Central Administrative Tribunal - Bangalore
Nanjundaiah vs M/O Railways on 17 October, 2017
1 OA No.
170/00124/2017/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO. 170/00124/2017
DATED THIS THE 17TH DAY OF OCTOBER, 2017
HON'BLE DR. K.B. SURESH, MEMBER (J)
HON'BLE SHRI PRASANNA KUMAR PRADHAN, MEMBER (A)
Nanjundaiah,
Aged about 35 years,
S/o late K.M. Shivanna,
R/o Kethuhalli Village,
Mayaganahlli Post,
Ramanagara Taluk
and District - 581 453. .....Applicant
(By Advocate M/s S.B. Mukkanappa Associates)
Vs.
1. The Senior Divisional Personnel Officer
South Western Railway,
Divisional Office,
Personnel Branch,
Bangalore - 560 023.
2. The General Manager,
South Western Railway,
Hubli - 580 020.
3. The Sr. Divisional Medical Officer,
(Medical Exam)
SW Railway,
Hubli - 580 020. ....Respondents
(By Shri J. Bhaskar Reddy, Railway Standing Counsel)
2 OA No.
170/00124/2017/CAT/BANGALORE
ORDER (ORAL)
DR. K.B. SURESH, MEMBER (J):
Heard. The applicant files application for condonation of delay. In the circumstances of the case, the delay is condoned. The matter relates to compassionate appointment. It seems to be covered by a decision of the Hon'ble High Court of Madras in Writ Petition No. 14760 of 2015 dated 22.06.2015. It might be illustrative to quote from paragraph 5,6,7,8,9,10,11,12,13,14,15,16,17 & 18 of this judgment.
"5. Therefore, the 2nd respondent filed an Appeal for re-examination medically. The Appeal was accepted and she was re-examined by the Chief Staff Surgeon (Administration). By Certificate dated 2.7.2012, the Chief Staff Surgeon (Administration) also opined that the 2nd respondent was unfit for employment in Aye-Two category. Therefore, the 2nd respondent filed an application in OA.552/2013 on the file of the Central Administrative Tribunal, Madras Bench. The Tribunal allowed the Application, following a decision rendered by a Division Bench of this Court in W.P.No.21082/2013. Therefore, aggrieved by the said order, the Railway Administration is before us.
6. It must be pointed out before proceeding to deal with the contentions of the learned Standing Counsel for the Railway Administration that apart from the decision relied upon by the Central Administrative Tribunal, this Court has rendered yet another decision in W.P.4268/2015, dated 3.3.2015. In the said decision, to which one of us was a party (V.R.S., J), it was indicated that the country itself has become the Diabetic Capital of the World and that diabetes is more of a disorder than of a disease.
7. However, Mr.V.G.Suresh Kumar, learned Standing Counsel for the Railway Administration contended that the cases earlier decided by this Court, related to compassionate appointment and that the same cannot be placed on par with a case of direct recruitment from the open market.
8. Relying upon an affidavit filed by the Chief Physician in the Office of the Chief Medical Director, Southern Railway, it was contended by Mr.V.G.Suresh Kumar, learned Standing Counsel for the Railway Administration that if a person is found to be a chronic diabetic, at the age of 40, her ability to work will deteriorate and that therefore, the rejection cannot be found fault with.3 OA No.
170/00124/2017/CAT/BANGALORE
9. We have carefully considered the issues raised by the Chief Physician, in his affidavit. Before proceeding to deal with the same, it will be worthwhile to quote para 501 of the Indian Railway Medical Manual-Vol.1, extracted in para 2 of the said affidavit. It reads as follows:-
"No person will be deemed qualified for admission to the public service who shall not satisfy the government, or the appointing authority, as the case may be, that he has no disease, constitutional affliction or bodily infirmity unfitting him, or likely to unfit him for that service."
10. A careful reading of para 501 of the Indian Railway Medical Manual-Vol.1, shows that it is more of a general nature. The prescription contained therein that a person who has any disease or bodily infirmity or constitutional affliction, cannot be appointed, cannot be read literally to conclude that even a person with fever will be debarred from being appointed to any service in the Railway Administration.
