Central Administrative Tribunal - Bangalore
Santhosha H vs D/O Personnel & Training on 17 April, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/01057/2019
DATED THIS THE 17TH DAY OF APRIL, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Santhosha. H,
Aged about 27 years,
R/o STA-'B', RCMA (F&F-FOL)
C/o HAL F&F Division, Old Airport Road,
Vimanapura,
Bengaluru-560 017. ..Applicant.
(By Advocate Shri Basawa Prasad Kunale represents Shri Vinay K.S)
Vs.
1.Union of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training,
North Block,
New Delhi-110001.
Represented by its Secretary.
2.The Union Public Service Commission,
Dholpur House, Shahajahan Road,
New Delhi-110069.
Represented by its Secretary.
3.The Ministry of Social Justice & Empowerment,
Government of India,
Shastri Bhavan,
New Delhi-110001.
Represented by its Secretary. ....Respondents
(By Shri N. Amaresh, Sr. Panel Counsel)
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O R D E R (ORAL)
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:
a) Quash and set aside Annexure A-17, the medical examination report of Central Standing Medical Board, Safdarjung Hospital, Delhi dated 28.2.2019 declaring that the applicant is having hearing impairment of 21.66%.
b) Quash and set aside the report No.F-22/DOPT/2019-Estt.(H) dated 29.4.2019 of the Appellate Medical Board, All India Institute of Medical Science, New Delhi, declaring that the applicant is having hearing disability percentage of less than 20%, (Annexure -25).
c) To direct the respondents No.1 & 2 to allot the service to the applicant based on his rank secured and preference.
d) Grant such other relief as deemed fit in the interest of justice including an order as to interest and costs of litigation.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant is a resident of Bangalore, Karnataka, having more than 40% permanent hearing impairment. A disability certificate dated 10.4.2014 was issued to the applicant by the All India Institute of Speech and Hearing, Mysore (Respondent No.3) along with Medical 3 OA.No.1057/2019/CAT/Bangalore Bench report vide Certificate No.SH/DISCRET/3976 holding that the applicant has a hearing deficiency of above 45%.
b) The applicant appeared in the examination conducted by Respondent No.2, on 30.6.2018 with Roll number 0309012 and qualified for the Civil Services Main Examination, 2018. The applicant submitted the detailed application form for Civil Services (Main) Examination, 2018 on 06.8.2018.
c) The Applicant cleared the Civil Services (Main) Examination, 2018 held from 28.09.2018 to 07.10.2018, and qualified for the personality test, which was conducted by the Respondent no.2 on 27.02.2019. He finally qualified with the All India Ranking of 753.
d) The Applicant received a letter bearing no. 13014/14/2018-AIS (I) dated 07.2.2019 issued by Respondent No.1, with the subject "Medical Examination of candidates called for personality test by the UPSC on the results of the written part of the Civil Services Examination, 2018". As per the said letter the Medical examination of the applicant was scheduled on 28.2.2019 in the Medical Board, Safdarjung hospital, New Delhi.
e) Respondent no. 1 had issued notice bearing no. F. No. 13014/14/2018- AIS-I dated 22.01.2018 with subject "Civil Series Examination (CSE)- 2018-Medical Examination of candidates- reg" (Annexure A5). As per the said notice, the medical examination of the candidate is mandatory and that the medical examination of the persons with Benchmark 4 OA.No.1057/2019/CAT/Bangalore Bench disability (PwBD) category candidates would be scheduled at Safdarjung Hospital, New Delhi and the tests to assess the percentage of disability of the PwBD category candidates would be conducted at AIIMS, New Delhi as per the Rights of Persons with Disabilities (RPwD) Act, 2016 and rules and guidelines. It was further informed that AIIMS, New Delhi would conduct all required medical tests and forward the test report including the percentage of disability to Central Standing Medical Board (CSMB) concerned. The Central Standing Medical Board after consulting the test reports of the AIIMS, New Delhi, would provide final findings with respect to disability of the persons with Benchmark Disability (PwBD) category candidates. It was further directed that in case where the appeal is filed by PwBD candidates with respect to the percentage of disability provided by the CSMB, the Appellate Medical Board would further refer the candidates to AIIMS, New Delhi, or any other hospital for tests related for assessment of the disability and would provide its opinion on the basis of the tests report provided by AIIMS, Delhi/any other hospital. In case the candidate is referred to AIIMS, New Delhi for medical examination against appeal, then AIIMS will set up a team of doctors consisting of specialists/doctors other than those involved in initial stage of assessment as far as possible.
f) The Applicant was directed to appear before the MS office, All India Institute of Medical Sciences, New Delhi for the medical tests and determination of percentage of his disability on 01.03.2019. The 5 OA.No.1057/2019/CAT/Bangalore Bench Applicant appeared before the Personality Test Board on 27.02.2019 at Union Public Service Commission, New Delhi.
