Central Administrative Tribunal - Bangalore
Rishi Kumar vs South Western Railway on 20 April, 2022
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OA.No.170/545/2020/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00545/2020
ORDER RESERVED ON:03.02.2022
DATE OF ORDER: 20.04.2022
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh Bench
at Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore Bench
at Bangalore)
Rishi Kumar
S/o Sri Manoj Kumar
Aged about 28 years
R/o Bhakli (P.O) Kosli Tehsil
Rewari Dist., Haryana-124144. ....Applicant
(By Advocate Shri K. Shivakumar - through video conference)
Vs.
1. Union of India
Rep. by General Manager,
S.W. Railway,
Gadag Road,
Hubballi-580020.
2.Chairman,
Railway Recruitment Board,
#18, Millers Road,
Bengaluru-560046.
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OA.No.170/545/2020/CAT/Bangalore Bench
3.Chief Medical Director,
Central Railway Hospital,
S.W. Railway,
Hubballi-580020. ...Respondents
(By Advocate Shri N. Amaresh --through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:
Quash the speaking order of ACMS/PME.RH/SBC received through E mail on 28th August 2020, (Annexure A-6), vide which his appeal has been rejected, and direct the respondents to re- consider their decision of declaring the applicant as unfit due to stammering and offer him the post of Assistant Loco Pilot.
2. The facts of the case as pleaded by the applicant are as follows:
a) The applicant had applied for the post of Assistant Loco Pilot in Railways in response to the Centralised Employment notification issued by the Railway Recruitment Board on 03.02.2018. Having cleared the first stage and second stage computer based tests and aptitude test, he was shortlisted for verification of documents/certificates and medical examination. 3
OA.No.170/545/2020/CAT/Bangalore Bench
b) After verifying the documents, Respondent No.2 directed the applicant to appear for medical examination at Railway Hospital, Mysuru on 05.09.2019. The applicant was examined by a team of doctors and he was communicated through email on 22.11.2019 sent by the 2nd Respondents stating that he was unfit in A1 & B1 medical classifications due to presence of stammering. As a result, he became unfit for the post opted by him. The communication further stated that he can prefer an appeal to the Chief Medical Director, South Western Railway Hubbali through the 2nd Respondent.
c) The applicant filed an appeal on 12.12.2019 against the decision of the Medical Board for re-examination along with the medical certificates issued by the Senior Medical Officer, Civil Hospital, Rewari. In the said certificate, it has been stated in the remarks column that the applicant has "very mild stuttering (Not significant)."
d) The applicant also approached the Postgraduate Institute of Medical Education and Research, (PGI) Chandigarh on 06.12.2019 in the department of Otolaryngology, Head and Neck Surgery. After conducting the required tests, he was diagnosed by the said hospital on 10.12.2019 as having "very mild stuttering." It was further mentioned under note that "stuttering is not considered for medical disability according to the Gazette of India."
e) The appeal preferred by the applicant along with the medical certificates was considered and the applicant was advised to attend re- medical examination on 09.03.2020. This re-medical examination 4 OA.No.170/545/2020/CAT/Bangalore Bench was conducted at Railway Hospital, Bengaluru. Subsequently, the Medical Board referred him to All India Institute of Speech and Hearing, Mysuru on 10.03.2020 for thorough examination by the experts and specialists. After making a thorough examination of the applicant, the specialists/experts furnished their Evaluation Report on 11.03.2020 in which it has been clearly stated that the applicant is having mild stuttering and stuttering as a condition will not affect the work efficiency of the client.
f) After completion of the re-medical examination, the applicant was informed that he would get further communication from the Railway Recruitment Board. Since he did not obtain any result of the re- medical examination, he sought the intervention of Respondent No.3 and also the Chief Medical Director as well as the Chief Medical Superintendent, Railway Hospital, Bengaluru. However, there was no response to his emails dated 22.05.2020 and 27.05.2020. Subsequently, the applicant sought the result of the re-medical examination from Respondent No.2 on 28.08.2020 and in response to this, the 2nd respondent communicated the speaking order received from the office of the Chief Medical Superintendent, Railway Hospital, Bengaluru vide which he has been assessed as medically Unfit for A1 and B1 medical category due to speech fluency disorder.
