Central Administrative Tribunal - Mumbai
Date Of Decision:01.10.2013 vs The Union Of India on 1 October, 2013
1 OA No.316/2009 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 316 OF 2009 DATE OF DECISION:01.10.2013 CORAM:HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER (J) HON'BLE SHRI R.C. JOSHI, MEMBER (A) Shri Deepak Shalik Sapkale, R/at. R.B-II, 930/B, Railway North Colony, Bhusawal, District - Jalgaon - 425 201. ... Applicant (By Advocate Shri A.I. Bhatkar) VERSUS 1. The Union of India. Through the General Manager, Central Railway, Chhatrapati Shivaji Terminus, Mumbai 400 001. 2. The Divisional Railway Manager (P), Central Railway, Bhusawal Division, Jalgaon 425 201. 3. The Chief Medical Officer, Railway Hospital, Bhusawal, District- Jalgaon 425 201. ... Respondents (By Advocate Shri R.R. Shetty) O R D E R (ORAL) Per: Justice A.K. Basheer, Member (J)
The short question that arises for consideration in this Original Application is whether Annexure A-1 order passed by respondent no.2 holding the applicant ineligible for employment in the cadre of Junior Clerk (Group 'C') in the Central Railway against the 2 OA No.316/2009 Physically Handicapped quota is legally valid and sustainable.
2. Essential facts which are relevant for the purpose of this case may be briefly noticed.
3. Applicant had applied for the post of Junior Clerk (Group 'C') in response to a notification issued by the respondents for recruitment of eligible candidates against the quota earmarked for Physically Handicapped persons. It is not in dispute that the applicant had passed written test held in December, 2007 and that he had appeared before the officers concerned in February, 2008 for verification and scrutiny of the documents. Thereafter, applicant was directed to attend the office for typing test in May, 2008. He had passed the said test also. Later, by Annexure A-4 communication dated June 16, 2008 applicant was informed that he had been provisionally selected for recruitment against the Physically Handicapped quota in Group 'C' category. It is also on record that applicant had appeared for the medical examination on July 30, 2008 as directed. However, by Annexure A-6 communication dated August 25, 2008 applicant was informed that the Chief Medical Superintendent, Bhusawal had not found him eligible for employment and, therefore, he cannot be given appointment in the Railway. An appeal was preferred by the applicant against the said decision pointing out 3 OA No.316/2009 that the Chief Medical Superintendent may not be justified in taking the above view since there was no ENT Specialist attached to the Railway hospital at Bhusawal. In view of the above contention raised by the applicant, he was referred to the Civil Hospital, Jalgaon. The Medical Board attached to the Civil Hospital at Jalgaon issued Annexure A-7 Disability Certificate dated October 14, 2008 certifying that the applicant was having sensory neural hearing loss about 65% is not minimal. According to the applicant, the Medical Board had considered all the previous records/certificates issued by other hospitals/doctors while issuing Annexure A-7 certificate. We will refer to the other certificates (Annexure A-8 and A-9)a little later.
4. Thereafter the Divisional Railway Manager by Annexure A-10 communication dated October 16, 2008 had referred the matter to the Chief Medical Superintendent, Bhusawal for necessary action. According to the applicant, respondent no.3 had thereafter referred him to Bharat Ratna Dr. Babasaheb Ambedkar Hospital, Byculla, Mumbai for a further medical examination where an audiogram was done on him apart from other tests with a view to check the extent of his hearing impairment. It appears that on receipt of the report from Byculla Hospital, respondent no.2 issued Annexure A-1 order stating that in the medical 4 OA No.316/2009 examination held at Byculla hospital it had been found that the conductive loss is correctable and, therefore, it cannot be classified as physical disability under deafness. The audiogram and the report of the Medical Director, Byculla are on record. We will refer to them a little later.
5. The respondents have stoutly defended their action in the written statement. It is contended by them that going by the conclusion made by the Medical Officer of the hospital at Byculla, the applicant is not eligible to be considered for appointment against the quota earmarked for Physically Handicapped persons as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 (for short the Act) and the rules framed thereunder. The respondents have also placed reliance on the order issued by the Railway Board and the Office Memorandum of the Department of Personnel and Training in this regard.
6. We have heard learned counsel for the parties at length and perused the materials available on record apart from the original file produced by the Railway Administration.
7. Person with disability has been defined under the Act as hereunder:2(
t):-'Person with disability' means a person suffering from not less than forty per cent of any disability as certified by a medical authority.
5 OA No.316/20098. The definition of hearing impairment which is more relevant for our purpose reads thus :2(
l):-'hearing impairment' means loss of sixty decibels or more in the better ear in the conversational range of frequencies.
