A disabled employee's entitlement to pay fixation and promotion cannot be denied based on medical de-categorization, as it violates constitutional equality rights.

ORDER

Per: Shri Santosh Mehra, Member (A)

By this application, the applicant is seeking the following reliefs:

“8.(a) Quash and set aside the impugned order dated 13.12.2018 passed by respondent no.3 (Annx.Al) and in the same order direct the respondents to pass necessary orders granting fixation of pay of the applicant in GP 2400/- w.e.f. 14.12.2015, i.e. the effective date of his promotion as TM-II and in GP 2800/- w.e.f. 17.08.2014, i.e. the effective date of his promotion as TM-I by granting protection to his grade and pay as envisaged by the provisions of Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995 with all consequential benefits flowing therefrom;

(b) Grant any other relief deemed fit and proper in the facts and circumstances of the case including costs”.

2. Facts leading to this application are as follows;

2.1. The applicant was appointed in South East Central Railway as Gangman on 24th June, 1988. He was promoted as Keyman in January, 2006 and then as Track Maintainer Gr.III in the pay scale Rs.5200-20200 with GP 1900/- on 24th February, 2008. Subsequently, he was promoted to the post of Track Maintainer Gr.II(Mate) in Pay Scale Rs.5200-20200 PB I with GP 2400/- with effect from 17th August, 2012 vide promotion and Posting order dated 14th December, 2015 and as Track Maintainer Gr.I in the Pay Scale Rs.5200-20200 PB-I with Grade Pay of Rs.2800/- Level -05 with effect from 17th August, 2014 by an order dated 08th September, 2016.

2.2 The applicant was medically de-categorized, i.e., found unfit in his present job as Track Maintainer but fit for alternate employment for sedentary job in medical category Cey One & below with glass DV, vide an order dated 06th February, 2016 issued by the Chief Medical Superintendent, S.E.C. Railway, Nagpur. He was, however, absorbed in alternative post of Store Khalasi in scale of 5200-20200 PB-1 GP- 1800 vide an Office Order dated 13th June, 2016. For the same, the applicant was released by Senior Section no.3 16. Engineer (P Way) vide a Release Order dated 20th June, 2016.

2.3 The learned counsel for the applicant states that as per provisions of ’Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995’, the Railway Board, in para 1301 of IREM Vol. I, has formulated rules for absorption of disabled / medically de- categorized staff in Alternate Employment. It reads as follows:

“1301. A railway servant who fails in a vision test or otherwise by virtue of disability acquired during service becomes physically incapable of performing the duties of the post which he occupies should not be dispensed with or reduced in rank, but should be shifted to some other post with the same pay scale and service benefits”.

2.4. Learned counsel for the applicant invites our attention to para 8 of IREM Rules, which reads as follows:

“8. Before any post is filled or a promotion is ordered, officers concerned will refer to their registers and satisfy themselves that no disabled medically incapacitated Railway servant who is suitable for the post is available. If any such disabled/medically incapacitated employee is available, he will be given preference over all other categories of staff for appointment”.

2.5. Learned counsel for the applicant submits that hence in accordance with the provisions of ’Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995, as well as Railway Board’s guidelines in tune with the Act, the applicant was entitl