Central Administrative Tribunal - Delhi
Shubham vs M/O Railways on 29 May, 2018
1 OA 682/17
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.682 OF 2017
New Delhi, this the 29th day of May,2018
CORAM:
HON‟BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
AND
HON‟BLE MS.PRAVEEN MAHAJAN, ADMINISTRATIVE MEMBER
................
Shubham,
Aged about 23 years,
Son of Shri Omveer Singh,
R/o Samaypur Katiyara,
Near Pilikhuwa,
Gaziabad, U.P. ............ Applicant
(By Advocate: Mr.Kumar Rajesh Singh)
Vs.
1. Union of India,
Through General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. Divisional Railway Manager,
Northern Railway,
Ambala Cantt., Ambala,
Haryana
3. Divisional Personnel Officer,
DRM Office, Northern Railway,
Page 1 of 20
2 OA 682/17
Ambala Cantt., Ambala,
Haryana
4. Chief Medical Director,
Northern Railway, HQ Office,
Baroda House, New Delhi ..........Respondents
(By Advocate: Mr. Kripa Shankar Prasad)
.............
ORDER
Per RAJ VIR SHARMA, MEMBER(J):
This Original Application under Section 19 of the Administrative Tribunals Act, 1985, was filed by the applicant on 16.2.2017 seeking the following reliefs:
"(a) Direct the respondent administration to constitute the independent medical board in the light of evidence produced by the applicant;
(b) pass such order or further orders as this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. Resisting the O.A., the respondents have filed a counter reply. The applicant has also filed a rejoinder reply refuting the stand taken by the respondents.
3. We have carefully perused the pleadings of the parties and have heard Mr.Kumar Rajesh Singh with Ms.Poonam Singh, learned counsel appearing for the applicant, and Mr.Kripa Shankar Prasad, learned counsel appearing for the respondents.
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4. Brief facts of the case, which are relevant for the purpose of deciding the controversy and are not disputed by either side, are that the applicant was a candidate for selection and appointment to the post of Assistant Loco Pilot in Northern Railway, pursuant to the Advertisement No.01/2014 issued by the Railway Recruitment Board (RRB), Northern Railway, Chandigarh. Being successful in the recruitment examination, the applicant appeared and produced all his original certificates and documents for verification by the RRB, Northern Railway, Chandigarh, on 29.9.2015. The RRB, Northern Railway, Chandigarh, by letter dated 8.1.2016, informed the applicant that his name was kept in the panel of candidates selected provisionally for the post of Assistant Loco Pilot and was forwarded to the General Manager (Personnel), Northern Railway, Headquarters Office, New Delhi, for necessary action/offer of appointment; that as per his option/merit, he was kept in the panel for the said post; and that if he was found unfit on medical ground, he would not be considered for any alternative appointment. Thereafter, the Divisional Railway Manager, Northern Railway, Ambala Division, by letter dated 31.8.2016, informed the applicant that as per the letter dated 13.1.2016 of the General Manager(Personnel), Northern Railway, HQ Office, New Delhi, he was kept in the provisional panel for appointment to the post of Assistant Loco Pilot in PB 1: Rs.5200-20200+1900 GP by the RRB. By the said letter dated 31.8.2016, the applicant was also informed that it was compulsory for him to pass the medical test of A-1 category prior to appointment. The applicant Page 3 of 20 4 OA 682/17 was also directed to be present on 21.9.2016, along with the original certificates and other documents, which would be verified by the Personnel Branch of Ambala Division Office of Northern Railway, whereafter he would be called for medical test. After verification of documents of the applicant, the Personnel Branch of Ambala Division Office of Northern Railway issued a Medical Memo dated 26.9.2016, authorizing the applicant to present himself for medical examination for fitness for appointment, which was sent to the Chief Medical Superintendent, Northern Railway, Ambala, through the applicant. The applicant reported for initial medical examination on 27.09.2016. The naked eye visual acuity, i.e., Distant Vision of Right Eye of the applicant was found to be substandard (Distant vision - Right eye 6/12 and left eye 6/6) when the applicant was examined by the initial medical examiner with Landolt‟s Split Rings Board, while