IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24..3..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 16762 of 2001 1. Union of India Rep. by Secretary Ministry of Railways New Delhi 2. The Chairman Railway Board Rail Bhavan New Delhi 3. The General Manager Southern Railway Chennai – 3 ... Petitioners -vs- 1. The Registrar Central Administrative Tribunal Chennai Bench Chennai – 104 2. Southern Railway Commercial Inspectors Association Rep. by its General Secretary D. Thangaraja Southern Railway, Chennai 3. S.P. Kumar 4. T.K. Vasudevan Achari 5. C.M. Visweswaran 6. S.S. Jagannathan 7. M. Jayaraj 8. M. Ramachandran 9. D. Lakshmanan 10. Govindapparaj ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records of the first respondent dated 15.6.2001 in O.A. No. 415 of 2000 on the file of the Central Administrative Tribunal and quash the same. For Petitioners : Mr. R. Thiagarajan, SC for Mr. R. Gunasekaran For Respondents 2-4 : M/s Paul & Paul For Respondent 6 : Mr. T.S. Seshadri ORDER K. CHANDRU, J. Heard the arguments of Mr. R. Thiagarajan, learned Senior Counsel representing Mr. R. Gunasekaran, learned counsel appearing for the petitioners, M/s Paul and Paul for respondents 2 to 4 and Mr. T.S. Seshadri, learned counsel appearing for the sixth respondent and have perused the records. 2. The petitioners are the Union of India, Railway Board and the General Manager of the Southern Railway. Aggrieved by the order of the Central Administrative Tribunal [for short, 'CAT'] dated 15.6.2001 made in O.A. No. 415 of 2000, the present writ petition has been filed. 3. Before the CAT, the respondents 2 to 4 filed Original Application seeking for a prayer to set aside the order dated 08.02.2000 passed by the third petitioner and to conduct a fresh medical examination for the respondents 3 and 4 without applying the C-2 medical standard in terms of para 531 of the Indian Railway Medical Manual as it stood prior to its amendment and consequently, appoint the respondents 3 and 4 as Assistant Commercial Managers. They had also stated that if no posts were available, then two of the respondents 5 to 10 may be reverted to accommodate them. 4. At the time of hearing, we were told that the fourth respondent was no longer in service and it is only the third respondent who is still in service. 5. Mr. R. Thiagarajan, learned Senior Counsel contended that the order of the CAT was erroneous insofar as it granted a direction to consider the representation made by the respondents 3 and 4. He also submitted that the Medical Manual prescribing medical fitness is only an executive instruction and not a statutory rule and it could be amended by a further executive instruction. Therefore, when the subsequent selection during the month of March / April 1999 for promotion to the posts was made, the petitioners have adopted the C-2 https://hcservices.ecourts.gov.in/hcservices/ medical standard. It was also stated that the respondents 3 and 4 were not found medically fit for the post of Assistant Commercial Manager and they cannot turn back and attack the standard set by the authorities. Once it is found that the respondents 3 and 4 are not having medical fitness, there is no question of considering their case for promotion. 6. A further affidavit dated 19.02.2008 was filed by the Deputy Chief Personnel Officer stating that they are not governed by the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and some arguments were advanced about the applicability of the Act. In the absence of any exemption obtained under the said Act, we are not persuaded to hold that the Disability Act is not applicable to the employees in Railways. We also find that if the third respondent is medically disqualified only due to his eye-sight by applying C-2 medical standard. If that becomes disqualification for their promotion, certainly, Section 47 of the Disability Act will come to the rescue of the third respondent. 7. Section 47 of the Disability Act reads as follows: "47. Non-discrimination in Government employment.— (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." 8. In the light of the above provision and in the absence of the petitioner Railways having any exemption in terms of the proviso to Section 47(2), it is not necessary that an exercise should be undertaken to find out whether the medical standard before or after the amendment https://hcservices.ecourts.gov.in/hcservices/ to the Medical Manual was applicable. If on account of the disability of having low vision the promotion of the third respondent is denied, then Section 47(2) is a complete answer to the case of the third respondent. Since the Parliament has made non-discrimination in employment under Chapter VIII of the Disability Act, the petitioners cannot deny the promotional chances to the third respondent. 9. However, Mr. R. Thiagarajan, learned Senior Counsel contended that the post of Assistant Commercial Manager (within the 30% quota) is a post of supervisory nature and involves both desk job as well as open line job and, therefore, the third respondent's claim cannot be considered. If the petitioner Railways have any apprehension about the low vision of the third respondent being an impediment for an open line posting, certainly, the third respondent can be accommodated in a job involving paper work. But certainly, on this ground, they cannot deny promotion to the third respondent. 10. Under the above circumstances, the writ petition is devoid of merits and will stand dismissed. In the light of our finding that there is no disqualification for the third respondent from being promoted, we are not going into the issue relating to the amended version of the Medical Manual. The petitioner Railways are directed to implement the order of the CAT in the light of our findings within a period of eight weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To 1. The Registrar Central Administrative Tribunal Chennai Bench, Chennai – 104. 2. The Secretary Union of India Ministry of Railways New Delhi https://hcservices.ecourts.gov.in/hcservices/ 3. The Chairman Railway Board Rail Bhavan New Delhi 4. The General Manager Southern Railway Chennai – 3 1 cc To M/s.V.G.Suresh Kumar, Advocate, SR.16361. 1 cc To M/s. Paul & Paul, Advocate, SR.16183. W. P. No. 16762 of 2001 CMP(CO) RVL 31.03.2008 https://hcservices.ecourts.gov.in/hcservices/