1. This is a petition under Article 226 of the Constitution of India.
2. The petitioner, Har Prasad, was employed as Head Travelling Ticket Examiner (Head T. T. E.) and was directed by his superior officer D. T. S.Bandikui, to appear before the District Medical Officer (D. M. O.), Bandikui, for periodical eyesight examination. The D. M. O., after examination, referred Mr. Har Prasad to the Chief Medical Officer (C. M. O.), who declared Mr. Har Prasad as unfit owing to defective eye-sight. Mr. Har Prasad was then ordered by the Chief Traffic Inspector (C. T. I.), Bandikui, to rejoin on the expiry of his leave as Head Ticket Collector at Jaipur on the 2nd of November, 1950. The petitioner filed an appeal to the D. T. S., Bandikui, T. S. Ajmer, C. T. M., Bombay, and General Manager, Bombay. As a result of these representations, he was asked to appear again before the Chief Medical Officer, Bombay, on 8-3-1951. The C. M. O. maintained his earlier opinion and nothing came out of the petitioner's representations.
He has accordingly approached this Court, and has urged that his being posted as Head Ticket Collector involves a reduction in rank, which could not be done without an opportunity being given to him to show cause against the said reduction in rank under Article 311 of the Constitution. It was also urged that the D. M. O. had declared him medically fit as regards his eye-sight, and the C. M. O. had no authority to declare him unfit. It was also urged that he had been so declared unfit without medical examination either on the first or on the second occasion by the C. M. O. It was alleged that the petitioner had got himself examined by various other doctors, who had testified to his medical fitness. It was prayed that the order' of his being posted as Head Ticket Collector be quashed, and he may be directed to be reinstated as Head T. T. E.
3. The Union of India and the General Manager, Western Railway, Bombay, were made respondents in this petition. A preliminary objection was taken by learned counsel, who appeared for them, that this Court had no jurisdiction, for the General Manager had his office outside the jurisdiction of this Court. Reliance was placed on --'Election Commission, India v. Venkata Rao', AIR 1953 SC 210 (A).
In our opinion, this preliminary objection has no force in the present case. There are two classes of cases where the respondent, a head of a department, against whom relief is sought, is resident outside the jurisdiction of a particular High Court. One class of cases would be where the particular order is passed by an officer resident or having office within the jurisdiction of the High Court, and the superior officer, residing outside the jurisdiction only purports to confirm the order and to dismiss the appeal or revision made by the person affected by the order.
The other class of cases would be those where the superior officer residing outside the jurisdiction of the High Court purports to set aside the order of the subordinate officer and substitutes his own order for the same. This would include also a modification of the order passed by the subordinate officer. In the first class of cases what the petitioner wants is that the order of the subordinate officer should be set aside, and he only makes the superior officer a party because he avails of the remedy provided by the rules or the law of approaching the superior officer. In the second class of cases the prayer of the petitioner would directly involve a direction to the superior officer not resident within the jurisdiction.
In the present case, the original order of posting of the petitioner Har Prasad as Head Ticket Collector was passed by the C. T. I., Bandikui, and it is that order which is under question in this petition, and it is immaterial that the petitioner's efforts in setting aside that order right up to the General Manager proved fruitless. The only defect that may arise in the present petition is that the C. T. I., Bandikui, was not made a party, but as the order of the C. T. I. has been upheld by the General Manager, and the General Manager appeared in this case to defend that order, nothing new or more could probably be said by the C. T. I. We have heard the petitioner on the merits as well, and it is not necessary to ask for an amendment of the petition in the circumstances of this case.
4. It was argued in the first place that it was not necessary under the rules that the petitioner should undergo a periodical vision test, it was said that the employee belonged to Group C of Regulation 3, Appendix III, Indian Railway Establishment Code, Volume I, for which it was laid down that no periodical re-examination of vision was required in the course of service. The argument is frivolous. The petitioner belonged to Group B, which included such station and yard non-supervisory, shed and other staff, as are engaged on duties where failing eyesight may endanger themselves or other employees from moving vehicles, permanent way mistries, Gang mates, Keymen, Assistant surgeons, Health assistants and Sub-assistant surgeons. The petitioner was certainly one of those engaged on duties where failing eye-sight may endanger themselves or other employees from moving vehicles. It is laid down for the employees of Group B that they will be periodically examined at certain ages. The happening of the contingency under which periodical vision test was required for officers of Group B is not denied in this case.
5. It was next argued that the D. M. O., Bandikui, had found nothing defective in his vision, but had suspected the petitioner as suffering from hernia, and for that disease had referred the petitioner to the C. M. O., and the C. M. O. was not authorised to examine him for the vision test or declare him unfit on that account. On behalf of the railway administration it was submitted that the D. M. O., Bandikui, had never disclosed the reason why he was referring the petitioner to the C. M. O., and in any case the opinion of the C. M. O. being that the employee was medically unfit on account of vision test, he was bound to record such opinion, and the consequences followed in the natural course.
Under Regulation 4 for the medical examination of employees it is provided that the District Medical Officer is the officer authorised to examine an employee in the first instance, and if the said officer gives any adverse report, the employee can lodge an appeal to the Chief Medical Officer or the Principal, Divisional or District Officer may submit a requisition for the reconsideration of the matter by a higher medical authority, the Chief Medical Officer being the highest authority in this behalf. Our notice has not been drawn to any specific provision permitting a reference to the C. M. O. by the D. M. O. This would, however, not make such reference illegal or unlawful for it is only proper that, if a D. M. O. considered that the case was on the border line, and he could not make up his mind whether he could issue a certificate of medical fitness or otherwise, the case should be referred to a higher officer.
