Calcutta High Court (Appellete Side)
Ct 24. Kisan Tudu vs Union Of India & Ors on 2 July, 2019
Author: Amrita Sinha
Bench: Amrita Sinha
02 W.P. No. 8735 (W) of 2019
02.07.2019
Ct 24. Kisan Tudu vs Union of India & Ors.
Mr. Achin Kumar Majumder,
Mr. Pratik Majumder. ..For the petitioner.
Mr. Partha Ghosh. ....For the UOI.
The petitioner is aggrieved by a show cause
notice dated 14th September, 2018 whereby the
petitioner has been directed to submit his explanation
as to why action shall not be taken against him for
suppression of the fact of congenital deficiency (defective
colour vision) during the course of initial medical
examination prior to appointment in the Force by
training himself or in collusion with Railway Medical
Authority and further why action shall not be taken
against him for falsification and fraudulent act as per
extant Rules.
The petitioner is a constable of the Railway
Protection Special Force (RPSF). He was appointed in the
year 2006 after undergoing medical examination and a
fitness certificate was issued in his favour by the
Medical Officer attached to the Medical Department of
the Eastern Railway.
On a periodical medical checkup held in
October, 2010 the petitioner was detected to have
defective colour perception. The petitioner was declared
permanently medically unfit for the duties of his original
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post. The Senior Medical Officer on 25th April, 2011
recommended that on medical grounds arrangements
should be made to provide him with suitable alternative
employment permanently. The Medical Board opined
that the petitioner was unfit in the category of Bee/One
but fit in category Bee/Two and below.
The Commanding Officer vide a Battalion
Order No. 120/2011 dated 25th November, 2011
indicated that in terms of Rule 1304 (IREM Vol-1) the
petitioner ceased to perform the duties of his present
post of constable/RPFs with effect from 26th April, 2011
i.e from the date of Medical de-categorisation. The
petitioner was to be kept on supernumerary post in the
battalion till his permanent absorption in alternative
job, or six months, whichever is earlier, with effect from
26th April, 2011 in the same grade in which he was
working on regular basis, before being declared
medically unfit, with financial concurrence of
DFM/NFR/NJP and approval of ADRM/NFR/KIR. The
petitioner was to continue his lien in service in the
department till his permanent absorption in alternative
appointment in railways where he prefers his option. An
indication of "supernumerary post" be mentioned
against his name and designation in the bill.
By a communication dated 2nd June, 2018 the
petitioner was informed that a Medical Board was
constituted for medical examination of the medical de-
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categorised RPSF staff. The petitioner was directed to
report to the Medical Director with all relevant
documents.
By a communication dated 26th July, 2018 the
Director/Security (ABE), Railway Board advised the
commanding officers of the respective battalions to take
suitable action against the de-categorised RPSF
constables keeping in view the fact that defective colour
perception is a congenital medical condition and the
employee did not fulfill the medical condition laid down
for recruitment at the time of his initial appointment in
RPSF.
The show cause notice impugned in the
instant writ petition is the follow up step of the aforesaid
advice.
The petitioner submits that the authority
issuing the show cause notice is incompetent to issue
the same. He submits that the petitioner was no longer
a constable of the RPSF and his status as constable has
been taken away on the date he was declared
permanently medically unfit and he ceased to perform
his duties as constable on and from 26th Aril, 2011. He
has been kept in a supernumerary post. He was to be
permanently absorbed in alternative appointment. There
has been considerable delay in accommodating the
petitioner in an alternative appointment as the
petitioner was declared fit for performing Bee/Two job.
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He submits that the authorities are not entitled to
direct the petitioner for re-examination of his eye as he
was already declared permanently unfit way back in
2011 and there is no requirement for a further medical
checkup. He submits that the petitioner will no longer
be guided by the Railway Protection Force Act, 1957 and
the Rules of 1987. He will be guided by the Railway
Servants (Discipline and Appeal) Rules 1968.
The petitioner relies upon a Division Bench
judgment passed by this Court in the matter of Tejen
Mitra & Ors. vs Union of India & Ors. reported in 2008 (2)
CHN 718 wherein the Court held that once a railway
servant is declared medically unfit, he has to be given a
suitable alternative employment but before that status
is conferred, the person concerned has to be kept on a
supernumerary post but he cannot be subjected to a
"reexamination". He can be ordered to be examined in
accordance with law by the concerned authorities of
only those departments in which such a medically
declared unfit person is absorbed in an alternative
status in terms of paragraph 1303 of the Railway
Establishment Code.
He further relies upon an unreported judgment
delivered by the Hon'ble Supreme Court of India on 23rd
March, 2017 in the case of Pranay Kumar Podder -vs-
State of Tripura & Ors. in Civil Appeal no. 4393 of 2017
arising out of SLP (C) no. 27388 of 2015 wherein the
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Court held that total exclusion for admission to medical
courses without any stipulation in which they really can
practice and render assistance would tantamount to
regressive thinking. The said order was passed in the
context of students who were declared ineligible for
taking admission to MBBS course at the stage of
counselling on the score that they suffered partial colour
blindness.
