Central Administrative Tribunal - Jabalpur
Sanjay Kumar Dubey vs M/O Railways on 17 August, 2018
1 OA No.200/00422/2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00422/2015
Jabalpur, this Friday, the 17th day of August, 2018
HON'BLE MR. NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
Sanjay Kumar Dubey, S/o Shri Girija Prasad Dubey, Date of Birth
- 5.5.1991, R/o W.No.11, Near Water Tank, Sihora, District -
Jabalpur (M.P.) 482001 -Applicant
(By Advocate - Shri S.K. Nandy)
Versus
1. Union of India through its General Manager, of West Central
Railway, Indira Market, Jabalpur (M.P.) 482001.
2. APO (Recruitment), Railway Recruitment Cell, West
Central Railway, RB-III/422 1&2, Nehru Railway Colony,
Howbagh, Jabalpur - 482001 (M.P.).
3. Chief Medical Director, West Central Railway Hospital, O/o
General Manager, WCR, Indira Market, Jabalpur - 482001 (M.P.)
- Respondents
(By Advocate - Shri Sapan Usrethe)
(Date of reserving order : 14.08.2018)
ORDER
By Navin Tandon, AM.
The applicant is aggrieved by not been granted appointment by the respondent department due to incorrect medical examination report. Hence, this Original Application has been filed. Page 1 of 14 2 OA No.200/00422/2015
2. The applicant has made following submissions:
2.1 The respondent department issued Employment Notice No. 02/2012 (Annexure A/4) on 22.08.2012 for filling up 856 vacancies (432 UR, 129 SC, 64 ST, 231 OBC) in erstwhile Group-D posts (PB-I, Grade Pay Rs.1800/-) with medical standard A-2 and below.
2.2 The applicant applied for the said recruitment process, wherein he cleared the written test and physical efficiency test. Thereafter, he was called for verification of candidature, certificates and medical examination on 30.04.2014 vide Annexure A-7 (sic Annexure A-5) at Jabalpur. 2.3 After document verification, the applicant was directed to go to Kota Division for further medical examination. The applicant has been medically examined by the Medical Authorities of Kota Division, which was held from 01.05.2014 to 06.05.2014 for A-2 category for appointment to the post of Points Man.
2.4 After medical examination, the respondents issued letter dated 12.07.2014 (Annexure A-1), informing the applicant about his being unfit for required medical category.
He was given one month's time to prefer appeal as per Page 2 of 14 3 OA No.200/00422/2015 provisions of Indian Railway Medical Manual, by producing a certificate from a medical practitioner. The medical certificate No.394110 attached to this communication stated, "UNFIT AYE TWO Due to Substd Vision BE".
2.5 Accordingly, the applicant got himself medically examined by one reputed Ophthalmologist, namely, Dr. Pawan Sthapak and the said medical examination was done by him after disclosing him the fact that the applicant has been earlier declared unfit by the Railway Medical Authorities. Thereafter, the applicant was examined by Dr. Pawan Sthapak, Director, Janjyoti Super Special Eye Hospital and certificate regarding his fitness has been granted by the said medical practitioner stating that the applicant is having 6/6 colour vision and is fit for any Group D Railway service.
2.6 Thereafter, the applicant preferred an appeal on 08.08.2014 (Annexure A-8) in the light of certificate issued by the reputed Ophthalmologist Dr. Pawan Sthapak. However, the same was not considered for a long time. Consequently, the applicant filed an O.A before this Tribunal, which was disposed of at admission stage with a direction to the respondents to decide the appeal of the Page 3 of 14 4 OA No.200/00422/2015 applicant for medical examination. In pursuance of the same, applicant was called for medical re-examination vide letter dated 20.11.2014 (Annexure A-10) on 28.11.2014. However, the respondents upon medical re-examination, have again declared the applicant unsuitable in all categories for appointment in Group 'D' post.
2.7 A list of 862 candidates with the distribution of post and unit as per provisional panel Part-I in the said employment notice no.02/2012 has been attached as Annexure A-9. Several candidates have been found fit for categories A-3, C-2, B-2 and other allied categories. The applicant could have been considered for other Group D posts having lower medical standards.
