Madras High Court
The Chairman vs The Registrar on 12 August, 2016
Bench: A.Selvam, P.Kalaiyarasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.08.2016
CORAM:
THE HONOURABLE MR.JUSTICE A.SELVAM
and
THE HONOURABLE MR.JUSTICE P.KALAIYARASAN
W.P.No.25375 of 2016
and W.M.P.No.21677 of 2016
1. The Chairman
Railway Recruitment Board,
No.5. Dr.P.V.Cherian Crescent Road,
Egmore - 600 008.
2. Union of India
Rep. by its General Manager,
Southern Railway,
Chennai.
3. The Chief Personnel Officer
Southern Railway,
Chennai.
4. The Senior Divisional Personnel Officer
DRMs Office,
Southern Railway,
Chennai Division,
Chennai. .... Petitioners
Vs.
1. The Registrar
Central Administrative Tribunal
Madras Bench, Chennai.
2. L.Dinesh Kumar .... Respondents
Writ Petition filed under Article 226 of the Constitution of India, seeking an order to issue a writ of certiorari, calling for the records on the file of the first respondent in O.A.No.1109 of 2013, dated 13.06.2014 and including the order, dated 08.01.2016 in R.A.No.310/00046/2014 and quash the same.
For Petitioners : Mr.V.Radhakrishnan, Senior Counsel
for Mrs.Bhavani Subbaroyan
For Respondents : R1 - Tribunal
Mr.Giridhar for R2
ORDER
(Order of the Court was made by P.KALAIYARASAN, J) This writ petition has been filed under Article 226 of the Constitution of India, seeking to issue a writ of certiorari, calling for the records on the file of the Central Administrative Tribunal (Madras Bench) in O.A.No.1109 of 2013, dated 13.06.2014 and the order, dated 08.01.2016 in R.A.No.310/00046/2014 and quash the same.
2. The second respondent herein applied for the post of Trainee Assistant Loco Pilor in response to the Employment Notice published on 13.08.2011 by the Railway Recruitment Board. By letter, dated 08.05.2013, the second respondent was informed that although he was selected for the post of Trainee Assistant Loco Pilot in the pay band Rs.5200-20200 + GP 1900, he was medically unfit in AYE ONE classification. He was also informed that he would appeal against the medical report, as per provisions of Para 522 of Indian Railway Medical Manual. When he approached, he was asked to report for re-medical examination on 09.07.2013. However, he was informed that he was not found fit in AYE ONE classification because he had undergone lasik surgery and as such could not be granted appointment. So called lasik surgery is only a laser correction and the decision of the authority is a arbitrary one. Even for recruitment of Airline Pilots, there is no bar for candidates who underwent lasik surgery as long as vision parameters were met. Therefore, the refusal of the authority to grant appointment is arbitrary and unreasonable.
3. The appellants / respondents in their reply statement contended that the post of Loco Pilot is a safety post where the prescribed medical standard for holding the post is AYE ONE. Assistant Loco Pilot is one of the cadre in the running staff, who is directly involved with the movement of running trains. Visual acuity standard is one of the most important criteria of medical fitness for Railway staff. The second respondent / applicant, who accepted the stipulations contained in the Employment Notice underwent the initial medical examination and he was found underwent surgery in the eye with lasik mark in both the eyes and therefore, he was declared unfit for AYE ONE category. The lasik surgery or any refractive corrective surgery is done to modify or correct the defects in the curvature of the cornea, so as to modify the diameter of the eye ball. Those, who undergo lasik surgery are also prone for retinal diseases such as progressive Myopic retinal degeneration.
4. The Central Administrative Tribunal disposed of the application with a direction to the petitioners herein to present the problem to a team of Medical experts on the subject for examination and opinion taking into account all the available literature / information including that submitted by the applicant / his learned counsel and take further action in the case depending on their opinion / advice and also leaving the request of the second respondent / applicant to the authority for alternative appointment.