g) The Applicant appeared before the Central Standing Medical Board, Safdarjung Hospital, New Delhi on 28.02.2019 for the medical tests.
h) The Applicant appeared before the Central Standing Medical Board, All India Institute Medical Science, New Delhi on 01.03.2019. It is submitted that the Applicant was declared unfit for all services/ unfit for specific services by the Central Standing Medical Board at the AIIMS, New Delhi, for the reasons that he has hearing impairment of 21.66%.
i) The applicant was medically examined by one Dr. Prem Sagar having registration number as DMC-77220 and it was declared that the Applicant has hearing impairment, with percentage of disability at 21.66%. This was in contrary to the disability certificate issued to the Applicant by the Respondent no. 3, the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment which stated that the Applicant is having hearing impairment, with percentage of disability at 40%. The copy of the medical examination report dated 01.03.2019 conducted by Dr. Prem Sagar and signed by himself, one Dr. Shuchita Singh Pachaury, and by one Dr. Mao Bhartiya at AIIMS, New Delhi, is placed herewith as Annexure A18.
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j) The applicant approached the Respondent no.3, Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, with his documents proving hearing disability of over 40%. After considering the documents submitted by the applicant to the department, the disability certificate vide No. KA2350419920002631 was issued to the Applicant along with a Disability ID on 11.03.2019. The copy of the disability certificate vide No. KA2350419920002631 was issued by Respondent no. 3 to the Applicant along with a Disability ID on 11.03.2019 (Annexure A19).
k) The Applicant approached the All India Institute of Speech & hearing, Mysore for an Audio-logical report. It is submitted that as per the Audio-logical evaluation report of the Applicant, the Respondent no. 3 declared Applicant having hearing impairment of 40%, which is in complete contrast to the results of medical tests conducted by the Medical Board as well as Appellate Medical Board of All India Institute of Medical Science, New Delhi. Based on the above-said audio-logical evaluation a disability certificate for hearing impairment along with medical report was issued by Respondent no. 3. The copies of the audio-logical evaluation Report conducted by All India Institute of Speech & hearing, Mysore dated 11.3.2019 and the disability certificate for hearing impairment along with medical report dated 11.3.2019 are placed as Annexure A-20 and A-21 respectively. 7
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l) The Applicant appealed against the findings of the Central Standing Medical Board declaring him as unfit for All India Services/unfit for specific services.
m) Respondent no. 1 issued an official letter bearing number 13014/03/2019-AIS-1 dated 22.04.2019, stating that the Appellate Board Medical Examination in respect of the Applicant was scheduled on 29.04.2019, at 8:30 AM. It was further directed that the medical reports of the All India Institute of Medical Science New Delhi, in respect of the candidates who have appealed should be sent to the Appellate Medical Board, Sucheta Kriplani Hospital, New Delhi and further the said Appellate Medical Board, Sucheta Kriplani Hospital, New Delhi would furnish the findings/reports.
n) The Appellate Medical Board was constituted by All India Institute of Medical Science, New Delhi, itself instead of Sucheta Kriplani Hospital, New Delhi, and further the said Appellate Board was constituted of team of doctors also including the same specialists/doctors involved in initial stage of medical assessment. It also included Dr. Prem Sagar, Dr. Shuchita Singh, and Dr. Mao Bhartiya as members of the said Appellate Board. Based on the medical examination conducted on the Applicant, it was declared that he is having hearing disability percentage of less than 20%. The copy of the report No.F-22/DoPT/ 20l9-Estt(H) dated 29/04/2019 of the Appellate Medical Board, All India Institute of Medical Science, New Delhi is at Annexure A-25.
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o) Dr. Mayank Dixit, member secretary of the Appellate Medical Board, All India Institute of Medical Science, New Delhi forwarded the report of the Appellate Medical Examination of Persons with benchmark disability candidates with hearing disability to respondent No.1, Director of All Indian Institute of Medical Science, Medical Superintendent of the All India Institute of Medical Science and Head Department of the ENT. However, the copy of the said medical report was never forwarded to the Appellate Medical Board, Sucheta Kriplani Hospital, New Delhi, which was authorized to accord the percentage of disability according to demi official letter bearing 13014/03/2019- AIS-1 dated 22.04.2019 issued by the Respondent no. 1 (Annexure A24). The copy of the report of Appellate Medical Examination of Persons with benchmark disability candidates with hearing disability bearing No. F-22/DOPT/2019-ESH (H) is at Annexure A-26.
p) On 22.05.2019, the Department of Obst. And Gynaecologist of the Lady Harding Medical College and Smt. Sucheta Kriplani Hospital, New Delhi forwarded the medical reports of the candidates received from All India Institute of Medical Science, New Delhi, to the Respondent No.1, through letter bearing no. D/O&G/2019/685/2019. However, it is important to note that there is no record of forwarding the medical reports to the Department of Obst. And Gynaecologist, Smt. Sucheta Kriplani Hospital, New Delhi and also that the said department is not a specialized disability medical board for the purpose of identification of hearing impairment.
