Remanded

Niraj Prakash Vijaykumar Singh v. Union of India, through Chairman, Railway Board, Ministry of Railway and Anr.

Bombay HC1 Oct 2014WP/10167/2013

Case brief

AI extract

What is this about?

In this writ petition regarding alternative employment for a medically unfit Railway employee, the High Court remanded the matter for fresh consideration. The impugned orders were quashed and set aside because the Tribunal failed to address the withdrawn policy of alternate appointments and the issue of current vacancies.

What did the court decide?

Original Application and Review Petition orders quashed; matter remanded to Central Administrative Tribunal to consider vacancy and policy withdrawal.

Niraj Prakash Vijaykumar Singh Vs Union of… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.10167 OF 2013

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Niraj Prakash s/o Vijaykumar Singh v/s Union of India and anr.

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...Petitioner

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...Respondents

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Mr J.B. Mishra for Petitioner. Mr T.J. Pandian for Respondents.

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CORAM : NARESH H. PATIL AND B.P. COLABAWALLA JJ.

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DATE : 01ST OCTOBER 2014.

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P.C. :-

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The Petitioner had applied for the post of Apprentice

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Goods Guard Central Railway, Mumbai. The Petitioner was selected for the said post. He was referred for medical fitness test. It is an admitted fact that the Petitioner could not qualify in

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the vision test for A-II medical category and was declared fit for A-III medical category. The Petitioner filed Original Application No.803 of 2010 before the Central Administrative Tribunal,

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Mumbai Bench, Mumbai seeking alternate appointment. It is contended that the Petitioner thereafter by communication dated 16th December 2005 requested the DRN (P), CSTM to consider him for an alternate job. The Petitioner states that in the similar circumstances, ten candidates were selected for appointment to the post of Apprentice Goods Guard who were earlier found to be unfit. The Petitioner figured at Sr.No.7 of the said list of medically unfit candidates. It is the Petitioner's case that out of the said ten candidates, six were offered alternate appointments, five candidates out of them were appointed as Enquiry-CumReservation Clerk (ECRC). The Tribunal by its judgment and order dated 11th August 2010 rejected the application on the ground that there was no vacancy in the OBC category and none of the candidates junior to the Petitioner in the OBC category was provided with alternate appointment.

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The Petitioner filed Review Petition No.11 of 2013 and by order dated 17th July 2013 the Tribunal has rejected the Review Petition as it did not find any merit in the same.

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The Petitioner challenged the order passed by the

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Tribunal in Review Petition. The learned counsel appearing for the Petitioner submitted that the Tribunal rejected the Petitioner's contention solely on the ground of non-availability of vacant post. At the relevant time, the Petitioner was not informed about the vacancy position but after seeking information under the Right to Information Act, the Petitioner has now been informed that the vacancies are available. It is contended by the learned counsel for the Petitioner that even on the date of rejection of the Review Petition, vacancies were available for alternate appointments. The learned counsel submits that when the similarly situated candidates were appointed by the Respondents in alternate posts, there was no reason to deny the same relief to the Petitioner. The learned counsel appearing for the Petitioner relied on the judgments of the Delhi High Court in Writ Petition No.7888 of 2010 (Union of India and others v/s Jugeshwar Dhrva) and Gujarat High Court in Special Civil Application No.3638 of 2013 (Union of India and others v/s A.M. Sutaria and another). The learned counsel thereafter submitted that in case the matter is remanded back, he would be in a position to

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establish with fresh material collected by him that the vacancy is now available and the Petitioner could seek suitable orders from the Tribunal.

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The learned counsel appearing for the Respondents submits that in view of the communication made by the authorities of the Railway Board, the scheme of appointment of persons / applicants from medically unfit category has been abandoned / withdrawn. Therefore, the Petitioner has no right to claim any alternate appointment. The learned counsel submits that paragraph 9 of the written statement specifically raises this issue before the Tribunal. The learned counsel submits that even the vacancy position as on today does not show as per the Petitioner's contention that he is entitled for an alternate appointment.

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We have perused the record. We have gone through

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the impugned orders in Original Application and the Review Petition. We have also perused the communications made by the Railway Board dated 20^th August 1999, 25th May 2009 and

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28th July 2010.

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6. Paragraph 9 of the written statement reads as under :-

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"9. With reference to para 4.7 of the OA, the contentions are denied. The policy of giving alternative appointment to medically failed candidates stands withdrawn in terms of Board's letter No.99E(RRB)25/12 dated 25.05.2009 (copy enclosed as Ex.R-1) the Railway Board have discontinued the policy of providing alternative appointment to the medically failed, empaneled candidates selected through R.R.B's / R.R.C's for any group 'C and group 'D' post.

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Further Railway Board vide their letter No.E(RRB)2008/25/18 dated 28.07.2010 have clarified that, when the delegated powers ceased to exist with the issue of Board's instructions ibid, it is immaterial whether case occurred before 25.05.2009 or after 25.05.2009. Therefore, in the above scenario request for alternative appointment of medically unfit candidates should not be considered in any case. Hereto annexed and marked Ex.R-2 is the copy of the letter dated 28-07-2010 for quick reference."

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The learned counsel for the Petitioner submits that in

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view of the fact that the Respondents did not challenge the order of the Tribunal, the only question which remains to be considered

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is whether there is any vacancy available with the Respondents

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for an alternate appointment in view of the scheme adopted by the Respondents. The issue concerning applicability of the scheme prospectively or retrospectively does not arise now accordingly to the learned counsel for the Petitioner. It is submitted that the Petitioner is in a better position to demonstrate that the vacancies are available and in view of the fact that similarly situated persons are already appointed, there is no reason for Railway Board to deny the appointment to the Petitioner. The Petitioner would lead appropriate evidence before the Tribunal to establish that there is a vacancy for the Petitioner to secure the appointment.

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In the facts of the case, we therefore feel appropriate to remand the matter back. We have noticed that the Tribunal has not addressed the issue raised in paragraph 9 of the written statement by the Respondents. The Tribunal shall also consider the issue of availability of vacancy. All contentions raised by the contesting parties are kept open. The impugned order and the order passed in review are quashed and set aside. The matter is remanded back to the Tribunal.

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We direct the Tribunal to accept the additional pleadings, replies if any and dispose off the Original Application expeditiously and preferably within a period of three months from the date of receipt of this order.

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Rule is made absolute in the above terms. No costs.

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( B.P. COLABAWALLA J. ) ( NARESH H. PATIL J. )

Niraj Prakash Vijaykumar Singh v. Union of India, through Chairman, Railway Board, Ministry of Railway and Anr.

Case brief

What is this about?

What did the court decide?

Niraj Prakash Vijaykumar Singh v. Union of India, through Chairman, Railway Board, Ministry of Railway and Anr.

Case brief

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What did the court decide?

What the court decided

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