Central Administrative Tribunal - Delhi
Nishant Ranjan vs Govt. Of India on 1 May, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No. 171/2012 Reserved on: 24.02.2014 Pronounced on:01.05.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Nishant Ranjan S/o Sh. Nanhak Singh, R/o H.No. 2H/52, Near T.V. Tower, Bahadurpur Housing Colony, Patna (Bihar) Applicant (By Advocate: Shri Amit Kumar) Versus 1. Govt. Of India, Ministry of Railway, Railway Board through Secretary, Rail Bhawan, New Delhi 110 001. 2. Union Public Service Commission Through its Secretary, Dholpur House, Shahjahan Road, New Delhi 110 069. Respondents (By Advocate: Shri Rajiv Manglik and Sh. Krishan Kumar) O R D E R Dr. B. K. Sinha, Member (A):
The short issue for our consideration in the instant case is that whether the action of the Medical Board and the Appellate Board declaring the applicant unfit for all services on account of bilateral flat foot is contrary to the regulations relating to physical examination of candidates attached as Appendix to the Engineering Services Examination Rules, 2010 [hereinafter referred to as ESE Rules, 2010].
2. The case of the applicant, in brief, is that he is a IIT Graduate and has been serving NTPC a Public Sector Enterprise (PSE) of the Government of India since 29.05.2009. He appeared in the Engineering Services Examination under the ESE Rules, 2010 and was placed at serial no.32 in order of merit. He appeared before the Medical Board and was declared unfit for all services on account of bilateral flat foot as communicated vide letter dated 11.08.2011. An appeal filed by the applicant was rejected by the Appellate Board communicated vide letter dated 14.09.2011 declaring him unfit for all services. The order of the Appellate Board goes ahead to state that it was final and no further correspondence would be entertained in this regard.
3. The applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 against the afore two orders of the Medical Board and that of the Appellate Board, seeking the following relief(s):-
a) Quash/set aside the order of Railway Board dated 11.08.2011 whereby the petitioner has been declared unfit for engineering services on the ground that the petitioner is bilaterally flat foot;
b) Quash/set aside the order contained in letter of Ministry of Railway dated 14.09.2011 containing order of Appellate Medical Board;
c) Direct the respondent to consider the petitioner for appointment to the post in Indian Engineering Services as per his position in the merit list and as per choice of the petitioner;
d) In the alternative, declare the Regulation 2(b) of Regulations relating to the Physical Examination of candidates ultra vires and violative of Articles 14, 16 and 19 of the Constitution of India as it confers unfettered power to respondent to declare a person unfit for service on conjecture and issue direction to consider the applicant for appointment as per prayer (c);
e) pass such further order and orders as it may deem fit in the facts and circumstances of the case.
4. The principal argument of the applicant is that the Medical Board conducts the physical examination under the overall parameters of Regulations relating to physical examination of candidates which are contrary to the provisions of Articles 14 & 16 of the Constitution. The latter provides guarantee of equal opportunity to all citizens in matters of appointment to any office and the same cannot be taken away by subjective satisfaction of the executives. Moreover, the Regulations mention various disabilities which make a person unfit but flat foot has not been mentioned as a disability rendering a person unfit for appointment to the post in question. The yardstick governing the medical examination is to secure continuous effective service for the Government and to prevent losses being caused to it on account of premature death occurring. Thus, the learned counsel for the applicant has argued that being bilateral flat foot is no bar to the applicant rendering effective service for long periods. Moreover, such medical examination creates classes of citizens - those who have cleared the medical fitness and those who have not. Article 14 of the Constitution does not allow any such artificial distinction to be made. The learned counsel further submits that the applicant has been a brilliant student and is discharging his duties in the NTPC satisfactorily. Moreover, there are many engineering services included in the IES where flat foot is not a disability. The applicant has also relied upon the principle of reasonable accommodation and that the costs involved in his rejection far outweighs the gains from rejection as there are no commensurate compensatory factors. The learned counsel for the applicant repeatedly referred to studies that indicated that flat foot does not deter or interfere with the inability of the persons to serve effectively. It was on this account that even the Australian Air Force had recruited personnel suffering with flat foot. Moreover, medical and congenital conditions do not rule out the right to life as held by the Honble High Court of Andhra Pradesh at Hyderabad in the case of K. Gangadhar versus A.P. State Road Transport Corporation and Another [2007 (1) ALD14]. Therefore, the learned counsel for the applicant has eloquently argued that the reliefs prayed for, as noted above, may be granted to the applicant.