the standard of distant vision on initial appointment as Assistant Loco Pilot is 6/6 in both eyes without glasses; glasses being not permissible on initial medical examination at the time of appointment in medical category Aye- One and Aye-Two, as per Paragraph 512 (1)(A) of the Indian Railway Medical Manual 2000. The initial medical examiner put up his report to the Chief Medical Superintendent, Northern Railway, Ambala, for further consideration and disposal of the applicant‟s case in terms of Paragraphs II and III of the Railway Board letter No.2014/H/5/8(Policy) dated 31.12.2015. The Chief Medical Superintendent, Northern Railway, Ambala, constituted a Medical Board of 3 senior doctors, including the initial medical examiner Page 4 of 20 5 OA 682/17 along with an Eye Surgeon as a co-opted member, on 28.9.2016. After independently examining the naked eye visual acuity of the applicant with Landolt‟s Split Rings Board on 28.9.2016, the members of the Medical Board found the naked eye acuity, i.e., naked eye distant vision of the applicant as - Right eye 6/9 and Left eye 6/6. His fundus examination (to rule out any abnormality/disease in retina) and slit lamp examination (to rule out any abnormality/disease in the anterior and posterior chamber of eye) was within normal limits. Accordingly, the Medical Board opined that the applicant was "Unfit for the post of ALP(RRB), medical category Eye-One due to substandard visual acuity (6/9, 6/6)". The result of medical examination by the 3-member Medical Board was communicated to the Senior Divisional Personnel Officer, Northern Railway, Ambala, by the initial medical examiner, through a letter dated 28.9.2016. The Divisional Personnel Officer, Northern Railway, Ambala, by his letter dated 31.10.2016, communicated to the applicant copies of the letter dated 28.9.2016 (ibid) and the Medical Unfit Memo dated 27.9.2016 declaring him as "Unfit in Medical Category A-One for the post of Assistant Loco Pilot". Subsequently, the applicant got his eye examined by Dr.Pooja Gupta, M.S.(Opthal), Medical Officer, Department of Ophthalmology, VMCC & Safdarjung Hospital, New Delhi, on 7.12.2016, who found that the vision/eye sight of the applicant is 6/6 (both eyes), etc. Based on the said medical examination report, the applicant made an appeal dated 8.12.2016 to the Chief Medical Superintendent, Northern Railway, Ambala. A copy of Page 5 of 20 6 OA 682/17 the said medical examination report was enclosed with his appeal. There being no response, the applicant again made an appeal dated 14.12.2016 to the Chief Medical Director, Northern Railway, New Delhi, along with a copy of the said medical examination report. The Chief Medical Director, Northern Railway, New Delhi, vide letter dated 4.1.2017, informed the applicant that his appeal for medical re-examination was rejected as being time barred and as per Paragraphs VII and VIII(a) and VIII(b) of the Railway Board‟s letter dated 20.10.2015(sic) (31.12.2015).
5. In the above context, Mr.Kumar Rajesh Singh, learned counsel appearing for the applicant, has contended that the respondent no.3 has acted arbitrarily and illegally in rejecting the applicant‟s appeal. The respondent no.3 has failed to appreciate the evidence, i.e., the medical certificate issued by the Medical Officer of Government Hospital, i.e, Safdarjung Hospital, New Delhi. The rejection of the applicant‟s appeal is in clear violation of the Railway Board‟s policy dated 31.12.2015. When the Medical Officer of Safdarjung Hospital, New Delhi, who is also an Eye Specialist, certified that the vision/eye sight of the applicant is 6/6 (both eyes), and when the applicant has been selected and kept in the panel of provisionally selected candidates for appointment to the post of Assistant Loco Pilot, and further when the applicant is going to be deprived of an opportunity of employment on the basis medical report submitted by the Railway Medical Board declaring him as unfit for appointment to the post of Assistant Loco Pilot, the respondent no.3 ought not to have rejected the applicant‟s appeal as Page 6 of 20 7 OA 682/17 being time barred. Therefore, it is a fit case where the Tribunal should iss ue appropriate direction to the respondents to constitute an „independent medical board‟ for medical re-examination of the applicant. In support of his contentions, Mr.Kumar Rajesh Singh has relied on the following decisions of the Tribunal:
