IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 OP (CAT).No. 242 of 2010(S) --------------------------- OA.886/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS ------------------------------- 1. UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. 2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 3. THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALGHAT. 4. THE CHIEF MEDICAL SUPERINTENDENT, RAILWAY HOSPITAL, OLAVAKKODE, PALGHAT. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENTS: --------------- RAJU P.D., S/O.DAMODARAN, EX.CASULA LABOURER, SOUTHERN RAILWAY, PALGHAT DIVISION, RESIDING AT CHUNGATHU HOUSE, CHEMMUKHA, MANKARA P.O., PALGHAT, PIN 678685. THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... O.P.(CAT) No.242 of 2010 .................................................................... Dated this the 8th day of October, 2010. JUDGMENT Ramachandran Nair, J. This is a petition filed by the Railways challenging Ext.P3 order issued by the Central Administrative Tribunal on application filed by the respondent. After hearing counsel for the petitioner and on going through the Tribunal's order, we find that the impugned order is the order passed by the Tribunal in the third O.A. filed by the respondent. Respondent, a casual worker, claimed regularisation which was found in his favour in the first round litigation i.e. vide order in O.A. 469/2005 dated 31.8.2006. However, when the matter went back to the Railways for implementing the order, they still declined the benefit to the respondent by stating that there is discrepancy in the date of birth of the respondent. The respondent filed O.A. 83/2007 which was disposed of by the Tribunal on 25.72007 holding that there is no confusion with regard to the date of birth of the respondent which was declared by the Tribunal as 16.10.1960 and consequently the Tribunal O.P.(CAT) 242/2010 2 directed Railways to absorb him as a Group D employee. This order was challenged by the Railways before this court and the Division Bench of this court dismissed the petition (W.P.(C) No.1907/2008) with costs on 29.5.2009. Railways appears to have issued follow-up order on 29.9.2009 proposing to absorb the respondent as a Temporary Trackman in Engineering Department in the scale of pay of Rs.4440- 7440 with Grade Pay of Rs.1,300/-. However, the proposal was not implemented and no formal order was issued, against which the present O.A. is filed. It is seen that the contentions raised by the Railways against absorption of the respondent is that on medical examination he is not found to be a "B 1" category which is the requirement for appointment as a Trackman in the Group D category. It is seen that the Tribunal has prima facie accepted this contention of the Railways and disposed of the O.A. holding that respondent should be absorbed in another Section under the Group D category where "B 1" medical category is not required. It is against this order this petition is filed by the Railways. 2. The contention raised by counsel for the petitioners is that O.P.(CAT) 242/2010 3 respondent is ineligible for appointment. We do not think there is any scope for our considering it because this issue is covered by res judicata through earlier orders of the Tribunal confirmed by this court vide judgment abovereferred. The only question is, therefore, physical fitness of the respondent for employment. The Railways never put forward a case before the Tribunal that the respondent is medically unfit for employment in the Group D category in any Section of the Railways. On the other hand, the specific case of the Railways is that to function as a Trackman, the employee has to be of the medical category "B 1" which respondent is not. The Tribunal has accepted the Railways' contention and directed that respondent be considered for employment where "B 1" medical category is not required. Since Railways has no case that respondent is medically unfit thoroughly for any employment, there is scope for interference with the Tribunal's order because Tribunal has directed the petitioners to subject the respondent for remedical examination before being considered for employment in any category and depending on the medical fitness of the respondent to provide suitable employment. In view of the O.P.(CAT) 242/2010 4 protracted litigation engaged in by the Railways wherein piecemeal defence is raised before the Tribunal each time, we caution the Railways against further unnecessary litigation in the matter. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms