(PER :
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. We have heard Mr. Mukesh Patel, learned counsel assisted by Mr. Ravi Karnavat appearing for the petitioners and Mr. K.B. Pujara, learned counsel appearing for the respondent.
2. This writ petition has been filed by the petitioners challenging the judgment and order dated 20.6.2012 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No.445 of 2009 by which the Tribunal has allowed the Original Application filed by the respondent and directed the petitioners to consider the case of the respondent for an alternative post on the basis of instructions which were in force in the year 2006, 2007 and 2008 when the case of the respondent was considered by the Railway Recruitment Board, Ahmedabad for the post of Goods Guard.
3. The facts in brief are that the respondent was empaneled as Goods Guard. The required medical fitness for the post of Goods Guard is 'A-2' category. The respondent was declared medically unfit as he had medical requirement that of 'A-3' category. Therefore, the respondent requested the petitioners to consider his case for alternative appointment by submitting representations dated 8.4.2008, 15.7.2008, 15.6.2009, 13.7.2009 and 1.8.2009. The said request of the respondent was rejected by the petitioners. Hence, the respondent filed Original Application No.445 of 2009. The Tribunal rejected the said Original Application filed by the respondent by judgment and order dated 5.1.2011.
4. Thereafter, the respondent filed Review Application No.13 of 2011. The said Review Application came to be allowed by the Tribunal by judgment and order dated 14.10.2011 and the Original Application No.445 of 2009 came to be restored to its original number.
5. Thereafter, Original Application No.445 of 2009 was heard again by the Tribunal and by the impugned judgment and order dated 20.6.2012, the Tribunal allowed the Original Application and directed the petitioners to consider the case of the respondent for an alternative post on the basis of instructions which were in force in the year 2006, 2007 and 2008 when the case of the respondent was considered by the Railway Recruitment Board, Ahmedabad for the post of Goods Guard.
6. Thereafter, petitioners filed Review Application No.28 of 2012 in Original Application No.445 of 2009 which came to be rejected by the Tribunal by judgment and order dated 1.11.2012.
7. Learned counsel for the petitioners has urged that the Circular dated 25.5.2009 issued by the Ministry of Railways, Railway Board has given up the practice of offering alternative appointment and, therefore, the petitioners could not be offered alternative appointment in view of Circular dated 7.11.1985 which was circulated on 29.11.1985. The Circular dated 7.11.1985 is extracted below for ready reference :-
Headquarter Office, Churchgate, Bombay 20, Dt.
12 Nov. 1985 A copy of Board's letter No.84-E (SCT) 25/14 dt. 7-11-85 is produced below for information and necessary action.
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For General Manager (E), Railway Board's letter No.84-E(SCT)25/14 dt. 7-11-85 to addressed the General Managers all Indian Rlys. and others.
Sub :- One of alternative appointments to the medically unfit direct recruits candidates belonging to SC & Sts.
Ref.
:- Bd's letter No.B(NG)/II 84 RSC/109 dt. 4-1-85 circulated under the office letter No.E(R&T) 1136/2 dt. 25-1-85.
In Board's letter dated 4-1-85 referred to above, it has been clarified that the question of alternative appointment to a candidate who has qualified for the post of ASM and declared medically unfit does not arise as separate examinations are held exclusively for the recruitment of ASMs. Alternative appointment can be offered only in those categories for which a common examination is held, that too on the basis of their position in the combined merit list. It was also clarified that the orders contained in the Board's letter dated 23-11-79 referred to above, would apply in mutatis mutandis in respect of alternative appointment in respect of candidates recommended by RRBs for posts of Traffic/Commercial/Apprentices, Guards, Clerks Gr. I, Senior Clerk and Enquiry and Reservation Clerks or whom separate common examination is held.
A doubt has now been raised by some Railways whether the SC/ST candidates who are selected for the post of SMs but are declared medically unfit, can be considered for such other categories, for which they are medically fit and where there is categories, for which they are medically fit and where there is a shortfall, in terms of Board's letter dated 25-11-58 and 10-6-59 referred to above. It is clarified that notwithstanding the instructions contained in Board's letter dated 4-1-85 referred to above, the medically unfit candidates belonging to the SC/ST communities should continue to be considered for such other categories for which they are found medically fit against the shortfall, if any, in the quota for SC/ST, but only with the personal approval of the General Manager.
8. From perusal of the aforesaid Circular, it is clear that policy decision was taken by the Railway Board to offer alternative appointment to candidates belonging to Schedule Caste and Schedule Tribes category who were declared medically unfit and they were to be considered against such other categories for which they were medically found fit against the shortfall, meaning thereby if the quota of Schedule Caste or Schedule Tribes is short in any of the categories, then the person could be offered alternative appointment in that category provided he fulfills the other eligibility criteria.
Learned counsel for the petitioners has urged that this Circular dated 7.11.1985 could not be given effect to in view of subsequent Circular dated 25.5.2009. The Circular dated 25.5.2009 was considered by the Delhi High Court in the case of Union of India v. Jugeshwar Dhrva in Writ Petition No.7888 of 2010 dated 26.3.2011 wherein it was held that the Railway Board's Circular dated 25.5.2009 is prospective in operation.
We are in agreement with the view taken by the Delhi High Court that by the Circular dated 25.5.2009, the Railway Board has decided to discontinue the policy of providing alternative appointment to the medically failed empanelled candidates selected through RRBs/RRCs for any Group 'C' or Group 'D' post. However, this Circular will be prospective in operation and it cannot be applied retrospectively. Now, coming back to the Circular dated 7.11.1985, it clearly stipulates that if candidates belonging to SC / ST category are found medically unfit, he has to be offered alternative appointment in such other categories where there is a shortfall of SC / ST candidates.
10. By the impugned judgment and order, the respondent who was empaneled as Goods Guard and was declared medically unfit, the Tribunal has issued the direction to consider the case of the respondent for an alternative post on the basis of instructions which were in force in the year 2006, 2007 and 2008 when the case of the respondent was considered by the Railway Recruitment Board, Ahmedabad for the post of Goods Guard. We do not find any illegality in the impugned order of the Tribunal. The writ petition fails and is accordingly dismissed. There shall be no order as to costs.
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(V.M.SAHAI, J.) Sd/-
(A.G.URAIZEE, J.) Savariya Page 6 of 6