(i) Satwinder Kaur vs. Union Public Service Commission and another, OA No. 2649 of 2012, decided by the Principal Bench on 13.11.2013, wherein the applicant was a candidate of Engineering Services Examination, 2011. She was selected for Electronics & Telecommunication Group. She was called for medical examination at Lalit Narayan Mishra Railway Hospital, Gorakhpur. On the basis of medical examination report, the respondents declared the applicant medially unfit for all (IRSSE, AEE (EME)IOFS, INAS, ANSO, WPC/MO, IRRS,ISS, ITS Gp.A and ITS Gp B in JTO) on account of „Systemic Lupus Erythematosis (ELS). Subsequently, she got herself examined at the Post Graduate Institute of Medical Education and Research, Chandigarh (PGMIR, Chandigarh). The Assistant Professor in the Department of Internal Medicine of PGMIR, Chandigarh, certified that the applicant was medically fit for all services. On the basis of such medical report, she made an appeal for a second medical examination. The Appellate Medical Board, after examining the applicant, also declared her unfit for all services on account of SLE. The applicant again got herself examined at the PGMIR, Chandigarh. Another Doctor of PGMIR,Chandigarh, again certified that the applicant was medically fit for all services. On the basis of Page 7 of 20 8 OA 682/17 both the reports of her medical examination by the PGMIR, Chandigarh, the applicant challenged the rejection of her candidature by the respondents, by filing O.A. before the Tribunal. Considering the facts and circumstances of the case, the Tribunal quashed the rejection of her candidature by the respondents and directed the respondents to take consequential steps with respect to the applicant‟s selection for the Engineering Services Examination-2011 in accordance with the rules and instructions.
(ii) Pravesh Kumar vs. Ministry of Railways, OA No.670/2017, decided on 9.1.2018, the Chandigarh Bench of the Tribunal passed the following order:
"1. Heard learned counsel for the parties.
2. The applicant was declared unfit in medical examination by the respondents for the post of Assistant Loco Pilot which falls in medical category A-1. Subsequent to that, the applicant got himself examined from PGIMER, Chandigarh who issued a certificate (Annexure A-4) declaring him "Normal".
Based upon two opinion, learned counsel for the applicant submitted that let Joint Medical Board consisting the doctors of PGIMER and Railways from Ophthalmology department may be constituted, who will examine and submit its report. He further argues that the applicant will be abide by the opinion to be given by the board. He also submitted that the applicant will bear all the expenses for this purpose. Though this plea is resisted by learned counsel for the respondents based upon the policy, but in the interest of justice, fair play and to meet the end of justice, we deem it appropriate to pass an order directing the respondents to get the applicant medically examined from a Joint Medical Board consisting of doctors of Ophthalmology department from PGIMER as well as of Railways. Therefore, we direct the respondents to immediately move a request to PGIMER, who is also directed to constitute a joint medical board of two Page 8 of 20 9 OA 682/17 doctors from PGIMER and doctors from Railways other than those who have examined the applicant.
The applicant may also be informed regarding the expenses for constituting Medical Board prior in time. If the applicant will agree to pay the amount, then he be examined from the Joint Medical Board as directed.
3. Copy of the order be given to learned counsel for the parties.
4. The Registry is also directed to forward a copy of this order to Director, PGIMER, Chandigarh.
5. List on 05.04.2018."
6. Per contra, Mr.Kripa Shankar Prasad, learned counsel appearing for the respondents, has contended that the applicant has not only preferred the appeal beyond the period prescribed for making an appeal against the report of the 3-Member Medical Board, but also has failed to adduce proper evidence in support of his appeal. The rejection of the applicant‟s appeal is in accordance with the Railway Board‟s letter dated 31.12.2015. Mr.Kripa Shankar Prasad has also contended that there is no provision for constituting any „independent medical board‟ to examine any candidate, like the applicant. Therefore, the O.A. is devoid of any merit and liable to be dismissed.