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q) The National Institute of Mental Health and Neurosciences, Bangalore (Department of Speech Pathology and Audiology), vide its Audiology report (SPA No. 57908) dated 08.07.2019 held that the applicant has a hearing impairment of 40% in both ears.
r) The Applicant approached the Respondent no. 1, through representation dated 30.07.2019 with subject Review of Benchmark Disability accorded by Medical Board, bringing to the notice of the department about violation clause 17 of the notice bearing number F. No. 13014/14/2018-AIS-I dated 22.01.2018, issued by Respondent no. 1, as well as Regulation no. 7 (a) (xiii) and (xiv) of the Appendix III of the Regulations relating to the Physical Examinations of Candidates.
s) The Applicant approached the Chief Commissioner for persons with Disabilities, (Disability Commission) dated 31.07.2019 bringing to the notice of the department about discrimination on the basis of his disability by violating Regulation no. 7 (a) (xiii) and (xiv) of the Appendix III of the Regulations relating to the Physical Examinations of Candidates and violation of clause 17 of the notice bearing number F.No. 13014/14/2018-AIS-I dated 22.01.2018.
t) The Applicant filed an application under section 6 (1) of the Right to Information Act, 2005 to the concerned Public Information Officer, All India Institute of Medical Science, New Delhi seeking the documents relating to his medical tests including, pure tone audiometry test reports, and the brainstem evoked response audiometry reports, conducted by the Central Standing Medical Board for the medical 10 OA.No.1057/2019/CAT/Bangalore Bench Examination of candidates called for personality test by the UPSC on the results of the written part of the Civil Services Examination, 2018, as well as the medical examination reports, including pure tone audiometry test reports, and the brainstem evoked response audiometry reports conducted by the Appellate Medical Board.
u) In response to the application dated 27.06.2019 under section 6 (1) of the Right to Information Act, 2005, there was no copy of the pure tone audiometry test reports, and the brainstem evoked response audiometry reports conducted by the Central Standing Medical Board and the Appellate Medical Board provided to the Applicant. Due to lower percentage of disability, applicant has been excluded from Service allocation list despite securing the All India Rank-753 in Civil Service Examination-2018 which was published on 10.08.2019 by Respondent No.1.
v) The post the Applicant was entitled to, has not been allocated to any candidate and the said post has been returned to the Cadre Controlling Authority by Respondent no.1.
3. The respondents have filed their written statement wherein they have averred as follows:
a) The Applicant Shri Santhosha H. (Roll No. 309012, Rank 753), a Civil Services Examination (CSE) - 2018 candidate of Hearing Impaired (HI) subcategory of Persons with Benchmark Disabilities (PwBD) category, was recommended for service allocation by Union Public 11 OA.No.1057/2019/CAT/Bangalore Bench Service Commission (UPSC) on the basis of CSE-2018. As per Fundamental Rule 10, no person may be appointed in India to a post in Government service without a medical certificate of Health. Medical examination is a part of Civil Service Examination. Rule 21 of the CSE- 2018 Rules provides as follows:
"A candidate must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his duties as an officer of the service. A candidate, who after such medical examination as the Central Government or the Appointing Authority, as the case may be, may prescribe, is found not to satisfy these requirements, will not be appointed. Any candidate called for the Personality Test by the Commission may be required to undergo medical examination. No fee shall be payable to the Medical Board by the candidate for the medical examination including the case of appeal: Provided further that Government may constitute a special Medical Board with experts in the area for conducting the medical examination of physically disabled candidates."
b) Accordingly, his Medical Examination was conducted at Central Standing Medical Board (CSMB), Safdarjung Hospital and AIIMS, New Delhi on 28.02.2019 and 01.03.2019 respectively. Central Standing Medical Board (CSMB), Safdarjung Hospital and AIIMS, New Delhi declared him as:-
Unfit for all Services. HI- 21.66%".12
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c) Regulation 3.1.4. and 3.1.5 of Appendix-III of CSE Rules, 2018 provides as:
"3.1.4. In case of dissatisfaction/disagreement with the report of the medical examination/medical test and its recommendations, the candidate may prefer an appeal to DoPT in the prescribed format (Annexure-II) either by post or online to reach DOPT within 7 working days from the date of publication of medical report on the website. Candidate filing an appeal against the decision of the CSMB may, if he/she likes enclose medical certificate in support of his/her claim of being fit. The Medical Examination by the Appellate Medical Board would be arranged at Delhi only and no traveling allowance or daily allowance will be admissible for the journeys performed in connection with the medical examination. No fee will be charged for filing an appeal against the findings of the CSMB. 3.1.5. Candidate filing an appeal will be assigned an Appellate Medical Board by the DoPT and he /she will have to present him/her before this Board on the date and time indicated in the notice for the same, which will be uploaded in the website on the dedicated page for the candidate concerned. No separate notice by post would be sent. Failure to appear before the Appellate Medical Board on the appointed day would amount to forfeiture of the opportunity of appeal for the candidate and as a consequence, the recommendation of CSMB would be final. The recommendation of this Appellate 13 OA.No.1057/2019/CAT/Bangalore Bench Medical Board would be final and no appeal would lie against the opinion of this Appellate Medical Board."