The petitioner has alleged that the C. M. O. made out an adverse report about his vision without examining the petitioner either on the first occasion or on the second occasion, when the petitioner was asked to present himself before the C, M. O. by the order dated 8th March, 1951. The C. M. O., Mr. Khambatta, has, however, filed an affidavit dated 10-4-1952, that he had examinee the petitioner both on the first occasion, i.e., 19-10 1950, and on the second occasion, i.e., 8-3-1951, and that the report made out by him was correct.
There is no ill-feeling or any ulterior motive attributed to Mr. Khambatta, and we have nc hesitation in accepting Mr. Khambatta's affidavit in preference to the petitioner's on this point. The petitioner's allegation that some other medical men have testified to his medical fitness is of no consequence, for the Railway Rules provide finality to the opinion of their Chief Medical Officer. There is sound reason for such a rule, inasmuch as the railway administration would be perfectly justified in placing their full reliance on their fully qualified and competent officer rather than on the opinion of others who are not responsible to the railway administration.
6. It was next argued that the transfer of the petitioner from the post of Head T. T. E. to that of Head Ticket Collector involves a reduction in rank. This was not admitted by the railway administration, who said that both the posts carried the same salary and the same grade. The Rules produced by the petitioner mention the following ordinary channels of promotion (Appendix II, page 200, Indian' Railway Establishment Code, Volume I, Second Reprint.); --
Ticket Collector|Travelling Ticket Inspector (Examiner).|Train Counductor (on certain railways).|chief Ticket Inspector. The post of Head Ticket Collector or Head Travelling Ticket Examiner is not mentioned in this rule, taut they would, obviously be the higher grades of Ticket Collectors and Travelling Ticket Examiners respectively. The gradation would be somewhat like this:-- Ticket Collector/Travelling Ticket Examiner/Head Ticket Collector/Head Travelling Ticket Examiner/Chief Traffic Inspector
This channel of promotion is mentioned for the stair of the Saurashtra Railway given in the Minutes of a Meeting held between the B. B. & C. I. Railway Employees Association and the DGM (Staff) on the 19th and 20th November, 1952, a printed copy whereof has been produced by the petitioner. It is urged that while there may be no difference in the salaries of the Head Ticket Collector and Head T. T. E. the post of the Head T, T. E. is a higher post, and makes the incumbent eligible for further promotion as Chief Traffic Inspector. The petitioner has referred to B. B. & C. I. Railway Discipline and Appeal Rules, and Rule 1702-XI is relied on to show that there has been reduction in rank. That rule is as under :
'The transfer of an employee between cadres and categories which are not normally interchangeable, if it is not in the course of normal promotion, or has not been ordered at the request, or with the consent, of the employee concerned, shall, even though no reduction of pay or grade is involved, be deemed to be a reduction to a lower post, and be dealt with accordingly. An instance of this is the transfer of a Ticket Collector from that category to the Trains Clerks' category. There is no objection, however, to filed ansuch transfers being made as a purely temporary measure of snort duration to meet the exigencies of work.'
Now it is not clear that the posts of Head Ticket Collector and Head T. T. E. are not normally interchangeable, and it is doubtful, therefore, to say whether the transfer of the petitioner to the post of Head Ticket Collector amounts to a reduction in rank, as envisaged by Article 311 of the Constitution of India, though it appears that in the normal channel of promotion, a Head Travelling Ticket Examiner has probably better chance of promotion should an occasion arise for it. A question, however, arises whether the reduction in rank, if it be assumed to be so, is of such a nature as would require the railway administration to give opportunity to the petitioner under Article 311 to show cause why the proposed action should not be taken.
In this connection it is important to note that under regulation 5, Clause (4), it is obligatory oil the railway administration not to allow a person to discharge such duties, competence for which has not been certified by the medical officer, and the adverse certificate is to hold until such time that the said certificate is formally withdrawn or replaced. The petitioner, therefore, could not possibly be allowed to continue his duties as Head T. T. E., when he was declared unfit for that duty by the C. M. O. Under Sub-rule (3) of the same regulation, the opinion of the C. M. O. is to be considered as final. The C. M. O. having arrived at the same opinion by examining the candidate more than once and at an interval of about 4 months, the railway administration had no option but to post the petitioner on a post where a less standard of vision was required. There was, therefore, no point in asking the petitioner to show cause against the proposed transfer for the petitioner could not possibly show any cause against the bona fide opinion of the C. M. O., which was final under the rules. The allegation that he gave an opinion without examining the petitioner having been found to be untrue, no cause could possibly be shown for his being retained on the post, of the Head T. T. E. As observed in -- 'Nihal Chand v. State of Rajasthan', 1950 RLW 192 (B), to which I was a party, the language of Article 311 of the Constitution seems to indicate that the employee is to be given an opportunity to show cause against the proposed action which is contemplated as a result of some complaint against him or is directly concerned with his actions. If the proposed action is prompted and justified by other reasons not involving any complaint against or misconduct of the employee, Article 311 does not come into play.
7. In our opinion the petitioner has not made out any case for interference. The petition fails, and is dismissed. No order as to costs.