Central Administrative Tribunal - Allahabad
Devendra Pal vs North Central Railway on 11 May, 2022
OA No.330/267/2022
Reserved on 30.03.2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad, this the 11th day of May, 2022
Original Application No. 330/267/2022
Hon'ble Mr. Tarun Shridhar, Member (Administrative)
Hon'ble Ms. Pratima K Gupta, Member (Judicial)
Devendra Pal, aged about 34 ½ years, S/o Shri Lal Chandra Pal, R/o 46/3A,
North Lakpuri, Naini, Prayagraj, Uttar Pradesh, and presently posted
substantively as Assistant Loco Pilot (under Orders of promotion to the post of
Senior Loco Pilot w.e.f. 03.12.2012), at Prayagraj Lobby, under Senior Crew
Controller (Electric Operations), North Central Railway, Prayagraj-UP.
. . .Applicant
By Adv : Shri Shyamal Narain
VERSUS
1. The Union of India through the General Manager, North Central
Railway, Prayagraj-UP.
2. The Principal Chief Medical Director (Headquarters), North Central
Railways, Prayagraj-UP.
3. The Chief Medical Superintendent (Central Hospital), North Central
Railway, Prayagraj-UP.
4. The Senior Divisional Electrical Engineer (Operations), North Central
Railway Prayagraj-UP.
5. Dr. Anita Gupta, Railway Medical Examiner, North Central Railway
Prayagraj-UP.
. . .Respondents
By Adv: Shri Manoj Kumar Sharma
ORDER
By Hon'ble Ms. Pratima K Gupta, Member (Judicial) :
The applicant is aggrieved by the order dated 10.02.2022 passed by the Principal Chief Medical Director, North Central Railway, Prayagraj respondent No. 2 rejecting the applicant's representation dated 09.12.2021 and 14.01.2022 against the certificate of physical fitness dated 24.11.2021 / 01.12.2021 issued by Dr. Anita Gupta, Railway Medical Examiner, North Central Railway, Prayagraj, certifying the applicant to be fit in Medical Category A-1, pursuant to Page 1 of 7 OA No.330/267/2022 the mandatory periodical medical re-examination of the applicant. He further prays for constitution of a fresh Medical Board to re-examine his eye sight so as to ascertain his fitness category and his suitability to continue as Loco Pilot.
Through this OA, the applicant seeks the following reliefs:-
"a. That his Hon'ble Tribunal be pleased to quash and set aside the impugned order dated 10.02.2022, passed by the Principal Chief Medical Director/NCR/Prayagraj, confirming the fitness certificate in Class A-1, dated 24.11.2021/01.12.2021, given to the applicant by the Railway Medical Examiner, as also the said Fitness Certificate itself (Annexure Nos. A-1 and A-2 to Compilation No. I), and issue a time-bound direction to the respondents to convene a Medical Board for examine the eye- sight/vision/visual acuity of the applicant's and in the event the said Medical Board finds that the applicant is no longer fit in the Medical Category required of Loco Pilots with less than six years of service, thane, be pleased to issue a further time-bound direction to the respondents to conduct the proceedings for Medical Decategorization of the applicant as Loco Pilot, and grant him absorption in a suitable/appropriate alternative employment, in accordance with law, and the provisions of Chapter XIII of the Indian Railway Establishment Manual.
b. That this Hon'ble Tribunal be pleased to issue such other orders or directions as the applicant might be found entitled to in the facts of the case.