7. We have given our thoughtful consideration to the rival contentions.
8. Since both the applicant and the respondents have made reference to and relied on the Railway Board‟s circular No.2014/H/5/8 (Policy), dated 31.12.2015, in support of their respective cases, it would be apposite to reproduce the same in extenso:
"GOVERNMENT OF INDIA MINISTRY OF RAILWAYS Page 9 of 20 10 OA 682/17 (RAILWAY BOARD) No.2014/H/5/8(Policy) New Delhi, Dated 31.12.2015 General Managers, All Indian Railways General Managers/CAOs/DG, All Production Units including RDSO.
Sub: Consideration of appeal of non-Gazetted candidates selected for Railway employment - Cases of candidates declared unfit upon medical examination.
Detailed provisions for reconsideration of adverse reports of medical examination of candidates selected for employment in various non-Gazetted posts in Railway Services and procedure for making an appeal and its disposal have been laid in Para 522(I) of IRMM, Third Edition, 2000. However, it was not clear from the said provisions as to who would act as the appellate authority and what would be the maximum number of appeals that are permitted resulting into a number of appeals for reconsideration of the cases even though they have been declared unfit during initial medical examination. Some of the candidates have also been approaching Railway Board for reconsideration of decision of the Zonal Railways on their earlier appeals.
There have also been instances where the candidate was declared unfit by the initial medical examiner due to the candidate being hypertensive/diabetic or visual acuity problems. Some such candidates have taken treatment and then, within the stipulated time frame, submitted an appeal for reconsideration. In such cases, it becomes really difficult for the appellate authority to come to a conclusion with regard to the candidate‟s original condition which was prevailing at the time of initial medical examination. The appellate authority will be in no position to disprove that the person has been administered medicines or has undergone surgical treatment for refractive error etc. This situation calls for a permanent remedy by laying down a specific procedure for examination of candidates, consideration of their appeal in case they are declared unfit in the initial medical examination as also disposal of subsequent appeals by higher authorities. In view of this, a detailed policy guideline was issued to the Zones vide this office letter of even No. dated 05.06.2014 (copy enclosed). Though the clarification given by this office has helped the zone to a great extent in deciding the cases, some issue relating to the subject need further elaboration.Page 10 of 20 11 OA 682/17
The matter has been considered at length in Board‟s Office and in supersession to Board‟s letters of even no. dated 05.06.2014 the following guidelines are laid down for medical examination of candidates for non-Gazetted posts, disposal of their appeals and other representations submitted to higher authorities.
I. Medical examination: Medical examination will be done by a Medical officer with adequate experience in doing medical examination who will be specially nominated by the CMO/CMS/MD/ACMS in charge for this purpose.
II. If a candidate has been found to be unfit on grounds of acuity of vision/defective colour vision/ hypertension/ diabetes or any other condition/disease, the medical examiner will not issue any certificate and will put up his/her findings to the CMO/MD/CMS/ACMS in charge of the Unit/Division/Sub division/Production Unit.
III. The candidate without having to submit any appeal, will then be immediately examined by a three member standing medical Board consisting of 1) a specialist in the field; however if the specialist is not available within the Unit/Division/Production Unit, a senior doctor would be nominated in place of a specialist, 2) the medical officer who has conducted the first medical examination and 3) the third being a senior medical officer specially nominated by the CMO/CMS/MD/ACMS in charge for this purpose.
IV. This three member Board will examine the candidate at the earliest after the first medical examination report is put up to the CMO/MD/CMS/ACMS in charge of the Unit/Division/Sub division. If necessary, the candidate would be kept under observation in bed. The accommodation charges etc. in this regard will be borne by the Railway Administration except for such investigations and/or consultation, which is not available in house, for which the charges will be borne by the candidate concerned.
IV(A) If the initial medical authority or the Three Member Board are of the view that the medical deficiency of the candidate is treatable, except for cause of unfitness like Diabetes, Hypertension, defective colour perception, Disturbance in visual acuity the candidate should be declared as "TEMPORARY UNFIT" and should be advised to get treated within a time frame not exceeding six months, with a written advice & endorsing a copy to the memo issuing authority. The Page 11 of 20 12 OA 682/17 written advice should also include that the candidate should report either initial medical authority or to the three member Board specified (as the cae may be), after completion of treatment within the specified time frame. After completion of treatment, re-examination report should be put up to CMS/CMO/ACMS/MD I/C of Unit/Division/Sub Division for final decision.