11. In the course of hearing of the writ petition, Mr.V.G.Suresh Kumar, learned Standing Counsel for Railway Administration, filed an affidavit sworn to by the Chief Physician in the Office of the Chief Medical Director, Southern Railway, to highlight that diabetes is a chronic progressive disease, which has the potential to affect all major organs and that since the disease is latent for a long period with increased risk of complications, it is considered by the Railway Administration that a candidate with diabetes will be a liability for the employer.
12. In the affidavit of the Chief Physician, he has chosen to highlight the nature of the disease, as per Harrison's Principles of Internal Medicines and API Text Book of Medicine. It is further stated in the affidavit that the 2nd respondent was found to have elevated HbA1c and that HbA1c is recognized as a reliable marker for the over all Glucose exposure and its direct consequence and excessive rate of Glysation.
13. We must confess that we are not medical experts to contradict or confront the opinion of the Chief Physician. But nevertheless we must point out at least what is in public domain. According to the information furnished in the blog of global diabetes community with the domain name "diabetes.co.uk", the term HbA1c refers to glycated haemoglobin. By measuring glycated haemoglobin, clinicians are able to get an over all picture of what our average blood sugar levels have been, over a period of weeks.
14. The World Health Organisation has published several guidelines for the diagnosis of diabetes since 1965. Both diagnosis and classification were reviewed in 1999 and were published as "The guidelines for the Definition, Diagnosis and Classification of Diabetes Mellitus." The potential utility of HbA1c in diabetes care is first mentioned in the 1985 World Health Organisation report. As more information relevant to the diagnosis of diabetes became available, 4 OA No. 170/00124/2017/CAT/BANGALORE World Health Organisation, with the International Diabetic Federation, convened a joint expert meeting in 2005 to review and update the recommendations on diagnosis only. After consideration of the data available and the recommendations made at that time by other international and global organisations, the 2005 consultation made the following recommendations:
1. The previous (1999) World Health Organisation diagnostic criteria should not be changed.
2. The diagnostic cut-point for Impaired Fasting Glycemia (6.1 mmol/l; 110 mg/dl) should not be changed.
3. HbA1c should not be adopted as a diagnostic test, as the challenges of measurement accuracy outweighed the convenience of its use.
In March 2009, World Health Organisation convened a consultation in order to update the 1999 and 2006 reports with the place of HbA1c in diagnosing diabetes, based on available evidence. The main question to be answered for the update agreed upon by the expert group was How does HbA1c perform in the diagnosis of type 2 diabetes based on the detection and prediction of microvascular complications? The recommendation was drafted by the expert group following the GRADE methodology and the process outlined in the World Health Organisation Handbook for Guideline Development. The strength of the recommendation was based on the quality of evidence and feasibility and resource implications for low and middle-income countries. The Recommendations were that "HbA1c can be used as a diagnostic test for diabetes provided that stringent quality assurance tests are in place and assays are standardised to criteria aligned to the international reference values, and there are no conditions present which preclude its accurate measurement." The 2011 World Health Organisation report noted that HbA1c may be affected by a variety of genetic, haematologic and illness-related factors The most common important factors worldwide affecting HbA1c levels are haemoglobinopathies (depending on the assay employed), certain anaemias, and disorders associated with accelerated red cell turnover such as malaria. The utility and convenience of HbA1c compared with measures of plasma glucose for the diagnosis of diabetes needs to be balanced against the fact that it is unavailable in many countries, despite being a recognized valuable tool in diabetes management. In addition the HbA1c assay is not currently well enough standardized in many countries for its use to be recommended universally at this time. However, there will be countries where optimal circumstances already exist for its use.
15. It has nowhere been contended by the Railway Administration, that complications have arisen as a result of the patient's diabetes. It is only contended that her condition is likely to give rise to certain complications. However, in the present case, none of the complications as averred by the petitioner (end-stage renal disease, non-traumatic lower amputations, adult blindness etc.) have manifested in the patient, thereby rendering her unfit for service. Additionally, 5 OA No. 170/00124/2017/CAT/BANGALORE Dr.A.Kalanidhi has submitted by means of an affidavit that the second respondent HbA1c levels are indicative of the fact that over the past five years, the patient's beta cells have undergone sufficient degree of damage and that, in effect, the risk of complications arising are higher. This contention cannot be accepted in the present case as a mere speculation of complications cannot be made a reasonable ground to deny the second respondent employment, as the disease is, at this stage, manageable with regular treatment such that the status quo is maintained. This speculation, therefore has merely to be stated to be rejected.