3. The applicant has, therefore, sought for the following reliefs:
"8.(i) Summon the entire relevant record from the respondents, for its kind perusal;
8.(ii) Quash and set aside the order dated 12.7.2014 (Annexure- A/1) and the medical certificate issued by the Railway Authorities declaring the applicant unfit. The order dated 05.12.2014 (Annexure A/3) may also be quashed.
8.(iii) Command the respondents to consider the case of the applicant for appointment on Group-D post in A-2 category (Points Man).
In alternatively
8.(iv) The respondents may be directed to consider the applicant for appointment in Group-D post in other medial categories B-1, B-2.
Page 4 of 14 5 OA No.200/00422/2015
8.(v) Any other order/orders, which this Honorable Court deems, fit proper;
8.(vi) Cost of the petition may also kindly be awarded."
4. The respondents have submitted their reply and have stated as under:
4.1 The applicant being candidate for Group D appeared for medical examination at Divisional Hospital Kota with memo dated 30.04.14 issued from RRC/JBP that he was to be examined for medical category Aye Two. Applicant was declared unfit in Aye Two medical category at Divisional Railway Hospital, Kota due to substandard vision on 05.05.2014. He was having distant vision of 6/24 in both eyes, whereas required standards in Aye Two category are 6/9 vision in both eyes without glasses.
4.2 The applicant was given an opportunity to appeal against the decision of initial medical examination report.
Application submitted an appeal alongwith certificate from private doctor about his vision. However, he underwent Lasik Surgery for improvement of visual acuity and the same has not been mentioned in the report of private doctor. Moreover, private doctors are not conversant with rules/standards required for appointment in Railway service. Page 5 of 14 6 OA No.200/00422/2015 4.3 Para 17 of reply reads as under:
"17 Regarding para 4.8- Averment made in this para is denied. The answering respondents submit that appeal of the applicant was received on 27.08.2014. As directed by Hon'ble Tribunal a reexamination of application was ordered by a Medical Board. The Medical Board was conducted at Central Hospital, Jabalpur on 28.11.2014. On examination, it was found that Cornea of both eyes had Lasik scar. Coreal topography was conducted by Railway Medical Board through Dr. Pawan Sthapak (the same doctor whose certificate was submitted by applicant with appeal) only and in the report of which, it is clearly mentioned that applicant underwent Lasik surgery for improving his vision. As per IRMM para 512(9), correction slip issued on 12.11.2013 (Annexure R-2) from Railway Board, candidates having undergone surgeries to correct refractive errors are unfit in Medical category A and B. Accordingly, applicant was declared unfit for Medical category Aye Two by Medical Board on 28.11.14. The recommendation of Medical Board was accepted by CMD on 04.12.14 and information about the same was sent to RRC/JBP. The decision has been taken in accordance with extant rules and standards required for Page 6 of 14 7 OA No.200/00422/2015 fitness for medical service in the category for which applicant was sent for examination."
4.4 The O.A has been filed on the basis of incorrect and baseless grounds and the same deserves to be dismissed with cost.
5. After hearing the arguments for sometime, it was felt necessary to ask for certain information from the respondents, which has been filed through supplementary affidavit. A total of 67 posts were notified for medical category of C-1 and C-2 out of which only 34 posts were available for unreserved category. No vacancy of medical category C-1 and C-2 are available. 5.1 On being asked further questions, the respondents have filed additional reply wherein it has been informed that the applicant has obtained 80.66% (normalised) marks and got 21st rank. The merit list of selected candidates against the posts of medical category C-1 and C-2 was attached as Annexure R-5. Perusal of the list indicates that the first six candidates are of UR category and are having rank of 3, 26, 31, 35, 45 and 51 respectively.
6. The applicant has obtained information from the respondents through RTI wherein he has been informed vide letter dated Page 7 of 14 8 OA No.200/00422/2015 04.06.2018 that against the employment notice no. 02/2012, a total of 1451 candidates were called for verification of candidature, certificate and medical examination. On the basis of merit, the candidates for 47 post of Points Man and Station Porter were medically examined for "A-2 and under" and for balance posts for "B-1 and under".