V. In case the candidate absconds or absent himself willfully prior to/during examination by the three member medical Board, this fact should be recorded and the decision of the first medical examiner would prevail and no further appeal shall lie with any higher authority including Railway Board.
VI. This three member Board will write their detailed findings and will either endorse the first examination findings or differ and record their recommendations in the form of speaking orders, based upon which a fit/unfit certificate will be issued by the doctor who examined the candidate at the first instance. This three member Board‟s decisions, as accepted by the respected CMO/MD/CMS/ACMS in charge of the Unit/Division/Sub division will be final and no appeal will be entertained.
VII. Once a decision has been taken at the level of the Divisional/Production Unit in charge and the candidate has been declared fit/unfit by three member Board, no further appeal shall normally lie with any higher authority.
VIII. Consideration of specific cases:-
a) Once the 03 member Board has taken a decision on the grounds of conditions like hypertension, substandard vision and defective colour perception, diabetes and the same has been accepted by the respective CMO/MD/CMS/ACMS in charge of the Unit/Division/Sub division, any representation/appeal shall be dealt with on the basis of the records and findings of the Committee and the candidate will not be subjected to re-examination.
b) Only in specific and exceptional cases in which there is an objective record of an X-ray finding, ECG record, Echo or a permanent defect/deformity there can be an appeal in regard to the interpretation of such a finding and such cases can be entertained as an appeal by the CMD. CMD of the Zone may order for re-medical examination of such candidate if he is satisfied that there are genuine grounds for consideration of such an appeal. Such evidence should be Page 12 of 20 13 OA 682/17 submitted within one month of the date of communication of the decision of the CMO/MD/CMS/ACMS in charge of the Unit/Division/Sub division/.Production Unit to the candidate. However, such an appeal shall be entertained only if the candidate produces a certificate from a Government/Private doctor of the specialty/specialties in which the candidate has been found unfit. Such a certificate should contain a note that the Government/Private specialist was aware of the fact that the candidate has already been declared unfit during medical examination conducted by an appropriate medical committee appointed by the Government in this regard. The government/private specialist should also certify that he is fully aware of the physical & vision standards set by the railways, and that he is aware that the candidate has already been certified as unfit according to the standards.
In all cases of appeal to CMD, charges will however be payable by candidate and towards this end a candidate will be required to pay Rs.1000/- through DD. In case of production units, such powers for consideration of appeal shall be vested in the CMD of the neighbouring/parent zone where the production unit belonged to earlier or is currently situated.
IX. Where CMD is of the opinion that there should be re- examination of the case of appeal, he may nominate a separate Three Medical Board comprising of Sr. Specialist including the specialty concerned (of the area of deficiency pointed out), for reconsideration. If CMD feels that the decision given by the Appellate Medical Board is justified, he will accept the same.
X. In case, the decision at this stage changes from Unfit to fit, the DD submitted to Rly will be returned. In all other case, this DD will be credited to Railway in same head, where medical examination fee is being deposited.
Advance Correction Slip to Para 522(I) of IRMM, 2000 is enclosed herewith.
This has the approval of Board (MS).
