* HONOURABLE SRI JUSTISCE L. NARASIMHA REDDY + WRIT PETITION No.25566 OF 2008 % 12-10-2011 Between: # J.V. Subbaraju and others …Petitioners And $ Union of India, represented by the Secretary (Estt.), Ministry of Railways, Railway Board, New Delhi and others …Respondents ! Counsel for the Petitioner : Sri K.R.K.V. Prasad ^ Counsel for the Respondent No.1 : R.S. Murthy ^ Counsel for the Respondent Nos.2 to 7 : Sri A. Kirhsnam Raju <Gist: >Head Note: ?Cases referred : HONOURABLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION No.25566 OF 2008 ORDER: The petitioners joined as Constables in the Railway Protection Force (for short ‘Force’), South Central Railway, at various points of time. Out of them, the 1st petitioner was promoted as Head Constable. All of them were declared medically unfit to hold the respective posts between 2003 and 2008. The Rules framed by the Indian Railways provided for de-categorization of employees of any particular category on medical grounds and for provision of alternative employment in the Railway Protection Force. The petitioners contend that after they were de-categorized by the Force, they are being assigned duties in various offices without permanent absorption. The office of the Divisional Railway Manager, Hyderabad, the 5th respondent herein, issued proceedings, dated 10-11-2008, communicating that the petitioners would be subjected to re-medical examination. The petitioners feel aggrieved by the said proceedings. Another grievance of the petitioners is that they are not being extended the benefit of promotion, which their juniors in the Force are extended from time to time. 2. On behalf of the respondents, a counter – affidavit is filed. Since the relevant information was not contained in it, this Court directed the General Manager, South Central Railway, to apprise this Court about the nature of implementation of the scheme of rehabilitation of de-categorized members of Force. The Additional Divisional General Manger filed a detailed counter – affidavit with supporting documents. The purport of the scheme for rehabilitation of de-categorized persons is mentioned in detail. It is stated that the impugned proceedings, dated 10-11-2008 were issued strictly in terms of Rule 522(2)(ii) of the Indian Railway Medical Manual (IRMM). He further stated that the cases of the petitioners would be considered as and when their turn comes. 3. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 4. The selection and appointment of the petitioners was in the Railway Protection Force. The members of the Force are subjected to Medical examination periodically. In addition to that, if any person sustains injuries or suffers from any other ailment, the medical examination would be conducted not only for the purpose of extending the treatment, but also to determine his fitness to continue in the Force. All the petitioners herein were rendered medically unfit. 5. Though the Persons With Disabilities (Equal Opportunities, Protection Of Rights And Full Participation) Act, 1995 does not apply to the Force, provisions with similar purport are contained in Rule 1304 of the Indian Railway Establishment Manual Volume-I. Once the petitioners were declared medically unfit, they were assigned some other functions and are being paid the same salary. 6. The first grievance of the petitioners is that they were not absorbed into a regular post and are being assigned menial duties. They draw comparison with others, who are said to have been extended the benefit of absorption though, they were declared medically unfit at a later point of time. It is no doubt true that the scheme provides for absorption into other posts wherever available. The record, however, discloses that the instances of de-categorization of members of the Force in Hyderabad Division are on the ingress. Whatever be the reasons for such phenomenal increase, the respondents cannot be expected to be ready with the vacancies to offer the same to the de-categorized employees. Much would depend upon the availability of vacancies, the scales that are attached to the posts and the number of persons that are de-categorized in the division. If the vacancies are not immediately available, the affected persons have to wait for their turn. As long as pay protection is given, they cannot have any genuine grievance. 7. One person by name, Dilip Kumar is said to have been absorbed out of turn. However, soon after the mistake in this regard was noticed, the absorption was cancelled. The respondents have also furnished the list of persons who were de-categorized subsequent to the 1st petitioner, a Head Constable, and much prior to the de- categorization of the petitioners 2 to 8, Constables. The reason for not extending the benefit to the 1st petitioner is said to be non-availability of vacancy, which carries the pay scale of the post of Head Constable. Therefore, the plea of the petitioners that the respondents ignored their cases and extended the benefits to their juniors cannot be countenanced. 8. The second grievance of the petitioners is about the proceedings, dated 10-11-2008, through which they were required to undergo re-medical examination. Such a course is provided for under Rule 522 (2) (ii) of IRMM. In many cases, the disability on account of which a member of service was declared medically unfit, may not be permanent in nature. If, with the passage of time, or on account of the treatment, the disability ceases to exist, there is no reason why the person be not required to serve in the Railway Protection Force, to which he is appointed. The petitioners have no basis to refuse to undergo re-medical examination. The respondents state that the re- examination did not have any impact upon the de-categorization of the petitioners. 9. The third question raised by the petitioners is about their right to be promoted on par with the juniors in the Force. Such claim could have been accepted had the petitioners been continued in the Force itself. On being found medically unfit, they are sent out of that post. Therefore, the question of comparing themselves with the other members of the Force does not arise. No provision of law is cited in support of the contention of the petitioners. Therefore, the plea of the petitioners in this regard cannot be accepted. 10. For the foregoing reasons, the Writ Petition is disposed of directing that the respondents shall consider the cases of the petitioners for permanent absorption as and when their turn comes, after the members of the Railway Protection Force in Hyderabad Division, who were declared medically unfit earlier to the petitioners are absorbed. There shall be no order as to costs. ___________________ L.NARASIMHA REDDY, J Date:12-10-2011. Note: L.R. Copy to be marked. B/O. KTL