Sayyed Aijaz Ali & Ors vs Union Of India & Ors

Om Prakash-VII, Member (J)

The applicants have filed this O.A. for quashing and setting aside the impugned orders dated 20.8.2015, 12.0.2015, 19.7.2017, 8.11.2017, 4.2.2019 and 27.3.2019 and for direction to the respondents to rescreen the applicants and absorb them on the suitable cadre post as per provision of Railway Rules with all consequential benefits.

Heard learned counsel for parties.

Learned counsel for the applicants argued that the applicants were posted as Loco Pilot Goods in Loco Running Cadre and have been declared medically unfit for Loco running cadre and decategorised from the post of Loco Pilot Goods. Railway administration constituted a screening committee who conducted the screening on 2015, 2017 and 2019 and absorbed the applicants on ex-cadre /tenure post of Crew Controller/ Power Controller against the statuary rules and Indian Railway Establishment manual. Learned counsel for applicants argued that Railway Board issued a consolidated instructions through Master Circular No. 25 on the subject of “Absorption of Medically de-categorised non-gazetted staff in Alternative Jobs” in which it is clearly mentioned under para 6.8 that Medically decategorised staff shoud be absorbed in suitable alternative posts in regular cadre only and not in tenure posts. Learned counsel for applicants also relied upon on the judgment and order passed by this Tribunal in O.A. No. 189/2020, 180/2020 and 184/2020 and stated that in similar facts and circumstances this Tribunal allowed the O.A.s and directed the respondents to post the applicants of that O.As in a suitable alternative post except the PC/TC/CC and if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol. 1 and Section 47 of Act 1 of 1996 and in the light of point No. 6.8 of the Master Circular No. 25. Learned counsel for applicants prays that applicants of this O.A. are similarly situated persons to that of O.A. No. 179/2020, 180/2020 and 184/2020 and applicants would be satisfied, if the similar directions may also be issued in the instant case.

Learned counsel for the respondents argued that Screening of the applicant was conducted as per provision and existing rules of Railway Master Circular No. 25 para 6.1 and 6.2, and applicant has been allotted alternative job of PC/TC/CC, as applicant was working in running cadre. Learned counsel for respondents has also filed written submission, by which he has reiterated the facts as stated in the O.A.

Learned counsel for the applicant filed rejoinder reply, in which it is stated that point 6.8 of the Master Circular 25, clearly provides that “Medically decategorised staff should be absorbed in suitable alternative posts in regular cadre only and not in tenure posts”, whereas respondents have absorbed the applicant on tenure post by which, applicant will be debarred from the future seniority, chance of promotions and will suffer irreparable monetary loss not only during service period, his pensionary benefits will also be affected.

We have considered the rival submissions and have gone through the entire record.

Relevant paras of O.A. No.179/2020 (Ram Babu Sharma Vs. UOI and others) decided on 15.12.2022 are reproduced below:-

“7. Point 6.8 of the Master Circular 25 clearly provides that “Medically decategorised staff should be absorbed in suitable alternative posts in regular cadre only and not in tenure posts”, but Screening committee has recommended the case of the applicant for absorption for non –cadre post i.e. PC/TC/CC as per point No. 6.1 and 6.2 of the Master Circular 25.

Learned counsel for the applicant has submitted that in similar facts and circumstances, Cuttack Bench of this Tribunal in O.A. No. 434/2008 (Bibhuti Bhusan Pandey Vs. Union of India and others) relying on judgment and order passed by the same Bench in O.A. No. 910/2006 had allowed the O.A. and quashed the order dated 12.8.2008. The operative portion of para 4 and 5 of the judgment is reproduced below:-

“4. After giving our thoughtful consideration to the rival submissions of the parties, perused the materials placed in this OA as also the records of OA No.910/2006. On perusal of the earlier order of this Tribunal it is seen that the stand of the Respondents' counsel that there has been no decision on principle is not correct. In fact this Tribunal alter considering all aspects of the matter came to a positive finding which has binding effect to all similarly situated employees of the Railways. The operative part of the order dated 03.0 1.2008 in OA No.910/2006 reads as under:

"38. We carefully examined the impugned order, the respondents have not assigned the reasons, the provisions of 47 of the said Act 1/96, i.e. Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, and other rules and instructions of the Railway Board are not taken into consideration. The objects of the provisions are very important and should be followed by the competent authority. The medically dc-categorized staff can be shifted to any other post in the same pay scale or action to be taken to keep him in supernumerary post under the provisions of the said Act by the competent authority other than the authority who passed an order by L exercising his powers vested in him. The applicant's service is to be protected as if he was getting all the benefits available to the running staff.

After careful consideration of the contentions of either side, citations referred to above and the relevant provisions of IREM, we are of the considered view that the applicant has made out a case for grant of relief and the stand taken by the respondents is absolutely illegal. The respondents are not justified in considering the case of the applicant while issuing the impugned order and the applicant is placed in the list for screening to the post of PC/CC in Mechanical Department. We are of the considered view that the applicant is entitled for the relief as prayed for. Accordingly, we direct the competent authority i.e. respondents to delete the name of the applicant from the panel list dated 30.11.2006 (Annexure A-2) and post the applicant in suitable alternative post, if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol.1 and section 47 of Act 1 of 1996."

In view of the above, we have no hesitation in our mind to hold that the order dated 12.8.2008 is not sustainable. Hence the same is hereby quashed. As a result, the Respondents are directed to post the applicant in a suitable alternative post except the Power Controller! Crew Controller and if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol.1 and section 47 of Act 1 of 1996. The entire exercise shall be completed within a period of 60(sixty) days from the date of receipt of this order. In the result, this OA stands allowed in the afore-stated terms. No costs.”

In the instant matter, if the facts and circumstances disclosed by the parties are compared with the facts and circumstances of O.A. No. 434/2008 and O.A. No. 910/2006 as referred above by the learned counsel for the applicant, we are of the view that applicant is entitled to the benefit of point No. 6.8 of the Master Circular 25. Decisions rendered in the aforesaid O.As can safely be adopted to settle the issue involved in the present O.A.

In view of the above, we have no hesitation in our mind to hold that the orders dated 11.3.2019 and 21.1.2020 are not sustainable. Hence the same are hereby quashed. As a result, the Respondents are directed to post the applicant in a suitable alternative post except the PC/TC/CC and if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol.1 and section 47 of Act 1 of 1996 and in the light of point No. 6.8 of the Master Circular No. 25. The entire exercise shall be completed within a period of 60(sixty) days from the date of receipt of this order.

In the result, the OA stands allowed in the afore-stated terms.”

In the instant matter, if the facts and circumstances disclosed by the parties are compared with the facts and circumstances of O.A. No. 179/2020, 180/2020 and 184/2020 as referred above by the learned counsel for the applicant, we are of the view that applicant is entitled to the benefit of point No. 6.8 of the Master Circular 25. Decisions rendered in the aforesaid O.As can safely be adopted to settle the issue involved in the present O.A.

Accordingly, O.A. is allowed. As a result, the impugned orders dated 20.8.2015, 12.10.2015, 19.7.2017, 8.11.2017, 4.2.2019 and 27.3.2019 are quashed. Respondents are directed to post the applicants in a suitable alternative post except the PC/TC/CC and if suitable post is not available, create supernumerary post in accordance with Chapter XIII of IREM Vol.1 and section 47 of Act 1 of 1996 and in the light of point No. 6.8 of the Master Circular No. 25. The entire exercise shall be completed within a period of 60(sixty) days from the date of receipt of this order.

There shall be no order as to costs.