g) The applicant has contended that for the post of Assistant Loco Pilot, the candidate has to be declared as fit in Aye-one medical classification which pertains to vision tests required in the interest of 5 OA.No.170/545/2020/CAT/Bangalore Bench public safety. The medical examination includes M.M.R/X-ray (Chest), ECG, urine examination, Blood sugar examination Fundus examination or any other investigation/observation as deemed fit by the medical examiner, keeping in mind Hypertension, Diabetes, Ischemic Heart Disease, Hearing, Mental condition/reaction of the candidate. But it does not say anything about the speech. Despite this, the respondents have declared the applicant as unfit due to stammering which has resulted in denial of the post of Assistant Loco Pilot to him.
h) The applicant has also stated that many persons in Railways with the condition of stuttering have been appointed in various posts as stammering is not considered as a disqualification for holding any posts in Railways. The applicant has further stated, that some candidates with stammering have been recruited to the post of Assistant Loco Pilot in places like Ahmedabad considering them as fit to hold the post by the concerned medical board of the concerned Zonal Railway whereas it has been dealt differently by the South Western Railway.
i) The applicant further stated that as per para 510(1) (A) of Indian Railway Medical Manual, only vision tests are required for Aye-one medical classification in the interest of public safety. The post of Assistant Loco Pilot does not involve public contact as stated in the speaking order. Only the categories of Station Master, Guard, Ticket examiners etc will have public contact. The decision of the Medical 6 OA.No.170/545/2020/CAT/Bangalore Bench Board is not based on ground reality and purely on apprehensions and their own perceptions.
3. The respondents have filed their written statement wherein they averred as follows:
a) The applicant was one of the candidates who qualified in the Computer Based Test, Aptitude Test & Document Verification and was directed for medical examination at Railway Hospital, Mysore as a part of the selection process. The applicant attended the initial medical examination at Railway Hospital, Mysore on 31.08.2019.
The initial medical examiner diagnosed the candidate as having stammering and was considered as unfit in Aye-one and Bee-one medical category. Vide RB letter No.2014/H/5/8.Policy dated 07.07.2017 CMS/Mysore advised that the candidate be evaluated by a three Member Divisional Medical Committee with ENT specialist as specialist member.
b) The Divisional Medical Committee examined the applicant on 03.09.2019 and on evaluation he was found to have stammering or stuttering which is a speech defect. Stuttering is a developmental speech disorder involving frequent problems with normal fluency and flow of speech. Person with stuttering may also stop during speech and make no sound for certain syllables. Stuttering individual repeats, prolongs words, syllables or phrases. The frequency of speaker's dysfluencies, as well as their intensity and duration vary markedly from situation to situation and from day to day. Stuttering increases 7 OA.No.170/545/2020/CAT/Bangalore Bench during telephonic conversation. Even with speech therapy stuttering relapses to various degrees later.
c) As per IRMM Vol.I para 511(3)(i), the medical examiner while evaluating a candidate has to ascertain whether there is any speech defect. As per IRMM Volume I Annexure III (Para 509, 512) and 12.14, "persons with impediments like stammering are not suitable for jobs involving contact with public."
d) For "Aye One" medical category, medical examination is done in the interest of public safety and for "Bee One" medical category, medical examination is done in the interest of the candidate himself. Though job of an Assistant Loco Pilot (ALP) does not involve direct contact with public, the job involves constant communication with on board loco pilots, guards, Station Masters, Points man, Train passing staff in the stations and staff at Railway crossing gates. Absence of clear audible smooth speech may lead to accidents of trains, endangering lives of the passengers. Also inability to communicate properly, may lead to obstruction over the tracks of upcoming trains and delay in train movements.
e) For Bee-one medical category, medical examination is done in the interest of the candidate himself or his fellow workers or both. Candidate for Bee-one medical category are also required to have a speech without any impediments. The job in Bee-one medical category should have normal speech since it involves constant communication with other respective departmental Engineers, 8 OA.No.170/545/2020/CAT/Bangalore Bench Officers, Control Staff, Train passing Staff in the Stations, Staff at Railway Crossing gates, On board upcoming Loco or following Loco
- Loco Pilots/ Asst. Loco Pilots and on board guards. Absence of clear audible smooth speech may lead to accidents of trains endangering lives of the passengers. Also inability to communicate properly, may lead to obstruction over the tracks of upcoming trains and delay in train movements. Hence the Divisional Medical Committee recommended that the applicant is unfit in Aye-One and Bee-One medical category.
