Union of India v. Dharam Vir Singh Bharti

1. The petitioner Union ofIndia has preferred the presentwritpetition to assail the orders dated 08.01.2013 and 20.04.2015 passed by the Central Administrative Tribunal, Principal Bench' New Delhi(CAT/ Tribunal) in O.A. No. 671/2012 and Review Application No.52/2014 filed in the said Original Application. By the first order, the Tribunal had allowed the Original Application preferred by the respondent applicant, and by the second order,the review application preferred by the petitioners herein was dismissed.

2. The respondent, who holds a B.Tech.Degree applied for the post of Section Engineer(Carriage & Wagon)in response to a notification dated 07.06.2008 issued by the Railway RecruitmentBoard(Chandigarh)[RRB]. He appeared in the written examination on 30.11.2008 and successfully qualified the same. On 08.04.2009, he was issued a communication 2017:DHC:8219-DB J-

4. informing him that his name has been provisionally kept in the panel of candidates selected by the RRB. He was informed that his name had been sent to the General Manager (Personnel), Northern Railways for issue of offer of appointment according to availability ofvacancies, and completion ofnecessary formalities like verification ofdocuments, medical fitness test, etc.

3. The record shows that on 22.06.2009, another communication was issued to the respondent,informing him that he had been taken on panel for appointment as Section Engineer. He was informed that it was essential for him to pass the medical test for B[1] category,for appointment. The medical examination of the respondent was conducted on 24.07.2009. Unfortunately,for him, he could not clear the said medical test. A Review Medical Board was conducted on 23.10.2009, which again found him unfit to be appointed for the aforesaid post. Thus,he was unfit for both category B[1] and B[2] posts. Consequently, he was not appointed. The respondent claimed that he should be appointed to a category C[2] post, as had been the practice earlier in the Railways.

4. We may observe that prior to 25.05.2009 - when a new medical policy was brought,into force, under the erstwhile policy, candidates who failed to meet the medical criteria for B[1] and B[2] posts, were offered alternative employmentin C2category post.

5. The respondent claimed that since he had been made an offer on 08.04.2009, i.e. prior to promulgation of the fresh medical policy on 25.05.2009,his case should be governed by the erstwhile medical policy and he should be made an alternate offer. Raising this plea, he approached the Tribunal. The Tribunal by the impugned order held that the cause ofaction arose in favour ofthe respondent on 08.04.2009, and consequently, he was entitled to be covered under the erstwhile medical policy, and not the one brought into force with effect from 25.05.2009. On this premise, the Tribunal directed the petitioner Railways to offer alternate appointment to /■ the respondent commensurate with his medieal eategory, and in the eventuality of his being found fit, to make an offer to him prospectively. The review petition preferred by the petitioner, as noticed above, was dismissed.

6. The submission of learned counsel for the petitioners is that the process of recruitment is governed by the Recruitment Rules, which are distinet from the medieal poliey. Under the Recruitment Rules, there is no provision that on the candidate failing to meet the medical requirement in respect of the post for which he is undergoing selection, he shall be offered an alternate appointment in a lower post. He submits that past experience showed that the erstwhile medieal poliey was being abused and, consequently, on 25.05.2009, the new medical policy was brought into force. He has referred to the saidpolicy, the relevant extract whereof reads as follows: "2. The genesis of the provisionfor considering alternative appointmentprimarily lies in the high cost ofrecruitment, short panels andfillingup ofvacancies where there is acute shortage of staff. However, the experience of the Railways over the years indicates that this provision is being misused. A large number ofcandidates empanelledfor thepost ofASM/Assistant Loco Pilot/ Motorman had been failing in the prescribed [!>■' < medical examination thereby resulting in shortpanels. Board had, therefore, decided not to provide appointment in alternative posts to the medicallyfailed empanelled candidates for these categories. These orders were issued in 2001 vide reference No.3above.

3. Some ofthe Railways have brought to the notice ofthe Board that due to a large number of surplus/ medically decategorizedstaffawaiting re-deployment, it is notfeasible to -A consider cases of alternative appointment to medically unfit RRB/RRC empanelled candidates. Moreover, some candidates » take this provision as a matter of right and misuse it for securing alternative appointment in Non Technical Popular Categories posts where the level of competition is much tougher. This matter was also discussed in the Conference of ChiefPersonnel Officers held in Board's office on 01.05.2009 wherein the general consensus was that the policy ofproviding alternative appointment to the medically failed empanelled candidates bothfor Group 'C and Group 'D'posts should be dispensed with.

4. Considering all these aspects. Board have decided to discontinue the policy ofproviding alternative appointment to the medically failed empanelled candidates selected through RRBs/RRCsfor any Group'Cor Group 'D'post. <

5. These orders supersede all earlier orders issued on the subjectand willtake effectfrom the date ofissue."

1. Learned counsel submits that it is this policy which was in vogue at the time of conduct of medical examination of the respondent on 24.07.2009, and it is this policy which would be applicable to him. He submits that neither on 08.04.2009, nor on 22.06.2009, the respondent was made any definite offer of appointment. These communications were merely communications informing the respondent about his being provisionally empanelled, and that if he completes all the formalities including being found medically fit, he would be made the offer of appointment.

8. On the other hand, the submission of learned counsel for the respondent is that since the respondent had been issued the communications dated 08.04.2009 and 22.06.2009, the resp'^ondent became entitled to be y governed by the medical policy as was prevalent on 08.04.2009. Merely because the respondent took their own sweet time to conduct the medical examination on 24.07.2009,the respondent could not be made to suffer. ^ ' 9. Having heard the submissions oflearned counsel,we are ofthe view thatthe impugned orders passed by the Tribunal are notsustainable.

10. The Tribunal has proceeded on the assumption that when the petitioner sent the communication dated 08.04.2009 to the respondent, a definite offer was made to the respondent for his appointment on selection as Section Engineer(C&W).

11. We cannot agree with this interpretation ofthe communication dated 08.04.2009. Insofar as it is relevant,it reads asfollows: "Sub:- Section Engineer(C&W)scale 6500-10500, category ^ no.02 employment no.EN-01/2008for appointment of selection. Your name has been provisionally kept in the panel of candidates selection basis of Railway Recruitment Board, Chandigarh. Your name has been sent to the General Manager, GM (Personal), Northern Railway, Baroda House, New Delhifor issue ofoffer ofappointment according to available to vacancy J and necessary formalities like verification of documents medical fitness test etc. In future any communication this regardshould be done in the above written office address."

12. The above would show that the respondent was merely intimated that his name had been provisionally keptin thepanelofcandidates'".