Pay Scale to be protected in Alternative Employment

Narendra Kumar Chandla vs. State of Haryana and Ors

Filed Under: Article 21 of the Constitution of India, 1950
Appellant: Narendra Kumar Chandla
Respondent: State of Haryana and Ors.
Citation: (1994) 4 SCC 460
Court: In the Supreme Court of India
Judges: K Ramaswamy and BL Hansaria

Narendra Kumar Chandla became physically incapacitated and was given a job with a lower pay. He then filed a petition to protect his post.

Facts

Narendra Kumar Chandla was working as a Sub-Station Attendant in the pay scale of Rs. 1400-2300. During this time, he acquired an illness because of which his right arm had to be amputated. After the surgery, the Doctor wrote a letter stating that he could resume his normal duties.

Subsequently, the State Electricity Board absorbed him as a Carrier Attendant in the pay scale of Rs. 825-1300. Feeling dissatisfied with the decision, Narendra filed an appeal in the High Court. The High Court however rejected the petition. He then filed the current appeal.

Observations of the Court

The Court directed the State Electricity Board to constitute a three member Board of Doctors to examine Narendra to ascertain whether he could discharge the duties of a Sub-Station Attendant or any other equivalent post within the pay scale of Rs. 1400-2300. The Court also directed that any engineer of the rank of Executive Engineer should assist the Board in making the decision.

After this was done, the Chief Medical officer submitted the report of the three members of the Board. It was stated that Narendra had not been able to perform the tasks of a sub-station attendant efficiently. The Board had also evaluated his performance on many other similar posts but found that he was unable to execute the tasks. However, they stated that since Narendra was able to write Hindi and English with his left hand, he could be considered for a clerical or non-clerical post, subject to his meeting the educational and administrative requirements of the Board.

Narendra however alleged that in the examination held by the Board, he had not been given tasks that he had been performing before the operation. The Court however dismissed these allegations on the ground that the Medical Board was fair and objective in its evaluation.

However, the Court considered Narendra’s qualifications in light of the suggestions made by the Medical Board regarding his appointment in a clerical or non-clerical post. Narendra’s lawyer had argued that he should be given a post of Upper Division Clerk (UDC) that had a pay scale equivalent to the pay scale that he was in before the amputation. The Court stated that Narendra could not be appointed, as UDC since the minimum educational requirements for such a post was graduation or post-graduation. The Court opined that since Narendra was only a matriculate the Electricity Board could not be directed to appoint him as UDC.

The Court also referred to Article 21 and contended that his job should be protected (refer to quotes). According to the Court asking Narendra to discharge the duties of a carrier attendant was unjust. The Court further stated that since Narendra was a matriculate he was eligible for the post of a Lower Division Clerk (LDC). However, it was stated that apart from matriculation, passing a typing test in either Hindi or English at the speed of 15-30 words per minute was necessary. After taking into view the circumstances of the case, the Court directed the State to relax Narendra’s passing the typing test and to appoint him as a LDC.

The Court also stated that since Narendra had been drawing a salary within the pay scale of Rs. 1400-2300, his last drawn pay had to be protected. Therefore, the Electricity Board was directed to appoint Narendra Kumar to the post of LDC protecting his pay scale of Rs. 1400-2300. The State was further ordered to pay all the arrears of salary.

Sections Referred:

  • Article 21 of the Constitution of India, 1950

Quotes from the Judge:

“Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavor to adjust him in a post in which the employee would be suitable to discharge the duties.”

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Satya Prakash Meena vs. Union of India through General Manager, Western Railway, Churchgate, Mumbai and Anr

Filed Under: Rule 1313 of the Indian Railway Establishment Manual (IREM)
Appellant: Satya Prakash Meena
Respondent: Union of India through General Manager, Western Railway, Churchgate, Mumbai and Anr
Citation: O.A.No.348 of 2002; Unreported; Decided on 05.05.2003
Court: In the Central District Tribunal, Jaipur Bench
Judges: GL Gupta and AP Nagrath

Satya Prakash Meena filed an appeal for the protection of his pay scale subsequent to acquiring a disability during service.

Facts

Satya Prakash was appointed in the Railways in Group ‘D’ and was subsequently promoted after qualifying the test held by the Railways. He was further promoted, in the scale of Rs. 330-480. Later, while working at the scale of Rs. 4000-6000 he met with an accident, which resulted in the amputation of his left arm from his shoulder.

