At, Central Administrative Tribunal Ernakulam Bench
By, THE HONOURABLE MR. U. SARATHCHANDRAN
By, JUDICIAL MEMBER & THE HONOURABLE MR. RUDHRA GANGADHARAN
By, ADMINISTRATIVE MEMBER
For the Applicant: T.C. Govindaswamy, Advocate. For the Respondents: P. Haridas, Advocate.
U. Sarathchandran, Judicial Member.
1. Applicant is aggrieved by the denial of appointment in the respondent Railway on account of his physical disability. According to him, he had successfully undergone apprenticeship training in the Signal and Telecommunication Workshop at Poddanur from 05.10.1998 to 4/10/2001. He states that he was denied appointment due to the medical de-classification. He is aggrieved by not being posted in any other post for appointment of physically handicapped persons.
2. Respondents contend that the applicant was given training under the Apprenticeship Act, 1961 and he had passed the Trade Test conducted by the National Council of Vocational Training (NCVT). Though the respondent Railway is not obliged to provide employment to Apprentices who were given training under Apprenticeship Act, 1961, in view of the Annexure R/2 Railway Board's letter dt 21.06.2004 that the course completed apprentices can be engaged as Substitutes in Group D in administrative exigencies, applicant who had completed training as apprentice was considered for being appointed as Trackman which is a safety category post. He was allotted to the Palghat division. However before being posted he was directed to undergo medical examination to ensure that he comes within BEE ONE medical category which is a mandatory requirement for safety posts. However, applicant was found unfit in Bee One category. On appeal against the medical examination he was again subjected to medical examination by the Chief Medical Superintendent. He was again found unfit. Applicant along with similarly placed candidates was subjected to review. It was decided to engage him as Helper/ II in Workshops where medical classification is CEE ONE only. However, on medical examination he was found unfit in CEE ONE category also. Hence he could not be engaged as Substitute in any one of the Group D posts. According to respondents he can be considered for engagement under the physically handicapped quota for which he has to apply for being considered as and when such posts are notified.
3. We have heard both sides. Heard Ms. Sreekala, representing Mr.T.C.Govindaswamy learned council for the applicant and Mr. Shijin on behalf of Mr.Haridas, learned counsel for the respondents.
4. The short question to be considered in this case is whether the applicant is entitled to get appointment to a suitable post requiring medical classification CEE TWO or to a post suitable for physically handicapped persons. Learned counsel for respondents relied on S.K.M Haider v. Union of India & Ors., 2011 (1) S.L.J. 492 SC and submitted that the different medical classifications in the Indian railway Medical Manual are not required for all posts in the Railway.
5. The pleadings of the applicant gives an impression that the applicant while undergoing training in Signal and Telecommunications Workshop, Poddanur as an apprentice he acquired physical disability and hence he is entitled to a suitable posting as he was not medically found fit for the Group D posts in safety category for which he was considered for appointment. However, only from the pleadings of the respondents it becomes clear that applicant was only an apprentice under the Apprenticeship Act, 1961, who was given training by the Railway in the Signal and Telecommunication Workshop, Poddanur. Respondents contend that there is no obligation for the Railway to give appointment to candidates after training under the Apprenticeship Act, 1961. Respondents referred to Chairman/MD, Mahandi Coal Fields Ltd. and Others v. Shri Sadshib Behere and others (2005) 2 SCC 396 wherein it was held by the Apex Court that it is not obligatory on the part of the establishment that gives training under Apprenticeship Act to provide employment to the apprentices. Nevertheless, in this case the record shows that the respondents indeed did consider the applicant even for lower posts like substitute Helper/Gr.II which required only lower medical classification. But unfortunately the applicant was found unfit for such posts also and hence he was not considered.
6. Applicant referred to A/2 communication and pointed out that it recommends him to be considered for appointment in an alternate post. We are of the view that since he was only an apprentice under the Apprenticeship Act, it was not obligatory on the part of the respondents to provide employment. Therefore Annexure A/2 can at best be treated as a humanitarian and sympathetic consideration articulated by the official who issued it, suggesting for considering him for a lower post in the category reserved for physically handicapped candidates.
7. According to Railway only when a recruitment notification is published by the Railway calling for applications from candidates belonging to the category of physically handicapped persons, applicant can be considered under that category, if he sends an application. True, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, PWD Act) mandates the Govt. departments to reserve 3% of posts for physically handicapped persons. Even such employment also has to be in tune with the Constitutional policy of Public appointments under Article 16 of the Constitution, giving equal opportunity to similarly situated candidates. In such cases the persons with disability will have to compete with similar persons and only after undergoing a selection process such vacancies can be filled up. Respondent Railway has produced Annexure R/5 series as instances of such notification by the Railway Recruitment Cell for filling up posts reserved for persons with disability.
8. Considering the facts and circumstances of this case we feel that applicant cannot, as a matter
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of right, be given a posting by way of alternate employment as contemplated in clause 47 of the PWD Act. The disability of the applicant cannot be treated as having acquired during the course of his employment under the Railway. He had never been a Railway employee. We feel that applicant is entitled to get appointment in the Railway only as per the provisions in Chapter 6 of the PWD Act, subject to his eligibility for the post as and when advertised for recruitment. Therefore we are of the view that the relief prayed for in this O.A. cannot be granted to the applicant. The O.A. is accordingly dismissed. 9. No order as to costs.