d) Medical examination report of the applicant was uploaded on this Department's website on the dedicated webpage of the applicant on 18.03.2019 and he was provided a chance to prefer an appeal against the findings of the Central Standing Medical Board as per Civil Services Examination Rules-2018.
e) The applicant preferred an appeal against the medical findings provided by Central Standing Medical Board within the prescribed time limit as per CSE Rules-2018. It is further submitted that Regulations 7(xiii) of Appendix-III of CSE Rules-2018 provides as follows:
"xiii. Such Candidates going into Appeal may be referred to the Appellate Medical/ Specialized Disability Medical Board of a designated Hospital other than the one in which previous Medical Examination was conducted."
f) It was decided by the competent authority that the Appellate Medical Examination for assessing physical disability of the various sub- categories of PwBD candidates appearing in the Civil Services Examination would be constituted at AIIMS, New Delhi only by a different set of doctors/specialist other than those involved in initial stage of assessment as far as possible and this decision was duly conveyed to all the candidates of CSE-2018 vide this respondent's 14 OA.No.1057/2019/CAT/Bangalore Bench notice dated 22.01.2019 i.e. well before the commencement of the Interview and Medical Examination, published on the website of this Department. Para 17 of this Notice dated 22.01.2019 states as:
"17. In case of Person with Benchmark Disability (PwBD) category candidates, after filing of appeal by any PwBD category candidate within the stipulated period as per CSE Rules, the appellate medical examination of the candidate would be scheduled in any hospital other than Safdarjung Hospital. In the cases where appeal is filed by PwBD category candidates in respect of the percentage of disability provided by the CSMB, the Appellate Medical Board (AMB) would further refer the candidates to AIIMS, New Delhi/any other hospital for test(s) related to assessment of the disability and would provide its opinion on the basis of the test(s) report provided by AIIMS, Delhi/any other hospital. In case the candidate is referred to AIIMS, New Delhi for medical examination against appeal, then AIIMS will set up a team of doctors consisting of specialists/doctors other than those involved in initial stage of assessment as far as possible. The findings of this team of AIIMS/any other hospital regarding disability assessment will be communicated to the Appellate Medical Board (AMB) concerned. The AMB's findings would be treated as final. No application for re-appeal would be considered."
g) Appellate Medical Examination of the applicant was scheduled at AIIMS, New Delhi on 29.04.2019. The recommendation of the AIIMS, 15 OA.No.1057/2019/CAT/Bangalore Bench New Delhi was further sent to AMB, Sucheta Kriplani Hospital vide this respondent's letter dated 20.05.2019 for final opinion in the matter in lines with this Department's notice dated 22.01.2019. Sucheta Kriplani Hospital, New Delhi forwarded the report of AIIMS, New Delhi to this Department vide letter dated 22.05.2019. The recommendation of the Appellate Medical Board is as follows:
"Candidate Mr. Santhosha H. Roll Number 309012: The appellate medical board after detailed examination and analyzing the test reports concluded with the opinion that the candidate Mr. Santhosha H, Roll Number 309012 has the hearing disability percentage of less than 20%.
The findings of the appellate medical board including the disability percentage are in concurrence to the earlier findings of the disability medical examination of the candidate Mr. Santhosha H, Roll Number 309012 conducted at AIIMS New Delhi on 01 Mar 2019".
h) A copy of medical examination report of Appellate Medical Board, AIIMS and Sucheta Kriplani Hospital, New Delhi in respect of the applicant is at Annexure-R4.
i) The benchmark disability required for seeking benefit of reservation as per the provisions under RPwD Act 2016 is 40%. Since the candidate was not found to be passing the criteria of Persons with Benchmark Disability (PwBD) as per the findings of the Central Standing Medical 16 OA.No.1057/2019/CAT/Bangalore Bench Board and Appellate Medical Board, his candidature for Civil Services Examination-2018 was duly cancelled with the approval of the competent authority as per Civil Services Examination Rules, 2018.
j) This Respondent, thereafter, received a complaint dated 30.07.2019 of the applicant vide Court of Chief Commissioner for Persons with Disabilities, Department of Empowerment of Persons with Disabilities' letter dated 06.08.2019 for submitting comments in the matter. This Respondent vide letter dated 03.09.2019 submitted comments in the matter to the Court of Chief Commissioner for Persons with Disabilities a copy of which had also been marked to the applicant.
