Central Administrative Tribunal - Delhi
Mishra Rakesh Vishwambhar S/O ... vs Union Of India Through Secretary on 11 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1872 of 2010 This the 11th day of February, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Mishra Rakesh Vishwambhar S/o Vishwambhar F. Mishra, 193 B, Shivam Property Dealer, Near Ambedkar Road, Turab Nagar, Ghaziabad (UP). Applicant ( By Shri Prem Prakash, Advocate ) Versus 1. Union of India through Secretary, Ministry of Urban Development, Nirman Bhawan, C Wing, New Delhi. 2. Central Public works Department through its Deputy Secretary, Nirman Bhawan, C Wing, New Delhi. 3. Superintending Engineer, Coordination Circle (Electrical), Central Public Works Department, East Block-I, Level-7, R.K.Puram, New Delhi-110066. 4. Superintending Engineer (Electrical), Central Public Works Department, Delhi Central Electrical, Circle-6, Vidyut Bhawan, New Delhi-1. Respondents ( By Shri R. V. Sinha, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Mishra Rakesh Vishwambhar has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking a direction to be issued to respondents 2 and 3 to cancel letter dated 13.3.2009, vide which the letter of appointment dated 16.7.2008 issued to the applicant on the post of Junior Engineer (Electrical) has been withdrawn. In consequence of setting aside the letter aforesaid, the prayer of the applicant is to direct respondents 2 to 4 to appoint him on the said post in CPWD if the medical board of a different hospital declares him otherwise fit for service. The applicant also claims damages for the financial loss suffered by him and the mental agony that has been caused to him.
2. The facts of the case as set out in the Original Application for the reliefs as indicated above, reveal that an office memorandum was issued by the Government of India, Ministry of Home Affairs, dated 19.1.1989, which is stated to be applicable to the CPWD as well, and which provides that if a candidate is declared medically unfit on account of visual acuity, the appeal preferred by him should be dealt with by a special medical board, composition whereof should include three ophthalmologists, and that ordinarily, the finding of the special medical board should be considered as final, but a second appeal shall be permissible in doubtful cases and under very special circumstances. The applicant qualified the all India competitive examination held for appointment on the post of Junior Engineer (Electrical) in 2007, and was appointed by the 3rd respondent on the said post. On 3.6.2008 the applicant submitted his joining report. On 16.7.2008, the 3rd respondent directed the applicant to report for duty to the 4th respondent along with medical certificate on or before 18.8.2008. On 26.8.2008, the applicant was medically examined at Dr. Ram Manohar Lohia Hospital, New Delhi. The medical board did not hold the applicant unfit for the post merely because he was suffering from Nystagmus, but he was declared unfit only by the eye specialist. Copy of the medical examination report dated 26.8.2008 has been placed on records as Annexure A-IV. The doctors who examined the applicant advised him to undergo treatment for Nystagmus. On 28.8.2008 the applicant addressed a letter to the 4th respondent seeking extension of six months for joining duty. In the month of September, 2008 the applicant got his eyes checked at Shroff Eye Centre and got himself medically examined at Central Hospital, Ulhasnagar-3, and again got his eyes checked at Sanjivani Hospital, Virar, Distt. Thane. After treatment, it is the case of the applicant, his eye sight became normal and, therefore, on 23.9.2008 he requested the 4th respondent for re-medical checkup. On 3.10.2008 Assistant Engineer (HQ), CPWD sought direction of the 4th respondent on the request of the applicant for re-medical checkup. On 15.10.2008 the 3rd respondent sought direction of the Additional Director General (S&P), CPWD on the said request of the applicant. In the month of December, 2008 the applicant got his eyes checked up at Super Specialty Eye Care & Laser Centre, Kavi Nagar, Ghaziabad, AIIMS, New Delhi and Safdarjung Hospital, New Delhi. On 2.1.2009 the Additional Director General allowed the applicant to be re-examined medically. On 5.1.2009 the Assistant Engineer (HQ) requested the Civil Surgeon of Dr. RML Hospital to conduct medical re-examination of the applicant, with particular reference to the color vision of high order. On 12.2.2009 the Assistant Engineer informed the applicant that he had been declared unfit for the post by the medical board of Dr. RML Hospital. It is the case of the applicant that reports of AIIMS and Safdarjung Hospital were contrary to the report of Dr. RML Hospital, and that as he is able to distinguish colors in the color vision chart and color vision of high order, on 27.2.2009 he requested the Superintending Engineer (Electrical) to avail the second medical view from different medical board in different hospital. The applicant was informed vide letter dated 9.3.2009 that his request was under consideration. Meanwhile, the applicant got his eyes checked up at Venu Eye Institute & Research Centre, New Delhi, which again held that color vision of the applicant was normal. However, the applicant was taken aback when he received the letter dated 13.3.2009 informing him that his appointment to the post of Junior Engineer (Electrical) has been withdrawn. The applicant thereafter has been making applications seeking some information under RTI Act and has been getting the required information. When the entreaties of the applicant to put him to yet another medical test failed, present Original Application was filed in May, 2010.
