Central Administrative Tribunal - Delhi
Narendra Singh vs M/O Railways on 10 November, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
TA No.26/2013
Order Reserved on: 19.04.2016
Order Pronounced on: 10.11.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
Narendra Singh
S/o Shri Birbal Singh
R/o B-6, Panna Building,
Room No. 504, ONGC Colony,
Chand Khera, Ahmedabad,
Gujrat-380005.
At present staying at:
63, Room No. 22,
4th Floor, Haus Khas,
New Delhi. -Applicant
(By Advocate: Shri Ashish Rana)
Versus
1. Union of India
Through its Secretary,
Ministry of Railway,
New Delhi.
2. The Chairman
Railway Board,
Ministry of Railways,
Govt. of India, New Delhi. -Respondents
(By Advocate: Shri Shailendra Tiwary)
ORDER
Per Sudhir Kumar, Member (A):
This T.A. had been filed before the Hon'ble Delhi High Court as Writ Petition (C) No. 4328/2012 on 20.07.2012. Notices were issued to the respondents for filing counter affidavit on 23.07.2012 and on 2 TA No.26/2013 11.12.2012, the case was re-notified and fixed on 23.04.2013. On 23.04.2013, the Hon'ble Delhi High Court ordered that this case be transferred to this Tribunal, whereafter it was re-numbered as TA No.26/2013 and listed before the Bench on 04.09.2013, and after completion of pleadings, and many adjournments sought thereafter by the counsels of either sides, the case was heard and reserved for orders on 27.01.2016.
2. However, on the prayer of the learned counsel for the applicant, since the order in this case had not yet been pronounced, on 29.02.2016, the matter was again listed, under the heading 'For Being Spoken To'. Thereafter, the applicant had filed MA No.847/2016, and, therefore, the matter was released from "heard and reserved for orders" cases. On 19.04.2016, the said MA No.847/2016 was heard and allowed, and the documents filed along with that MA were taken on record, and the case was heard again, and reserved for orders.
3. The applicant/petitioner of this case had first appeared at the competitive examination of All India level conducted by the Competent Authority for appointment in the public sector, which had been held by Oil & Natural Gas Corporation (ONGC, in short) on behalf of all such public sector corporations and bodies, and he had been declared successful for being appointed for the job of Assistant Executive Engineer. He underwent a medical test conducted by a Doctor appointed by ONGC, who found him to be fit mentally and physically, and thereafter he was appointed with ONGC on 24.12.2010. 3 TA No.26/2013
4. Later on, when the Union Public Service Commission (UPSC, in short) advertised for conducting a Competitive Examination for Engineering Services Examination 2011 for Group 'A' posts in different departments of Govt. of India, the petitioner/applicant had applied, and took the Examination, and the result of the said Examination was declared in April 2012, and the petitioner/applicant was directed to undergo a Medical Examination.
5. When this Medical Examination was conducted by the Medical Board constituted under the respondent-Ministry of Railways, the petitioner/applicant was found to be unfit on medical ground, which communication of the Medical Board he has assailed as being solely based on surmises and conjectures. That Medical Board had opined that the applicant was suffering from systolic murmur, suggestive case of valvular heart disease, which he has claimed to be inconsistent with his actual physical status. He filed an appeal against the first Medical Board's opinion before the Medical Appellate Board, before which he submitted all the documents in order to be able to show that his medical fitness certificate was not impeachable, in view of an opinion obtained by him from a super specialist, with the clear finding that he was suffering from a very insignificant defect in his heart, which has no direct bearing with the continuous effective performance of duties for the job for which he had been otherwise found to be fit to be appointed.