c. That this Hon'ble Tribunal be pleaded to award the costs of this Original Application in favour of the applicant, throughout. "
2. The brief facts that arise in this OA are as follows. The applicant was appointed as Assistant Loco Pilot on 13.03.2018 and was posted in Allahabad under the Senior Crew Controller, North Central Railway. At the appropriate time the applicant was medically examined and found fit for the post of Assistant Loco Pilot. In October 2019, he met with an accident as a result, he started having blackouts and sporadic episodes of blurred vision. On 23.01.2020 he requested Senior Divisional Electrical Engineer, North Central Railway, Allahabad to assign him stationary duties for the time being. His request was allowed, accordingly the applicant was relieved by the Senior Crew Controller (Operations), North Central Railway, Allahabad by order dated 23.01.2020 to perform stationary duties at the office of Senior Divisional Electrical Engineer (Operations), North Central Railway, Allahabad. Since January 2020 the applicant on the ground of his ill health has been off running duties and is performing stationary duties. On 24.11.2021 the applicant was spared for a mandatory medical re-examination on completion of four years of service since his appointment as he was last examined on 29.08.2017. The Page 2 of 7 OA No.330/267/2022 visual acuity of the applicant was determined to be 6/6. The applicant claims that following his accident he was suffering from vision related difficulties and he had got his eye-sight checked from various ophthalmologists of repute, and all of them had reported that he needed to wear glasses as his distant vision was myopic. He is unable to comprehend as to how his medical examination when conducted by the respondents, refers his vision as Class A-1 i.e. 6/6. He claims that the medical examination so conducted was done in a cursory manner as all his reports were contrary to the report of other ophthalmologists, hence, it was highly improbable that he did not have Myopia, He claims to have raised his concern. Unfortunately, the request of the applicant was ignored by the Railway Medical Examiner who, according to him, seems to be adamant to insist upon the fitness certificate she had already issued. The applicant moved a representation dated 02.12.2021 before the Chief Medical Superintendent bringing to his notice the fact of his myopia as certified by several ophthalmologists and pointing out the hazards of his being deployed as pilot with his compromised visual acuity. As no response was forthcoming, he moved another representation dated 02.12.2021 before the Principal Chief Medical Director explaining his cause. As he did not hear anything in response of his representation, he filed OA No. 31/2022 before this Tribunal seeking the following reliefs:-
"That this Hon'ble Tribunal be pleased to quash and set aside the impugned fitness certificate in Class A-1, dated 24.11.2021/01.12.2021, given to the applicant by the Railway Medical Examiner (Annexure No. A-1 to Compilation No.I), and issue a time-bound direction to the respondents to convene a Medical Board for examining the eye-sight/vision/visual acuity of the applicant's and, in the event the said Medical Board finds that the applicant is no longer fit in the Medical Category required of Loco Pilots with less than six years of service, then, be pleased to issue a further time-bound direction to the respondents to conduct the proceedings for Medical Decategorization of the applicant as Loco Pilot, and grant him absorption in a suitable / appropriate alternative employment, in accordance with law, and the provisions of Chapter XIII of the Indian Railway Establishment Manual".
And the same was disposed of by this Tribunal vide order dated 10.01.2022. The operative part of the said order reads as under:-
"We are not commenting upon the merits of the case and merely taking cognizance of the provisions contained in the Manual, referred to above, which empowers the Chief Medical Director to consider the medical examination if he feels it is required for any special reasons. The Page 3 of 7 OA No.330/267/2022 concerned authority is expected to apply its mind while taking the decision in a fair, objective and professional manner. Till such time as the decision is taken in accordance with the directions issued above let the applicant be allowed to perform the stationary duty in accordance with the order dated 23.01.2020 which is annexed at page 37 of the O.A."
3. The applicant served the copy of order dated 10.01.2021 passed by this Tribunal to the respondents, with a request to allow him to join his duties pending disposal of his representation. He claims that he was not allowed to perform his duties in willful and deliberate disobedience of the Tribunal's order dated 10.01.2022. On 31.12.2021, the applicant got himself examined at the Dr. Rajendra Prasad Centre of Ophthalmic Sciences, AIIMS, New Delhi wherein the doctors of the centre declared him myopic. In the meanwhile, the respondents rejected the pending representation of the applicant, by way of the impugned order dated 10.02.2022. Hence this OA.
4. The respondents controvert the facts narrated in the OA and submitted that the applicant had never met with any accident in 2019. Learned counsel for the respondents submits that it is only a concocted story so as to avail benefits of stationary duties. In support of this argument the learned counsel for the respondents draws our attention to the fact that the applicant has never claimed any medical leave on account of his so called accident during his entire service career rather the only request made by him is an application placed at page 47 of the counter affidavit, wherein the applicant has requested for performing stationary duties narrating his compelling family circumstances that he had old ailing parents and his dependent brother. On account of the request made by the applicant, he was allowed to perform stationary duties.
5. Learned counsel for the respondents further submits that the report placed/relied by the applicant stated to be from AIIMS Delhi is unsigned and therefore, cannot be relied upon.
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6. Heard Shri Shyamal Narain, learned counsel for the applicant and Shri M.K. Sharma, learned counsel for the respondents and carefully gone through the record.
7. In support of his claim, the learned counsel for the applicant argued that:-
a. The Railway Manual that prescribed for a mandatory periodical medical re-examination every 4 year, also stipulated in that in case prior to six years the applicant (Assistant Loco Pilot) is declared myopic, he has to be shifted from sensitive category to a non-sensitive category. In other words, he was entitled for medical de-categorization.
b. The applicant at the time of his initial appointment was not myopic as his vision was 6/6 without glasses. It was only on account of an accident that the applicant was declared myopic by various doctors of repute.