3. Shri Prem Prakash, learned counsel representing the applicant, in support of the OA would urge that the applicant is medically fit and could not be denied appointment on the post for which he competed on all India level and was duly selected. He contends that the applicant needs to be given appointment on the post of Junior Engineer, and in any case, if the respondents may still be in some doubt as regards his medical fitness, there ought to have been another medical test to test the fitness of the applicant.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. It has inter alia been pleaded in the counter reply that the offer of appointment to the applicant on the post of Junior Engineer (Electrical) has been withdrawn due to the reason that he was declared medically unfit twice by the RML Hospital, which is authorized for medical examination, and that in the provisional offer of appointment issued to the applicant, it was stated that the candidate should not be allowed to join duty till he submits the Medical Certificate issued by the Civil surgeon or Superior Officer. It should be indicated in letter to Medical authority that the candidate may be subjected to colour vision of high order for his Medical fitness for appointment as Junior Engineer. Copy of the provisional offer of appointment has been annexed as Annexure R-1. As per normal procedure, it is further pleaded, the applicant was sent for medical examination at RML Hospital, in which he was declared unfit. After that the applicant requested for a medical re-examination and DG(W), CPWD vide OM dated 2.1.2010 granted permission for the same. In the re-examination conducted by medical board, the applicant was once again declared unfit. In these circumstances, it is pleaded that the respondents are unable to appoint the applicant on the post aforesaid. Insofar as, the plea raised by the applicant that he should be put to another medical test is concerned, it is the case of the respondents that the same is allowed in doubtful cases or in very special circumstances, whereas in the present case the applicant was declared unfit for the reason that he did not meet the requirement of colour vision of high order. The applicant was put to medical test twice and on both occasions he was declared unfit.
5. The applicant has filed rejoinder, but there would be no need to refer to the contents thereof as nothing based thereon has been urged during the course of arguments.
6. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The applicant was indeed issued a provisional letter of appointment on 16.7.2008. In the letter aforesaid itself the applicant has been directed to report for duty to Superintending Engineer (Elect.) along with medical certificate issued by Civil Surgeon or superior officer on or before 18.8.2008. It is further mentioned that the offer was provisional and subject to cancellation if the conditions of eligibility were not satisfied. It has also been mentioned that the candidate should not be allowed to join duty till he was to submit the medical certificate issued by the Civil Surgeon or superior officer, and that it should be indicated in the letter to the medical authority that the candidate may be subjected to color vision of high order for his medical fitness for appointment as Junior Engineer (Elect.). The applicant was indeed medically examined at Dr. RML Hospital, New Delhi, and in the certificate issued by the hospital in that regard, even though it is mentioned that the doctor could not discover that the applicant may have any disease (communicable or otherwise) and constitutional weakness of bodily deformity, but it has also been mentioned, except Nystagmus both eye, unfit for the post. It has also been mentioned that the doctor would not consider this a disqualification for the post of Junior Engineer, but when the applicant was examined by the eye specialist, he declared him unfit for the post. Medical fitness as regards the applicant was only for his eyes. We are of the view that certification by a doctor who generally examined the applicant that Nystagmus of both eyes would not be considered as disqualification for the post of Junior Engineer, would be meaningless. It is the report of the eye specialist which was crucial, and that, as mentioned above, clearly indicates that the applicant is unfit for the post. In January, 2009, on the repeated requests made by the applicant, the respondents allowed him to be put to second medical test. The applicant was medically examined once again on 2.2.2009 at Dr. RML Hospital. The opinion of the board, which, it appears, consisted of three doctors, is unanimous that the applicant is unfit for the post. Between the first and second