6. Even though such opinion of super specialist obtained from a private hospital was available, that was brushed aside by the Appellate 4 TA No.26/2013 Medical Board of the Railways, which the applicant has assailed to be totally incompatible and perverse to the Rules under which it was supposed to function. He has assailed that when he is already rendering valuable service with a Government Corporation, namely, ONGC, for which he had been found to be fully medically fit, he could not have been declared to have been rendered unfit by another Medical Board constituted by the Respondents No. R-1 & R-2, since that Medical Appellate Board did not consult and consider the opinion given by the super specialist of the private Hospital, although they were not bound to consult the private Hospital
7. In the Writ Petition, he had prayed before the Hon'ble High Court that the best possible recourse was to refer the matter to the All India Institute of Medical Sciences (AIIMS, in short), so that the controversy regarding his medical condition, and fitness/unfitness could have been set at rest, as the opinion of the Medical Appellate Board has cast a stigma upon his career in several ways. At the time of filing of the Writ Petition before the Hon'ble High Court, the result of the petitioner/applicant for Engineering Services Examination, 2011, was yet to be declared, and, therefore, he had challenged the impugned medical opinion, of his having been declared to be suffering from Acynotic Congenital heart disease-VSD, and had taken the ground that the impugned opinion of the Medical Appellate Board was contrary to the Rules notified in the Gazette of India Extraordinary on 08.01.2011, and that the Medical Appellate Board was under a legal obligation to appraise the applicant as to whether the defect noticed by it was having any direct 5 TA No.26/2013 bearing upon the continuous effective performance of duties by the applicant in future, attached with the job for which he was selected, which explanation they had failed to provide.
8. He had further taken the ground that the Medical Appellate Board was bound to share or communicate with the concerned super specialist of the Private Hospital, in order to ascertain magnitude/defect, since it was not clear as to what is the impact the defect noticed by the Medical Appellate Board would have on the performance of his duties for the job for which he was selected, and that such report of the Medical Appellate Board was against Clause-13 of the Medical Rules of the respondents- themselves.
9. He had further submitted that the presence of such a minor defect interferes with continuous effective service only in a small proportion of cases, and when a Medical Board considers that a minor disability can be cured by treatment, a statement to that effect has to be recorded by the Medical Board. He has assailed that both the Medical Boards constituted by the respondents had committed a grave injustice to him, in utter disregard of principles of natural justice, since their opinion was based on an apprehensive account, which is not sustainable in the eyes of law, as it has no legs to stand upon.
10. The applicant had further taken the ground that the report of the Medical Appellate Board being unfounded, if it is allowed to sustain, it would imperil the future prospects of the applicant, and, therefore, he had prayed for the same to be quashed, and for his case to be referred to 6 TA No.26/2013 an independent Medical Board, constituted as per the Court's directions. In the result, he had prayed for the quashing of the medical findings of the Medical Appellate Board constituted on 19.06.2012, and had further prayed for the issuance of a writ of Mandamus against Respondent No.2, for referring his case to AIIMS, in view of the finding of a super specialist rendered by a prestigious hospital of Delhi, and by the Apollo Hospital of Ahmedabad, and had further prayed that directions should be issued to include his name in the select list for appointment in various departments of Govt. of India, uninfluenced by the Medical opinion rendered by the Medical Appellate Board, so as to protect his date of joining and seniority, subject to the outcome of the Writ Petition (now converted to T.A. before this Tribunal).
11. By way of Annexures, the applicant had enclosed at Annexure P-2 the letter through which the findings of the Medical Appellate Board, declaring him unfit for All Services on account of Acynotic Congenital Heart Disease-VSD, had been communicated to him. He had further filed at Annexure P-3 a Certificate from a private Hospital at Gorakhpur, at Annexure P-4 a certificate issued by the Senior Interventional Cardiologist at the Apollo Hospital, Ahmedabad, his I.D Card of ONGC at Annexure P-5, the Advertisement issued by the respondents at Annexure P-6, and the Appendix-II portion of the Gazette Notification of the respondents regarding Regulations relating to the Physical Examination of Candidates at Annexure P-7. It is seen that in Para-2 (b), Para-13 & Para-15 of Appendix-II Regulations relating to Physical Examination, it was stated as follows:-
7TA No.26/2013
"2(b) To be passed as fit for appointment, a candidate must be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of the duties on his/her appointment".
