Central Administrative Tribunal - Bangalore
Sindhu D vs South Western Railway on 15 December, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00026/2023
DATED THIS THE 15TH DAY OF DECEMBER, 2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Smt. Sindhu D.,
W/o Late Pradeep K.,
Aged 35 years,
R/o Anchekoppalu,
Behind Anjaneya Temple,
Arsikere, Hassan District-573103. ...Applicant
(By Advocate, Shri K.Shivakumar)
Vs.
1. The Union of India,
Represented by General Manager,
S.W.Railway, Rail Soudha,
Gadag Road, Hubballi -580020.
2. The Principal Chief Medical Director,
S.W.Railway, Club Road,
Keshwapur,
Hubballi -580023. ...Respondents
(By Advocates, Shri S.Prakash Shetty for Respondents)
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O R D E R (ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) Quash the speaking order of PCMD (Respondent No.2) dated 21.09.2022 (Annexure A6) by declaring it as unconstitutional and arbitrary and direct the respondents to reconsider their decision of making unfit of the applicant due to Keratoconus which is non progressive and offer her any post for which she is suitable OR
(ii) Direct the respondents to constitute a fresh medical board consisting of eye specialists from the reputed Government/private eye hospitals to re-examine the applicant and decide the eligibility of the applicant based on the report of the said medical board and the Railway Board order dated 25.08.2022 and
(iii) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity."
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2. The facts in brief as narrated by the applicant are that the applicant's husband, Shri Pradeep, who was working as Reservation Clerk at Chikjajur Station, Mysuru Division, South Western Railway expired on 07.04.2022. Pursuant to his demise, the applicant being the legally wedded wife of the deceased employee applied for appointment on compassionate ground on 30.06.2022. Her request was considered by the respondents and she was advised to attend the medical examination at Railway Hospital, Mysuru on 27.07.2022. In the medical examination conducted on 27.07.2022, it was declared on 05.08.22022 as "unfit in Aye-one and below due to Bilateral Kerotoconus which is a progressive corneal ectatic disorder". The Senior Divisional Personnel Officer, Mysuru issued a letter dated 17.08.2022 communicating the result of the medical examination held on 27.07.2022. In response to the said communication the applicant preferred an appeal on 01.09.2022 duly enclosing the medical certificate issued by Narayana Nethralaya on 22.08.2022. During the pendency of the said appeal, the Senior Divisional Personnel Officer, Mysuru communicated to the applicant on 26.09.2022 that her request for re- medical examination was not considered by the second Respondent as she was unfit in Aye-one and below medical categories and that her case 4 OA 26/2023/CAT/BANGALORE BENCH cannot be considered for appointment on compassionate ground. It was further requested to submit the necessary request for registration of minor son's name for compassionate ground appointment, if she is interested. As no order of the appeal was communicated, the applicant sought for the order under RTI and in response to that the copy of the speaking order dated 21.09.2022 has been issued. Being aggrieved, the applicant has preferred this OA.
3. Learned Counsel Shri K.Shivakumar representing the applicant submitted that further to the receipt of the communication rejecting her appeal, the applicant herself got examined as out-patient in Sri Chamarajendra HIMS Teaching Hospital, Hassan on 06.12.2022, wherein it is declared as non-progressive Kerotoconus present. The certificate issued on 22.08.2022 by Narayana Nethralaya also indicates that the applicant had "Right eye early Keratoconus not progression, Left eye Corneal Graft clear, Sutures present". Placing reliance on these two medical certificates, learned Counsel argued that the applicant ought to have been subjected to re-medical examination as claimed in the appeal. But the Principal Chief Personnel Director relying on recommendation of Divisional Medical Committee dated 02.08.2022 which consisted of 5 OA 26/2023/CAT/BANGALORE BENCH ACMS/Physician/RH/MYS, ACMS/Ophthalmologist/RH/MYS, ACMS/Gynae/RH/MYS and CMS/MYS as Chairman, held that the appeal for re-medical examination of the applicant cannot be considered. Learned Counsel has placed reliance on the orders passed by this Tribunal in OA No.141/2021 [Prasanth R.R. vs. Union of India and another] [DD: 31.07.2023] in support of his contentions.