medical checkups of the applicant, there is a gap of more than four months. There does not appear to be any improvement in the eye sight of the applicant. Surely, the respondents cannot await indefinitely for improvement in the eye sight of the applicant and meanwhile keep the post vacant. We do not find any merit in the contention of the learned counsel representing the applicant that the applicant is medically fit and he should have been appointed on the post against which he was selected. Both medical examinations lead to an irresistible conclusion that insofar as the eye sight of the applicant is concerned, he has the problem of Nystagmus in both eyes. The alternative prayer made by the counsel that the applicant should be put to yet another medical examination would also have no merit in the context of the facts and circumstances of the present case. It may be recalled that the applicant was first examined by a general doctor and then by an eye specialist, and after an interregnum of over four months, by a board of doctors. The view of the board of doctors is unanimous that the applicant is unfit for the job. The office memorandum dated 19.1.1989 dealing with constitution of special medical board, relied upon by the applicant, as per the case set up by the applicant himself, would be applicable as regards second appeal only in doubtful cases and under very special circumstances. The same very circular says that Ordinarily, the finding of the Special Medical Board should be considered as final. In the case of the applicant a special board was constituted, which, as mentioned above, declared him unfit. We do not find any reasons from where it would be gathered that there was any doubt as regards the eye sight of the applicant and his problem of Nystagmus. Medical examination by other doctors and the reports obtained by the applicant from them would not advance the case of the applicant. The applicant has been examined by the doctors of a government hospital with the unanimous opinion as already adverted to above.
7. Before we may part with this order, we may mention that the counsel representing the applicant has placed reliance upon the judgment of a learned single Judge of the High Court of Delhi in Abhishek Antil v National Aviation Company of India Ltd. [WP(C) No.5508 of 2008 decided on 24.7.2009, reported as 161 (2009) Delhi Law Times 534]. The facts of the said case, however, reveal that the petitioner before the High Court had applied for position of cadet pilot. The petitioner cleared the written test and interview, but the company that was to employ him put him to a medical evaluation, which he did not clear. When he was denied appointment, he filed the writ petition, wherein it was proved that the petitioner had successfully qualified the written examination and interview conducted by the company, and had successfully cleared the medical evaluation and other tests conducted by the IAF authorities in the month of March, 2007, prior to his rejection by the respondent company. The petitioner also underwent Class-II medical fitness examination conducted by DGCA on 1.8.2007 and was found medically fit. Thereafter on 5.3.2008, he was also accorded by DGCA with class-I medical assessment certificate, required for commercial pilot licence, and further the petitioner underwent a test for hypothyroidism in January, 2008 at a renowned path lab, i.e., Dr. Lal Path Labs Private Limited. The report of the said thyroid function test ruled out the possibility of hypothyroidism qua the petitioner. The petitioner also underwent the same medical analysis from a government hospital, namely, Hindu Rao Hospital on 3.9.2009 and again from Dr. Lal Path Lab in February, 2009. The results of the said medical analysis ruled out any possibility of hypothyroidism. In the facts as mentioned above, the respondent company was directed to send the petitioner for a further medical examination by the doctors of the respondent company. The facts of the case cited have no parity with the facts of the case in hand. The applicant in the present case has been examined for the second time and, as mentioned above, by a board consisting of three doctors, with the unanimous opinion that he is unfit for the job. There may be a doubt as regards medical test conducted by a company, in view of the impressive array of facts of the cited case, and so many medical reports in favour of the petitioner, and, therefore, another medical test was directed by the High Court. In the present case, on both occasions the applicant has been clearly held to be unfit for the job.
8. Finding no merit in this Original Application, the same is dismissed, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/