3 to 12 xxxxxx (Not reproduced here)
13. In case of doubt regarding health of a candidate the Chairman of the Medical Board may consult & suitable Hospital Specialist to decide the issue of fitness or unfitness of the candidate for Government Service e.g. if a candidate is suspected to be suffering from any mental defect or aberration, the Chairman of the Board may consult a Hospital Psychiatrist Psychologist etc. When any defect is found it must be noted in the Certificate and the medical examiner should state his opinion whether or not, it is likely to interfere with the efficient performance of the duties which will be required of the candidate".
14. xxxxxxxxxx (Not reproduced here).
15. ............It should be understood that the question of fitness involves the future as well as the present and that one of the main objects of medical examination is to secure continuous effective service and in the case of candidates for permanent appointment to prevent early pension or payment in case of premature death. It is at the same time to be noted that the question is one of the likelihood of continuous effective service, and that rejection of a candidate need not be advised on account of the presence of a defect which in only a small proportion of cases is found to interfere with continuous effective service".
(Emphasis supplied).
12. Through MA No.847/2016, the applicant had produced a copy of the medical report and letter of Lady Hardinge Medical College, which related to his candidature for the post of Deputy Manager (Technical) in the National Highways Authority of India (NHAI, in short), and did not have any direct relationship with the selection conducted by the Railways, regarding which the TA had been filed.
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13. In the counter reply filed by the respondents on 04.09.2014, all the averments of the applicant were denied, and it was submitted that the Engineering Services Examination is held annually by UPSC for the posts in Civil, Mechanical, Electrical and Electronic and Telecommunication Disciplines under various Ministries/ Departments, and that the medical examination of the candidates concerned is conducted at one of the six Railway Hospitals, and that the applicant was declared unfit by the Railway Hospital at Gorakhpur. It was submitted that the findings of the first Medical Board were conveyed to him, and Medical Appellate Board was arranged for him on 04.06.2012 at North Central Railway Hospital, Allahabad, as per his choice.
14. It was submitted that on examination by the Medical Appellate Board at Allahabad, the applicant was found to be having systolic murmur in aortic area & left parasternal region and his ECG was suggestive of LVH. It was pointed out that he was then referred to Sarswati Heart Care & Research Centre, Allahabad, for 2D Echo, which revealed the findings of congenital Acyanotic heart disease-small membranous VSD, with left to right shunt. It was submitted that the opinion of the Honorary Consultant in Cardiology at Allahabad Railway Hospital had then been sought, who had also confirmed the diagnosis of VSD with left to right shunt and LVH. In view of the findings of the said heart condition, the applicant was declared unfit for all services/posts of Engineering Services Examination by the Medical Board. It was submitted that the applicant's allegation that the findings of the 1st Medical Board were not gone into by the Medical Appellate Board was not 9 TA No.26/2013 true. They had also submitted that the applicant had been advised regular medical follow up in future, since he carried a definite risk for infective Endocarditic, for which he has to take certain precautions/medicines. It was pointed out that even the Doctor of Apollo Hospital, Ahmedabad, had also mentioned that the applicant's case is a known case of small peri-membranous VSD.
15. It was submitted that as per the Rules (supra), the question of fitness of a candidate involves the future as well as the present, and that one of the main objects of medical examination is to secure the candidate's continuous effective service, and, in the case of candidates for permanent appointment, to prevent early pension or payment in case of premature death. It was submitted that as per the Rules where a candidate is declared unfit for appointment in the Central Government Service, the ground for rejection may be communicated to him in broad terms, without giving every minute details regarding the defects pointed by the Medical Board, which had been done in the instant case, and the applicant had also taken copies of the first and the Appellate Medical Board's reports by filing an RTI application, and it was, therefore, wrong on his part to submit that he was not in a position to effectively represent his case before this Tribunal. It was, therefore, prayed that the averments made by the applicant have been made with the intention to mislead, and also to waste the precious time of this Tribunal, and the TA deserves to be dismissed outright, as being totally devoid of merits, and also being misconceived and not maintainable under the law. 10 TA No.26/2013
16. On 14.03.2015, the respondents filed another written statement and submitted that NHAI is a separate entity, and is not participating in the departments or Ministries in the Scheme of Engineering Services Examination conducted by the Railways on behalf of UPSC. While acknowledging that the Lady Hardinge Medical College had found the applicant to be suffering from Congenital Acyonitc Heart Disease, but had still declared him fit to join NHAI, in accordance with the Medical Rules for joining NHAI, but it was submitted that the same could not be automatically applied to that of Engineering Services Examination Medical Rules, which in itself is a multi service Examination, and on being declared fit for NHAI, the applicant does not become fit and eligible for Engineering Services Examination, for which their different Medical standards had been notified in the Gazette of India dated 08.01.2011.