5. The learned counsel appearing for the petitioners contend that as per the notification for recruitment by the Railway Recruitment Board, the second respondent / applicant applied for the post of Assistant Loco Pilot and he was found medically unfit due to lasik surgery. It is further contended that the Railway Board corrected Para 512(9) of Indian Railway Medical Manual relating to lasik surgery even on 11.11.2013 and the same was not brought to the notice of the Tribunal and when it was taken by way of Review, it was dismissed by the Tribunal saying that Revision is maintainable only for correcting apparent error and cannot be allowed to be an appeal in disguise. As per the said correction, all surgeries done to correct refractive error are unfit in A and B categories of new recruit and existing employees.
6. The learned counsel appearing for the second respondent inter alia contends that even if the second respondent / applicant is not medically fit for the post of Assistant Loco Pilot, alternative appointment may be provided to him.
7. In UOI v. Devendra Kumar Pant, reported in (2009) 14 SCC 546, the Hon'ble Supreme Court considered the issue of promotion in the context of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. In the said ruling it has been held as follows :
"33. When invoking or applying the provisions of the Act, it is necessary to keep in view that the intention of the Act is to give a helping hand to persons with disability so that they can lead a self-reliant life with dignity and freedom. But the intention of the Act is not to jeopardize the safety and security of the public, co-employees, or the employee himself or the safety and security of the equipments or assets of the employer nor to accept reduced standards of safety and efficiency merely because the employee suffers from a disability. In this case, office order No.4/1990 makes it clear that the minimum medical standards have been fixed taking into account the requirements in the medical manual with reference to interest of public safety, interest of the employee himself and fellow employees and in the interest of the administration.
34. If any employee or group of employees are of the view that a particular minimum medical standard prescribed does not serve the interest of public safety, interest of the employee and fellow employees or the interest of administration, but has been introduced only with the intention of keeping a person with disability from securing the promotional post, it is always open to him or them to give a representation to the employer to review/revise the minimum medical standards. On such representation the employer will refer the issue to a committee of experts to take appropriate decision, if that was not already done. But once a decision regarding medical standards has been taken by the management bonafide and in the usual course of business on the report/recommendation of an expert committee, the same cannot be found fault with on the ground that it affects the right of a person with disability for promotion."
8. Therefore, safety and security of the public, co-employees, or the employee himself cannot be compromised while giving a helping hand under the Disabilities Act.
9. Even as per the Notification for Recruitment, medical fitness test has been stipulated as one of the condition for the post. The Railway Board by constituting a Committee of Three Doctors and based on the detailed examination of the issue and the recommendations of the Committee, Para 512 (9) has been corrected, so that all surgeries done to correct refractive error are made unfit for A and B categories of both new recruits as well as existing employees. There is no dispute that the post of Assistant Loco Pilot falls under the above category. The lasik surgery underwent by the second respondent / applicant is only to correct refractive error and therefore, as per the above circular, the second respondent / applicant is medically unfit for the said post.
10. The request of the second respondent / applicant for alternative post cannot be considered, as he applied for a particular post, that too under new recruitment. He is also not in service. The protection for alternative post given under the Act is only for the persons, who are already in service. Therefore, the Central Administrative Tribunal (Madras Bench) is not correct in directing the appellants to consider the issue afresh by referring to a Committee and also to consider for alternative appointment.
For the aforesaid reasons, the writ petition is allowed and the order of the Central Administrative Tribunal (Madras Bench), dated 13.06.2014 made in O.A.No.1109 of 2013, including the order, dated 08.01.2016 made in R.A.No.310/00046/2014 are quashed. No costs. Consequently, connected W.M.P.No.21677 of 2016 is closed.
(A.S., J.) (P.K., J.)
12.08.2016
Index : Yes / No
tsvn
To
The Registrar
Central Administrative Tribunal
Madras Bench, Chennai.
A.SELVAM, J.
AND
P.KALAIYARASAN, J.
tsvn
Pre-Delivery Order in
W.P.No.25375 of 2016
12-08-2016