f) After being declared unfit, the first respondent advised the applicant that he could submit an appeal for re-medical examination, if he so desired, for the possible error of judgment by the First Medical examination Authority along with medical certificates. Accordingly, the applicant submitted request letter dated 12.12.2019 along with medical certificates from Civil Hospital, Rewari, and PGI Chandigarh, wherein these hospitals had certified that the applicant suffers from very mild stuttering. The 2nd respondent forwarded his request letter of appeal with medical certificates to Chief Medical Superintendent, Bangalore for a re-medical examination.
g) The applicant attended the re-medical examination by the Medical Board for ALP/Tech in class Aye-one, Bee-one on 09.03.2020 at Divisional Railway Hospital, Bangalore. He was examined by a Specialist Medical Board comprising of three ENT Surgeons. On evaluation, his speech was monotonous with fluency mildly affected. 9
OA.No.170/545/2020/CAT/Bangalore Bench He was referred to All India Institute of Speech and Hearing, Mysuru for evaluation on 11.3.2020. All India Institute of Speech and Hearing, Mysuru also made a provisional diagnosis of Developmental Speech Fluency Disorder (Stuttering) and recommended the following:
Fluency shaping and Stuttering Modification Therapy. Follow up after six months.
Note: This is to clarify that stuttering is a variable speech disorder which varies from situation to situation and from person to person. Majority of persons who stutter improve with speech therapy. However, the chances of improvement depends on multiple factors such as; using therapy techniques in all situations, confidence, speaking situation, listener's reaction, supportive environment etc.
h) The respondents requested for further clarification regarding stammering from Medical Director, All India Institute of Speech and Hearing, Mysuru vide letter dated 03.06.2020 on the following three points:
i. Speech therapy for 06 months duration: will it cure the stammering.
ii. Does stuttering increase during stress/work pressure/ tension/ demanding situations.
iii. Is stuttering completely curable.
i) The report received from Dr. Sangeetha Mahesh, HOD- Clinical Services, AIISH/ Mysuru was as follows: Persons with stuttering may recover and show improvement soon after the therapy, though they may later relapse to various degrees. It was further stated that "Frequency of stuttering varies with emotions and stress. The 10 OA.No.170/545/2020/CAT/Bangalore Bench frequency of speaker's dysfluencies, as well as their intensity and duration, vary markedly from situation to situation and from day to day. Stuttering increases during telephonic conversations. Even with speech therapy stuttering relapses to various degrees later."
j) Based on these reports, a decision was taken to declare the applicant unfit for the post of ALP. The revised re-medical proceedings were resubmitted to PCMD/SWR. The recommendations of the Medical Board was accepted by PCMD/SWR. The speaking order was accordingly issued on 28.8.2020.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. The primary contention of the applicant is that he has been evaluated to be suffering from very mild stuttering, which, according to him, will not affect his work efficiency as Assistant Loco Pilot. The medical Doctors of Civil Hospital, Rewari and the PGI Chandigarh, have opined that, the candidate suffers from very mild stuttering and this is not considered as a medical disability according to the Gazette of India. The All-India Institute of Speech and Hearing, Mysuru, to whom the reference was made by the Specialist Medical Board of the Railways, has also confirmed that he suffers from mild stuttering and, in general, stuttering as a condition will not affect the work efficiency of the client. It has been further clarified by the AISH Mysuru, that stuttering is a variable disorder which varies from situation to situation and from person to person.
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6. The All India Institute of Speech and Hearing, Mysuru, has opined that majority of persons who stutter improve with speech therapy. However, the chances of improvement depend on various factors such as, using therapy techniques in all situations, confidence, speaking situation, listener's reaction, supportive environment etc. It has further been reported that persons with stuttering may recover and show improvement soon after therapy, though they may later relapse to various degrees. It has also been reported that frequency of stuttering varies with emotion and stress. The frequency of speaker's dysfluencies, as well as their intensity and duration, vary markedly from situation to situation and from day to day. Stuttering increases during telephonic conversation. Even with speech therapy stuttering relapses to various degrees later.
7. A close examination of the IRMM 2000 Vol-I furnished by the respondents indicates that there is a prescribed requirement for general physical examination for candidates and all candidates are required to be in good mental and bodily health and free from any defect likely to interfere with the effective performance of the duties of their appointment. In the course of the general physical examination, the examiners are allowed to use their own discretion as to the scope of the general physical examination in each case, and are required to judge cases on their own merits, taking into consideration the prospective duties of the examinee as also the age of the examinee and need for continued fitness for the remaining years of service.
