scale in Group B with further promotion to group A with retrospective effect, when his juniors were given the same. 2. The facts leading to the filing of the Original Application: (i) The applicant was selected by the Railway Service Commission and appointed to the post of Apprentice Mechanic (Diploma holder) Electrical Engineering by order dated 8.9.1970. On successful completion of training, he was absorbed as Chargeman 'C' Electrical with effect from 30.8.1973 in workshop cadre of Electrical Engineering Department in the ICF. The applicant was further promoted as Electrical Chargeman 'A' in 1979 and thereafter worked in various capacities in Electrical Inspectors, Electrical Designs and Technical Assistant, finally as Deputy Superintendent Development Wing in Shop-9. (ii) The applicant was empannelled for the post of Assistant Electrical Engineer in Group B through Limited Departmental Competitive Examination and was promoted as officiating Assistant Electrical Engineer Group 'B' by order dated 13.12.1990. In the said promotion order, it was stated that the petitioner has been medically certified as "fit for Group B services as AEE in ICF only -– Unfit for open Line". The applicant thereafter was promoted as Senior Electrical Engineer/Maintenance by order dated 23.4.1996 and worked in the said post until 1998,when he was posted as Vigilance Officer by order dated 15.9.1998. The applicant was discharging his duties of the Vigilance Officer from 12.10.1998 till he filed the Application before the Tribunal i.e. during 2005. (iii) At that juncture, the applicant was served with a letter dated 27.2.2004, stating that he has been promoted to regular Group B service with effect from 13.12.1990, eventhough he was not found fit in the prescribed Medical Classification under para 531(a) and 533 (1) and that he was promoted to Senior Scale as Senior Electrical Engineer on adhoc basis with the approval of the General Manager awaiting the Railway Board's reply. However, the Railway Board had not sent any reply for the General Manager's letter at that relevant time and subsequently on 21.11.1996, after examining the recommendations of the General Manager for relaxing medical standard https://hcservices.ecourts.gov.in/hcservices/ for Group 'C' employees to promote them in Group 'B' service in Technical Department in ICF, the Board did not agree to the recommendations and stated that he is not eligible for regular appointment in Group B service and therefore, the applicant was informed that he cannot be considered for promotion to Group A/Junior Scale and he will be in Group B service only on adhoc basis with the condition that he will not make any claim for consideration for higher grade such as Senior scale or Junior Scale/Group A in Electrical Department. By the above said letter of 27.02.2004, the applicant was further informed that as and when he is repatriated to the Electrical Department, he would be posted in Group B service. The penultimate paragraph of the letter permitted the petitioner to submit a representation within fifteen days. Accordingly, the petitioner submitted a representation on 13.3.2004, inter alia contending that he is continuing in Senior scale for the past eight years and served in various Branches and his service in Group B as well as in Senior scale was not affected by the medical shortcoming in the regular discharge of his duties and though he has been superceded by several of his juniors, he has not represented in the past knowing his shortcomings. The applicant further submitted that having put in 14 years of service in a Gazetted cadre and 8 years in the Senior Scale and at the age of 54 years, if he is to be reverted to Assistant Officer Grade, he will have no face to work and for no fault committed by him, he is being faced with a demotion, which is equal to the major penalty. The applicant pleaded for considering his past performance and outstanding abilities in various fields like Production, Inspection, Development, Design etc. and prayed for considering his case sympathetically. The Representation of the applicant dated 13.03.04 came to be rejected by an order dated 15.04.2004, the correctness of which was assailed before the Tribunal. 3. The contention of the ICF Administration:- The Administration did not dispute the factual details regarding the dates of promotion and to the post to which the petitioner was promoted. It is the case of the Administration that induction into Group B Gazetted service in the scale of Rs.6,500- 10500 is made available on the basis of selection and as per the Railway Board's letter dated 14.12.1983, when Group C employees empanelled for promotion to the Group B, post medical examination was being conducted after empanelment just at the time of actual promotion to Group B posts. If, after empanelment, the officers suffer from medical disqualification which prevents their promotion, then with the personal recommendations of the General Manager and the approval of the Ministry of Railways, keeping in view the local requirement and availability of suitable posts, employees can be considered for adhoc promotion to Group B in terms of Railway Boards letter dated 14.12.1983. It is further submitted that before any such promotion, the employees have to give a declaration to the https://hcservices.ecourts.gov.in/hcservices/ effect that they will have no further claim for promotion to Senior Scale, for absorption to Group A/Junior Scale, and they are prepared for the Group B adhoc promotion and that their adhoc promotion to Group B posts will continue till a suitable post is found available. (ii) It is further contended that the applicant's visual acuity was not upto the desired level and, therefore, he was declared by the medical authorities as "fit in Group B' service as AEE in ICF only – Unfit for open-line" and in terms of Railway Board's letter dated 14.12.1983, the General Manager considered the case