Rajasthan High Court - Jaipur
Arvind Kumar Agarwal vs Union Of India And Ors on 16 July, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR O R D E R D.B. CIVIL WRIT PETITION NO.9150/2009 ARVIND KUMAR AGRARWAL Vs. THE UNION OF INDIA & ORS. DATE:16.07.2012 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I HON'BLE MISS JUSTICE BELA M. TRIVEDI Mr. Shiv Charan Gupta with Mr. O.P. Agarwal, for the petitioner. Mr. S.S. Hasan, for the respondents.
**** At the request of learned counsel for the parties, arguments were heard and the writ petition is being disposed off finally.
2. Respondent i.e. Ministry of Railways(Railway Board), New Delhi, issued a Gazette Notification dated 10.01.2004 for a Combined Competitive Engineering Services Examination, to be held by the Union Public Service Commission(for short 'the UPSC') to fill up the vacancies in various services/posts. Category IV was relating to Electronics and Telecommunication Engineering. Petitioner was one of the candidates who appeared in the said examination and remained successful, his name was recommended for appointment, however, he was declared unfit in the service on medical ground i.e. on account of Pathological Myopia, more than 4D, vide letter dated 23.06.2005. Petitioner preferred an appeal before the Appellate Medical Board, but without success. Thereafter, he preferred Original Application No.441/2005 before the Central Administrative Tribunal, Jaipur Bench, Jaipur (for short 'the Tribunal'), the same was also dismissed vide order dated 17.07.2007. Order of the Tribunal along with order of Medical Board and Appellate Medical Board have been challenged by the petitioner before this Court in the instant writ petition contending that members of Medical Boards constituted by respondents were having no specialization of disease pathological myophia more than 4D.
3. The writ petition was listed and following order was passed on 24.02.2010 in presence of both the parties, directing the respondents to constitute another Medical Board consisting of three Doctors of Pathological Department having specialization in the desease Pathological Myopia more than 4D, of S.M.S. Hospital, Jaipur:-
Short controversy raised by the learned counsel for the petitioner challenging the impugned order dated 17.07.2007 passed by the Central Administrative Tribunal, Jaipur is that the Medical Board who has examined the petitioner is having no specialization to examine the disease pathological myopia more than 4 D. Thus, in the interest of justice, we direct the respondents to constitute another Medical Board consisting of three Doctors of pathological department having specialization in the disease pathological myopia more than 4 D, of S.M.S. Hospital, Jaipur and examine the petitioner afresh. After examining the petitioner, the report of Medical Board be submitted before this Court for perusal.
4. The Medical Board of SMS Medical College, Jaipur examined the petitioner and in its report opined that patient's retinal condition is not suggestive of Pathological myopia at present. Thereafter, without examining the candidate in person, the Medical Board of Northern Railway, Central Hospital, New Delhi, examined the matter again in the light of report of SMS Medical College, Jaipur and it was opined that Mr. Arvind Kumar Agarwal is not having evidence of Pathological Myopia but he is having Progressive Pathology of Ratina in the form of Lattice Degeneration in both eyes. Hence, he is unfit as candidate in Indian Engineering Services.