5. The respondents have filed a counter affidavit stating therein that the Engineering Services Examinations are conducted annually by the Railways through UPSC for recruitment to the Engineering Services in the Civil, Mechanical, Electrical and Electronics and Telecommunication disciplines. Medical examination of the candidates of Engineering Service is admittedly governed by the Regulations relating to examination of the candidates (Appendix-II of the CSE Rules, 2010). Para 11 (h) of the CSE Rules, 2010 clearly provides that the limbs, hands and feet of the candidates are required to be well formed and developed and that there should be free and perfect motion of all his joints. Para 11(j) also provides that there is no congenital malformation or defect. The services included in the IES are not sedentary services but require performance of active/ effective duties. The respondents further submit that the applicant was examined both by Medical Board and Appellate Medical Board at Gorakhpur and his case was conclusively rejected as being medically unfit for all services as his limbs are not well formed and, therefore, he does not meet the medical requirements. Regarding the information given by one Dr. V K Sinha, Associate Professor (Ortho), Patna Medical College & Hospital, Patna and Dr Ajay Gupta, Prof. Orthopedics MAMC & LNJP Hospital, New Delhi, the respondents have submitted that they have no value as the duly constituted Medical Board/Appellate Medical Board are to determine the medical fitness of candidates required to secure continuous effective service. The respondents have also submitted that if the plea of the applicant were to be accepted then there would be no requirement of the medical boards at all. Entry to services would be governed by the personal choice of the candidates and not by any yardsticks of physical and mental disability.
6. The learned counsel for the respondents further submits that the applicant was fully aware of the requirement of physical fitness and yet he has opted for the service he had opted. Had the applicant opted for other service like IDSC which had limited physical exertion as a part of the job, then he could have been considered. Instead, he opted for the Mechanical Service whereby he has been examined by the Medical Board. The respondents have, therefore, strongly urged for dismissal of the OA.
7. The applicant has also filed a rejoinder application rebutting all averments made in the counter affidavit and reiterated the points made in the OA. He has re-emphasized the point that the Regulations relating to physical examination of candidates are ultra vires of Articles 14, 16, 19 and 21 of the Constitution of India. He further submits that the Medical Board has not declared the applicant as unfit but has merely stated that he suffers with bilateral flat foot.
8. We have carefully examined the pleadings of both the parties and have patiently listened to the arguments of the respective counsels. Arguments of both the parties including the oral arguments have been detailed above and apart from this, no other arguments have been advanced. We have also spelt out the only issue that emerges for our consideration at the very beginning of this order.
9. We now proceed to examine the issue in the light of the submissions made by the rival parties. Admittedly, the medical examination was conducted vide the ESE Rules, 2010 as published in the official Gazette dated 30.01.2010. The relevant provisions in the Regulations are extracted hereunder:-
Regulations relating to the physical examination of candidates. These regulations are published for the convenience of candidates and in order to enable them to ascertain the probability of their coming up to the required physical standard, the regulations are also intended to provide guidelines to the medical examiners and a candidate who does not satisfy the minimum requirements prescribed in the regulations cannot be declared Fit by the medical examiners. However, while holding that a candidate is not fit according to the norms laid down in those regulations, it would be permissible for a Medical Board to recommend to the Government of India for reasons specifically recorded in writing that he may be admitted to service without disadvantage to Government.
Note: The Medical Board while conducting medical examination of the candidates who have applied against the posts reserved for physically handicapped category will keep in view the relevant provisions of the Persons with Disabilities (Equal Opportunity, Protection of Right and Full Participation) Act, 1995 wherein the extent of permissible disability has been denied.
2(a) The Government of India reserve to themselves absolute discretion to reject or accept any candidate after considering the report of the Medical Board.