9. It is contended by Shri Bhatkar who appears for the applicant that the applicant had been suffering from some serious ailment in both ears for the last several years as is borne out by the records and as is acknowledged by the Doctor at Byculla Hospital in his report. He further points out that Annexure A-8 certificate dated December 30, 2004 issued by the Medical Board attached to the District Hospital, Jalgaon had specifically referred to this hearing impairment of the applicant. In the said certificate the Medical Board comprising Civil Surgeon who was Incharge of Handicap Board of the Civil Hospital, Jalgaon and Head of Department of ENT of the same hospital had assessed the disability of the applicant as 65%. Similarly in Annexure A-9 certificate issued by the Medical Board of the very same hospital on September 26, 2008 it was certified thus:
H/o Deafness since 15 years previous H/o Typhoid encephalitis then he developed gradually SNHL (Sensory Neural Hearing Loss) is permanent. Audiogram attached. His disability is 65% Percent/Permanent. Incidentally this certificate was also issued by the Civil Surgeon Incharge of Handicap Board as well as Head of Department of ENT attached to the District 6 OA No.316/2009 Hospital, Jalgaon. It is contended by the applicant that in the face of the above definitive diagnosis and certification made by Competent Medical Board constituted under the Act, the respondents were not at all justified in refusing to place reliance on these certificates which were infact produced before them as admitted in Annexure A-10 communication itself issued by respondent no.2.
10. It is further pointed out that the applicant had appeared before the Railway Hospital at Bhusawal and Bharat Ratna Dr. Babasaheb Ambedkar Hospital, Byculla as directed by the respondents. The Chief Medical Superintendent at Bhusawal took the view that the bilateral conduction hearing loss with minimal sensory neural hearing loss for high tone was corrective and, therefore, it cannot be classified as physical disability. But since the applicant had pointed out that no test by an ENT specialist was carried out at Bhusawal, respondent no.2 had directed the applicant to appear before the Civil Hospital, Jalgaon and get a certificate with specific reference to the earlier certificate issued by the same hospital on September 26, 2008. According to the applicant the Handicap Board had issued Annexure A-7 certificate after considering all the previous records and in particular, after reference to the opinion of the doctor at Bhusawal Railway Hospital. The contents of 7 OA No.316/2009 Annexure A-7 certificate are extracted hereinunder for the sake of easy reference and convenience:-
This is to certify that Mr. Deepak Shalik Sapkale age 33 Yrs.R/o. Bhusawal. I have known that CMS of Bhusawal Railway Hospital has found him not eligible for consideration for employment under Physically Handicapped quota for deafness.
But his disability certificate issued to him on dated 30.12.2004 and renewed after checking on dated 26.09.2008 having sensory neural hearing loss above 65% is not minimal.
11. It is contended by the applicant that for reasons best known to the officers of the Administration, the applicant was yet again referred to Bharat Ratna Dr. Babasaheb Ambedkar Hospital, Byculla for a further opinion. It is contended by the learned counsel that the respondents ought to have taken note of the fact that Annexure A-7, A-8 and A-9 certificates were issued by the duly constituted Handicap Board as provided under the Act and Rules. Therefore, the sanctity and reliability of these certificates could not have been brushed aside or ignored. He further contends that in the face of the categoric certification made by the Board that the applicant is suffering from sensory neural hearing loss above 65%, it was not open to the respondents to seek a further opinion from another hospital. Any how, in his anxiety to get the employment, the applicant had willingly appeared before the said hospital as well. Curiously, the certificate issued by the Medical Director attached to the Byculla Hospital refers to the following 8 OA No.316/2009 features:
Both ears operated in private hospital about 10 years back for the complaints of discharge from both ears Both ear Tympanic membrane intact & mobile with Posterosuperior retracted drum & myringosclerosisin (Rt) ear. Previous surgery scar mark present postaural region both side. ............
...........
Candidate can not hear from a distance of 6 meters from both ear. Pure tone audiogram showing severe to moderately severe mixed hearing loss right side more than left.
As per the audiogram report, it is noticed that he has Bilateral severe to moderately severe mixed hearing loss (Rt>Lt) Conductive loss is correctable and, therefore, it cannot be classified as physical disability under deafness.
12. It appears that the last observation made by Medical Director had clinched the issue against the applicant. A perusal of the notings made by the Medical Director in the above certificate will unambiguously show that the applicant had been suffering from sensory neutral loss in both ears for the last several years and that he had undergone surgery in both. More importantly, audiogram report showed severe to moderately severe mixed hearing loss. We have referred to the above notings made by the Medical Director rather elaborately only to highlight the fact that the applicant is evidently afflicted with severe to 9 OA No.316/2009 moderately severe mixed hearing loss which on the right side is more as compared to the left. The short question that arises for consideration on the face of the above findings is whether the respondents were justified in holding that the applicant was not entitled to get the benefit of the Act. The answer in our considered view has to be in the negative.