Sd/R.S.Shukla Joint Director/Health Railway Board"
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9. A reading of the above Railway Board‟s letter dated 31.12.2015 makes it clear that in a case of any candidate selected for employment in non-gazetted post of Railway services, his/her medical examination will be done by a Medical Officer specially nominated by the concerned CMO/CMS/MD/ACMS in charge for this purpose. If he/she is found to be unfit on grounds of acuity of vision/defective colour vision/ hypertension/ diabetes or any other condition/disease, the said medical examiner will not issue any certificate and will put up his/her findings to the CMO/MD/CMS/ACMS in charge of the Unit/Division/Sub division/Production Unit. The candidate, without having to submit any appeal, will then be immediately examined by a 3-Member Medical Board consisting of: 1) a specialist in the field (if the specialist is not available within the Unit/Division/Production Unit, a senior doctor would be nominated in place of a specialist), 2) the medical officer who has conducted the first medical examination, and 3) the third being a senior medical officer specially nominated by the concerned CMO/CMS/MD/ACMS. This three member Medical Board will examine the candidate at the earliest after the first medical examination report is put up to the concerned CMO/MD/CMS/ACMS. This three member Medical Board will write its detailed findings and will either endorse the first examination findings or differ and record their recommendations in the form of speaking orders, based upon which a fit/unfit certificate will be issued by the doctor who examined the candidate at the first instance. This three member Medical Page 14 of 20 15 OA 682/17 Board‟s decision, as accepted by the concerned CMO/MD/CMS/ACMS, will be final and no appeal will be entertained. Once a decision has been taken at the level of the Divisional/Production Unit in charge and the candidate has been declared fit/unfit by three member Medical Board, no further appeal shall normally lie with any higher authority. In case of consideration of specific cases, once the 3-member Medical Board has taken a decision on the grounds of conditions like hypertension, substandard vision and defective colour perception, diabetes, and the same has been accepted by the concerned CMO/MD/CMS/ACMS, any representation/appeal shall be dealt with on the basis of the records and findings of the Committee and the candidate will not be subjected to re-examination. Only in specific and exceptional cases in which there is an objective record of an X-ray finding, ECG record, Echo or a permanent defect/deformity, there can be an appeal in regard to the interpretation of such a finding and such case can be entertained as an appeal by the Chief Medical Director of the Zone. The Chief Medical Director of the Zone may order for medical re-examination of such candidate if he is satisfied that there are genuine grounds for consideration of such an appeal. Such appeal and evidence should be submitted within one month from the date of communication of the decision of the CMO/MD/CMS/ACMS to the candidate. Such an appeal can be entertained only if the candidate produces a certificate from a Government/Private doctor of the specialty/specialties in which the candidate has been found unfit. The said certificate should contain a note Page 15 of 20 16 OA 682/17 that the Government/private specialist was aware of the fact that the candidate has already been declared unfit during medical examination conducted by an appropriate medical committee appointed by the Railway in this regard. The Government/private specialist should also certify that he/she is fully aware of the physical & vision standards set by the Railways, and that he/she is aware that the candidate has already been certified as unfit according to the standards set by the Railways. Where the Chief Medical Director is of the opinion that there should be re-examination of the case of appeal, he may nominate a separate Three Medical Board comprising of Sr. Specialist including the specialty concerned (of the area of deficiency pointed out), for reconsideration. If the Chief Medical Director feels that the decision given by the Appellate Medical Board is justified, he will accept the same.
10. Coming to the facts of the case in hand, the initial medical examiner, after finding the Naked Distant Vision of Right Eye of the applicant as substandard (Distant vision -Right eye 6/12 and left eye 6/6), submitted his report to the Chief Medical Superintendent for further disposal of the case of the applicant in terms of Paragraphs II and III of the Railway Board‟s letter dated 31.12.2015(ibid). The Chief Med ical Superintendent constituted a Medical Board of 3 senior doctors, including the initial medical examiner and an Eye Surgeon. After independently examining the naked eye visual acuity of the applicant, the 3-Member Medical Board found the naked eye acuity, i.e., naked eye distant vision of the applicant as Right eye Page 16 of 20 17 OA 682/17 6/9 and Left eye 6/6. Accordingly, the 3-Member Medical Board opined that the applicant was unfit for appointment to the post of Assistant Loco Pilot due to his substandard visual acuity. This decision of the 3-Member Medical Board was accepted by the Chief Medical Superintendent. Therefore, in terms of Paragraph VI of the Railway Board‟s letter dated 31.12.2015(ibid), the decision of the 3-Member Medical Board became final and no appeal would normally lie with any higher authority. However, in terms of