M. Penchalaiah vs Union of India (UOI) and The Central Administrative Tribunal

P.K. Misra, J.—In W.P. No. 27979 of 2006, the petitioner was appointed as Rakshak in the year 1977. Subsequently, such post was

renamed as Constable, which was in Group ""C"" cadre. In April, 1991, the petitioner was declared medically unfit. However, soon thereafter, he

was absorbed as Peon, which was a post in Group ""D"" cadre. In course of time, he was promoted as Jamedar Peon, Record Sorter ''B'' and

Record Sorter ''A'' and last such promotion had been given on 16.8.1999. On 25.5.2005, the petitioner made a representation wherein he

referred to his earlier representations dated 20.5.1992, 4.9.1999 and 7.9.2002. Substance of the representation was to the effect that even though

he had accepted Group ""D"" post, he had been making representation to absorb him in an equivalent post carrying scale of pay comparable to

Group ""C"" post, which he was holding before invalidation on medical grounds. Therefore, he prayed that he should be granted pay scale of Rs.

825-1200 with effect from the date of his medical decategorisation and he placed reliance upon the decision of the Supreme Court in Narendra

Kumar Chandla Vs. State of Haryana and others, and a subsequent decision of the Madras High Court. Thereafter, he made several other

representations and ultimately he filed O.A. No. 895 of 2005 for a direction to fix the pay scale at Rs. 825-1200 with effect from the date of

absorption as a Peon and the corresponding revised V Pay Commission scale of Rs. 2750-4400 along with arrears of pay and also the benefit of

the Assured Career Pay protection.

1.2 In the reply filed before the Tribunal, the Union of India, averred that after the petitioner was declared as medically unfit, he was offered an

alternative job as peon in the scale of Rs. 750-940 (V Pay Commission scale Rs. 2550-3200) and his pay was fixed at Rs. 940/- being the

maximum of the scale. In course of time, he was promoted as Jamedar Peon in the scale of Rs. 775-1025 (V Pay Commission scale Rs. 2610-

3540) and further promoted as Record Sorter ''B'' in the scale of Rs. 800-1150 (V Pay Commission scale Rs. 2650-4000). Subsequently, he was

promoted as Record Sorter ''A'' in the V Pay Commission scale of Rs. 2750-4400, which is a Group ""C"" post, with effect from 16.8.1999. It was

further admitted that the decision of the Tribunal giving the benefit of pay protection had been upheld by the High Court in W.P. Nos. 761 and 762

of 2002 and subsequently such order has been implemented. It was further stated that in terms of the Railway Board''s letter dated 31.5.2005 that

the scheme regarding absorption of disabled medically decategorised staff on alternative employment on the same scale of pay is applied in case of

the employees who had been disabled medically decategorised on or after 7.2.1996, the date on which The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full participation) Act, 1995, came into force. It was further indicated that since the applicant had been

medically decategorised on 4.4.1991, a reply was given in December, 2005 (during pendency of the Original Application) turning down the

representation of the petitioner. It has been further stated that as per the Rules applicable before the introduction of the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full participation) Act, 1995, the pay protection is limited to the maximum of the scale for the post

in which the medically decategorised employee is absorbed. The decision of the Supreme Court in Narendra Kumar Chandla''s case was sought to

be distinguished on the ground that the person in the said case was absorbed in category ""C"" post and it is not known whether the person in the

said case had drawn more pay than the maximum of the lower scale.

In W.P. No. 27980 of 2006, the petitioner was appointed as Rakshak in 1980, which was renamed as Constable in the year 1986 in Group

C"" cadre carrying pay scale of Rs. 825-1200 (V Pay Commission scale Rs. 2750-4400). The petitioner was declared medically unfit on

29.6.1992 and on 9.9.1992 he was absorbed as Peon, which is in Group ""D"" Cadre in the pay scale of Rs. 750-940. The petitioner was

subsequently promoted as Jamedar Peon on 2.2.1993 in the scale of Rs. 775-1025 (Revised pay scale - 2610-3540). On 25.5.2005, the

petitioner made a representation wherein he referred to his earlier representations dated 31.7.1995, 19.2.1998 and 24.8.2002 to absorb him in an

equivalent post carrying scale of pay comparable to Group ""C"" post, which he was holding before invalidation on medical grounds and ultimately

filed O.A. No. 915 of 2005.

2.1 In the reply filed by the Respondent, the Union of India, similar averments made in the reply filed in O.A. No. 894 of 2005 were made.