5. Submission of learned counsel for petitioner is that before filing appeal before the Appellate Medical Board, after declaring him unfit on the basis of first medical report dated 26.05.2005, he got himself examined at Dr. Rajendra Prasad Centre for Opthalmic Sciences, A.I.I.M.S., New Delhi on 16.07.2005 and it was opined, No Pathological Myopia at present. He also got himself examined on 29.06.2005 by Dr. Ashwini C. Karanjgaokar, Sankara Nethralaya, wherein also it was opined that there was no Pathological Myopia. Petitioner also got himself examined from other specialised doctors. These reports were annexed with appeal, but Appellate Medical Board vide its report dated 21.07.2005 again declared petitioner as 'unfit' on account of pathological myophia. He submitted that Appellate Medical Board did not mention more than 4D after pathological myophia. Petitioner again got himself examined on 22.12.2006 at ICARE Eye Hospital & Post Graduate Institute, Glaucoma Research Centre, Noida, Uttar Pradesh, wherein it was opined that there was no evidence of Pathological Myopia. He, therefore, submitted that medical reports of Medical Board as well as Appellate Medical Board of the respondents were not correct and petitioner was wrongly declared as 'unfit' by Medical Boards. He also submitted that as per direction of this Court, petitioner was examined by the Medical Board consisting of three specialised doctors of the subject of SMS Medical College, Jaipur and a definite opinion was given that patient's retinal condition is not suggestive of Pathological Myopia at present. He submitted that thereafter petitioner was not examined and only on the basis of said report, final report was prepared by the Medical Board of respondents and petitioner was declared unfit, vide order dated 10.08.2010, which is absolutely illegal and contrary to law. He, therefore, submitted that adverse report given against the petitioner may be set aside and the petitioner may be declared medically fit for appointment in the Indian Engineering Services, in which he has been selected. In the alternative, learned counsel for petitioner submitted that in case there is any further doubt in respect of medical fitness of petitioner, then a suitable direction may be given to an independent body like All India Institute of Medical Sciences(for short 'AIIMS'), New Delhi, to re-examine the petitioner, as per requirement of rule, particularly in respect of Pathological Myopia more than 4D.
6. Learned counsel for respondents opposed the writ petition, however, he fairly and frankly submitted that there are contradictions in various medical reports of petitioner. He, therefore, submitted that either respondents medical board may be directed to examine the petitioner again or an independent body may be directed to examine the petitioner.
7. We have considered the submissions of the learned counsel for the parties and examined the order of Central Administrative Tribunal, Jaipur Bench, Jaipur as well as various medical reports of various Medical Boards of petitioner in respect of 'Pathological Myopia more than 4D'.
8. For ready reference, it will be appropriate to quote the relevant rule with regard to medical examination of a candidate, who is declared successful in a combined competitive examination, conducted by UPSC. Appendix II of Notification dated 10.01.2004 reads as under:-
APPENDIX II REGULATIONS RELATING TO THE PHYSICAL EXAMINATION OF CANDIDATES _ _ _ _ _ 1 to 6_ _ _ _
7. The candidate's eye-sight will be tested in accordance with the following rules. The result of each test will be recorded:-
(i)_ _ _ _ _
(ii) _ _ _ _ x x x x x x x NOTE (1)
(a) In respect of Technical Services mentioned at A above, the total amount of myopia(including the cylinder) shall not exceed -4.00 D. Total amount of Hypermetropia (including the cylinder) shall not exceed +4.00 D. Provided that in case a candidate in respect of the Services classified as Technical(other than the Services under the Ministry of Railways) is found unfit on grounds of high myopia the matter shall be referred to a special boards of three Ophthalmologists to declare whether this myopia is Pathological or not. In case it is not pathological the candidate shall be declared fit provided he fulfils the visual requirements otherwise.
(b)_ _ _ _ _
9. Vide letter dated 23.06.2005(Annexure-6), petitioner was informed by the respondents that Medical Board which examined him on 18.05.2005 in connection with his candidature for the Combined Competitive Engineering Services Examination, 2004, have declared him unfit for the said service on account of Pathological Myopia more than 4D. It was also noted down that in case petitioner desires to appeal against the findings of the Medical Board, he may file appeal in writing, which should reach within 15 days of the date of issue of this letter. Letter dated 23.06.2005 is reproduced as under:-
REGISTERED POST GOVERNMENT OF INDIA(BHARAT SARKAR) MINISTRY OF RAILWAYS(RAIL MANTRALAYA) (RAILWAY BOARD) No.2005/E(GR)I/7/1 New Delhi, dt. 23-06-2005 S-11 ROLL NO.- 66103 ARVIND KUMAR AGRAWAL, A-233, MAHESH NAGAR, 80 FEET ROAD JAIPUR RAJASTHAN-302015.
Sub:- Engineering Services Examination-2004:-Medical Examination of the candidates.
Dear Sir/Madam, I am directed to state that the Medical Board which examined you on 18.05.2005 in connection with your candidature for the above examination have declared you unfit for the following services.