k) This Department allocates services to the Persons with Benchmark Disabilities (PwBD) candidates keeping in view their rank in the all India merit list, preferences indicated by them for the various participating services, medical status, and availability of number of vacancies in their category at their turn. However, since the applicant was not found to be a Person with Benchmark Disabilities (PwBD) category candidate (i.e. disability equal to or more than 40%) by the Central Standing Medical Board and the Appellate Medical Board, hence, he could not be allocated any service on the basis of Civil Services Examination - 2018 and his candidature for CSE-2018 was duly cancelled with the approval of the competent authority based on the medical findings.
l) If the Original Application is allowed, it will have wider ramifications, as similarly placed candidates whose disability is less than 40% will 17 OA.No.1057/2019/CAT/Bangalore Bench start challenging the decision of the Appellate Medical Board. However, as per CSE Rules-2018, the recommendation of the Appellate Medical Board is final and no appeal lies against the opinion of this Appellate Medical Board. In the present case also, service allocation to the candidates of CSE-2018 has already been done. The vacancies reserved for the Persons with Disability (PWD) candidates for CSE-2018 were allocated to the other deserving genuine PwBD category candidates whose disability was found to be 40% or more. If this Original Application is allowed beyond the provision under the Rules, a flood of such cases may come up in future based on the same issue and this will unsettle the already settled position with reference to the benchmark percentage of disability (40%) required under the RPwD Act, 2016 and the Reservation Policy of Government for PwBD candidates, as well as the finality of decision of the Appellate Medical Board on the percentage of disability which will severely affect the timely completion of the recruitment process.
m) Owing to the reason of number of complaints regarding non-genuine candidates who used to claim reservation under PWD category by submitting fabricated Disability Certificates, this Department had taken a conscious decision, duly with the approval of the Competent Authority, for conducting both CSMB and AMB level physical disability tests in AIIMS, New Delhi only for assessing the percentage of disability of the candidates who claim reservation under PWD category. AIIMS, New Delhi is the apex medical institute in the country with availability of latest technology and equipments, as well 18 OA.No.1057/2019/CAT/Bangalore Bench as expert manpower for conducting all the disability related medical tests objectively. This decision was taken and made applicable from CSE-2017.
n) In the last two years i.e. CSE-2017 and CSE-2018, it has been experienced that non-genuine claimants of PWBD reservation are getting weeded out, as they are unable to positively pass the parameters of disability related medical tests and thus the benefit of reservation is reaching to the genuine and deserving PwBD candidates only. Thus, it is fulfilling the basic objective of RPwD Act, 2016. This has been experienced and perceived conspicuously in case of candidates who are claiming reservation under Hearing Impairment subcategory of physical disability. The empirical evidence of CSE-2017 and CSE- 2018 proves it beyond doubt. In both these year 5 and 9 (Total 14) number of candidates were found to be not belonging to the PwBD category as their percentage of disability was less than 40%. Out of which 5 and 7 (Total - 12) were belonging to Hearing Impaired category. It is also submitted that approximately 79% of them did not challenge the medical findings and accepted it. Naturally, as a result, they could not be allocated to any service.
o) The Appellate Medical Board which was constituted at AIIMS, New Delhi on 29.04.2019 for assessing the physical disability of the applicant, had a larger number of senior doctors as compared to the Central Standing Medical Board including the doctors from the initial board also. This is in accordance with the notice dated 22.01.2019 19 OA.No.1057/2019/CAT/Bangalore Bench published on the website of this Department well before the commencement of Interview and Medical Examination explaining the procedure of the medical examination for CSE-2018.
p) The composition of the Medical Board at CSMB level and Appellate level at AIIMS, New Delhi was as follows:-
Composition of Medical Board at CSMB level as on 01.03.2019:-
1. Dr. Suchita Singh Pachaury, Asstt. Professor
2. Dr. Prem Sagar, Asstt. Professor
3. Mr. Mao Bhartiya, Technical Officer.
Composition of Medical Board at Appellate level as on 29.04.2019:
1. Dr. Rakesh Kumar, Professor
2. Dr. Kapil Sikka, Associate Professor
3. Dr. Prem Sagar, Asstt. Professor
4. Dr. Suchita Singh Pachaury, Asstt. Professor
5. Dr. Arvind Kumar Kairo, Asstt. Professor
6. Dr. Hitesh Verma, Asstt. Professor
7. Mr. Mao Bhartiya, Technical Officer
8. Ms Shivani Agarwal, Technical Officer.
9. Mr. Mayank Dixit (Nodal Officer) 20 OA.No.1057/2019/CAT/Bangalore Bench
q) The Appellate Medical Examination of the applicant was scheduled at AIIMS, New Delhi on 29.04.2019. The medical report/findings as received from AIIMS, New Delhi was further sent to AMB, Sucheta Kriplani Hospital vide this Department's letter dated 20.05.2019 for final opinion in the matter, which is in accordance with this Department's notices dated 22.01.2018 and medical examination scheduling notice dated 22.04.2019. Sucheta Kriplani Hospital vide letter dated 22.05.2019 forwarded the report of AIIMS, New Delhi to this Department.
r) All the documents related to medical examination of the applicant, as received in this Department, at both levels of medical examination i.e. Central Standing Medical Board & Appellate Medical Board were provided to the applicant online (either through software or e-mail) and a physical copy of the same had also been provided to the applicant in reply to the applicant's RTI dated 26.06.2019 vide this Departments letter dated 11.07.2019.