(b) To be passed as fit for appointment, a candidate must be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of the duties on his/her appointment. From the above, the wordings of the Regulations are clear that it enables the medical examiners to judge the suitability of candidates against the different jobs on offer in terms of physical standards. A candidate, who does not confirm to the physical standards, is categorically ruled out. Of course, it is within the competence of the Medical Board that where a candidate does not confirm to the physical standards set for a service, it may recommend him for other services. As per the Note to the above Regulations, the Medical Board is to keep the provisions of The Persons with Disabilities (Equal Opportunity, Protection of Right and Full Participation) Act, 1995 [hereinafter referred to as Disability Act] wherein the extent of permissible disability has been defined. Bilateral flat foot is not a disease, which has been separately mentioned, but would be placed under the general heading of the locomotor disability as defined under Section 2(i) of the Disability Act as under:-
"2 (i) Disability" means-
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) loco motor disability;
(vi) mental retardation;
(vii) mental illness;
The Act further goes ahead to prescribe each kind of disability and the extent to which the person suffering with such disabilities are eligible for appointment to the Government service. Section 32 of the Disability Act enjoins a responsibility to identify post in the establishment which could be reserved for the persons with disabilities. The same would be subject to review keeping in mind the developments in technology periodically not exceeding three years. Section 33 of the Act ibid makes provision for reservation in services for persons suffering with these groups of disabilities. For the sake of clarity, the provisions of Section 33 of the Act are extracted as below:-
33. Reservation of Posts - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from-
i) blindness or low vision;
ii) hearing impairment;
iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. The Regulations relating to physical examination of the candidates provides as under:-
11 the following additional points should be observed:-
That the candidates hearing in each ear is good and that there is no sign of disease of the ear. In case it is defective the candidate should be got examined by the ear specialist provided that if the defect in hearing is remediable by operation or by use of a hearing aid a candidate cannot be declared unfit on the account provided he/she has no progressive disease in the ear. This provision is not applicable in the case of Railway Services, other than Indian Railway Stores Services, the Military Engineer Services, Central Engineering Service Group A, Central Engineering Service (Roads), Central Electrical Engineering Service Group A; and Border Roads Engineering Service Group A. The following are the guidelines for the medical examining authority in this regard.
(1) Marked for total deafness in one years other being normal Fit for non-technical job if the deafness is upto 30 decibles in higher frequency (2) Perceptive deafness in both ears in which some improvement is possible by hearing aid. Fit in respect of both technical and non-technical jobs if the deafness is upon 30 decibles in speech frequencies of 1000 to 4000. (3) Perforation of tympanic membrance of Central or marginal type. (i) One ear normal other ear perforation of tympanic membrance present temporarily unfit. Under imporoved conditions of Ear Surgery a candidate with marginal or other Perforationin both ears should be given a chance by declaring him temporarily unfit and then he may be considered under 4 (ii) below.
(ii) Marginal or attic perforation in both ears unfit.
(iii) Central perforation both ears-
(4) Ears with mastoid cavity sub-normal hearing on one side/on both sides. (i) Either ear normal hearing other ear, Mastoid cavity-Fit for both technical and non-technical jobs.
(ii) Mastoid cavity of both sides Unfit for technical jobs- Fit for non-technical jobs if hearing improves to 30 decibles in either ear with or without hearing aid. (5) Persistently discharging ear operated/un-operated Temporarily Unfit for both technical and non-technical jobs. (6) Chronic infoamatory/allergic conditions of nose with or without bony deformities of nasal septum. (i) A decision will be taken as per circumstance of individual cases. If deviated nasal septum is present with Symptoms Temporarily Unfit. (7) Chronic inflammatory/condition f tonsils and/or Larynix. (i) Chronic inflamatoy conditions of tonsils and/or Larynix-fit.
(ii) Hoarseness of voice of severe degree if present then temporarily Unfit.
(8) Benign or locally malignant tumours of the E.N.T. (i) Benign Tumoursnant Temporarily Unfit.
(ii) Malignant Tumours Unfit.
(9) Otosclerosis. If the hearing is within 30 decibles after operation or with the help of hearing and Fit. (10) Congenital defects of ear, nose or throat. (i) If non-interfering with functions Fit.
(ii) Stuttering of severe degree-Unfit.
(11) Nasal Poly Temporarily Unfit.
That his/her speech is without impediment;
That his/her teeth are in good order and he/she is provided with dentures where necessary for effective metication (well filled teeth) will be considered as sound;
That the chest is well formed and his chest expansion is sufficient and that his heart and lungs are sound;
(h) that his limbs, hands and fet are well formed and developed and that there is free and perfect motion of all his joints;
(i) that he does not suffer from any inverterate skin disease;
(j) that there is no congenital malformation or defect;
The principles which guide the Medical Board, have also been provided as hereunder:-
It should be understood that the question of fitness involves the future as well as the present and that one of the main objects of medical examination is to secure continuous effective service and in the case of candidates for permanent appointment to prevent early pension of payment in case of premature death. It is at the same time to be noted that the question is one of the likelihood of continuous effective service and that rejection of a candidate need not be advised on account of the presence of a defect which in only a small proportion of cases is found to interfere with continuous effective service.
10. From the above, it is clear that the medical board is to be guided primarily by twin consideration. In the first place, it is to secure continuous effective service. In the second place to prevent early pension or gratuitous payment in case of premature death, these provisions have been put in place so as to ensure that the recruitment does not impose any life time disease burden resulting in lower efficiency of the organization or in higher outflow of cash in the form of early pension or payment in case of premature death.