UNFIT FOR ALL SERVICES FIT FOR NONE on account of Pathological Myopia, more than 4D.
2. In case, you desire to appeal against the findings of the Medical Board, please note the following:
(a) All communications should be addressed to the undersigned by name indicating your address for correspondence, roll number, rank and category and reference number and date of this letter.
(b) Appeal in writing should reach within 15 days of the date of issue of this letter failing which it will be presumed that you are not interested in filing an appeal.
(c) APPEAL AFTER THE STIPULATED PERIOD WILL NOT BE ENTERTAINED.
(d) The medical examination by the Appellate Medical Board will be at your own cost. No TA/DA shall be given.
(e) Enclose a bank draft of Rs. 100/- drawn in favour of Pay and Accounts Officer, Railway Board, New Delhi. Please write your name, Roll No., Discipline, and rank on reverse of the draft.
(f) Enclose a medical certificate by a registered Doctor on his printed letter head containing the doctor's(eye specialist in case of eye related finding) name, qualifications, registration number in the following format, disputing the findings of Medical Board.
I have examined Mr./Ms. ______________, age ___ a candidate of Engineering Services Examination 2004 who signs as under and declared medically unfit by Medical Board on account of ____________________________________________ My findings upon examination are as under:
________________________________________________________________________________________ Candidate's signature Doctor's signature with attested by the doctor stamp and date
(g) Filing of appeal does not enjoin upon the candidate right for medical examination by Appellate Medical Board.
3. In case you have sent communication as per (c) or (d) above and you do not receive any communication within 15 days you should get in touch with this office(Tele.No. 011-3303277, 011-3303321) immediately.
Yours Faithfully Sd/-
(Mamta Kandwal) Dy. Director Estt.(GR), Railway Board.
10. Conclusion of Medical Report of Medical Board dated 18.05.2005 reads as under:-
_ _ _ _ _ _ _ _ _ _ _ _
13. Is there anything in the health of the candidate likely to render him unfit for the efficient discharge of his duties in the service for which he is a candidate?
...Yes, pathological myopia...
_ _ _ _ _ _ _ As per guidelines contained in the Gazette of India Page 48 Note (1)(a)(b) Special Medical board of three ophthalmologists examined The Candidate and found myopia to be pathological. Certificate by Special medical board is annexed.
11. Contents of Special Medical Board's report/certificate dated 23.05.2005 also read as under:-
WESTERN RAILWAY Jagjivan Ram Hospital Maratha Mandir Marg, Mumbai Central _____________________________________________ 23rd May, 2005.
The Candidate Shri Arvind Kumar Agrawal, Roll No. 66103 S, Rank 11, was examined on 23rd May, 2005 by a Special Medical Board of Three Ophthalmologists. He has myophia more than > 4D. The myophia is pathological.
Sd/- Sd/- Sd/-
(Dr. A.Malviya) (Dr. T.C. Sharma) (Dr. R.P. Jehangir) Sr. DMO(Ophthalmology) Sr. DMO(Ophthalmology) Hon. Consultant Central Railway Jagjivan Ram Hospital Ophthalmology)
12. Petitioner thereafter preferred an appeal before the Appellate Medical Board on the basis of four reports. First report dated 16.07.2005 given by a doctor of Dr. Rajendra Prasad Centre for Opthalmic Sciences, A.I.I.M.S., New Delhi is reproduced as under:-
S.NO. 14138/RPC/OS OPD-685945 DATE- 18/7/05 I have examined Mr. Arvind Kumar Agrawal age 23 yrs a candidate of Engineering Services Examination 2004 who signs as under and declared medically unfit by Medical Board on account of pathological myopia more than 4D. My findings upon examination are as under:
Ref Error-3.5/-1.75 DC @ 180 R/E & -3.5 DS/-1.25 DC @ 180 L/E Lattice Deg. B/E superiority No------- B/E No Pathological myopia at present.
