UNION OF INDIA Vs. SOMANATH MISHRA

JUDGEMENT

(1.) IN this writ application, the East Coast Railway has sought to challenge the order dated 26.6.2007 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 167 of 2006 by which the Tribunal has been pleased to quash the order dated 20.01.2006 rejecting the representation of the Opp.party seeking promotion and consequently, directing the petitioners to take viva voce test of the Opp.party for the purpose of considering his promotion.

(2.) FROM the pleadings in the present writ application it appears that the Opp.party - Somanath Mishra had been found suitable in the open competitive examination conducted by the petitioner and was empanelled by the Railway Recruitment Board (RRB) vide its Notification published on 7.12.1990. After the aforesaid empanelment, on medical examination, the Opp.party was declared unfit for the above post, but was declared medically fit for C -l category for which he was provided with an alternative appointment as 'Senior Estimator' and was posted in Sambalpur Division. While the opp.party was working as such, the petitioners published a Notification dated 8.7.2004 notifying 25.7.2004 as the date for holding examination for the formation of Group -B panel of AENs against 70% vacancies. Along with the Notification, a list of candidates eligible for appearing the said examination was also published and the name of the Opp.party found place at Serial No. 61. The Opp.party appeared in the test conducted for the above post and was found qualified along with other candidates in the written test. Thereafter, the petitioners intimated the Senior Divisional Engineer (Co -ordination) that D and A clearance and medical fitness certificates of the qualified persons were required to be sent to the Deputy Chief Personnel Officer (Gaz.) and instructions were issued to the Opp.party, along with other qualified candidates to be ready to face the viva voce test. Further vide letter dated 30.9.2004, the Divisional Railway Manager (Engg.), East Coast Railway, Sambalpur intimated the Opp.party to appear the viva voce test on 1.10.2004. The Opp. Party appeared before the Chief Engineer, East Coast Railway for taking part in viva voce test, but he was not permitted to sit in the test on the ground that he was declared medically unfit and prepared a list of 14 candidates (excluding the name of Opp. Party) for promotion to the post of Assistant Engineer Gr.B.

(3.) MR . Ashok Mohanty, learned Senior Counsel appearing for the East Coast Railway, inter alia, submitted that in terms of paragraph -206.2 of IREM Vol.1 (1989 Edition) issued by the Ministry of Railways, employees selected for promotion to Gr.B service should be fit in all respects including physical fitness for the duties one is required to discharge in the promotional post. Learned Counsel submitted that since the post of Gr.B in the present case comes under the safety category, as per Rules referred hereinabove, passing of medical examination and medical fitness is a pre -condition for viva voce test. According to Mr. Mohanty, the candidates those who have qualified in written test and who have submitted their medical fitness certificates, were allowed to sit in viva voce test held on 1.10.2004. Since the Opp.party was found medically unfit, he was not permitted to sit in the said test. In essence, the contention advanced by Mr. Mohanty was to the effect that no promotion could be contemplated for the Opp.Party since he was found to be medically unfit and the post to which the promotion was sought was a safety category post which could merit no lenient consideration. Mr. Mohanty, learned Counsel for the petitioners further submitted that Indian Railway Department of Civil Engineering, Assistant Engineer (Class -ll) Recruitment Rules clearly envisage that educational and other qualifications laid down in the Rules for the concerned Engineering Services (IRSE) conducted by the UPSC is similar to the norms adopted by the Railways and that the UPSC has in its Notification under Annexure -R/9 to the original application specifically indicated through the advertisement that appointment of the physically handicapped candidates to the service/posts is subject to medical fitness. Therefore, it was contended that since the Rules of the Railways clearly provide that before effecting promotion, a candidate has to be medically fit, the Disability Act, 1995 based on which the Opp.party seeks relief has no role to play and can provide no assistance to the Opp.party.