As a result, he was medically de-categorized. At the time of the accident his pay was Rs. 5000/- in the pay scale of Rs. 4500-7000. Thereafter, he was declared fit for category B-1 and he was appointed as a Junior Clerk in the grade of Rs. 2750-4400.

It was claimed that the post in the scale of Rs. 2750-4400 was downgraded from the post of Lower Division Clerks (LDC), which carried the pay scale of Rs. 3050-4590. Satya Prakash made representations claiming that he was entitled to emoluments equivalent to what he was getting prior to his de-categorization. After this, he was considered suitable for the Grade with a scale of Rs. 3050-4590, which was the grade for the LDCs.

However, Satya Prakash was not satisfied with the order and he made another representation. As a result, an order was issued and Satya Prakash was posted in the scale of Rs. 4500-7000 from the date of taking charge as UDC.

His main grievance was that he should have been given a post in the scale of Rs. 4500-7000 and his pay of Rs. 5000/- should have been kept intact. Accordingly, he filed this appeal.

In response to this, the department argued that Satya Prakash had been posted as an LCD due to medical de-categorization. It was also stated that according to the rules he had been placed in a higher pay scale.

Observations of the Court

The Court referred to the relevant sections of the Indian Railway Establishment Manual (IREM) and stated that according to the IREM an alternative post offered to a Railway Servant should be the best available to which he is suited and the loss in emoluments should also be minimal.

The Court also took account the provisions of IREM, which state that on absorption in an alternative post, the pay of the railway servant should be fixed at a level, which corresponds to the pay previously drawn by him.

Based on that the Court held that Satya Prakash had incurred a disability during the course of his service and he was therefore entitled to a pay scale, which was similar to what he was drawing before the de-categorization. Accordingly, the Court concluded that his pay of Rs. 5,000/- should be protected and he should be absorbed in the pay scale of Rs. 4500-7000.

The UOI was directed to re-fix his pay scale to Rs. 4500-7000. It was further directed that this pay had to be given to him from the date of his medical de-categorization within a period of two months. The Court also stated that Rs. 1000/- would be paid to him towards the cost of the proceedings.

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P.Pardhasarthy vs. Union of India (UOI) and Ors

Filed Under: Section 47 of the Persons with Disabilities Act, 1995
Appellant: P.Pardhasarthy
Respondent: Union of India (UOI) and Ors
Citation: 2004 (2) SLJ29 (29)
Court: In the Central Administrative Tribunal at Hyderabad
Judges: K.R.Prasada Rao and S.K Agarwal

Facts

P. Pardhasarathy was appointed as a Group-D employee in the South Central Railways. Thereafter he was promoted to Group-C in the clerical cadre. While he was working as Skilled Grade–I Fitter, he developed a serious physical disability i.e., stiffness in both the knees and as a result, movement of his legs was completely restricted. Thereafter directions were issued for Pardhasarathy’s special medical examination in which he was declared unfit for the post of Fitter and was recommended for a sedentary job in the C-ONE category by the railway Medical Department.

Thereafter, Pardhasarathy was granted extraordinary leave without pay for 180 days. He had been drawing his pay in the scale of Rs. 4500-7000 as Fitter. At that time he was subject to a medical examination for absorption in an alternative job in the C-I category. However, he was absorbed as Junior Clerk in the office of the fourth respondent (name not mentioned) in the pay scale of Rs. 3050-4500.

Pardhasarathy contended that he was entitled to the same pay scale he had been in as Fitter HSK and that his absorption in a lower category without protection of his grade and post was contrary to the provisions of Section 47 of the Persons with Disabilities Act.

Therefore, he submitted a representation to the fourth respondent to review his case and for conferment of benefits to which he was entitled as a medically decategorised employee. Since there was no reply to the said representation, Pardhasarathy submitted another representation making a specific request for protection of his grade and of seniority in the alternative job. His claims were however rejected. Aggrieved, he filed this application in the Central Administrative Tribunal. 