Sd/- Sd/- Candidate's signature Doctor's signature with attested by the doctor stamp and date
13. Another report, which was made the basis for filing appeal, dated 05.07.2005 given by Dr. Raj Kumar Sharma, Vitreo Ratinal Fellow, Wisconsin(U.S.A.), Ophthalmologist, Jaipur, is also reproduced as under:-
Dr. RAJ KUMAR SHARMA M.S. F.R.F., F.C.L.I. Vitreo Retinal Fellow Wisconsin(U.S.A.) CONSULTANT OPHTHALMOLOGIST 7-DHA-11, JAWAHAR NAGAR, JAIPUR. Tel. 0141-2654747, 2654748 E-Mail:[email protected] CERTIFICATE I have examined MR. Arvind Kumar Agrawal age 23 yrs. Male on 5.7.05, a candidate of Eng. Services Exam. 2004 who signs as under and declared medically unfit by Medical Board on account of Pathological myopia, more than 4 D. My findings upon exam are as under-
Vision 6/6 BE with -3.75 DSpa and -1.75 D.Cyl X180. His finding exam shows healthy macula with Lattice deg. In the superior region. This does not appear to be pathological.
-----
Sd/-
DR. R.K. SHARMA MS, F.R.F., FCLI, VITREO RETINAL FELLOW(U.S.A.) CONSULTANT OPHTHALMOLOGIST.
14. Third report, annexed with the appeal, was given by Aditya Jyot Eye Hospital Pvt. Ltd., Mumbai to the effect that at present there is no pathological myopia. The said report is also reproduced as under:-
Aditya Jyot ____________ Eye Hospital ____________ Pvt. Ltd.
30th May 2005 Ref: E4324/300505 TO WHOM SO EVER IT MAY CONCERN Mr. Arvind Kumar Agrawal, (E4324) 23 years male, S/o. Shri O.P. Agrawal was examined in our hospital on 30.05.2005. He has been diagnosed to have Myopia in both eyes. He has also got lattice degeneration in both eyes. At present there is no pathological myopia. He has been advised no treatment for lattice degeneration, except periodic follow ups. Symptoms of retinal detachment such as sudden flashes of light and new floaters have been explained, if any occurs, he has to report on emergency. He can involve himself in any and all activities. Dr. S.Natarajan Chairman & Medical Director M/-
15. Thereafter, petitioner was again re-examined by the Appellate Medical Board, who gave its report dated 21.07.2005, wherein it was found that petitioner is having Progressive/Pathological Myopia. Lattice degeneration in superior peripheral part of retina. However, no reference with regard to 4D was given. Report of Appellate Medical Board dated 21.07.2005 reads as under:-
Northern Railway Central Hospital, New Delhi Name of the candidate: Arvind Kr. Agrawal Roll No. 066103 Signature of the candidate Sd/- Date: 21/07/05 The above named candidate has been examined by a Special Medical Board consisting of Three Ophthalmologists in this Hospital to rule but whether the candidate is having Progressive/Pathological Myopia and found that he is having ---- Progressive/Pathological Myopia. B/L Lattice Degeneration in superior peripheral part of retina. The candidate is unfit for all Engineering Services.
Sd/- Sd/- Sd/- Member Chairman Member (Dr. Neelam Kumari) (Dr. P.S. NEGI) (Dr. AMITA JAIN)
Dep. Medical Officer, Senior Divl. Medical Officer(Eye), Sr. Divl. Med. Officer[Eye] N. Rly. Central Hospital N. Rly. Central Hospital N. Rly. Central Hospital New Delhi New Delhi New Delhi
16. Petitioner thereafter again got himself examined on 22.12.2006 by ICARE Eye Hospital & Post Graduate Institute, Glaucoma Research Centre, Noida and it was opined that there was no evidence of Pathological Myopia. The said report reads as under:-
ICARE SUMMARY OF OUT PATIENT EVALUATION _____________________________________________ MRD# : 50613 Date : 22.12.2006 Name:Mr. Arvind Agarwal Doctor's Name: Dr. Surbhit Choudhary _____________________________________________ Right Eye(OD) Left Eye(OS) Complaints of: Regular follow up.
History of: Myopia using glasses. No History
of floaters and flashes and no
family history of retinal
detachment.
