Union Of India & Anr vs Biswanath Murmu

Bibek Chaudhuri, J

The respondent as applicant filed original application being O.A No.1055 of 2016 before the Central Administrative Tribunal, Calcutta Bench, Calcutta alleging, inter alia, that while he was working as Head Constable, R.P.F. Eastern Railway, he was medically de-categorised for the post and was posted as Track Maintainer, Gr. II (Chowkidar) in the Grade Pay of Rs.2400 (substantive) in the Engineering Department vide office order dated 16th November, 2015. According to the respondent/applicant, his posting as Track Maintainer, Gr. II (Chowkidar) is not the post at par with the Head Constable and he was reduced in rank, though his financial emoluments were protected. It was contended that by virtue of medical de-categorisation, he cannot be demoted from his original post of Head Constable and reduced in rank.

The Tribunal disposed of the original application by the impugned order dated 24th August, 2018. Paragraph 10 thereof reads as follows:

"10. In as much inarguably and indubitably the applicant would deserve adjustment against a supernumerary post pending location of a suitable alternative 'post' with the same pay scale and service benefits in which the applicant was working on regular basis before being declared medically unfit, without reduction in rank, we dispose of the present O.A with a direction upon the respondents to make efforts to locate a suitable alternative post for the applicant in accordance with RBE 89/1999 and pending such location to adjust the applicant against appropriate supernumerary post in accordance with the said RBE 89/99, extracted supra."

The aforesaid order passed by the tribunal on 24th August, 2018 is challenged in the instant proceeding by the Union of India and officers of the Eastern Railway under Article 226 of the Constitution.

Mr. Swapan Banerjee, learned Advocate for the petitioners has argued before us that the respondent, while serving as Head Constable was medically de-categorised on 28th October, 2015 and the Divisional Medical Committee recommended him for alternative employment. Accordingly, he was called for screening on 6th November, 2015 before the screening committee for his rehabilitation in alternative post. As per the recommendation of the screening committee, he was alternatively posted as Chowkidar in Track Maintainer, Gr. II category after de-categorisation. However, his substantive pay scale, grade pay and other financial benefits which he was enjoying as head constable were protected and remained intact. It is further contended by Mr. Banerjee that the tribunal did not consider the provisions of Rules 1303 and 1304 of Indian Railway Establishment Manual, Volume-1 where it has been specifically provided that the medically de-categorised employee is to be absorbed in posts which the staff can adequately fill and as far as possible in allied categories where their background and experience in earlier posts could be utilised. As head constable of RPF, it was the primary responsibility of the respondent to protect railway properties from unauthorized dispossession by theft. After medical de-categorisation, the post of Chowkidar in Track Maintainer, Gr. II was considered to be best suited for the respondent and he was accordingly posted there. According to Mr. Banerjee, the learned tribunal did not consider the provisions of Indian Railway Establishment Manual, Volume-1 and passed the order impugned placing undue reliance on Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act, for short).

Mr. Ujjal Roy, learned Advocate for the respondent, on the other hand has supported the impugned order passed by the tribunal.

Having heard the submission made by the learned Advocates for the parties and on perusal of the impugned order as well as the materials on record, we are of the view that the writ petition, filed by the Union of India through its officers, is absolutely devoid of any merit and liable to be dismissed. We now proceed to assign our reasons therefor.

In Narendra Kumar Chandla vs. State of Hariyana and Others reported in AIR 1995 SC 519, the Supreme Court observed as follows:-

"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 post 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 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 Clark, 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 join him as a 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 rehabilitate in the post of LDC we direct the respondent to join him to the post of LDC protecting his scale of pay of Rs.1400-2300 and direct to pay all the arrears of salary.

Section 47 of the PWD Act states:-

"Sec.47. (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 benefit:

PROVIDED FURTHER that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until 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."

Plain reading of Section 47 of the PWD Act suggests that service of an employee shall not be dispensed with or that he shall not be reduced in rank who acquires a disability during his service. The first proviso to Section 47 of the PWD Act states that if an employee, after acquiring disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefit that he was given. The second proviso to Section 47 refers to the fact that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until suitable post is available or he attains the age of superannuation, whichever is earlier. The Act also provides that no promotion shall be denied to a person merely on the ground of his disability.

The benefit of Section 47 of the PWD Act cannot be denied when the disability was acquired during service. Undoubtedly, the PWD Act is a special and beneficial statute which prevails having regard to Section 72 of the Act ordaining that the Act is to be in addition to and not in derrogation of any other law. In short, the PWD Act, prevails over the general enactments. Its provision are not limited or circumscribed by the provisions of any other law or rules etc for the benefit of persons with disabilities.

In support of our finding, we may profitably apply the Maxim Leges posteriores priores contrarias abrogant which means an earlier Act must give place to a later if the two cannot be reconciled, and one Act may repeal another by express words or by implication. Where the special law prevails, the general law gives place to the statute so far as they are repugnant. The decision of the Supreme Court in Kunal Singh vs. Union of India reported in AIR 2003 SC 1623 may also relied upon, in this regard.

Admittedly the petitioner was a Head Constable, R.P.F before his medical de-categorisation. The grievance of the petitioner is that after he was medically de-categorised, the respondent authority posted him as a Chowkidar, Track Maintainer, Gr. II. It is not a post at par with Head Constable. However, it is contended on behalf of the petitioner that the pay and the salary of the respondent has been protected. According to the learned counsel for the petitioner, the petitioner authority secured alternative posting of the respondent as per the provisions of Indian Railways Establishment Manual, that permits the railways to give posting to an employee who is already in service and acquires disability in a reduced rank if alternative posting in the same rank is not available.

However, in view of the provision of Section 47 of the PWD Act, and the authorities of the Apex Court cited above, the respondent cannot be reduced in rank while providing him with alternative posting on the ground of his disability. Section 47 undoubtedly prevails over the Indian Railways Establishment Manual.

For the reasons aforesaid, we do not find any merit in the instant writ petition and accordingly the writ petition is dismissed on contest, however without cost.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.