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Judgment
Om Prakash VII, Member (J)
Shri Om Prakash, learned counsel for the applicant and Shri Raj Pal Singh, learned counsel for the respondents, were present at the time of hearing.
The instant original application has been filed seeking following relief:
“(a) Issue an Order or direction in the nature of certiorari, quashing the impugned Speaking Order dated 05.3.2018, passed by the Senior Divisional Personnel Officer, E.C. Railway, Mughalsarai, District – Chandauli, and also quashing the impugned Notice / Charge-Sheet dated 11.01.2018, passed by the Respondent.
(b) Issue an Order or direction in the suitable nature, directing the Respondent No. 1 to direct the Respondent Nos. 2 to 3 to join the Applicant in the post of sedentary Job (Clerk) in any Department of the Railway.
(c) Issue an Order or direction in the suitable nature, directing the concerned Authority to give the salary to the Applicant since 26.3.2015 on the medical ground.
(d) Issue an Order or direction in the suitable nature, which this Hon’ble Court may deem fit and proper in the circumstances of the present case.
(e) Award the cost of the Application be awarded in favour of the Applicant.”
A compendium of the facts narrated in the OA is that the applicant is aggrieved by the fact that despite a clear recommendation of the designated medical board upon which the applicant was medically decategorized, he has not been given the appropriate sedentary post. Further, the applicant seeks quashing of the order dated 05.03.2018 by way of which his representation wherein he sought absorption on a clerical cadre post, was rejected by the respondents. Applicant also seeks quashing of the Notice / Charge sheet dated 11.01.2018 issued against him citing absence from duty.
Disclosing a brief history of the case, learned counsel for the applicant submitted that the applicant was working on the post of Assistant Loco Pilot. He was suffering from diseases and in this regard, the treatment was going on from Loco Hospital, Mughalsarai and due to this reason, he was unable to perform his duty smoothly. A Divisional Medical Committee was appointed for examination and evaluation of fitness of the applicant on 20.03.2015 at Loco Hospital itself. Upon examination, the Committee recommended that the applicant is not fit for duty of an Assistant Loco Pilot but only fit in alternative sedentary employment not involving strenuous duty in medical category A-1 (Aye One) (done on the lines of Railway Board letter dated 01.07.2011). This information was communicated to the applicant vide letter dated 26.03.2015. Thereafter, a screening test was conducted by the Divisional Screening Committee on 28.05.2015 for absorption of medically decategorised persons including the applicant on alternative posts. Subsequently, the applicant was medically decategorised and placed on the post of Technician – III vide order dated 12.05.2016.
Learned counsel for the applicant further argued that the applicant is suffering from diseases due to which it was recommended by the medical committee that he must be given a sedentary job but Technician does not come under that kind of post and since he is unable to perform the work of Technician-III, the applicant submitted his refusal on 18.05.2016. Further, several applications dated 30.07.2016, 14.09.2016, 26.12.2016, 11.04.2017, 16.06.2017 and 03.10.2017 were sent by the applicant to the respondents citing the fact that he is undergoing treatment and for that reason, he is unable to perform duties. However, when the applicant went to join office, he was denied to join and instead a charge sheet / notice dated 11.01.2018 was served upon him with regard to his unauthorised absence since 21.07.2016. Thus, referring to all the facts and circumstances of the case, prayer was made to allow the OA thereby granting all the reliefs to the applicant as sought.
Learned counsel for the respondents vehemently rebutted the contention of the applicants and by way of his counter affidavit, he has argued that the subsequent to the medical decategorisation of the applicant and screening conducted in this regard, the applicant was given the sedentary post of Technician – III which does not come under the purview of strenuous job. This procedure was followed in accordance with the directive instructions of a Railway Board Letter No. 89/99 Para 13.11 and Railway Board Letter No. PHQ / Ruling/Medical/62/3897 dated 24.12.2012 (RBE 14/12 and Est. Rule 23/2012). Accordingly, the posting of the applicant was done keeping in view his suitability as per the rule and medical fitness as prescribed by the medical officials. Further, absorption in the clerical cadre cannot be given to the applicant because of his medical standard and as per the rules and recommendation of the Administrative Screening Committee. The decision of the Screening Committee that the applicant be posted as Tech III in Mech (Loco) is absolutely appropriate and one taken keeping in mind the administrative requirement. Further, the impugned order dated 05.03.2018 is a reasoned and speaking order and the order dated 10.01.2018 is only a show cause notice with regard to the unauthorized absence of the applicant since 21.07.2016 to appear before the respondents’ authority. Thus, referring to the entire facts and circumstances as elucidated in the counter affidavit prayer was made to dismiss the OA being devoid of merits.