Arguments made on behalf of P.Pardhasarathy

It was argued on behalf of Pardhasarathy that as per the instructions issued by the Railway Board, in the alternative job, he was entitled to be absorbed in the pay scale of Rs. 4500-7000 which he was drawing as Fitter HSK-I prior to his medical decategorisation. As such, he should have been absorbed as Senior Clerk, which carries the same scale of pay instead of a Junior Clerk which scale is lower than the one held by him. It was also contended that absorbing him in the alternative lower grade of post without protection, of grade and pay, is contrary to Section 47 (1) of the Persons with Disabilities Act, and the Railway Board’s instruction in Serial Circular No. 68/97.

Arguments made on behalf of the Union of India

It was argued on behalf of UOI that Pardhasathy had been decategorized on a voluntary request made by him and thus his case did not fall under the category of medical decategorisation. He was therefore not entitled to the benefits of instructions issued by the Railway Board or provisions of Section 47 the Persons with Disabilities Act.

It was further contended that Pardhasarathy was promoted to the medical category of C-1 soon after joining the workshop and hence it was mentioned in the letter addressed to the Chief Medical Superintendent that he should be examined in for C-I category only. Accordingly, the medical examination was held and he was declared fit in C-I only.

So a reference was made to the Chief Medical Superintendent and Pardhasarathy was directed for reexamination. Further, it was also declared that he was not suitable to work as a Fitter. On clarification, he was also advised to avoid manual labour in view of shortening of both knees. Therefore, he was sanctioned 180 days extraordinary leave.

A screening test was conducted by the committee consfisting of 3 officers and he was found suitable for absorption as Junior Clerk in the Stores Department on bottom seniority. He accepted the alternative job of Junior Clerk in Stores Department provided to him and reported to duty and he never represented against the decision of the Committee.

It was therefore contended that Pardhasarthy be held from contending that he should be given seniority and higher grade. According to the Government, the request was considered only for change of category at his own request and not under medical decategorisation. Therefore, this application should be dismissed.

Observations of the Court

The court observed that Pradhasarathy was initially appointed as a Group- D employee and he was subjected to medical examination by orders passed by the third respondent (name not mentioned) after he had completed nearly 28 years of services and at that time he was working as Fitter HSK. After that, he was promoted to Group-C in the clerk cadre in which he completed nearly 16 years of service.

It could not, therefore be said that Pardhasarathy had not developed stiffness in both the knees during the courses of his employment. Merely because he subjected himself to medical examination, it could not be held that his was a case of decategorisation permitted on voluntary request.

On the basis of correspondence, it was also observed that his request was not for mere change of cadre but it was one for medical decategorisation since he was unable to do the job of a Fitter. Therefore, it was observed that his case fell within the purview of medical decategorisation and he was entitled to the benefits under section 47 of the Persons with Disabilities Act.

It was held that since in the instant case Pardhasarathy was given a post lower than the post he was holding prior to medical decategorisation, he was entitled to seek protection of his scale of pay and the actual pay drawn by him in the post which he was holding at the time of medical decategorisation. Thus, it was concluded that the order passed was in violation of Section 47.

The Court further directed the Government to provide him an alternative job with all consequential benefits such a seniority, promotion etc. and if it was not possible to adjust the applicant any post he has to be kept on supernumery post until a suitable post was available or he attained the age of superannuation, whichever was earlier. The court gave three months time for the compliance of this order.

The application was thus allowed.

Sections Referred:

  • Section 47 of the Persons with Disabilities Act, 1995

K. Satyanandam, Peon vs. Chairman, Ministry of Railways and Ors.

Filed Under:Section 47, 47 (1)   47 (2) Persons with Disabilities Act, 1995 Railway Rules
Appellants: K. Satyanandam, Peon
Respondent: Chairman, Ministry of Railways and Ors.
Citation: 2005(3) SLJ 79 (CAT)
Court: In the Central Administrative Tribunal Hyderabad
Judges: K.R. Prasada Rao and S.K. Agrawal

Facts

K. Satyanandam was initially appointed as a Constable in the Railway Protection Force (RPF) on regular basis with effect from 17th April, 1983. Later, he was medically decategorised because of a serious illness from 24th June, 1996.

He was found to be unfit for B-1 category but was found fit for C-1 category by the Medical Superintendent, Railway Hospital and accordingly a certificate was issued to him.

Thereafter he was forced to go on LAP for 35 days as well as on a 145 days extraordinary leave without pay. Later, the 4th respondent (name not given) issued orders for him to be appointed as a Peon in the grade of Rs.750-940/- and posted him in the office of the DME (P) SC.