4. In the rejoinder to the reply, the applicant has pleaded as follows:
a) The Applicant has approached the All India Institute or Speech & Hearing, Mysore which is well reputed autonomous institute under the Ministry of Health and Family Welfare, where he was declared having hearing impairment of more than 45% and in furtherance of the same, disability certificate was issued to him. The same was submitted to the Respondent at the time of appearing for the examination. Not only he has obtained PwBD Certificate with hearing impairment of more than 21 OA.No.1057/2019/CAT/Bangalore Bench 45%, but also the certificate has been obtained under The Rights of Persons with Disabilities Act, 2016.
b) The certificate issued under the Rights of Persons with Disabilities Act, 2016, ought to be accepted as final with respect to the percentage of disability, notwithstanding Rule 4 of the Appendix-III of Rules for examination published in the Gazette of India dated 07.02.2018, as these are mere guidelines, while the Rights of Persons with Disabilities Act, 2016, is special statutory law on the subject.
c) In the present case, the Appellate Medical Board was constituted at Sucheta Kriplani Hospital and even though the Applicant was referred to AIIMS for tests related to assessment of the disability, the Appellate body was constituted of the same doctors as that of the CSMB along with other doctors, as admitted in the objections filed by the Respondents itself, where it is stated in response to Para 4.26-4.29 of the objections that one Dr. Suchita Singh Pachaury, Asst. Professor, Dr. Prem Sagar, Asst. Professor and Mr. Mao Bhartiya were part of the CSMB as well as the Appellate Body. The composition of the same members in the CSMB as well as the Appellate Medical Board is in contravention of the rules made there under and in violation of the Principles of Natural Justice.
d) The Applicant has submitted the PwBD certificate along with the Audiology Report declaring him to have hearing impartment of more than 40 % in the Original Application as Annexure A-20. However, there is no audiology report submitted by the CSMB as well as by the 22 OA.No.1057/2019/CAT/Bangalore Bench Appellate Medical Board in order to examine as to what factors led to determination of Applicants hearing impartment as 21.6%. It is further submitted that the averments made in objections in response to para (G) is false to state that the medical examination report of the Applicant was uploaded in the Department website as there is no Audiological report forthcoming.
e) It is further submitted that the Appellate medical reports of the Applicant were forwarded by the Deptt. Of Obst. & Gynae, Lady Harding Medical College & Smt. S.K Hospital, New Delhi, which is not at all concerned with the hearing impartment in any manner, and there was no proof provided by the respondent regarding examination of AIIMS reports including Audiology report by Suchetha Kriplani Hospital, Prima Facie it appears as if Suchetha Kriplani Hospital just forwarded the AIIMS reports without examining any medical reports of the Applicant. There was no evidence regarding forwarding of Audiology report to Suchetha Kriplani Hospital, which is fundamental to assess Hearing Impairment. This shows the apathy of the Respondents in conducting the medical examinations of the candidates, which is in violation of the Medical Examination instructions issued by the Respondent in Annexure A-24 of the original Application.
5. The respondents in their reply to the rejoinder have averred as follows:
a) The first iteration of service allocation to the candidates of CSE-2018 was done on 10.08.2019 and uploaded on this Department's website.
Thus, the Service Allocation was done prior to the Hon'ble Court's 23 OA.No.1057/2019/CAT/Bangalore Bench Interim order dated 27.09.2019 directing that one post be kept vacant for the time being. Service Allocation to the candidates of CSE-2018 had already been done and the vacancies reserved for the Persons with Benchmark Disability (PWBD) candidates for CSE-2018 were allocated to the other eligible genuine PwBD category candidates whose disability was found to be above the prescribed benchmark i.e. 40% or more as per the RPwD Act, 2016 and Rules thereunder.
b) UPSC is a constitutional body, which conducts and completes the selection procedure of the candidates through Civil Services Examination as per the prescribed Rules. So far as the allocation of service is concerned, this Department discharges the function of allocation of service to the candidates of CSE as per the mandate of Article 320 of the Constitution of India, All India Services Act, 1951, Allocation of Business Rules 1961 and the Civil Services Examination Rules notified every year. This Department checks the veracity of the documents as per the prescribed eligibility criteria and carries out all other necessary formalities before allocating services to the eligible candidates. This Department conducts medical examination which is an integral part of the CSE process and mandatory in nature for each and every candidate, as per CSE Rules during the examination process for establishing the percentage of the physical disability of the candidates who claim reservation under PwBD category.