The petitioner also relies upon an unreported
judgment dated 11th August, 2011 passed by a learned
Single Judge of the Jharkhand High Court in the case of
Anil Kumar Das & Ors -vs- Union of India & Ors. in Writ
Petition (Service) No. 3482 of 2006 wherein the Court
held that personnel suffering from colour blindness
cannot be said to be suffering from such a disability that
they will not be able to work and they are liable to
continue in service. The Court quashed the order of
termination and directed the respondents to permit the
petitioners who were constables of CRPF to continue in service with all consequential benefits.
The petitioner prays for setting aside the show cause notice and for a further direction upon the respondents for providing alternative appointment to the petitioner.
The learned advocate appearing for the respondents submits that the petitioner is suffering from defective colour vision which is a congenital 6 disease. The petitioner acquired the disease at birth and the petitioner was not eligible for appointment as per the recruitment rules.
He submits that the allegation against petitioner is that he obtained the fit certificate in collusion with the Railway Medical Authorities. The Railway Board has examined the matter and has opined to take action against the erring doctors and others who were involved and responsible for issuing the fit certificate in favour of the petitioner.
He further submits that the Health Directorate is taking steps for fixing the responsibility and accountability with consequential action by the Vigilance Directorate of the Railway Board. The action against the doctors is in process.
He submits that the case is premature and no legal right of the petitioner has been infringed by issuance of the show cause notice. The issuance of show cause notice does not give rise to any cause of action.
The learned advocate prays for dismissal of the writ petition.
The respondents rely upon a judgment delivered by the Hon'ble Supreme Court in the matter of Secretary, Ministry of Defence & Ors. -vs- Provash Chandra Mirdha reported in (2012) 11 SCC 565 on the issue that a show cause notice is normally not liable to be quashed as it does not affect rights of delinquent 7 employee and does not give rise to any cause of action.
Upon hearing the submissions made on behalf of both the parties it appears that the petitioner was appointed in the year 2006 after obtaining a fit certificate issued by the Medical Officer of the respondents. In the year 2010 at the time of periodical medical examination he was detected with defective colour perception.
In the case of Pranay Kumar Podder (supra) the Hon'ble Supreme Court takes note of an Article published under the heading "Colour Vision Deficiency"
wherein it has been mentioned that colour vision deficiency is usually a hereditary condition linked with the "X" chromosome.
The petitioner was colour blind at the time of his birth. Had he been properly examined by the ophthalmologist prior to his appointment he could not have obtained the fit certificate. The medical deficiency of the petitioner was detected at the time of periodical medical examination in the year 2010. The petitioner has been medically de-categorised permanently and been kept in a supernumerary post since 2011.
The judgment of Tejen Mitra (supra) relied upon by the petitioner will not be relevant in the instant case as the facts of the said case are different from the case at hand. In the said case some of the appellants were issued order of absorption on alternative posts 8 after being declared medically unfit. The said appeal took into consideration the issue of discrimination as a few of the appellants were provided alternative jobs upon their medical de-categorisation whereas the others were called for reexamination. It is on that score that the Court passed the order.
The case at hand stand on a separate footing as the very reason for de-categorisation of the petitioner was present in the petitioner at the time of his initial appointment. The deficiency was acquired at birth and not due to age or otherwise in the course of his employment. Action against the doctors who were responsible for issuing the fit certificate is also under- process.
The decision in the case of Anil Kumar Das (supra) was passed while dealing with the order of termination issued in favour of the petitioners. In the instant case the petitioner has challenged the show cause notice. As such the judgment relied upon by the petitioner will not be relevant.
The learned advocate appearing for the respondents submits, on instructions, that the petitioner could not be accommodated in an alternative post as there is hardly any post for colour blind employees in the Railway. The colour blind persons are ineligible for being appointed in the Railways. The Railway Board has taken a decision for fixing up the 9 accountability and the responsibility of the erring doctors and others who were involved in issuing the fit certificate in favour of the petitioner at the time of his appointment.
The petitioner has been directed to reply to the show cause. No legal right whatsoever has been infringed by issuance of the said show cause as held by the Hon'ble Supreme Court in the case of Prabhas Chandra Mirdha (supra). I am not inclined to enter into the merits of the show cause notice impugned in the instant writ petition. There is no immediate necessity for interference at this stage. The petitioner has already submitted his reply to the show cause. The respondents will consider the reply in accordance with law.
WP No. 8735 (W) of 2019 is dismissed.
Urgent Photostat certified copy of this order be given to the parties, if applied for.
( Amrita Sinha, J. ) ``