Best-corrected-visual Acuity: 6/6;N6 6/6;N6
IOP(AT) : 17 mmHg 18mmHg
Anterior segment: within normal limits in both eyes
Posterior segment: Lattice degeneration(superior
quadrant) with overlying
condensed vitreous in both
eyes.
Impression/
Provisional Diagnosis: Myopia with astigmatism
in both eyes and lattice
degeneration. There was
no evidence of pathological
myopia.
_____________________________________________
RECOMMENDATION
Advice : To watch
: Symptoms of retinal detachment explained.
Dr. Surbhit Choudhary
Specialist in disease of Retina & Uvea
_____________________________________________
ICARE Eye Hospital & Post Graduate Institute
Glaucoma Research Centre
E-3A, Sector-26, NOIDA-201 301, Uttar Pradesh(India)
17. Petitioner was thereafter examined on 05.05.2010 by the Medical Board consisting of three specialised doctors of SMS Medical College, Jaipur, as per direction of this Court, report of which is also reproduced as under:-
UPGRADED DEPARTMENT OF OPHTHALMOLOGY SMS MEDICAL COLEGE JAIPUUR To Incharge Medical Board SMS Hospital Jaipur Sub: Eye examination of Shri Arvind Kumar Ref: Your letter number 454/MB/MF/10 dated 24.1.2010 Respected Sir, In reference to the above mentioned letter and the request from the Medical Director/MW Railway letter number 99-Med/MB/Arvind dated 20-4-2010, we the members of the board examined Shri Arvind Kumar Agrawal S/o Shri O P Agrawal R/o A-233, Mahesh Nagar, Jaipur(Rajasthan) on 3-5-2010. On examination his uncorrected vision for distance in both eyes is 3 mt. The best corrected vision acuity in RE is 6/6(with -4.5D Sph/-2.5 D Cyl X 5 degree) and in L/E is 6/6(with -4.5 D Sph/-2.5 Cyl X 170 degree). The detailed fundus examination under dilatation reveals lattice degeneration in both eyes in superior temporal region but does not show changes suggestive of pathological myopia. The board has confirmed the identity of candidate with his photograph and the following identification marks.
1. Black mole at the lateral angle of the right eye.
2. Linear scar marks at the medical aspect of the right eyebrow.
IMPRESSION: Patient's retinal condition is not suggestive of Pathological Myopia at present.
R/E vision 6/6 with -4.5 D Sph/-2.5 D Cyl X 5 degree
L/E vision 6/6 with -4.5 D Sph/-2.5 D Cyl X 170 degree
Sd/- Sd/- Sd/-
Dr. P.K.Mathur Dr. Kishore Kumar Dr. Manish Sharma
(Prof.& Head) (Associate Prof.) (Assistant Prof.)
18. Petitioner thereafter was not examined, but the report of SMS Medical College, Jaipur was considered/examined by the Medical Board of respondents and petitioner was again found unfit vide report dated 10.08.2010, last operative portion of which, reads as under:-
Keeping the above facts in mind and on the basis of facts & findings stated by three Ophthalmologists at SMS Hospital, Eye Deptt., Jaipur the members of the medical board are of the opinion that Mr. Arvind Kumar Agarwal is not having evidence of Pathological Myopia but he is having Progressive Pathology of Retina in the form of Lattice Degeneration in Both Eyes. Hence, he is UNFIT as candidate in Indian Engineering Services.
19. It is relevant to mention that petitioner sought information from the Ministry of Health and Family Welfare, Directorate General of Health Services, New Delhi under the RTI Act, 2005, whether lattice degeneration in eyes in superior temporal region is a sign of Pathological Myopia and it was replied that it may also be present in association with pathological Myopia but it is not that pathological Myopia is due to the presence of Lattice Degeneration. Communication dated 27.09.2010 is also reproduced as under:-
Speed Post No.L11013/55/2010-NCD/BC(D) Ministry of Health and Family Welfare Directorate General of Health Services Ophth/BC Section Nirman Bhawan, New Delhi Dated 27.9.2010 To Sh. Anil Kumar Agrawal A-233, Mahesh Nagar Jaipur-302015 Rajasthan.
Subject:- Information under RTI Act.