c) Rule 21 of CSE Rules, 2018 provides mandate to check veracity/genuinity of the percentage of physical disability claimed by 24 OA.No.1057/2019/CAT/Bangalore Bench the PwBD category candidates by submitting the certificate issued by the authority of the State Government concerned while filling up Detailed Application Form (DAF) of the Main (Written) part of CSE. In the context of the Services Examination, the Central Government has laid down the parameters in the CSE Rules and, therefore, unless the certification by the concerned Central Standing Medical Board of the designated hospital is forthcoming, the Service Allocation cannot be done merely on the basis of the certificates submitted by the applicant at the time of applying for the examination. Assessment of percentage of disability is done by the designated hospital on the basis of objective medical examination. Thus, Service Allocation can be done only after effective assessment of percentage of disability of the candidates who claim reservation benefit under PwBD category.
d) The medical examination of the applicant was conducted at AIIMS, New Delhi by the Central Standing Medical Board consisting of three doctors/experts in the field and the Appellate Medical Examination was conducted by Appellate Medical Board consisted of nine doctors/experts in the field .
e) It is submitted that all the documents related to medical examination of the applicant which were received in this Department at both levels of medical examination i.e. CSMB & AMB including all the paper related to disability aspect of the candidate was duly provided to the applicant. The Appellate Medical Examination report of the applicant related to his disability aspect was further sent to Sucheta Kriplani Hospital vide 25 OA.No.1057/2019/CAT/Bangalore Bench this respondent's letter dated 20.05.2019 for final opinion in the matter in line with this Department's notice dated 22.01.2019. Sucheta Kriplani Hospital, New Delhi forwarded the report of AIIMS, New Delhi to this Department vide letter dated 22.05.2019.
f) AIIMS, New Delhi is the apex medical institute of this country with latest technology, advanced equipments and specialist doctors in concerned fields of specialization and, therefore, its medical findings based on objective assessment in respect of not only the applicant herein but all candidates who have claimed PwBD reservation is required to be respected.
6. Learned counsel for the applicant subsequently filed a Memo dated 27.3.2023, vide which he has produced the following documents:
a) Letter No. Q/PA-II/581/35/2022 dated 12.01.2022 issued to the applicant by Ministry of External Affairs, regarding his appointment to the Indian Foreign Service on the basis of the Civil Services Examination, 2020.
b) He has also enclosed a copy of the report of the Central Standing Medical Board, Safdarjung Hospital, New Delhi, wherein Central Standing Medical Board vide its report dated 23.11.2021, signed by the Chairman, apparently has declared the applicant fit under PH category with hearing impairment of 58.24%.
7. Heard learned counsels for the parties and perused the pleadings made by them.
26
OA.No.1057/2019/CAT/Bangalore Bench
8. In the present case, the applicant is challenging the finding of the Central Standing Medical Board, which had declared that the applicant was having hearing impairment of the order of 21% only and consequently declared him as unfit to be considered under Physically Handicapped (PH) category, since his disability percentage was less than 40%, which is required under the rules to make him eligible for consideration under PH category.
9. The finding of the Central Standing Medical Board were challenged by the applicant. His medical examination was again conducted again by the Appellate Medical Board. The Appellate Medical Board reported that his hearing disability percentage was less than 20% and accordingly he was considered ineligible under PH category and his candidature was rejected.
10. The applicant has stated that he had already undergone a medical examination by All India Speech and Hearing Institute in Karnataka and they had declared his handicap to be around 55%. He has also alleged that the Appellate Medical Board which conducted re-medical examination based upon his appeal against the findings of the Central Standing Medical Board comprised amongst others the three doctors who had conducted his initial medical examination in relation to his hearing handicap as a part of the Central Standing Medical Board. This according to him, was in violation of principles of natural justice as well as the fact that rules relating to physical examination of the candidates clearly specified that the Appellate Medical Board shall comprise of members who are higher in rank and position than the doctors in the Central Standing Medical Board. It had also been decided by the Government authority that Appellate Medical 27 OA.No.1057/2019/CAT/Bangalore Bench examination for assessment of physical disability of the various physical disability candidates appearing in the Civil Services Examination, would be constituted at AIIMs, New Delhi only by a different set of doctors, other than those involved in the initial stage of assessment, as far as possible.
11. It is noticed that in the case of the applicant, initially, his percentage of physical disability relating to hearing, was assessed by three specialist doctors, as a part of the Central Standing Medical Board as follows:
Dr. Suchita Singh Pachaury, Asstt. Professor, Deptt. Of ENT. Dr. Prem Sagar, Asstt. Professor, Deptt. Of ENT Mr. Mao Bhartiya, Technical Officer, Deptt. Of ENT.
