AMITAVA LALA,J. - (1.) THIS writ petition has been filed challenging the order of the Central Administrative Tribunal, Allahabad dated 29.5.2009. The Union of India by making this writ petition wanted to say that the respondent No. 2 cannot be called for viva-voce test on the ground that he has not succeeded in the Medical Examination, but the Original Application was allowed by the Tribunal by saying that the fresh viva-voce test can be held and the respondent No. 2 can be promoted to Group-B post of Assistant Commercial Manager with effect from the date junior persons to the respondent No. 2 were promoted in pursuance of the notification dated 22.10.2003, with all consequential benefits. The tribunal further directed that the exercise would be completed within a period of three months from the date of receipt of the copy of the order.
(2.) SRI A.K. Roy, learned counsel appearing on behalf of the petitioner, has contended before this Court that the railway authority was not initially made party as respondent to the proceedings before the tribunal but was subsequently made. We find from the record that they are the party in the original application. Mr. A.K. Dave, learned counsel appearing for the respondent No. 2 has contended before this Court that Northern Central Railway, being appropriate authority, was made party and has contested the case before the Tribunal and now the Northern Railway has preferred this writ petition taking a plea of advertisement but the advertisement is in respect of both the railways. In any event, consideration of cause in arriving at the conclusion by this Court under this order will not affect such right at all. Sri Roy has placed reliance upon Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'Act'), which speaks about non-discrimination in Government employment. However, Section 47 of the Act is quoted hereunder: "47. Non-discrimination in Government employment.-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or, he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this Section."
(3.) FROM the objects and reasons of the Act promulgated on 1.1.1996, we find that the Act has been introduced to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region. India is a signatory to the said promulgation, therefore, it can be safely construed that the Act itself is a beneficial legislation to protect the interest of physically handicapped persons. Against this background, now we have to consider the submissions made by the respective counsels. Sri Roy, learned counsel appearing on behalf of the petitioner, contended that by virtue of first proviso to Section 47 (1) of the Act, the words "for the post he was holding" have been incorporated, hence the respondent No. 2 was not holding the post on which he is presently seeking promotion i.e. Assistant Commercial Manager, but he was holding the post of the Chief Goods Supervisor. Therefore, the promotion has not yet been given effect to shift him to a post, which is not safety category for the purpose of accommodating the respondent No. 2, who is physically disabled as per the medical report. Nature of the medical report is that the respondent No. 2 is colour blind. Therefore, if we go into the totality of Section 47 of the Act, we shall see that no promotion shall be denied to a person merely on the ground of disability, alongwith the first proviso to Section 47(1) for the post he was holding, means that the disabled person either for the sake of promotion or for the present available post can be accommodated in the department where safety, security and other purposes are not required. If it is held by this Court that for the post he was not holding means he was otherwise eligible for promotion, then it will affect the scheme of the promotion. We have also gone through the relevant report and circular in respect of medical examination of railway employees for promotion from non-gazetted to gazetted post. Para 530 of the Circular speaks as follows: "530. Classification of gazetted posts for the purpose.-For the purpose of examination of visual acuity of Railway employees promoted from non-gazetted to gazetted posts, the gazetted posts should be divided into two categories as follows: (a) All posts in Mechanical, Electrical, Civil and S&T Engg. and Traffic (Transportation and Commercial) Department. (b) All posts in other departments which are not connected with train working or use of trolley on open line." ;