and the applicant was promoted to Group B post, considering the local requirements. It is further stated that the medical standard prescribed for Group B posts in Electrical Department is same for open-line and Production Units. Since the incumbents are liable for transfer between open- line and production Units on promotion, the petitioner was promoted to Group B on 13.12.1990, subject to a declaration dated 12.12.1990 signed by the applicant and therefore, it is contended by the administration that he cannot stake his claim for further promotion. (iii) It is admitted in paragraph No.6 of the reply affidavit that while promoting the applicant to Group B post, the order did not mention that it was on adhoc basis. However, in the reply it is stated that his promotion to Group B was on adhoc basis and the same was inadvertently not mentioned. It is further stated that the Promotion Committee was not aware of his medical condition and the Committee recommended the applicant's name for promotion to Senior Scale on adhoc basis. One V.Narayanan Kezhedath, who was granted Adhoc promotion to Group B post, due to his medical condition, submitted a representation aggrieved over his exclusion from the panel for ad-hoc promotion to senior scale. On consideration of the said representation, the Railway Board while rejecting the contention of the said V.Narayanan Kezhedath, also stated that similarly placed employees should not be considered for adhoc promotion to Senior Scale, by a letter dated 21.11.1996. Therefore, it is contended by the Administration that based on such proceedings of the Railway Board on 21.11.1996, a show cause notice was issued to the applicant and thereafter the order dated 15.04.2004 was passed, and as such the same does not suffer from any illegality. 4. CONCLUSION ARRIVED BY TRIBUNAL The Tribunal on considering the facts and circumstances of the case and after taking into consideration the protection given under 'The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995', quashed the order dated 14.4.2005 and directed the respondent to continue the applicant in Senior Scale Group B post with retrospective effect. However, the Tribunal observed that the applicant cannot be considered for further promotion to Group A. Aggrieved by the direction issued, the Railway Administration has filed the above Writ Petition. https://hcservices.ecourts.gov.in/hcservices/ 5. Our findings: As we have observed in the opening paragraph of this order, we fail to understand as to how the Railway Administration is aggrieved by the direction issued. Per contra, it should be the applicant who should have come before this Court seeking for appropriate relief. Be that as it may, we proceed to analyse the factual and legal issues arose for consideration in the present case. (ii) It is pertinent to note two relevant provisions of the Railway Medical Manual, viz. Paragraph Nos. 531 and 533 (2), which read as follows: "531. Classification of gazetted posts for the purpose: For the purpose of examining the visual acuity of the Railway employees promoted from non-gazetted to gazetted posts, the gazetted posts should be divided into two categories as follows: a) Posts connected with train working or use of trolley on open line; and b) the rest of the posts. 533(2): "For category (b) mentioned in paragraph 531 above, the following standards will be applicable:- Distant vision – 6/18 in one eye, regardless of vision in the other eye with or without glasses. Near vision - Sn.0.6 in one eye, regardless of vision in the other eye, with or without glasses." (iii) A perusal of the above provisions reveal that the Railway employees who are promoted from non gazetted to gazetted posts are divided into two categories namely " Open Line" and "Other than Open Line". In respect of the "Other than Open Line" category namely category B, under para 531, the standards of vision has been prescribed in sub paragraph No.2 of para 533 of the Manual. Admittedly, the case on hand falls under clause (b)of para 531, namely "other than open line" and the standard prescribed for vision is as per sub para 2 of para 533. The applicant was promoted to Group B on 13.12.1990 and the promotion order only contained the observation that the applicant was medically certified as "fit for Group B service only as AEE in ICF and not fit for Open-Line". Therefore, it is to be taken that the applicant satisfied the standards prescribed for visual acuity spelt in sub para 2 of para 533 of the Railway Medical Manual. It is to be noted that the applicant was also further promoted on adhoc basis as Senior Scale/Senior Electrical Engineer (Maintenance) on 23.4.1996. It is https://hcservices.ecourts.gov.in/hcservices/ thereafter, the applicant was posted in a tenure post as Vigilance Officer on 15.9.1998. It is at that stage, the Deputy Chief Personnel Officer, passed an order dated 27.2.2004, though it is termed as a show cause notice, by stating that the applicant's very promotion to Group B itself was on adhoc basis and as such he would not be entitled to claim for consideration of higher grade such as Junior Scale or Senior Scale of pay/Group A in the Electrical Department. iv) In terms of the opportunity granted in the proceedings dated 27.02.04, the applicant submitted a representation on 13.3.2004. We have seen that the representation is very detailed and has set out all the facts. Curiously, the same came to be rejected by a cryptic non-speaking order dated 15.4.2004. The problem seems to have arisen is on account of the department reviewing the situation at the instance of another incumbent who had been promoted on adhoc basis in Group B who was declared medically unfit for open- line and who had submitted a representation which was taken up for consideration by the Railway Board. Though in all fairness the Railway Board ought to have extended the same benefit as given to the applicant, for no reason, they sought