The court affirmed that statutory provisions regulate the treatment of medically de-categorized employees, ensuring no discrimination occurs if due processes are followed.

ORDER

PER: HON’BLE MR. VARUN SINDHU KUL KAUMUDI, ADMINISTRATIVE MEMBER

1. The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 , seeking the following relief:

“To declare the inaction of the respondents in the matter of providing alternate appointment on medical de-categorization of the applicant befitting his status in the parent cadre in terms of the extant Rules and the statutory protection, resulting in the applicant’s status and rank getting affected with loss of emoluments and other career benefits as illegal, arbitrary, unjust, discriminatory and is in violation of the provisions in ‘The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ’ and direct the respondents to provide alternate appointment to the applicant in a post operated in a regular cadre carrying the pay scale of Rs.6500-10500/- (5^th CPC) by granting all consequential benefits, duly revising the office order No.Mech/Rg/42/2002, dated 04.10.2002 and pass such other order or orders as deemed fit and proper in the facts and circumstances of the case and in the interest of justice.”

2. The facts of the case, in a nutshell, are as follows:

i. The applicant, while working as Senior Goods Driver in Vijayawada Division of the South Central Railway, in the erstwhile pay scale of Rs.5500-9000 (5^th CPC), was medically de-categorized and was absorbed as Power Controller in the Mechanical (Running) Department, in the very same pay scale, vide order, dated 29.08.2002.

ii. The applicant contends that, by virtue of his position, prior to the said medical decategorization in the parent cadre of Running, he was entitled to be placed one grade above in a stationary post, carrying the pay scale of Rs.6500-10500 (5^th CPC), for providing alternate appointment, as per the then existing instructions. By virtue of the statutory provisions prescribed in “The Persons with Disabilities (Equal Opportunities) Act, 1995’, medically decategorized running cadre employees could never be put to disadvantage of losing their rank and status, while providing alternate appointment. Thus, the action of not providing alternate appointment to the applicant to a post one grade above amounts to discrimination, affecting his career interest, on account of medical decategorization, in violation of the statutory protection available to him.

iii. The applicant was offered alternate appointment, as Power Controller, in the pay scale of Rs.5500-9000, instead of providing appointment in the scale Rs.6500-10500. In the Office Order, dated 04.10.2002, covering the said appointment of the applicant, it was mentioned that, as the applicant is medically de-categorized and posted as Power Controller, the tenure rule of 3 years is not applicable; however, if his performance is not found satisfactory, in addition to action under the Railway Servants (D&A) Rules, 1968, as he cannot be put to running duties, he will be considered for alternate job, following the rules applicable to medically de-categorized employees. Such rider in the order, at the outset, shows arbitrary exercise of power, while giving the alternate appointment in a tenure post which has no career progression with a threat to work like bonded labour. According to the applicant, the respondents, having conceded that there is a possibility of the applicant not fitting to perform the duties of Power Controller, ought to have given appointment in a regular cadre.

iv. It is submitted that the applicant had submitted a representation, dated 10.092002, before issue of the posting order, on coming to know the d