16. The Central Administrative Tribunal has relied upon a decision of the Division Bench of this Court in Union of India v. Registrar Central Administrative Tribunal, Madras [(2013) 6 MLJ 617], wherein it was held that employment cannot be denied merely on speculations of what might happen in the future. It was pointed out therein that "to deny employment on a speculation that might occur in the future is unreasonable".
17. In Faizan Siddiqui v. Sashastra Seema Bal [(2011) 124 DRJ 542], the Delhi High Court was concerned with a case of denial of employment to a female Jawan, on the basis that she had Complete Androgen Insensitivity Syndrome (CAIS). It was held that while the condition allowed her to function perfectly, the possibility that complications could arise further from the condition and thereby render her unfit to perform her duty would not be a valid ground for denial of employment. The same was held to be violative of Articles 14 and 16.
18. Therefore, in the absence of any scientific evidence to show that a diabetic will not be able to discharge the duties of his office, it is not possible to accept the stand taken by the petitioners. This is especially in view of the fact that today, India has become the diabetic capital of the world, probably due to the concerted efforts taken in the past five decades by the food, fertilizer, pharmaceutical and beverage industries. According to a global report submitted by the Indian Diabetes Research Foundation, 40.9 million Indians are diabetic. Therefore, it is not possible to accept that they are unemployable or that if employed, they would become a liability on the employer."
2. We also had occasion to consider this matter. Diabetes Mellitus is no longer an incurable and insurmountable disease which will render the patient incapable of performing the normal duties. With medication, even duties involving stress and strain can be performed by a diabetic patient. That having been established conclusively, medically and legally, there was no reason for the railway authority to hold that the applicant is not capable of holding a 6 OA No. 170/00124/2017/CAT/BANGALORE government appointment. In matter relating to compassionate appointment, if other factors are present, what is to be understood and acknowledged is the question of indigency in comparison with others equally held like him.
Therefore we hereby declare that applicant, even though is a patient who may need medical supervision, is still an employable person under the laws of the land. Therefore Annexure-A5 is quashed. There will be a mandate to the Railways to consider him for such an appointment within three months next and pass appropriate orders.
3. At this point of time, Shri J. Bhaskar Reddy, learned counsel for the respondents, would submit that the rejection order was passed before the Hon'ble High Court of Madras had passed its order but then this Tribunal also had passed several orders similar in nature earlier also, then, that should have weighed in the mind of the concerned medical authorities. We regret to note that it has not. It is also submitted at the bar by the learned counsels that in a similar matter the Hon'ble High Court of Karnataka sitting at Dharwad Bench had already held that Diabetes Mellitus is not a disease to shun and those people are also employable persons. Since the details of such decision will be already with the railway authority, we do not need to further illustrate this point but the OA is allowed. The benefits to be made available within three months' next. No order as to costs.
(PRASANNA KUMAR PRADHAN) (DR. K.B. SURESH)
MEMBER (A) MEMBER (J)
7 OA No.
170/00124/2017/CAT/BANGALORE
/ksk/
Annexures referred to by the applicant in OA No. 170/00124/2017 Annexure A1: True copy of death certificate of applicant's father Annexure A2: True copy of representation of the applicant dated 23.02.2011 addressed to the 1st respondent.
Annexure A3: True copy of letter No. B/P.269/CGA/12/10/101 (M.K.S-10) dated 10.11.2011 issued by the 1st respondent for re-medical examination. Annexure A4: True copy of medical certificate of the applicant issued by the 3rd respondent.
Annexure A5: True copy of letter No. B/P.269/CGA/12/10/101 (M.K.S-10) dated 21.12.2011 issued by the 1st respondent.
Annexure A6: True copy of order dated 22.06.2015 passed by the Hon'ble High Court of Madras in WP No. 14760 of 2015 dated 22.06.2015 Annexure A7: True copy of representation of the applicant addressed to the 1st respondent.
Annexure A8: True copy of representation of the applicant addressed to the 1st respondent.
Annexure A9: True copy of representation of the applicant addressed to the 1st respondent.
Annexure A10: True copy of representation of the applicant addressed to the 1st respondent.
Annexures referred in the reply statement Nil
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