Paragraph VIII(a) of the Railway Board‟s letter dated 31.12.2015, the appeal made by the applicant was available to be considered by the higher authority on the basis of the records and findings of the 3-Member Medial Board and the applicant was not to be subjected to re-examination. The Chief Medical Director had the discretion to order for medical re- examination of the applicant if he was satisfied that there were genuine grounds for consideration of such an appeal. Such appeal along with evidence should be submitted within one month from the date of communication of the decision of the Chief Medical Superintendent, vide letter dated 31.10.2016. But the applicant made the appeal to the Chief Medical Director on 14.12.2016, i.e., after the prescribed period of one month. Along with his appeal dated 14.12.2016, the applicant submitted the medical examination report issued by the Medical Officer, Safdarjung Hospital, New Delhi, who purportedly found the applicant‟s distant eye vision as 6/6 (both eyes) conforming to the standard of eye vision set by the Railways for the post of Assistant Loco Pilot. The said medical Page 17 of 20 18 OA 682/17 report/certificate does not contain any note being recorded by the Medical Officer therein that she was aware of the fact that the applicant had already been declared unfit during medical examination conducted by the 3-Member Medical Board. In the said medical report, the Medical Officer also did not certify that she was fully aware of the vision standard set by the Railways for the post of Assistant Loco Pilot, and that she was aware that the applicant had already been certified by the 3-Member Medical Board as unfit according to the vision standard set by the Railways for the post of Assistant Loco Pilot. In the absence of such note and certificates of the Medical Officer in her medical examination report, the appeal dated 14.12.2016 made by the applicant was inept and was, thus, not available to be entertained by the Chief Medical Director. In other words, there were no genuine grounds to support the appeal made by the applicant. Therefore, the Chief Medical Director cannot be faulted for rejecting the applicant‟s appeal dated 14.12.2016. In the above view of the matter, we do not find any substance in the applicant‟s challenge to the letter dated 4.1.2017 issued by the Chief Medical Director informing the applicant that his appeal for medical re- examination was rejected as being time barred and as per Paragraphs VII and VIII (a) and VIII (b) of the Railway Board‟s letter dated 31.12.2015. Furthermore, the applicant has not brought to the notice of this Tribunal any rule or instruction issued by the Railway Board, under which an „independent medical board‟ can be constituted by the Railways for medical re-examination of any candidate for appointment to any service under the Page 18 of 20 19 OA 682/17 Railways. In the absence of any such rule or instruction issued by the Railway Board, this Tribunal cannot issue a direction to the respondents to constitute an „independent Medical Board‟ for medical re-examination of the applicant, more so when it is not the case of the applicant that the members of the Medical Board and the Chief Medical Director have acted mala fide, while dealing with his case, and when the applicant has failed to adduce the requisite evidence in support of his appeal which is found to have been rejected by the Chief Medical Director in accordance with the guidelines contained in the Railway Board‟s letter dated 31.12.2015. Granting the relief, as asked for by the applicant, would be tantamount to directing the respondents to act contrary to rules/policy of the Railways. The Tribunal is required to enforce the rule of law, and not to issue a direction which is contrary to what has been injected by law.
11. As already noted, in Satwinder Kaur vs. Union Public Service Commission and another (supra), the applicant was a candidate of Engineering Services Examination, 2011. She was selected by the Union Public Service Commission for appointment to a service under Electronics & Communication Group of services. She had questioned the reports of her 1st and 2nd medical examinations which were conducted by the respondent- Department under a different set of rules and not under any rule/policy of the Railways. Therefore, the decision in Satwinder Kaur vs. Union Public Service Commission and another (supra), being distinguishable on facts, does not go to support the case of the present applicant. Page 19 of 20 20 OA 682/17
12. In Pravesh Kumar vs. Ministry of Railways (supra), Chandigarh Bench of the Tribunal did not refer to and examine the relevant guidelines issued by the Railway Board, vide letter dated 31.12.2015(ibid), while directing the Railway authorities to constitute a Joint Medical Board of two doctors from PGMIR, Chandigarh and doctors from Railways for medical re-examination of the applicant. Furthermore, the aforesaid direction was issued by Chandigarh Bench as an interim measure. Therefore, the decision of Chandigarh Bench cannot be said to have set a precedent to be followed by the Tribunal in all other cases.
13. In the light of our above discussions, we have no hesitation in holding that the applicant has not been able to make out a case for the relief claimed by him in the O.A., and that the O.A. is devoid of any merit and liable to be dismissed. Accordingly, the O.A. is dismissed. No costs.
(PRAVEEN MAHAJAN) (RAJ VIR SHARMA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
AN
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