We have considered the rival contentions and gone through the documents on record.
As the facts of the case have already been recorded above, the same are not reiterated for the sake of brevity. The applicant was medically decategorised by the Divisional Medical Committee of the respondents declaring that the applicant was not fit for duty as ALP in medical category A-1 but he was fit for alternative sedentary employment not involving strenuous duty. This was done in accordance with the provisions stipulated in Railway Board Letter dated 01.07.2011 dealing with the subject matter. Subsequently, a Screening test of the applicant was conducted by the Divisional Screening Committee on 28.05.2015 for absorption on alternative post. As a result, the applicant was given the sedentary post of Technician – III. However, the applicant denied working on the said post alleging that the post of Technician – III does come under the purview of strenuous job vide refusal letter dated 18.05.2016. Subsequently, the applicant remained unauthorisedly absent for the purpose of undergoing treatment of his diseases, the information regarding the same was communicated to the respondents vide several applications as have been enumerated at paragraph no. 5. The major prayer of the applicant is that he must be given appointment on an alternative sedentary clerical post rather than technician –III post which he claims to be strenuous in nature.
It is pertinent to record that the applicant was medically decategorised by the competent medical board of the respondents’ department subsequent to which Screening was conducted and the applicant was offered the post of Technician – III, However, the applicant rejected the same vide refusal letter dated 18.05.2016 and thereafter he went on unauthorized leave due to medical reasons. But, the applicant kept informing the respondents’ department about his medical infirmities and also about the treatment he was undergoing. The Screening was held in accordance with the stipulated rules and provisions and thereafter the post of Technician – III was given to the applicant and therefore it cannot be ruled that the applicant was offered that post illegally or in malafide exercise of power. The departmental rules vividly establish that the post of Technician – III comes under the purview of non-strenuous job. Further, allotment of posts especially to those employees who have been medically categorized exclusively falls under the executive domain of the department upon which any external authority can have a very limited say. Furthermore, no medically decategorised employee can out rightly make a demand for any specific post or position to work on as it is completely upon the department to allot him the appropriate post in accordance with the standing rules and provisions. Similarly, in the instant case the applicant could not have asked for an alternative post to work on after he was allotted the post of Technician – III. On the contrary, he did not only just asked for an alternative post but also refused to work on the allotted post.
However, keeping in mind the fact that the applicant was medically decategorised and also taking into consideration that he was suffering from medical illness the information regarding which he submitted to the respondents’ department time and again while undergoing treatment and even before that it would be in the interest of justice that the respondents be given the direction to allow the applicant to join on the post of Technician – III which was allotted to him post the Screening. Further, since it has been established that the applicant was undergoing treatment, it would also be in the fitness of things that the period for which the applicant remained absent from duty on account of undergoing treatment is considered as period in service.
Thus, in view of above deliberations and analysis, we are of the considered opinion that the instant original application is liable to disposed of and is accordingly, disposed of with following directions:
i. The effect and operation of the order dated 05.03.2018 stands intact. However, respondents are directed to give an opportunity to the applicant to join at the post of Technician – III which was allotted to him subsequent to the Screening.
ii. The order dated 11.01.2018 is quashed and set aside to the extent that the period of which the applicant remained absent from duty on account of undergoing medical treatment shall be considered as period in service. However, since the applicant did not discharge his duties for the said period, no salary for that period will be given to him.
All associated MAs stand disposed of. No costs.