B.K. Shrivastava, Member (J)
1. This OA has been filed on 26.02.2015 Under Section 19 of the Administrative Tribunals Act, 1985 for quashment of the order dated 28.10.2014 (Annexure A-1) passed by the Respondent No.3. The following relief(s) are claimed, as per Para 8 of the OA:-
“(I) This Hon’ble Tribunal may be pleased to quash the impugned order dated 28.10.2014 and its communication dated 12.02.2015 passed by the respondent No.3 (Annexure No.A-1 to this original application).
(II) This Hon’ble Tribunal may be pleased to direct the respondents to allow the applicant to work as Chief Ticket Inspector Jhansi in grade pay of Rs. 4600/-pursuant to the recommendation of Screening Committee dated 19.10.2010 and posting order dated 25.05.2011.
(III) Any other relief, which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case, may be given in favour of the applicant.
(IV) Award the costs of the original application in favour of the applicant.”
2. In this case, these facts are not in dispute:-
(a) The applicant was appointed on the post of ‘Guard’ on 07.09.1990 and promoted on the post of ‘Passenger Guard’ on 12.09.1997 and further promotion was granted on the post of ‘Mail Guard’ on 02.01.2004.
(b) On 11.03.2009, the applicant was on leave and during the leave period he met with an accident, thereafter, he was an under treatment w.e.f. 12.03.2009 to 16.03.2009.
(c) The applicant, after the treatment, received the discharge memo (Annexure A-2) dated 16.03.2009 in which the remark was mentioned as:-
“mid line and left sided posterior frontal depressed with scalp skin-minor head injury.”
(d) After treatment, the applicant joins his duty in the month of August, 2009. On 21.12.2009, a special re-medical examination was conducted and after the examination the opinion was given in Annexure A-3 certificate No.55 dated 21.12.2009 as:-
“fit in AYE TWO with drugs for diabetes melitns and regular checkup Rx. & diet control.”
(e) On 19.04.2010, another medical examination report issued to the applicant with some different opinion and it was mentioned in the aforesaid report (Annexure A-4) dated 19.04.2010 that:-
“unfit AYE TWO as Guard, hence recommended for the decategorization and made fit in AYE TWO and under for alternative suitable Job under para 12.9 of Rule 512 of Indian Railway Medical Manual.”
(f) In view of the aforesaid medical opinion, on 19.10.2010, a Medical Board under Para 1306 (1) of Indian Railway Medical Manual was constituted of 03 members who recommended the applicant for his alternative appointment on medical de-categorization as Chief Ticket Inspector vide Annexure A-5.
(g) On 09.11.2010, the office order (Annexure A-6) was issued by which the applicant was posted as Chief Ticket Inspector in the Grade pay of Rs.4600/- in the commercial department.
(h) The applicant completed the training required for the post; vide Annexure A-8 during the period of 10.01.2011 to 21.02.2011 and 01.03.2011 to 12.04.2011. On 13.04.2011, he received the clearance certificate.
(i) The order dated 25.05.2011 (Annexure A-9) was issued by which the applicant posted as Chief Ticket Inspector in the Grade pay of Rs.9300-34,800+ GP Rs.4600/-.
(j) On 10.06.2010, the MACPs was granted to the applicant w.e.f. 01.09.2008 vide order Annexure A-10.
3. As per applicant’s case, while he was working as Chief Ticket Inspector under the Respondent No.2, he received a letter dated 01.12.2011 regarding screening of the medically de-categorize employees which was conducted on 23.11.2011 and it was mentioned that the applicant was absent. Therefore, upon the recommendation of aforesaid committee the posting order Annexure A-12 dated 01.12.2011 was issued and the applicant was posted in the Engineering Department. It is submitted by the applicant that he was already screened on his medical de-categorization and was offered permanent posting as Chief Ticket Inspector, therefore, there was no occasion for calling him for the fresh screening. It is also submitted that the letter dated 21.11.2011 was issued but no any information was given to the applicant and the order was never circulated to the applicant to attend the screening on 23.11.2011.