11. Reading the Disability Act and the provisions together, we find that there is no contradiction between the two as has been sought to be created by the learned counsel for the applicant. The Disability Act provides, inter alia, laying down the disabilities and the extent to which they can be permitted to join services. However, the very fact services have been excluded from this Act is clear that while respecting the rights of the disabled persons, the framers of the Act did not wish to impose any efficiency burden with the organization. In a landmark decision namely in the case of Government of India versus Ravi Prakash Gupta [2010 (7) SCC 626], the Honble Supreme Court, inter alia, directed that the law should be implemented and the fact of appointment to the IAS during the period from 1995-2006 had been totally excluded. The Honble Supreme Court had directed that all the vacancies for these years should be calculated and filled up.
12. In the case of Union of India and Another versus National Federation of Blind and Others [2013 (10) SCC 772], the Honble Supreme Court once again directed vacancy based rather than the post based reservation while implementing the Disability Act. The Honble Court further held that Union of India, the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. The Honble Court further bemoaned the fact that despite having been enacted the Disability Act way back in 1995, the disabled people have failed to get the required benefits. The Honble Court further held that computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner on the total number of vacancies in the cadre strength and that the bar of 50% reservation as laid down in the case of Indra Sawhney vs. Union of India and others [AIR 1993 SC 477] would not be applicable in respect to the implementation of the Disability Act. However, nowhere has the Honble Supreme Court or any other court for that matter held that a person ineligible for a particular post should be recruited for that post. We have not come across any instances where a person suffering with impaired vision is directed to be recruited as a Pilot to the Air Force and person with locomotor disability is recruited to the officer corps of the Indian Army. Therefore, the principle sustained that the recruitment is to be made without comprosming on the quality of services for efficiency of the organization.
13. The applicant has sought reliance on the case of Ranjit Kumar Rajak versus State Bank of India [2009 (5) Bom CR 227] which provides Convention on the Rights of persons with Disabilities and Optional Protocol with the municipal laws of the country. However, there is no denying the principle laid down by the Honble Supreme Court in the case of ADM Jabalpur Versus Shivakant Shukla [1976 CriLJ 945] on which the Honble Court has placed reliance. However, we note that the job involved in that case was in the State Bank of India which was relatively sedate by nature. To the contrary, the job involved here belongs to the following fourteen categories:-
CATEGORY-II MECHANICAL ENGINEERING Group-A Services/Posts.
Indian Railway Service of Mechanical Engineers.
Indian Railway Stores Service (Mechanical Engineering Posts).
Central Water Engineering Gr. A Service (Mechanical Engineering Posts).
Central Power Engineering Service (Mechanical Engineering Posts).
Indian Ordnance Factories Services (Engineering Branch) (Mechanical Engineering Posts).
Indian Naval Armament Service (Mechanical Engineering Posts).
Assistant Executive Engineer Group A (Mechanical Engineering Posts) in the Corps of EME, M/o Defence.
Assistant Naval Store Officer Grade-I (Mechanical Engineering Posts) in Indian Navy.
Central Electrical and Mechanical Engineering Service (Mechanical Engineering Posts).
Assistant Executive Engineer Group A in the Geological Survey of India.
Indian Inspection Service, Group A (Mechanical Engineering Posts).
Indian Supply Service Group A (Mechanical Engineering Posts).
Indian Defence Service of Engineers (Mechanical Engineering Posts).
Central engineering Service (Roads) Group A(Mechanical Engineering Posts). These jobs particularly Indian Railways, Defence etc. involve a strenuous schedule where persons are required to put in long hours on work and in times of crisis for days together. For the instances in the Railways when accidents or other emergency takes place, officers may be required to put in duties continuously for days together and spending for long hours supervising the work. Ministries participating in the scheme of Engineering Services Examination are not sedentary Services and the requirements have already been laid down. The Medical Rules as have been cited above are also clear on this point. As we have already noted we do not subscribe to the learned counsel for the applicant that all jobs are included in the Disability Act unless and otherwise excluded. Where the requirements of the jobs have been specifically provided, these requirements have to be respected unless and otherwise not within the ambit of the Section 33 of the Disability Act.
14. The applicant has also relied upon the case of one Faizan Siddiqui versus Sashastra Seema Bal [2011 (124) DRJ 542]. In this case the facts were entirely different from what is under consideration. The appellant in that case had developed the harmonal disabilities, which has turned her into a hermaphrodite having both ovarian and testicular tissues. The applicant has further relied upon the case of K. Gangadhar versus A.P. State Road Transport Corporation and Another (supra) in which the appellant was denied employment on the ground that he was cosmetically unacceptable to the public on account of suffering with excessive Vitiligo. The Honble High Court of Andhra Pradesh held that the appellant could not be denied appointment solely on the ground of Vitiligo but did not proceed to appoint him straightaway and directed the respondents to verify that whether he satisfies the physical condition otherwise. Hence, we are of the opinion that none of the cases cited would be of any help to the facts of the instant case.