12. The Appellate Medical Board constituted to re-examine the applicant after his appeal against the findings of the CSMB comprised of the following members:
1. Dr. Rakesh Kumar - Chairman Professor, Deptt. of ENT.
2. Dr. Kapil Sikka, - Member Associate Professor, Deptt. of ENT.
3. Dr. Prem Sagar, - Member Asstt. Professor, Deptt. of ENT.
4. Dr. Suchita Singh Pachaury, - Member Asstt. Professor, Deptt. of ENT
5. Dr. Arvind Kumar Kairo, - Member Asstt. Professor, Deptt. of ENT
6. Dr. Hitesh Verma, - Member 28 OA.No.1057/2019/CAT/Bangalore Bench Asstt. Professor, Deptt. of ENT
7. Mr. Mao Bhartiya, Technical Officer - Member Technical Officer, Deptt. of ENT
8. Ms Shivani Agarwal, - Member Technical Officer, Deptt. of ENT
9. Mr. Mayank Dixit (being the Nodal Officer) - Member Secy.
Department of Hospital Administration
13. It can be seen from the above that the Appellate Medical Board consisted of many more specialists, besides including the three doctors who had conducted the initial medical examination of the applicant. The Appellate Medical Board was chaired by a Professor, Deptt. Of ENT and it also included one medical specialist of the level of Associate Professor who is definitely senior in rank to the three doctors, who were part of the Central Standing Medical Board.
14. The findings of the Appellate Medical Board was signed by all the 9 members. It reported that the disability percentage of the applicant was less than 20%. This finding was subsequently forwarded to Sucheta Kriplani hospital, which in turn forwarded the same to Respondent No.1.
15. The contention of the applicant that the process is vitiated on the ground that the Appellate Medical Board consisted of three doctors who were earlier members of the Central Standing Medical Board cannot be countenanced, since the Appellate Medical Board consisted of nine persons/ specialists, out of which at least two (including the Chairman) were definitely senior to the doctors/specialists in the Central Standing Medical Board. The Appellate Medical Board was therefore an entirely different entity as compared to the 29 OA.No.1057/2019/CAT/Bangalore Bench Central Standing Medical Board. It cannot be presumed that the presence of the three doctors who had originally examined the applicant as a part of the Central Standing Medical Board would be able to influence the finding of the entire Appellate Board consisting of 9 doctors/specialists.
16. As per Rule 21 of the Civil Services Examination, Respondent No.1 is mandated to check the veracity/genuinity of the percentage of physical disability claimed by the PwBD category candidates. The percentage of physical disability claimed by the candidates by submitting the certificates issued by other authorities concerned while filing up detailed application form for the main part of CSE, cannot be taken as the sole criteria to ascertain the percentage level of disability of the candidate.
17. Respondent No.1, is well within its rights to get a separate detailed medical examination conducted of all candidates claiming to be Physically Handicapped to ascertain the veracity of their claim. It is for this purpose that he has chosen to rely on a separate detailed assessment of the level of physical handicap as assessed by the Central Standing Medical Board as well as the Appellate Medical Board. It has been mentioned by the respondents that there are cases where the candidates have managed to get certificates of physical handicap exceeding 40% from various authorities which have been found to be untrue after a detailed specific medical examination by the standing Board specifically set up for this purpose under the rules. It is also in the interest of the physically handicapped candidates themselves for the respondents to ensure that the benefit of reservation is 30 OA.No.1057/2019/CAT/Bangalore Bench given to genuinely physically handicapped candidates with Benchmark disability only.
18. There is no doubt that the All India Medical Science, New Delhi (AIIMS) is the apex medical institute of this Country which is engaged in teaching and has advanced medical facilities. It has the latest technology, advanced equipments and specialist doctors in concerned fields of specialisation and therefore, is in a position to give its objective assessment and findings in respect of candidates claiming physical disability of various percentages.
19. The respondents cannot therefore be faulted for relying on AIIMS for ascertaining the medical status of the candidates/ aspirants of the Civil Services Examination claiming benefit under the physically handicapped category.
20. Keeping the above points in view, the contention of the applicant that the report of the Appellate Medical Board is tainted on account of the fact that it also had doctors who were in the Central Standing Medical Board, cannot be countenanced.
21. The applicant has submitted a subsequent medical report of Central Standing Medical Board dated 23.11.2021, which has apparently reported the level of his physical hearing handicap as 58.2%. Based upon this report, the applicant has been appointed in the Indian Foreign Service based on the results of the Civil Services Examination of 2020.
22. This information cannot come to his aid, since the earlier report of the Appellate Board of AIIMS is dated 29.4.2019. The level of physical 31 OA.No.1057/2019/CAT/Bangalore Bench disability may have undergone a change over the flux of time. The later medical report dated 23.11.2021 cannot be relied upon to alter the findings of the Appellate Medical Board dated 29.4.2019.
23. Keeping the above points in view, there is no merit in the OA and it deserves to be dismissed.
24. Accordingly, the OA is dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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