17. The applicant filed a detailed rejoinder to that counter reply on 14.10.2014, apart from the documents filed by him later on, after the case had been first reserved for orders, and was then released from reserved, upon being mentioned, and being fixed for hearing on 19.04.2016 through MA No.847/2016 dated 24.02.2016. Through this rejoinder, the applicant had more or less reiterated his contentions as already made out in the TA, and had alleged gross medical negligence on the part of the Medical Appellate Board, as that Medical Board did not bother to find out the exact reason behind the Systolic murmur, and had gone ahead and declared the applicant being unfit, without any application of mind. He had also found fault with the manner in which the report of the Appellate Medical Board had been written, and had 11 TA No.26/2013 submitted that the report of the Honorary Consultant in Cardiology in North Central Railway Hospital at Allahabad clearly shows that he was in functional Class I of New York Heart Association Classification, and that he had no limitation in regard to ordinary physical activities which do not cause him any undue fatigue, dyspnoea, palpitation or angina. It was reiterated that the respondents are going against the Rules, as notified by them under the Gazette Notification dated 08.01.2011, and that the Appellate Medical Board had used the discretionary power arbitrarily against him, without following their own honorary consultant's opinion.
18. It was submitted that the applicant does not have any Hemodynamic Burden, and that he is Hemodynamically stable, which means that he does not have any problem related to flow of blood in between his organs, which indicated that the condition of his heart is Asymptotic. It was, therefore, reiterated that the wrong committed against him on the part of the respondents had given him a valid cause of action, and that the TA was, therefore, maintainable under law.
19. Heard. During his arguments the learned counsel for the applicant emphasized upon the point that as per the Physical Examination conducted by the Lady Hardinge Medical College, New Delhi, the Medical Board for the post of Dy. Manager at NHAI, the applicant did have a Acynotic Congenital heart disease-VSD, and that he was only prescribed medicines, and was held to be fit for the job in NHAI. It was also pointed out that the expert Honorary Consultant in Cardiology at Allahabad 12 TA No.26/2013 Railway Hospital had also, in his report on 04.06.2012, held the applicant's condition to be stable, and through the point-wise reply dated 05.09.2012 also, it was opined by the same Doctor of M.L.N. Medical College, Allahabad, that though the applicant had a Congenital heart disease, but he was in functional Class I of New York's Heart Association Classification, and he had no sign of Hemodynamic Burden or Pulmonary Hypertension.
20. The learned counsel for the applicant had also produced and pointed out to the New York Heart Association's functional Classification of heart diseases, in which the New York Heart Association's Classification grading Class-I related to no limitation of ordinary physical activity, which does not cause undue fatigue, dyspnoea, palpitation or angina. The selection of the applicant as Dy. Manager (Technical) by the NHAI through Office Order dated 07.06.2013 had also been pointed out, and a copy of the Medical Examination Board Report of the Railway Hospital had been produced at pages 157 to 160 of the paper book of the OA, and it was pointed out that in that also, only the report of the opinion of the Honorary Consultant in Cardiology had been mentioned, but it was not explained as to how, even on the basis of that favourable report, the applicant had been found unfit on account of Acynotic Congenital Heart Disease-VSD, as indicated at page-160 of the paper- book. The learned counsel had also pointed out to the Medical Board Report at Gorakhpur produced at pages 162 to 165 of the paper-book, in which he had been declared to be unfit on 18.04.2012.
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21. In his reply arguments, learned counsel for the respondents pointed out to the Rules on Physical Examination for Engineering Services Examination, portions of which have already been reproduced by us from Annexure A-7 in Para-11 above.