Since Satyanandam had not received his salary for about a period of 9 months, he joined the said post in the lower grade though he was entitled to be absorbed in a higher grade(825-1200/-).

Satyanandam stated that his absorption in the lower grade of Peon was illegal and arbitrary. He further contended that he was entitled to be kept on a supernumerary post in the grade of Rs.2750-4400/- with full pay and allowances, which he had been drawing prior to his medical decategorisation according to the provisions of Section 47 of the Persons with Disabilities Act, 1995.

Satyanandam submitted a number of representations in this regard to the respondents 2  to 4(names not given) However, there was no response from the said authorities.

Subsequently Satyanandam again submitted a representation requesting for absorption to an equivalent grade with pay protection consequent to his medical decategorisation. In the said representation he also requested for grant of the first stage financial up gradation under the ACP Scheme since he had completed 12 years of service by that date and also to treat him as placed on a special supernumerary post in the grade of Rs. 2750-4400/- (RP) and for payment of the salary for the period of nine months when he was not paid salary.

Finally, he received a letter rejecting his claim. Challenging that order, Satynandam filed the present petition.

Arguments made on behalf of Chairman, Ministry of Railways

It was argued on behalf of the Chairman, Railways that the present petition was barred by limitation as the cause of action was embarked upon, by the applicant when he was medically decategorised on 24.6.1996, and was offered the post of Peon at his request.

Moreover, it was contended that the Act under which Satyanandam was claiming the relief was ratified in 1995 while the present petition was filed in 2003, after a period of nearly 8 years and therefore was barred by time.

Further, it was argued that the Chairman, Railways, had admitted the fact that while working as a Constable in the R.P.F. Satyanandam was declared medically unfit for B-1 category and fit for C-1 and below category, by way of a medical certificate issued by the Medical Superintendent.

As per the provisions of the Railway Establishment Manual, the medically decategorised employee should have been examined by the Committee of two or three officers to determine a suitable alternative employment for him.

If a suitable job was not available, a job with lower emoluments would be offered, the suitable alternative post so offered would be with emoluments as near as possible to his earlier emoluments.

It was also contended that the provisions of Section 47(1) of the Act, 1995 were applicable only in case of a person whose disability was found to be not less than 40% as certified by a medical authority.

But in Satyananadam’s case, it was stated that the percentage of disability had not been certified by the medical authorities therefore, the provisions of the Disability Act were not applicable to the present case.

It was further added that Satyanandam was medically decategorised due to epilepsy, which did not come under the list of disabilities.

It was also declared that the rules framed under the Railway Board were for medical decategorisation, whereas the Persons with Disabilities Act, 1995 provided for the protection of disabled persons.

Further, the Railway rules about medical decategorisation did not confine themselves to the persons with disability but catered to a broader spectrum based on functional requirements.

When Satyanandam was medically decategorised on 24.6.1996 and offered the post of a Peon by the Administration purely at his request, he was not entitled for protection of grade and status. For these reasons the Ministry prayed for the dismissal of the petition

Observations of the Court

The Court observed that the Railway Ministry had admitted in their reply statement that Satyanandam was medically decategorised due to epilepsy. So it must be taken that he was medically decategorised for valid reasons on the basis of the medical certificate furnished by the Medical Superintendent after subjecting Satyanandam to a medical examination.

It was clear from the provisions of the Disability Act that whenever a lower post was offered to a medically decategorised employee, he was entitled to protection of pay scale and service benefits, and in case no suitable post was available for him, he was to be kept on a supernumerary post until such a post was available.

Since he had not been extended the same pay scale and basic pay, which he was holding on the date of his medical decategorisation, the Court held that the action of the authorities was in violation of the provisions of Section 47(1) of the Act, 1995.

Thus the Court allowed the appeal declaring that the impugned letter dated 20 June 2003 issued by Chairman Railways was illegal, arbitrary and unconstitutional. Further, it was held that Satyananadam would be placed in a supernumerary post and paid allowances for the claimed period at the same rate as he had been drawing prior to his medical decategorisation.

Sections Referred:

Cases Referred:

  • Kunal Singh vs. Union of India and Anr,. 2003 (2) SLR 502

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