The Tribunal in its common order negatived the contention of the petitioners by observing that The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full participation) Act, 1995 had no retrospective operation. The Tribunal, however, further observed that

the persons with similar disability incurred after 7.2.1996 would be entitled to pay protection. Denial of such benefit to the applicants, who were

working in the same Organization, merely because the disability was incurred earlier, would amount to hostile discrimination. It was further

observed:

9...To that extent we hold that the enforcement of the provisions of the Act in a blanket strait jacket manner that amounts to hostile discrimination

against the applicants. The applicants in our view may certainly have no claim with effect from 1988 or other applicable dates as the case may be in

view of the fact that the then extant provisions relating to them had been fairly implemented. They had come before this Tribunal not because they

felt discriminated in 1988, etc., but because of certain pronouncements made by this Tribunal which were later confirmed by the Hon''ble High

Court. In that view of the matter, their claim for being extended with benefits prior to February 1996 may not be on strong grounds. However,

with the passing of the legislation and its notification on 7.2.96, and on the basis of the fact that they are continuing to work in the organization

where similarly placed persons like them are deriving benefits as contemplated in the Act, we hold that the applicants have made out a case in their

favour to that extent. In that view of the matter, the respondents are directed to consider the representations of the applicants and consider

extension of benefits as contemplated under the Act with effect from 7.2.96 on notional basis and with financial and consequential benefits from the

date of filing of this O.A. The applicants are at liberty to submit fresh representations within a period of four weeks from the date of receipt of a

copy of this including copies of the various representations submitted by them after 1996. The respondents shall consider the aforesaid

representations within a period of 12 weeks thereafter and pass orders strictly in terms of the provisions of the Act currently in force.

The aforesaid direction is challenged by the applicants themselves in these writ petitions with a prayer to quash the order of the Tribunal and to

give a direction to the Central Government to fix the pay scale at Rs. 825-1200 with effect from the date of absorption on medical

decategorisation and also the benefit of the Assured Career Pay protection.

The decision of the Supreme Court reported in (1994) 4 SCC 460 (cited above) is the main plank of the submission made by the counsel for

the petitioner. In the said case, the appellant before the Supreme Court was working as a Sub Station Attendant under the State Electricity Board

in the scale of Rs. 1400-2300. Subsequently, one arm had to be amputated. The Electricity Board absorbed him as Carrier Attendant in the pay

scale of Rs. 825-1300. The writ petition of the appellant having been dismissed, the matter was taken to the Supreme Court. During pendency of

the appeal, the Supreme Court had called upon the Electricity Board to examine whether the appellant could discharge the duties of Sub-Station

Attendant or any other equivalent post carrying the pay scale of Rs. 1400-2300, but it was found that the appellant would not be in a position to

perform such duty. While accepting the above, the Supreme Court found that the appellant was educationally not qualified to be appointed as

UDC, which carried the similar scale and it ultimately observed:

Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which,

when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the

employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since he is a

matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of

15/30 words per minute is necessary. For a Clerk, typing generally is not a must. In view of the facts and circumstances of this case, we direct the

respondent Board to relax his passing of typing test and to appoint him as an LDC. Admittedly on the date when he had unfortunate operation, he

was drawing the salary in the pay scale of Rs. 1400-2300. Necessarily, therefore, his last drawn pay has to be protected. Since he has been

rehabilitated in the post of LDC we direct the respondent to appoint him to the post of LDC protecting his scale of pay of Rs. 1400-2300 and

direct to pay all the arrears of salary.

(Emphasis added)

In W.P. Nos. 761 and 762 of 2002 Union of India v. The Registrar, C.A.T., Chennai Bench and Ors. disposed of on 16.2.2005, the second

respondent was working as Constable in the scale of pay of Rs. 825-1200 (pre-revised) in the Railway Protection Force. Subsequently, being

found medically unfit during 1997, he was absorbed as Peon in a lower scale of pay corresponding to Rs. 2610-3540. The second respondent,

however, made a representation for an equivalent post, which having been turned down, he approached the Tribunal. The Tribunal accepted the

contention of the second respondent and issued a direction that he should be absorbed in the similar scale of pay. The Division Bench observed as

follows:

Now coming to the present order of the Central Administrative Tribunal which is under challenge in these petitions, the perusal of the instructions

of the Railway administration, it is clear that alternative appointment would be considered suitable if the emoluments of the same are at level not

more than 25 per cent below their previous emoluments in their substantive appointments. We have already referred to the earlier order passed in

