Persons with disabilities, upon medical de-categorization, retain seniority according to the Indian Railway Establishment Manual and the 1995 Act, ensuring non-discrimination in employment.

J U D G M E N T

DATED THIS THE 9th DAY OF OCTOBER, 2020 Gopinath, J:

The petitioner in this original petition was the applicant before the Tribunal. She was aggrieved by the placement of medically de-categorized persons from other departments of the railways being placed in the cadre of junior clerk’s in the signal and telecommunication department by protecting their seniority in the cadre from which they were de-categorized. The Tribunal examined the matter with reference to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the ‘1995 Act’). The Tribunal found that the provisions of the Indian Railway Establishment are in tune with the 1995 Act and on facts it held that the petitioner who was appointed much after the 4^th respondent cannot have a grievance in the matter of seniority being granted to him. This order of the Tribunal is challenged before us.

2. Smt.Shameena Salahudheen, the learned counsel appearing for the petitioner would contend that the petitioner was not contending for a position that persons who are medically de-categorised should not be posted in other departments of the railways. However, she contends that such posting cannot be to the detriment of persons already serving in the cadre and would submit that paragraph 1304 of the Indian Railway Establishment Manual concerning the accommodation of medically de-

categorised personnel provides that while finding alternate posts for the absorption of disabled/medically de-categorized staff the railway administration should ensure that the interest of other staff in service is not adversely affected and that no reversion of any officiating railway servant is made to absorb the disabled/medically de-categorized staff. She would also submit that placement of persons on de-categorization over and above the existing staff in that department would result in the petitioner losing her chances of promotion.

3. Shri P.K Ramkumar, the learned Standing Counsel for the railways would contend that the provision applicable is paragraph 313 of Vol.I of the Indian Railway Establishment Manual which provides that the medically de-categorized staff should be allowed seniority in the grade of absorption with reference to the length of service rendered in the equivalent or corresponding grade in respect of the rate of pay in the grade of absorption and further that in the case of staff who is in the higher grade than the grade of absorption at the time of medical de-categorization, the total service in the equivalent and higher grade is to be taken into account. He would submit that though the petitioner had challenged the placement of respondents 4, 5 and 6 before the Tribunal she has thereafter restricted her challenge to the absorption and seniority granted to the 4^th respondent alone as is evident from paragraph 10 of the impugned order of the Central Administrative Tribunal. He would rely on the judgement of the Supreme Court inBhagwan Dass and another vs Punjab State Electricity Board ; (2008) 1 SCC 579 and states that the approach of the authorities while dealing with a person entitled to the benefit of the 1995 Act is clearly delineated in the judgement. He would also rely on the judgement of a Division Bench of this Court in Union of India and another vs N.Chandralal and another ; 2017 (1) KHC 898 (DB) to establish the manner in which the provisions of the 1995 Act has been interpreted by this Court especially in the matter of grant of promotions etc. to persons with disabilities in the context of Section 47 of the 1995 Act.

4. In reply, the learned counsel for the petitioner would contend that she had not given up the challenge to the placement of respondents 4 to 6 and that her submission was wrongly recorded by the Tribunal.

5. We have examined the contentions raised by either side. We have to first examine the provisions of the Indian Railway Establishment Manual (hereinafter also referred to as ‘th