22. We have gone through the written submissions of the applicant's learned counsel, submitted after the hearing of the case, and the written submissions on behalf of the respondents in this regard, most of which are also repetition of the arguments already advanced in the pleadings in the case, as well as during arguments, already discussed above.
23. We have given our anxious consideration to the facts of this case. This case relates to difference in medical opinion at different stages, regarding which this Tribunal is not fully competent to comment in judicial review, as the Medical Examination is not an administrative decision which may call for judicial review. The role of this Tribunal, therefore, gets limited to seeing as to whether strict adherence to the Rules of Medical Examination had been gone through on the part of the respondents or not, or that there had been any violation of the principles of natural justice.
24. Firstly, the respondents had allowed an Appellate Medical Examination, and had even consulted their consultant Cardiology Physician from the Medical College at Allahabad, and had also got a 2D Echo conducted at a private Clinic, before arriving at their conclusion regarding the medical fitness of the applicant. Clause-13 of the Gazette 14 TA No.26/2013 notified, as reproduced at para 11/above, states that when any defect is found, it must be noted in the Certificate, and the medical examiner should state his opinion as to whether or not the medical condition is likely to interfere with the efficient performance of the duties, which will be required of the candidate in case of his being appointed. While the applicant may be correct in making his statement that as on today his Congenital Heart Disease does not lead to any fatigue, dyspnoea, palpitation or angina at this young age, it cannot be anybody's case that the position would remain the same, and the applicant's Congenital Heart Disease defect would not in future interfere with the efficient performance of his duties, which would be required from him in the total length of his service, in case of his being recruited in the Engineering Services Examination.
25. Secondly, Para-15 of those instructions, regarding Medical Board's Report, also gives instructions to the Medical Examiner to note that the question is one of the likelihood of the candidate's continuous effective service, and that rejection of a candidate need not be advised on account of the presence of a defect which is found to interfere with continuous effective service only in a small proportion of cases. In spite of the very detailed arguments advanced by the learned Counsel for the applicant that when the applicant's present condition falls under Class-I of New York Heart Association's Grading it cannot be said that the condition is such that with the on-set of age, it would not get converted into Class-II, which is a slight limitation of physical activity, in which the ordinary physical activity then results in fatigue, dyspnoea, palpitation or angina, 15 TA No.26/2013 or that later it would not get converted into Class-III, which is a marked limitation of physical activity, less than ordinary physical activity.
26. Therefore, there is merit in the submission of the respondents that while recruiting a candidate through the various Civil Services Examinations, they have to keep an eye that in case of permanent appointment, they are able to secure continuous effective service from the candidate, and that they should avoid giving permanent appointment to people who may become entitled to early pension, or payment in case of pre-mature death, due to aberration in their physical condition or defect.
27. The applicant has also nowhere sought to deny the presence of the Congenital Heart Disease defect. His case is merely that when the defect was noticed in his heart, thereafter also he was found fit to be on a junior service with ONGC, and later on as Dy. Manager(Tech.) with the NHAI, he ought not to have been rejected for appointment through the Engineering Services Examination, 2011. However, the levels of stress, both mental and physical, are different in different jobs, and the applicant cannot be allowed to plead that just because he had been earlier found fit to be appointed to the post of Assistant Executive Engineer in ONGC, and was later found fit to be appointed to as Dy. Manager (Tech.) in the NHAI, he must necessarily be declared to be medically fit for more strenuous job requirements of the Engineering Services, for which the Engineering Services Examination, 2011, was conducted.
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28. In the result, we do not find any merit in the TA, as we do not find anything which falls for judicial determination, as the applicant has not been denied access to principles of natural justice, his medical condition has been got examined by the respondents thoroughly, and he has been given every opportunity to present his case by the respondent-authorities, before the appropriate Medical Boards had arrived at their findings.
29. Therefore, the TA is rejected, but there shall be no order as to costs. It is, however, made clear that the conclusion of the Railway Authorities regarding his medical condition in the context of Engineering Services Examination-2011, shall have no bearing upon his selection already made to the post of Dy. Manager (Technical) with the NHAI, where he has already joined, and is serving in a much less strenuous post.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.