15. Coming to the issue of the practice being discriminatory and other persons having been appointed despite the disability, the respondents have filed an additional affidavit. Here the applicant has sought parity with one Mohd. Sarfaraj Alam, who was selected under general category (UR, Gen category candidate) and was recommended for PH vacancy (LDCP category) and was allotted to IRSME as per the merit position at serial no.7, much above the applicant who was at serial no.32 in the merit of the Mechanical Engineering discipline. It is to be taken into account here that reservation for the PH category is a horizontal reservation and the persons selected against PH quota have to be placed in appropriate category viz. SC/ST/OBC/General candidates depending upon the category to which they belong. There is 1% reservation of each of the category which vary from year to year against identified posts. The said Md. Sarfaraj Alam was adjusted against the identified post of PH category in IRSME. However, it is not the case of the applicant herein that some discrimination has been caused to him in selection against PH quota. Instead, he has sought to rely upon general finding given in the UN Convention that persons with disability can man any post and not giving reservation is disregard to the fundamental principles in the Disability Act and also UN convention.
16. We have carefully considered the arguments of both the sides and have analyzed them as above. One harbours a deep routed sympathy for physical categories of persons and we form no exception to this. To the contrary, we deeply and sincerely respect the objective and process of reservation and it must be implemented to its full where it operates. However, in the same breath, we have also taken note of the fact that where the Scheme does not prescribe and where standards of disability have been laid down particularly in the Services, which are of vital importance to the Nation like Defence and Railways and where the security of the Nation or of millions of people are involved no compromise could be made. When one is asked to choose between the general good of a large number of people and the good of a particular individual, one would unhesitatingly opt for the good of the larger number. We find that the arguments of the applicant if accepted and respected forms a dangerous potent vide which the security and safety of the country itself is jeopardized. Therefore, we hold that let what is provided under law be unscrupulously implemented; and the same cannot be transgressed upon.
17. In the case of Syed Bashir-ud-din Qadri versus Nazir Ahmed Shah & Others [2010 (3) SCC 603], the Honble Supreme Court has laid down the golden rule. Here, the issue was simple that the services of the respondent, who was a school teacher, were terminated on due scrutiny by an Expert Committee on the ground that he was not able to discharge the functions of a teacher as he was suffering from cerebral palsy. The Honble Court was of the opinion that the respondent suffering from slight speech disability, which was apt to worsen on account of nervousness when asked to appear before the Expert Body or the Court to answer. It was the intimidating atmosphere of the Court that probably triggered a reaction in the respondent on account of which he was unable to respond to the questions put to him. The respondent otherwise in a position to discharge his duties as a teacher and the students had become accustomed to the same. However, the facts of this case are different from the instant case.
18. However, the matter had been set at rest by the Honble High Court of Delhi vide its decision dated 07.02.2012 in the matter of Inder Setia versus Union of India & Others [WP(C) No.9080/2011]. The petitioner in this case had sought quashing of the order declaring him unfit for recruitment/selection to the Flying Branch of the Indian Air Force with a direction to the respondents to select him for the Flying Branch. Here too, the petitioner had been rejected by the medical board on ground of having sub-standard vision and myopia beyond permissible limits in addition to VPCS. The petitioner had preferred an appeal before the Appellate Medical Board which also rejected him for enrolment to the Flying Branch but was declared fit for Technical Branch. The petitioner like the instant case had obtained reports from the civilian doctors to the effect that he was not myopic. The Honble High Court of Delhi has held in this regard as under:-
26. The judgment relied by the petitioner is apparently distinguishable. It must be remembered that the ratio of any decision must be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It must be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances in two cases. The Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778) had held that a decision cannot be relied on without considering the factual situation. In the judgment the Supreme Court had observed:-
"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
19. We also take cognizance of the fact that the applicant has been admittedly a brilliant student having passed out from IIT. Though we find that the OA is without merit and the relief sought cannot be provided to the applicant, we dispose of the instant Original Application with the following directives:-
The Original Application is dismissed with no orders as to costs.
The prayers in the OA cannot be allowed. However, the respondents may examine that if there are any service in the mechanical engineering where such physical disability as suffered by the applicant is permissible, they may make offers to the applicant subject to vacancy and his place in merit.
(Dr. B.K. Sinha) (Syed Rafat Alam)
Member (A) Chairman
/naresh/