6.1 The applicant has submitted that due to some lapses, his candidature has only been considered against A-2 category for which he was declared unsuitable and was compelled to undergone Lasik surgery, which has made him unsuitable again for B-1, B-2. He was again considered against A-2 category. He was not considered against inferior posts and inferior medical category, i.e. B-1, B-2, C-1 and C-2 category.
7. Assistance was also taken from Dr. P.K. Mittal, Additional Chief Health Director, Central Hospital, Jabalpur. He elaborated the procedures relating to medical examination for recruitment and clarified the questions raised by us, as under:
7.1 The medical categories as per Indian Railway Medical Manual (IRMM) are A, B, C, which are further divided into A-1, A-2, A-3, B-1, B-2 and C-1, C-2 respectively. Mainly, these categories are vision related.
Page 8 of 14 9 OA No.200/00422/2015 7.2 The memo for medical examination is issued by Personnel Department, specifying therein the medical categories against which the candidate is to be medically examined. 7.3 Only in cases of recruitment of Assistant Loco Pilots and Guard, medial examination is referred to explicitly as "A-1" and "A-2" respectively. In all other cases, the memo normally mentions "A-2 & under" or "B-1 & under" etc., as the case may be. 7.4 When a candidate is examined for medical category "A-2", as in the case of applicant, he is examined only for that category and declared fit or unfit as the case may be. However, when a candidate is examined for "A-2 & under", the medical memo specifies the highest medical category to which the candidate is found fit, viz; A-2, A-3, B-1, B-2 or C-1, C-2. 7.5 Dr. Pawan Sthapak is a private Ophthalmologist, who is not in panel of Railway's Doctors. The facility of Coreal Topography is not available in Central Hospital, Jabalpur, and therefore, the applicant was sent to Dr. Sthapak for the same to find out whether any lasik scar is present or not. The Medical Board report does not have his signature.
8. We are thankful to Dr. P.K. Mittal for assisting the Court. Page 9 of 14 10 OA No.200/00422/2015
9. Heard the arguments of both the counsel and perused the documents available on record.
10. Learned counsels mainly argued on the similar lines as per their submissions already made in the matter.
11. The contents of letter dated 12.07.2014 (Annexure - A/1), are as under:
"mijksDr lanHkZ esa vkidks jsy HkrhZ izdks'B iejs@tcyiqj }kjk vf/klwpuk la[;k 02@2012 ds varxZr iwoZorhZ lewg '?k' esa HkrhZ ds fy, nLrkost lR;kiu ,oa fpfdRlk ijh{k.k gsrq cqyk;k x;k FkkA vkidks fpfdRlk ijh{k.k gsrq jsyos fpfdRlky; Hkstk x;k FkkA fpfdRlk ijh{k.k mijkar jsyos ds l{ke fpfdRld }kjk vkidks izek.ki= la[;k&394110 ds vuqlkj fu/kkZfjr fpfdRlk Js.kh esa v;ksX; (Unfit) ?kksf'kr fd;k x;k gS (izfr layXu)] tks fd jsyos }kjk vf/klwfpr fjfDr;ksa ij fu;qfDr ds fy, vko';d fpfdRlk Js.kh gSA vr% vkidks Hkkjrh; jsy ij iwoZorhZ lewg '?k' ds in dh HkrhZ gsrq p;fur ugha fd;k x;k gSA Hkkjrh; jsy fpfdRlk esU;qvy esa fn;s x;s izko/kku vuqlkj ;fn vki bl fpfdRlk fjiksVZ ls larq'V ugha gSa rks vki bl i= ds izkIr gksus ds ,d ekg ds Hkhrj vihy lHkh vko";d fpfdRlk izek.ki=ksa ds lkFk bl dk;kZy; esa tek djsaA lkFk gh esfMdy izSfDVluj }kjk tkjh fd;k x;k fpfdRlk izek.ki= vo'; tek djsa] ftlesa fpfdRld }kjk Li'V :Ik ls ;g ?kksf'kr fd;k x;k gS fd "esjh tkudkjh esa gS fd mEehnokj (uke) dks jsyos fpfdRld }kjk iwoZorhZ lewg '?k' esa fu;qfDr gsrq igys v;ksX; ?kksf'kr fd;k x;k Fkk] ijUrq esjh fpfdRlk fjiksVZ ds vuqlkj mEehnokj (uke) jsy lsok esa fu;qfDr gsrq ;ksX; fpfdRlk ekud j[krk gSA Page 10 of 14 11 OA No.200/00422/2015 d`i;k uksV djsa%& mijksDrkuqlkj izek.k i= ds vHkko esa ,oa fu/kkZfjr le; lhek ds ckn vkidh vihy ij fopkj ugha fd;k tk;sxkA ;g vkidh tkudkjh gsrq izsf'kr gS A layXu%& esfMdy eseks la[;k&394110"
12. Medical memo 394110 mentions that the applicant is a candidate for recruitment in Group 'D'. He was examined and declared "UNFIT AYE TWO Due to Substd vision BE". We are told that the last words mean "Substandard Vision Both Eyes".
