Nayana Devi A v Union of India and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **OP (CAT).No.82 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OA 719/2015 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/APPLICANT:** **SMT.NAYANA DEV.A AGED 37 YEARS, W/O.SHAJI, JUNIOR CLERK (S & T), TVC, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT 'NAYANA', NALANDA NAGAR-185, AYATHIL.P.O., KOLLAM-691021.** ## **BY ADV. SMT.SHAMEENA SALAHUDHEEN** ## **RESPONDENTS/RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI - 600001.** - **2 DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION-695001.** - **3 DIVISIONAL PERSONNEL OFFICER, DIVISIONAL OFFICE, SOUTHERN RAILWAY, TRIVANDRUM DIVISION-695001.** - **4 SRI.SAJI GEORGE THOMAS, JUNIOR CLERK, OFFICE OF THE SR.ENGINEER/SIGNALS, KOTTAYAM-686001.** - **5 SRI.SHIBU RAJ, JUNIOR CLERK, CHIEF MEDICAL OFFICE, SOUTHERN RAILWAY, THIRUVANANTHAPURAM-695001.** - **6 M.KARTHIKEYAN, JUNIOR CLERK, OFFICE OF THE SR.DSTE, SOUTHERN RAILWAY, THIRUVANANTHAPURAM-695001.** **R1-3 BY SRI.P.K.RAMKUMAR, SC, RAILWAYS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 01-10-2020, THE COURT ON 09-10-2020 DELIVERED THE FOLLOWING:** OP (CAT) No.82/2019 -2- ## **J U D G M E N T** ## DATED THIS THE 9[th] DAY OF OCTOBER, 2020 ## Gopinath, J: The petitioner in this original petition was the applicant before the Tribunal. She was aggrieved by the placement of medically de-categorized persons from other departments of the railways being placed in the cadre of junior clerk’s in the signal and telecommunication department by protecting their seniority in the cadre from which they were de-categorized. The Tribunal examined the matter with reference to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the ‘1995 Act’). The Tribunal found that the provisions of the Indian Railway Establishment are in tune with the 1995 Act and on facts it held that the petitioner who was appointed much after the 4[th] respondent cannot have a grievance in the matter of seniority being granted to him. This order of the Tribunal is challenged before us. 2. Smt.Shameena Salahudheen, the learned counsel appearing for the petitioner would contend that the petitioner was not contending for a position that persons who are medically de-categorised should not be posted in other departments of the railways. However, she contends that such posting cannot be to the detriment of persons already serving in the cadre and would submit that paragraph 1304 of the Indian Railway Establishment Manual concerning the accommodation of medically de- OP (CAT) No.82/2019 -3- categorised personnel provides that while finding alternate posts for the absorption of disabled/medically de-categorized staff the railway administration should ensure that the interest of other staff in service is not adversely affected and that no reversion of any officiating railway servant is made to absorb the disabled/medically de-categorized staff. She would also submit that placement of persons on de-categorization over and above the existing staff in that department would result in the petitioner losing her chances of promotion. 3. Shri P.K Ramkumar, the learned Standing Counsel for the railways would contend that the provision applicable is paragraph 313 of Vol.I of the Indian Railway Establishment Manual which provides that the medically de-categorized staff should be allowed seniority in the grade of absorption with reference to the length of service rendered in the equivalent or corresponding grade in respect of the rate of pay in the grade of absorption and further that in the case of staff who is in the higher grade than the grade of absorption at the time of medical de-categorization, the total service in the equivalent and higher grade is to be taken into account. He would submit that though the petitioner had challenged the placement of respondents 4, 5 and 6 before the Tribunal she has thereafter restricted her challenge to the absorption and seniority granted to the 4[th] respondent alone as is evident from paragraph 10 of the impugned order of the Central Administrative Tribunal. He would rely on the judgement of the Supreme OP (CAT) No.82/2019 -4- Court in _**Bhagwan Dass and another vs Punjab State Electricity Board; (2008) 1 SCC 579**_ and states that the approach of the authorities while dealing with a person entitled to the benefit of the 1995 Act is clearly delineated in the judgement. He would also rely on the judgement of a Division Bench of this Court in _**Union of India and another vs N.Chandralal and another; 2017 (1) KHC 898 (DB)**_ to establish the manner in which the provisions of the 1995 Act has been interpreted by this Court especially in the matter of grant of promotions etc. to persons with disabilities in the context of Section 47 of the 1995 Act. 4. In reply, the learned counsel for the petitioner would contend that she had not given up the challenge to the placement of respondents 4 to 6 and that her submission was wrongly recorded by the Tribunal. 5. We have examined the contentions raised by either side. We have to first examine the provisions of the Indian Railway Establishment Manual (hereinafter also referred to as ‘the manual’). Paragraph 313 of the Manual reads as follows : - _“The medically decategorised staff absorbed in alternative posts, whether in the same or other cadre, should be allowed seniority in the grade of absorption with reference to the length of service rendered in the equivalent or corresponding grade, irrespective of the rate of pay fixed in the grade of absorption under the extant rules. In the case of staff who are in grade higher than the grade of absorption at the time of medical decategorisation, total service in the equivalent and higher grade is to be taken into account._ OP (CAT) No.82/2019 -5- The provisions of paragraph 313 of the Manual is clear in its terms. It is evident from a reading of the provisions of paragraph 313 that persons who were de-categorized on medical grounds have a right to claim that their seniority shall not be affected on account of de-categorization. Paragraph 1304 of the manual on which considerable reliance has been placed by the learned counsel appearing for the petitioner reads as follows:- ## _“_ _**1304. Disabled Medically decategorised staff to be absorbed in posts they can adequately fill** :_ _In the matter of absorption of disabled / medically decategorised staff in alternative posts, Railway administrations should take care to ensure that the alternative employment offered is only in posts which the staff can adequately fill and as far as possible should broadly be in allied categories where their background and experience in earlier posts could be utilised. While finding alternative posts for absorption of disabled / medically decategorised staff, the Railway Administration should ensure that the interests of other staff in service are not adversely affected and no reversion of any officiating Railway servant is made to absorb the disabled/medically decategorised Railway servant not only within the Unit / Division or Department, but in other Unit / Division or Department.”