4. It is again submitted by the applicant that by the impugned order dated 28.02.2012 he was posted as Chief Office Superintendent under the Senior Section Engineer in the Engineering Department Lalitpur vide Annexure A-14. He preferred a representation (Annexure A-15) on 14.03.2012 and anotherrepresentation(AnnexureA-16)on 20.11.2012.Therafter, the applicant filed this OA.
5. The respondent opposes the OA by filing the counter affidavit on 20.07.2015. It is submitted by the respondent that when it was came into the notice that the post of Chief Ticket Inspector as alternative job was wrongly allotted to the applicant as per instruction contained in Para 512 (12.9) of Indian Railway Medical Manual, the entire matter was re-examined by the competent authority and it was decided to conduct the screening of the applicant again in the light of instruction contained in para 512 (12.9). Accordingly, the screening was conducted and the applicant was informed but he was not appeared, hence, the decision was taken and the impugned order has been issued.
6. The impugned order dated 28.10.2014 says:-
7. After hearing of the arguments of both parties, it is found that the impugned order has been issued in the light of provision 12.9 of Indian Railway Medical Manual, Volume-I. The aforesaid provision says:-
“12.9 - Epilepsy: Epileptics should not be employed in or near running lines or moving machinery and never on train running and passing duties.”
8. The respondent in their pleadings, submit the reply of Para 4.16 and 4.17 of the OA in Para 19 of their counter affidavit. It will be proper to mention that the Para Nos. 19 & 20 of counter affidavit as it is:-
“19. That the contents of paragraph no. 4.16 & 4.17 of the original application are not admitted as stated. It is however further submitted that when it was come into the notice that the post of Chief Ticket Inspector as alternative job was wrongly allotted to the applicant as per instruction contained in para 512(12.9) of Indian Railway Medical Manual 2000, the entire matter was re- examined by the competent authorities and it was decided to conduct the screening of the applicant again in the light of instruction of para 512(12.9) of Indian Railway Medical Manual 2000. Accordingly, a Screening Committee of Three officer i.e. Senior Divisional Personnel Officer, Senior Divisional Medical Officer and Senior Divisional Operating Manager was constituted or screening and informed the applicant to appear in the screening on 23.11.2011 through his depot incharge.
20. That in reply to the contents of paragraph no 4.18 & 4.19 of the original application it is however further submitted that the applicant was already physically screened in the first instance. However, when it was come into the notice that the post of Chief Ticket Inspector as alternative job was wrongly allotted being a running job to the applicant as per instruction contained in para 512(12.9) of Indian Railway Medical Manual 2000, then only, it was decided to conduct the screening of the applicant again in the light of instruction of para 512(12.9) of Indian Railway Medical Manual 2000. As such, the question of physically presence of the applicant was not necessary as the Screening Committee has to decide only the alternative job to the applicant in the light of para 512 (12.9) of the Indian Railway Medical Manual 2000.”
9. Therefore, it appears that the sufficient description has been given by the respondent. Previously, the decision was taken wrongly. The aforesaid decision has been revised by issuing the revised order. Looking to the medical status of the applicant, the post of Chief Ticket Inspector cannot be given in the light of aforesaid provision of Indian Railway Medical Manual, Volume-I. Therefore, the department rectifies the mistake by issuing the second order.
10. It is submitted by the applicant that he never communicated the information regarding the fresh screening. On the other side, the respondent submitted that the letter was issued to his controlling authority. In due course of official business it may be presumed that the information was given to the applicant. As per the screening report, the applicant was not appeared; therefore, no any fresh examination was conducted. But it is found from the impugned order that any harm has not been caused to the applicant. No any financial loss has been caused to the applicant. The applicant has been posted by the impugned order upon the equivalent post having the same pay scale and grade pay. In the impugned order, the position has been clearly stated. Any employee as of right cannot claim the posting upon a specific post. It is the discretion of department to post the employee at anywhere upon the same post having the same scale of the pay including the grade pay etc. Hence, in view of this Court, no any financial loss has been caused of the applicant and no any infirmity is found in the order dated 28.10.2014. The applicant should join the aforesaid post. He was not having any right to be continued upon the previous post because his grade etc. was not changed and the posting order has been issued as per rule and eligibility of applicant.
11. Therefore, looking to the aforesaid discussion, the OA is dismissed.