O.A. Nos. 259/2000 and 351/2000 declaring that both the applicants are entitled to pay protection. In the light of the decision of the Apex Court

in Narendra Kumar Chandla''s case, referred to the above, and in view of the factual details furnished and the instructions available from the Indian

Railway Establishment Manual and taking note of the fact that the medical decategorisation occurred in the course of their employment, we are in

agreement with the conclusion of the Tribunal that the applicants are entitled pay protection consequent upon their medical decategorisation a well

as the direction regarding their fixation of pay. In the absence of any other material, we do not find any valid ground for interference; accordingly,

both the writ petitions fail and they are dismissed.

It is apparent that in the aforesaid two cases, medical decategorisation occurred after The Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full participation) Act, 1995. The Division Bench does not lay down categorically that even where the decategorisation

has taken place before introduction of the said Act, the employee has to be re-employed by giving full pay protection. The decision of the Supreme

Court in Narendra Kumar Chandla''s case was rendered in the context of Article 21 of the Constitution. Validity of the rule or instruction relating

to re-employment and limited protection of pay was not directly in issue. What the writ petitioner now claims is the right to get full pay protection,

even though the rules instructions applicable at the time did not so contemplate.

On the other hand, the learned Counsel for the Respondents has placed reliance upon the earlier decision of the Tribunal in O.A. No. 959 of

1998 dated 15.2.2000, wherein the Tribunal had upheld the provisions relating to pay protection to the maximum of the lower scale in which the

medically decategorised employee was absorbed. It has been further submitted that the aforesaid decision of the Tribunal was upheld by the High

Court in W.P. No. 13255 of 2000 R. Venkatesalu v. The Union of India rep. by The General Manager, Southern Railway, Chennai and Ors.

dated 17.10.2000. Learned Counsel for the respondents has further relied upon the provisions contained in para 1309 (i) and (ii) of The Indian

Railway Establishment Manual (in short ""IREM""). The provisions are extracted hereunder:

(i) The alternative post to be offered to a railway servant to be best available for which he is suited, to ensure that the loss in emoluments is a

minimum. The low level of emoluments should not, however, deter officers concerned from issuing an offer if nothing better is available. The

railway servant must be given an opportunity to choose for himself whether he should accept the offer or reject it.

(ii) It would not, however, be appropriate to offer a Group ''D'' post to a railway servant in the Group ''C'' service even if the emoluments are

almost similar, except in special circumstances. For instance, a cleaner who had risen to be a Shunter could be offered the post of a Cleaning

Jamadar if no better post were available.

(iii) For the purposes of this paragraph, an alternative appointment will be considered ''suitable'' if the emoluments of the same are at level not more

than about 25% below his previous emoluments in his substantive appointment, or officiating appointment from which he was unlikely to revert. In

the case of running staff, the former emoluments for the purpose of comparison will be basic pay plus a percentage of such in force. The figure of

25 per cent is in the nature of a guide and not a rigid rule. Each case should be judged on its merits. The underlying object is to ensure that the

appointment offered will be considered ''suitable'' if it will not force the railway servant to adopt a standard of living (as far as the necessaries of life

are concerned) of a drastically lower standard of comfort. A railway servant with a large family and considerable commitments would merit greater

consideration, than one without or with few dependants.

From the provisions extracted above, it is apparent that when any equivalent post for re-employment of a medically decategorised employee

was not available, such a person could be offered a Group ''D'' post in lower category with lower pay scale, but with certain limited pay protection

as envisaged. It is obvious that The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act, 1995 has not

been made retrospective. The decision of the Supreme Court in Narendra Kumar Chandla''s case does not have the effect of nullifying the

provisions contained in IREM, which we have already extracted. The decision of the Madras High Court in W.P. Nos. 761 & 762 of 2002 (cited

supra), relied upon by the counsel for the petitioner, relates to decategorisation after the enforcement of The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full participation) Act, 1995. Moreover, in such decision, validity of the provisions contained in IREM had

not been challenged nor even indirectly decided one way or the other. In such a scenario, we are unable to accept the contention of the petitioner

regarding full pay protection. Therefore, we do not find any scope to interfere with the order passed by the Tribunal.

For the aforesaid reasons, we do not find any merit in these writ petitions and they are accordingly dismissed. No costs.