Copies of the medical certificates are enclosed with the OA.
c. It will not only be hazardous but also dangerous, if the applicant was allowed to perform the duties of Assistant Loco Pilot. Since public safety is involved, it was imperative that the duties of the applicant be shifted from sensitive to stationary duty category and accordingly his services be medically de-categorized.
d. Dr. Anita Gupta, who has examined the applicant is, in fact, not an ophthalmologist and therefore, she could not have examined the applicant. Principal Chief Medical Director has wrongly relied upon the medical certificate of Dr. Anita Gupta.
8. The learned counsel for the respondents relies upon rule 553 of the Indian Railway Medical Manual, 2000, Rule 553 (2) reads as under:-
"(2) A medical board is obligatory in the following cases:-
(a) Gazetted Railway employees:-
(i) for the examination of candidates for appointment into Group A
and Group B services on the Railways and elsewhere, under instructions from the Railway Ministry;
(ii) for invalidation from service on account of ill-health;Page 5 of 7
OA No.330/267/2022
(iii) for commutation of pension if the employee's application for commutation of pension has not been received by the Head of office within one year of retirement of the employee.
(b) Non-Gazetted Railway employees:-
(i) for invalidation from service on account of ill-health; and,
(ii) for commutation of pension if the employee's application for
commutation of pension has not been received by the head of Office within one year of retirement of employee."
9. Learned counsel for the respondents states that the case of the applicant is not covered in any of the provisions of the said rule, therefore, the applicant cannot be medically re-examined. He further submits that though it is correct that Dr. Anita Gupta is not an ophthalmologist, however, she has been with the respondents for more than 25 years and has been conducting medical examination including that of Assistant Loco Pilot for their vision. It is has been the practice with the respondents to rely upon her reports. He further submits that the only reason why the applicant has filed this OA is that he wants stationary duties in the garb of proving himself myopic and there is no provision for conducting such medical re-examination, He hastens to add that in case the request of the applicant is conceded, flood gates shall open for litigation as a number of Loco Pilots wish to perform stationary duties.
10. The short controversy in the OA is that the applicant claims that since he is declared myopic within six years of his service, he should be medically de- categorized from sensitive duties to stationary duties. While the respondents claim that the applicant is rather having vision 6/6 and is relying on procured medical reports and accordingly he does not deserve fresh medical re- examination.
11. In order to address the controversy in hand we may refer to Rule 555 of the Indian Railway Medical Manual, which reads as under:-
"555. Constitution of a special medical board:- A special medical board, when constituted to deal with an appeal preferred by a candidate for a gazetted services who is declared unfit on account of visual acuity, should normally include two ophthalmologists. However, in cases, where the Railways find it difficult to get two ophthalmologists of the equivalent rank of D.M.Os to serve Page 6 of 7 OA No.330/267/2022 simultaneously as members of such a special medical board, only one ophthalmologist may be included. Whenever it is necessary to co-opt a non Railway medical officer on the Railway medical board, the Railways should limit their choice to medical officers in the service of the Government or honorary medical officers working in Government hospitals."
12. We see that as there is a provision for conducting a special Medical Board though it is confined to special circumstances. It is also correct that public safety at large is involved in the matter. Further, the report relied upon by the competent authority while passing the impugned order heavily relies upon the report of Dr Anita Gupta who is admittedly not an ophthalmologist.
13. The instant case has peculiar facts where the applicant, in fact, is claiming to be unfit to perform certain duties, while his controlling authorities consider him fit. It can be derived that by getting declared unfit, the applicant will be allowed to perform stationary duties as a medically decategorized personnel. In fact, it is also borne out from record that the applicant has already sought exemption from duties of Loco Pilot vide his application dated 23.01.2020 on the ground of his family circumstances. As the respondents themselves have an onerous responsibility for ensuring safety of operations, we have no cause to cast a doubt upon their wisdom. We have no reason to infer that they shall depute a visually unfit Loco pilot on operational duties thus, compromising crew and public safety. Accordingly, we leave it to the judgment and good sense of the respondents to decide whether the applicant is fit to perform the duties of Loco Pilot or otherwise.
14. The present OA is dispose off with the above observations. There is no order as to costs.
(Pratima K Gupta) (Tarun Shridhar)
Member (Judicial) Member (Administrative)
/Piyush/
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