_ Reading paragraphs 313 and 1304 of the manual together we have no hesitation to conclude that the protection extended to existing employees in the cadre granted by paragraph 1304 of the manual does not extend to protection of seniority. In other words, the de-categorized personnel can claim the protection of their seniority in terms of paragraph 313 of volume 1 of the manual as we have to harmoniously construe both the provisions. OP (CAT) No.82/2019 -6- There is yet another aspect of the matter. The Tribunal has held that the matter should be considered with reference to the provisions of the 1995 Act. Though there is nothing on record to suggest that the respondents 5 & 6 were also entitled to the benefit of the provisions in the 1995 Act, in so far as the 4[th] respondent is concerned, it has not been disputed before us that he had met with an accident while on duty as a result of which one of his arms became so badly decapacitated that he now suffers a permanent disability and is therefore entitled to the benefits granted by the 1995 Act. We will examine the matter in light of the provisions in the 1995 Act as the Rights of Persons with Disabilities Act, 2016 was not in force at the relevant time. Section 47 of the 1995 Act, to the extent it is relevant, reads as follows:- _**“ - 47. Non discrimination in Government employment.** —(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 benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a 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:………..”_ A reading of Section 47 clearly indicates that persons with disabilities cannot be discriminated against in any manner and that he/she shall not be OP (CAT) No.82/2019 -7- denied a promotion merely on account of his/her disability. Here in the facts of the present case, the petitioner does not challenge the recategorisation of either the 4[th] respondent or respondents 5 and 6. Her case is restricted to a challenge to the grant of seniority alone. As already indicated our reading of the provisions of paragraph 313 of the Indian Railway Establishment Manual leads us to the conclusion that even seniority will be protected on re-categorization of a particular individual. That apart in the case of persons entitled to the benefit of the 1995 Act and/or the Rights of Persons with Disabilities Act, 2016, the provisions of Section 47 of the 1995 Act or Section or Section 20(4) of the Rights of Persons with Disabilities Act, 2016 which is _in pari materia_ to the provisions of the 1995 Act will step in not only to grant protection of pay etc. but will extend to protection of seniority as well. Any other interpretation will result in our losing sight of the provisions of the 1995 Act/ Rights of Persons with Disabilities Act, 2016. Even if we were to accept the contention of the learned counsel for the petitioner that the provisions of paragraph 1304 of the Indian Railway Establishment Manual would protect seniority of persons already in the cadre, we cannot ignore the fact that the provisions of the Indian Railway Establishment Manual cannot override the statutory provisions contained in the 1995 Act even if we were to accord to the manual the status of subordinate legislation. It is settled law that subordinate legislation must not only be in conformity with the OP (CAT) No.82/2019 -8- plenary legislation under which it is framed but must also be in conformity with all other forms of plenary legislation. See _**Kerala Samsthana Chethu Thozhilali Union v. State of Kerala**_ ; (2006) 4 SCC 327. This original petition, therefore, lacks merits and will stand dismissed. In the facts and circumstances of the case, we make no order as to costs. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** **==> picture [22 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> AMG<br>**----- End of picture text -----**<br> OP (CAT) No.82/2019 -9- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE O.A.NO.180/719/2015 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** - **ANNEXURE-A1 A TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF MINISTERIAL STAFF IN S & T DEPARTMENT DATED 17.8.2015 UNDER LETTER NO.V/P 612/IX/VOL.II** - **ANNEXURE-A2 A TRUE COPY OF THE LETTER NOV/Z.735/GR.C/2009/2 DATED 7.7.2009 ISSUED BY THE THIRD RESPONDENT** - **ANNEXURE-A3 A TRUE COPY OF THE LETTER NO.V/P.563/II/RT/ASM/VOL-VII DATED 24.9.2010** - **ANNEXURE-A4 A TRUE COPY OF THE LETTER NO.V/Z 735/29/2008 DATED 24.2.2011 ISSUED BY THE THIRD RESPONDENT** - **ANNEXURE-A5 A TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 7.3.2011,O.O.V/Z 735/29/2008** - **ANNEXURE-A6 TRUE COPY OF THE OFFICER ORDER NO.O.O.72/2011/S & T DATED 16.11.2011 ISSUED BY THE ASSISTANT PERSONNEL OFFICER** - **ANNEXURE-A7 TRUE COPY OF THE REPRESENTATION DATED 03.11.13 SUBMITTED BY THE APPLICANT** - **ANNEXURE-A8 TRUE COPY OF THE REPRESENTATION DATED 03.09.2015 SUBMITTED BY THE APPLICANT** - **ANNEXURE-A9 TRUE COPY OF THE RAILWAY BOARD ORDER RBE NO.112/2013 DATED 30.6.2003** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF RESPONDENTS 1 TO 3.** - **EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT.** - **ANNEXURE-A10 A TRUE COPY OF THE RBE NO.61/2015 DATED 12.6.2015 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 6.2.2019 IN O.A.NO.180/00719/2015 OF THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.**