4. Learned Counsel Shri S.Prakash Shetty representing the respondents argued that the impugned order was passed based on the Indian Railway Medical Manual (IRMM) 2000, findings of the initial medical examination and private hospital medical certificates submitted by the applicant. It is established from the medical certificates that the candidate has Bilateral Kerotoconus which is a progressive corneal ectatic disorder. Hence she has been declared unfit in medical category, in view of the said finding, no further re-medical examination is warranted. Hence justifying the impugned order sought for dismissal of the application.
5. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
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6. In Prasanth R.R. supra, this Tribunal in paragraphs-5 to 12 has held thus:
"5. In the present case, the applicant had initially been evaluated medically once. Based on the first medical examination conducted by the Railway Hospital, he was found unfit on account of having "borderline keratoconus in right eye and left eye is compatible with Keratoconus which is progressive eye condition."
6. The applicant had been informed that in case the applicant is found medically unfit, he can file an appeal within 30 days. It is also mentioned in the email, that in case where Principal Chief Medical Doctor is of the opinion that there should be re- examination in the case of appeal, he may nominate a medical board to re-examine the candidate.
7. However, a perusal of the speaking order dated 18.2.2020 indicates that the Additional Chief Medical Director (for Principal Chief Medical Director) has considered the certificates submitted by the applicant, as well as the report of the evaluation committee, and has concluded that "the literature states that in spite of treatment procedures, Keratoconus may progress". The appeal for re-medical examination made by the applicant has been rejected on the ground of what is stated in the available literature that the medical condition of the applicant may progress.
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8. It is apparent from the speaking order that no re-medical examination has been conducted, as appealed for by the candidate. The conclusion has been made not to have a re- medical examination on the basis of the first medical examination report as well as on the available literature relating to this condition. The Principal Chief Medical Director has concluded that there is no need for a re-medical examination. On the other hand, the medical examination report submitted by two Ophthalmologists engaged by the candidate, have stated in their report, that the candidate has "stable Kerotoconus".
9. Keeping in view the above facts in this case, it does not appear to be justified for the Principal Chief Medical Director to come to a conclusion relying only on the available literature and to deny the benefit of a re-medical examination of the applicant by a medical board consisting of three eye specialists.
10. Accordingly, keeping the above facts in view, Annexure - A is set aside.
11. The respondents are directed to subject the applicant to a re-medical examination by a Medical Board consisting of three ophthalmologists. The opinion of this Medical Board shall be considered by the competent authority accordingly.
12. Compliance shall be made in an expedite manner, in any event not later than eight weeks from the date of receipt of the certified copy of this order."
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7. The Principal Chief Medical Director in the said Prasanth's case has concluded that there is no need for re-medical examination on the basis of the first medical examination report as well as available literature relating to the condition, this Tribunal having found that the rejection of the request of the applicant for re-medical examination is not justifiable, directed the respondents to subject the applicant therein to re-medical examination by a Medical Board consisting of three Ophthalmologists. This decision in our considered view is squarely applicable to the facts of the present case. The reasons assigned by the Principal Chief Medical Director in rejecting the appeal of the applicant for re-medical examination reiterating the findings of earlier medical examination is not justifiable. The applicant deserves re-medical examination by a committee consisting of three Ophthalmologists to assess the effect of Keratoconus with reference to the medical certificate issued by the private medical hospitals. In the circumstances, we find merit in the OA, Accordingly we pass the following:
9 OA 26/2023/CAT/BANGALORE BENCH ORDER
1) Impugned speaking order dated 21.09.2022issued by Respondent No.2 (Annexure A6) is set aside.
2) The respondents are directed to subject the applicant to a re-medical examination by a Medical Board consisting of three Ophthalmologists. The opinion of the said Medical Board shall be considered by the competent authority accordingly.
3) Compliance shall be made in an expedite manner, in any event not later than eight weeks from the date of receipt of the certified copy of this order.
OA stands disposed of, with the above directions. However, there shall be no orders as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.