to unilaterally deny the privilege conferred on the applicant. In our considered view, the Tribunal had rightly applied the provisions of Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and observed that no employee should be reduced in rank or denied promotion only on account of his disability. Having observed so, the Tribunal ought to have extended the benefit to the applicant and placed him as a regular promotee in Group B cadre to enable him to aspire for further promotion to Senior Scale /Senior Electrical Engineering and thereafter if eligible. It is to be noted that on conducting the medical examination in respect of visual acuity, Administration took a decision that the applicant was fit for ICF only and having done so, it is most unreasonable and arbitrary on the part of the Administration to now state that the applicant cannot aspire for regular promotion in the ICF Administration. In fact, we have seen the reply affidavit as well as the affidavit filed in support of the above Writ Petition, but, no details as regards the visual standard of the applicant has been mentioned except a vague statement, stating that the applicant's visual acuity was not upto the desired level. v) It is not in dispute that the applicant was not fit for Open Line. The Medical Board which examined the applicant, found him fit for promotion in Group B as AEE in ICF. Therefore, when the applicant had satisfied the standards for Group B post, there is no justification for the Department to promote the applicant as an adhoc promotee and thereafter put further embargo on his promotion prospects. https://hcservices.ecourts.gov.in/hcservices/ vi) At this juncture, the learned counsel for the Administration submits that the applicant has executed a declaration and he is fully aware of the facts and is estopped. In our considered view such a declaration is against the elementary principles of service jurisprudence. One could easily infer under what circumstances, the applicant was made to execute such a declaration. The declaration cannot be put against the applicant especially when the Railway Medical Manual classified two categories of posts, for the purpose of examining the visual acuity. The Railway Medical Manual is a code by itself and a Regulation having the force of law. The applicant is shown to have been fit under para 533 (2) and therefore the question of the declaration being put against the applicant does not arise. It is a well settled legal principle that there cannot be an estoppel against statute. Therefore, the contention raised by the Administration deserves to be rejected. vii) It is to be further noted that the applicant was an outstanding employee of the Administration and such fact has been recognised while celebrating the Railway Week during 1996 and the applicant was given an award for his outstanding performance. Further, even in the reply filed before the Tribunal, the applicant's suitability and competence is not disputed, nor there is any allegation in the reply affidavit that the visual acuity has affected the applicant's discharge of his duties and responsibilities. The only thing which is put against the applicant is that the Railway Board, while considering the representation submitted by another employee had denied the benefit given to the applicant that too without affording any opportunity to the applicant, in our view, such an approach of the Railway Board is not sustainable. The applicant had been functioning in the promoted Group B post from 13.12.1990 and the decision of the Railway Board came to be communicated only on 27.2.2004. The Applicant was not given any opportunity before the decision was taken by the Railway Board to deny him the benefit. The applicant was also given adhoc promotion as Senior Scale/Senior Electrical Engineer/maintenance on 23.4.1996 and during 1998 promoted and posted as Vigilance Officer which carries onerous responsibilities, and these factors go to establish the applicant's suitability and eligibility to the promoted posts. We find that the applicant has been made to suffer all these years by the unreasonable delay committed by the Administration. That apart, the representation made by the applicant stating that he has, at the relevant point of time, put in 14 years of service in gazetted cadre and eight years in Senior scale and that if he is to be reverted he would have no fact to work especially when such reversion is on account of no fault committed by the applicant, was not considered and came to be rejected by a non-speaking and cryptic order dated 15.4.2004. Therefore, it is unfair and illegal to state that the promotion accorded to the applicant on 13.12.1990 is an adhoc basis. https://hcservices.ecourts.gov.in/hcservices/ 6. OUR CONCLUSION Therefore, considering the entire facts and circumstances as well as the materials on record and in view of the foregoing discussions, we hold that 1. The declaration executed by the applicant on 12.12.1990 cannot be put against the applicant for denying him promotion on regular basis in Group B post. 2. The Applicant's promotion in Group B cadre as accorded by order dated 13.12.1990 shall be on regular basis with all monetary benefits, and 3. The applicant would be fully eligible for further promotion to Senior Scale/Senior Electrical Engineer -– Maintenance in Group A on regular basis with monetary benefits. 4. The ICF Administration shall regularise the promotion of the Applicant in both Group B and Senior Scale and accord all monetary benefits within six weeks from the date of receipt of a copy of this order. The Writ Petition is dismissed with the above direction. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rpa To The Registrar, Central Administrative Tribunal Chennai Bench, High Court Compound, Chennai 600 104. 1 cc To Mr.V.Radhakrishnan, Advocate, SR.34232. W.P.No.44603 of 2006 RJ(CO) RVL 29.07.2009 https://hcservices.ecourts.gov.in/hcservices/