13. It has already been noticed that the Medical Board constituted under the Act and at the Government Civil Hospital at Jalgaon had, categorically certified on not less than three occasions that the applicant has had 65% physical disability right from 2004. He was again examined in September and October, 2008 as could be seen from Annexue A-9 and A-7 respectively. In this context, it is also pertinent to note that in the Audiogram report prepared by the ENT Department in the Civil Hospital on September 25, 2008, it has been certified that bilateral sensory neural hearing loss is above 65% decibels.
14. Though the learned counsel for the respondents has tried to justify the impugned decision taken by the competent authority in Annexure A-1 communication, we are unable to agree with him. It is true that Doctor Deepak Dalmiya, Senior Divisional Medical Officer attached to the Bharat Ratna Dr. Babasaheb Ambedkar Hospital, Byculla has stated that the conductive hearing loss can be corrected by surgery. But no 10 OA No.316/2009 material has been produced in support of the above contention. Curiously it is seen stated by the Doctor in the same affidavit that sensory neural hearing loss cannot be corrected by surgery whereas conductive hearing loss is easily correctable. But he concedes that applicant is afflicted with mixed hearing loss.
He further states that if the applicant is to undergo surgery, his hearing loss which is at present 56.6 decibels in his better ear can be easily reduced between 40 and 45 decibels. In this context we may also refer to the Office Memorandum dated June 4, 1998 issued by the Department of Personnel and Training in relation to the change in the definition of Persons with Disabilities for reservation in Central Government posts/services.
15. Clause 2, 3 & 8 in the Memorandum are extracted hereinunder which are self explicit.
2. Each category of disability has been divided into four groups as under:(
a)Mild - less than 40%
(b)Moderate 40% and above
(c)Severe -75% and above
(d)Profound/total 100%
3.According to the instructions contained in the Ministry of Welfare's Notification No.4/2/83-HW-III, dated 06-08-1986, various concessions/benefits, including employment under the Central Government, are available only to those falling under the categories mentioned at (b), (c) and (d) in the preceding paragraph. The minimum degree of disability has also been prescribed as 40% in order for a person to be eligible for any concessions/benefits.
8. Each category of disability as mentioned in Para 6 above would continue to be divided into four groups as mentioned in Para 2 of this letter. Further, various concessions/benefits, including employment under the Central Government, would continue to be available only to those falling under the categories given at (b), (c) and (d) of the aforesaid paragraph. The minimum degree of 11 OA No.316/2009 disability in order for a person to be eligible for any concessions/benefits would continue to be 40%.
The above clauses will unambiguously show that the applicant will be entitled to get the benefit of the Act irrespective of the averments in the affidavit filed by the Doctor referred to above.
16. We do not propose to make any observation about the averments made by the Doctor, since in our view, we need not attach any importance to ifs and buts. The advancements made by the medical science are undoubtedly commendable. But still, no Surgeon will ever guarantee cent percent success in any surgery. Even assuming that the applicant may regain his hearing capacity to some degree one or two surgeries, we are not inclined to deny him the benefit available under the Act which is a beneficial legislation. In our view, what is warranted is a harmonious construction of the provisions contained in the Act so as to would achieve the object of reaching out to the unfortunate handicapped persons with compassion and sympathy. It is trite that Court should lean more in favour of an interpretational process which will promote a laudable object and eschew one which would sap its efficiency and leave it as a dead wood, as laid down in K. Dasaratha Vs. Mysore City Municipality Corporation, A.I.R. 1995 Knt. 157., Valayudhan Ramakrishnan Vs. Rajeev, AIR 1989 Ker. 12. As has been observed by the Apex Court in Syed Bashir-Ud Din Qadri Vs. Nazir Ahmed 12 OA No.316/2009 Shah and Others, (2010) 1 SCC (L&S), 874 the Act being a beneficial piece of social legislation, it has to be ensured that the purpose of the enactment is kept in mind so that persons with certain forms of disability are given an opportunity to lead a life of purpose and human dignity. Such a case has to be handled with sensitivity and not with bureaucratic apathy as appears have been done as far as the applicant is concerned.
17. Having carefully perused the entire materials available on record, particularly, the certificates issued by the Handicap Board attached to the Civil Hospital at Jalgaon (Annexure A-7, A-8 & A-9), we have no hesitation to hold that the decision of the respondents to treat the applicant as ineligible for recruitment as a Junior Clerk is totally illegal and unsustainable. Annexure A-1 order is, therefore, quashed. Respondent no.2 shall pass an appropriate order appointing the applicant as Junior Clerk in the light of the conclusions and observations made herein above. This shall be done as expeditiously as possible at any rate within one month from the date of receipt of a copy of this order.
18. Respondent Nos.1 & 2 shall also pay Rs.10,000/as cost to the applicant.
19. Original Application is allowed.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J) ma.