13. It is undisputed from perusal of records at Annexure A-9 and Annexure R-5 that all the candidates were examined for medical categories "A-2 & under" or "B-1 & under" and only the applicant was sent for medical examination "A-2". This is obviously a lapse on the part of respondents. However, the respondents, in their reply, have not admitted to it. The parawise reply does not mention anything about medical examination to lower medical categories. They have only harped that the applicant has failed in medical category "A-2" to which he was examined.
14. The respondents have also tried to mislead this Tribunal in para 17 of reply that, "Coreal topography was conducted by Railway Medical Board through Dr. Pawan Sthapak (the same Page 11 of 14 12 OA No.200/00422/2015 doctor whose certificate was submitted by applicant with appeal) only and in the report of which, it is clearly mentioned that applicant underwent Lasik surgery for improving his vision". It has been clarified by Dr. P.K. Mittal that Dr. Pawan Sthapak was not a member of Railway Medical Board and his signatures are not on report. Copy of Medical Board filed in Court confirms this fact. We observe that the report of Corneal Topography is issued on the letterhead of "Jan Jyoti Super Speciality Eye Hospital" written prominently. Name of the Doctor is at the bottom of next page. It is not clear why the respondents chose to highlight the name of Dr. Sthapak in the reply, except to mislead.
15. It has been admitted by the respondents that the applicant obtained 21st rank. Perusal of Annexure R-5 clearly indicates that he would have at Sl. No. 2 of candidates offered jobs having medical category C-1/C-2.
16. Thus, it is very clear that the applicant would have been offered the job in cadres having C-1/C-2 medical category requirement, but for the error in writing memo for medical examination, where instead of writing "A-2 & under", only "A-2"
was written.
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17. The respondents had ample opportunities to correct the mistake, but stubbornly stuck to the stand to defend the wrong action taken earlier on. This forced the applicant to approach this Tribunal more than once.
18. We also observe that the letter dated 12.07.2014 (Annexure A-1) does not give the full picture to the applicant or to the private medical practitioner attending to the applicant. Consequently, in the hope of getting a job, an unemployed youth was forced to undergo Lasik surgery, which was not required. Had the details of concerned paras of IRMM been brought to the notice of the applicant/private medical practitioner, the picture would have been different.
19. Accordingly, we direct the Chairman, Railway Board to issue necessary directions that in case a candidate is declared medically unfit and he is being asked to come again after consulting a private medical practitioner, specific clauses of IRMM should be mentioned in the communication. This will ensure that the candidates do not waste money for getting some treatment done, which will still not entitle him for a job. Page 13 of 14 14 OA No.200/00422/2015
20. The Registry is directed to send a copy of this order to Chairman, Railway Board for taking necessary action as specified in para 19 above.
21. In view of the above, the Original Application is allowed. The plea of the respondents that there are no vacancies available of medical category C-1 & C-2 is not acceptable, and is set aside. The respondents are directed to offer an appropriate job to the applicant suitable to his medical standards and his rank in the tests, within 60 days from the date of receipt of a certified copy of this order. The respondents are also directed to pay a cost of Rupees Ten Thousand Only (Rs.10,000/-) to the applicant within 60 days for unnecessary harassing an unemployed youth.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
am/-
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