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8. The primary issue, which has been considered by the respondents in their medical examination, is whether the applicant suffers from a speech defect, which is likely to interfere continuously with the effective service of his duties on his appointment as ALP.
9. The medical examination has concluded that there is no doubt that the candidate is suffering from stuttering which is classified as a speech defect. All the medical reports uniformly convey this condition. The Doctors of the Civil Hospital Rewari as well as PGI, Chandigarh, have opined that the candidate suffers from mild stuttering, which is not considered as a medical disability. On the other hand, the Railway Medical Board has given a specific view after looking into the reports of these Doctors as well as the specialist from All India Institute of Speech and Hearing, Mysore, that the job requirement of Assistant Loco Pilot, for which the applicant is a candidate, involves constant communication with on board fellow staff LP/ ALP train passing staff in the station etc., and absence of clear and smooth speech may lead to accidents of trains endangering lives of the passengers.
10. After this opinion of the Railway Medical Board, with CMS/SBC, Chairman RRB has declared him unfit for the job of ALP/Tech in Aye- One and Bee-One medical categories, rendering him unfit for the post of ALP which admittedly requires Aye-One category of medical fitness.
11. The respondents have entirely followed the prescribed process for medical evaluation in this case. The applicant was initially examined by Railway Hospital, Mysore which opined that the applicant be evaluated by a 13 OA.No.170/545/2020/CAT/Bangalore Bench Divisional Medical Committee consisting of Senior doctors, including an ENT specialist. The Divisional Medical Committee, Railway Hospital, Mysore declared him unfit for A-1 and B-I category due to stammering. On appeal, his re-medical examination was conducted by the Divisional Railway Hospital, Bangalore by three Member Committee of ENT Specialists. They also referred the applicant for an independent opinion from the All-India Institute of Speech and Hearing at Mysuru. After this detailed medical examination and obtaining of a separate opinion from the expert of All India Institute of Speech and Hearing, Mysore, the applicant has been declared as medically unfit under Aye-One and Bee-One medical category, which renders him unfit for the post of ALP. The applicant has not alleged any malafide in the process of medical examination. He has however prayed for a reconsideration of the medical assessment by the Respondents on the ground that his speech defect is minor and hence cannot be construed to be an impediment in his functioning as an ALP.
12. Matters relating to the medical evaluation of candidates in the recruitment process involve expert determination. We need to be very cautious in supplanting the process adopted by the recruiting agency and substituting it by a Court mandated review or a re-medical evaluation. In the present case, the prescribed process of medical evaluation has been followed by the Respondents. The expert medical opinion of the medical board set up by the respondents is that the candidate is medically unfit for the post of Assistant Loco Pilot. It has been assessed that his speech defect could affect his functioning as an Assistant Loco Pilot, particularly in times of 14 OA.No.170/545/2020/CAT/Bangalore Bench stress, and keeping the nature of his duties, could endanger the lives of passengers. There is no malafide alleged by the applicant on the part of the respondents. The prescribed process has also been duly followed. In such a case, therefore, there appears to be little scope or reason to have any further interference.
13. The Honourable Allahabad High Court in the case of Vivek Kumar Vs. State of U.P. and Others 2020 ADJ Online 0073 had interalia observed as under:
"7. The scope of interference in matters relating to assessment of fitness by a Medical Board constituted under the statutory rules in exercise of powers under writ jurisdiction, in our opinion, would be extremely limited.
8. The Courts have, time and again, emphasised the need for caution when candidates seek to assail the correctness of the findings of a Medical Board constituted under a recruitment process adopted by the State authorities, on the basis of some medical report obtained by them.
11. In a case where a recruitment process has been carried out as per prescribed statutory rules where under a procedure has been prescribed for testing the medical fitness of candidates by a duly constituted Medical Board, the report of the Medical Board is not to be normally interfered with, and that too, solely on the basis of a claim sought to be set up by a candidate on the basis of some subsequent report(s) procured by him from a private practitioner(s).
12. It is not the case of the petitioner that the decision of the Medical Board was arbitrary, capricious or not in accordance with the procedure under the relevant statutory recruitment rules."
14. Keeping the above points in view, the recommendation of the Railway Medical Board which has been accepted by the Railway Recruitment Board, in declaring the candidate as unfit for the post of ALP, cannot be 15 OA.No.170/545/2020/CAT/Bangalore Bench termed as unreasonable or arbitrary. Accordingly, there appears to be no merit in the OA filed by the applicant.
15. The Original Application is accordingly dismissed.
16. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
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