Sir, I am to refer to your letter dated 18.8.2010 on the above subject and to furnish below the requisite information under RTI Act, 2005:
S.No. Question Reply 1 In your opinion whether lattice degeneration in eyes in superior temporal region is a sign of Pathological Myopia. No, it is not a specific sign of pathological myopia. It is found incidentally mostly in a routine check up and Retinal Detachment due to it is relatively a rare complication. It may also be present in association with pathological Myopia but it is not that pathological Myopia is due to the presence of Lattice Degeneration. The Appellate Authority in the above case is Dr. N.K. Agarwal, Deputy Director General of Health Services, Directorate General of Health Services, Nirman Bhawan, New Delhi-110011. Yours faithfully Sd/-
(Dr. V.RAJSHEKHAR) DADG(O) and CPIO Ph.No.011-23062366
20. In view of above various reports and as submitted by the learned counsel for petitioner also, there appears to be material/serious contradictions in respect of medical report of petitioner. As per Appendix II, appended with the Notification dated 10.01.2004, it was necessary that total amount of myopia should not exceed -4.00 D. In some reports, detail of which was given and in some of the reports, it was not given. In the medical report prepared by the Medical Appellate Authority of respondents, said fact was not mentioned.
21. It is also relevant to mention that before preparing the final report dated 10.08.2010 by the Medical Board of respondents, petitioner was not examined and it was prepared/given only on the basis of earlier report and report of Medical Board of SMS Medical College, Jaipur.
22. Aforesaid factual aspect has not been disputed by the learned counsel for the respondents also.
23. Petitioner has been selected and declared successful in the Combined Competitive Engineering Services Examination, 2004, conducted by the U.P.S.C., however, he has been declared unfit for the service on account of Pathological Myopia more than 4D.
24. In these circumstances, we find that looking to various material contradictions in the medical reports of petitioner in respect of 'Pathological Myopia more than 4D', it will be just and proper and ends of justice will meet in case the petitioner is re- examined by the Medical Board consisting of three doctors of All India Institute of Medical Sciences, New Delhi, having specialization of Pathological Myopia disease and the same will be treated as final.
25. Consequently, we allow the writ petition and set aside the impugned order dated 17.07.2007 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur, order dated 10.08.2005 and also the order dated 23.06.2005. We also set aside the medical reports given by respondent's Medical Board and Appellate Medical Board and direct that petitioner will be re-examined, afresh, by the Medical Board consisting of at least three doctors, having specialization in Pathological Myopia disease, of All India Institute of Medical Sciences, New Delhi.
26. The Director of A.I.I.M.S., New Delhi is directed to constitute a Medical Board, as directed above, to examine the petitioner, particularly with reference to Regulations Relating to The Physical Examination of Candidates, as mentioned in Appendix II, appended with the Gazette Notification dated 10.01.2004, as reproduced above, in respect of Myopia, which shall not exceed -4.00 D and whether Myopia is Pathological or not? The Medical Board of A.I.I.M.S., New Delhi shall give specific report/opinion whether petitioner is fit or unfit with reference to the Regulations, as reproduced above. Director, A.I.I.M.S., New Delhi is directed to send report of the Medical Board to the Secretary, Railway Board, Ministry of Railways, Government of India, New Delhi. A copy of report may be made available to the petitioner also. In case, petitioner is found medically fit by the Medical Board of A.I.I.M.S., New Delhi, then Railway Board, Ministry of Railways is directed to consider the petitioner for appointment in the Engineering Services and issue necessary orders, as early as possible.
27. Registry is directed to send a copy of this order to the Director, A.I.I.M.S., New Delhi for compliance.
28. Petitioner is directed to appear before the Director, A.I.I.M.S., New Delhi on or before 03.08.2012 and on that day or next day, Medical Board will be constituted, as directed above, and due intimation will be given to the petitioner for his appearance before the Medical Board for his medical examination.
29. Parties are directed to bear their own costs.
(BELA M. TRIVEDI),J. (NARENDRA KUMAR JAIN-I),J.
/KKC/ Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. KAMLESH KUMAR P.A.