ORDER :

Sujit Narayan Prasad, J.

The instant writ petition is under Article 226 of the Constitution of India by which the order dated 25.10.2018 passed by the learned Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi in OA/051/00733/2018 has been assailed by which the order dated 29.01.2010 has been refused to be interfered with by which the claim for appointment in Railways against Physically Handicapped Quota has been rejected on the ground that the disability of the writ petitioner has been assessed to be less than 40%.

2. Brief facts of the case as per the pleadings made in the writ petition, which are required to be enumerated herein, read as under :-

That the case of the petitioner before the Tribunal was that in order to fill up 44 Group 'D' vacancies in the Railway, a notification was issued on 10.02.1999 inviting applications from the eligible candidates from the different categories. Out of 44 posts, 15 posts were reserved for Visually Handicapped, 15 posts for Orthopedically Handicapped and rest 14 posts for Hearing Handicapped.

In pursuance of the said notification, the petitioner applied for consideration of his case against the vacancy meant for visually Handicapped persons annexing his disability certificate dated 05.07.1996 issued by the duly authorized Medical Board wherein his disability was assessed as 40%. After having been found suitable as visually handicapped person, his name was included in the panel published by the Railways on 09.01.2001.

Thereafter, on the request of the petitioner, he was sent for medical examination to the Medical Superintendent/BNDM and was declared fit in C-2 category. After being declared fit in the category of visually handicapped persons, he was appointed and was posted as Ty. Chowkidar under the Divisional (Signal and telecom) Engineer (Con.) / CKP vide office order dated 03.04.2001.

A complaint was received regarding the degree of visual disability of the petitioner and the petitioner was again sent to Ophthalmological Clinic (Eye specialist) at Division Railway Hospital, Chakradharpur for examination. On receipt of the findings of Medical examination, the matter was placed before the Chief Medical Director (Eye) of Railways, who opined that the petitioner cannot be considered as visually handicapped person as per the Ophthalmological findings. On the basis of such opinion vide order dated 21.06.2001 the service of the petitioner was terminated by the competent authority and the said order of termination was challenged by the petitioner in OA no. 300 of 2001 before the Tribunal.

The Tribunal on consideration of the materials placed before it, found that the degree of disability of the petitioner does not bring him within the required degree in order to make him eligible to be appointed against the post reserved for such category of candidates and accordingly declined to interfere with the order of termination vide an order dated 16.11.2005.

The petitioner challenged the order dated 16.11.2005 passed by the learned CAT in O.A. No. 300 of 2001 before the Orissa High Court in W.P (C)15699 of 2005 which was heard and allowed vide judgment dated 10.07.2009 whereby and where under the impugned judgment of the CAT as well as the order of termination were set aside with a direction to the opposite party no.2 to set up a Medical Board consisting Eye specialist for examination of the petitioner in order to find out as to whether he could be categorized as visually handicapped person or not and in the event that the petitioner is fit for employment as visually handicapped person, a fresh order shall be passed on the basis of the Medical Board.

While allowing the writ petition, the Orissa High Court was pleased to make it clear that so far the salary for the period he was kept out of service is concerned, the competent authority shall pass necessary orders keeping in mind the fact that the order of termination has been quashed and the petitioner is deemed to be continuing in s