Allahabad High Court
Vijay Dwivedi vs Central Administrative Tribunal And 5 ... on 31 March, 2023
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- WRIT - A No. - 18305 of 2021 Petitioner :- Vijay Dwivedi Respondent :- Central Administrative Tribunal And 5 Others Counsel for Petitioner :- Dinesh Kumar Pandey,Sr. Advocate Counsel for Respondent :- Vivek Kumar Rai,Arun Kumar Gupta Hon'ble Suneet Kumar,J.
Hon'ble Shiv Shanker Prasad,J.
1. Heard Sri P. C. Dwivedi, learned counsel for the petitioner and Sri Arun Kumar Gupta, learned counsel appearing for the respondent-railways/Union of India.
2. The instant writ petition is directed against the judgment and order dated 18th November, 2021 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (for short ''Tribunal'), in Original Application No. 330/00092/2020 (Vijay Dwivedi Vs. Union of India & others), whereby the claim of the petitioner for appointment has been rejected.
3. The admitted facts inter se parties is that Railway Recruitment Board, Government of India, Ministry of Railways notified Advertisement No. 01 of 2014 dated 18 January 2014, inviting applications for the posts of Assistant Loco Pilot.
4. It is not disputed that the petitioner qualified the written examination and was declared successful in the Psychology Aptitude Test. However, petitioner could not qualify the medical test for the reason that petitioner had earlier undergone Lasik Surgery of his eyes. Feeling aggrieved, petitioner challenged the rejection order before the Tribunal by filing Original Application No. 330/01161/2017. The said application came to be allowed on the ground that the advertisement did not contain any specific provision that the persons who have undergone Lasik Surgery are not eligible for the post of Assistant Loco Pilot. Accordingly, by judgment and order dated 06 February 2019, the learned Tribunal quashed the impugned order dated 06 September 2017, and directed the respondent-Railways to reconsider the case of the petitioner as per the Medical Standards indicated in the advertisement within a period of three months.
5. Pursuant to the order of the Tribunal, the respondent-Railways again rejected the medical fitness of the petitioner on the same reason that petitioner had undergone Lasik Surgery, therefore, was not eligible for the post. Aggrieved, petitioner challenged the order dated 31 May 2019, before the Tribunal, which came to be rejected by the impugned judgment.
6. Learned Tribunal in paragraph 7, 8 and 9 assigned the reasons for not accepting the contention of the petitioner. Para 7, 8 and 9 of the impugned judgment is extracted hereinbelow:-
"7. The sole issue before us that whether the lasik surgery person can be declared unfit purely on this ground when he meets all other criteria for the post of Assistant Loco Pilot for which he applied and was selected and found fit in all other respects. It is not disputed even by the respondents department that the advertisement itself only states medical standard to be of A-1 category for Assistant Loco Pilot and does not clearly disqualify the persons who had undergone Lasik surgery. The respondents department could not show us any single document under which they had declared Lasik surgery persons to be not eligible for the post. This situation changed only at a later stage when, based on medical advice, the Railways have taken a clear stand to make Lasik surgery persons ineligible for such posts and have also started mentioning this condition clearly in their subsequent advertisements for these posts. It goes without saying that this policy would have prospective effect and cannot be given retrospective effect. In fact, the Railways own action of starting to indicate the ineligibility of Lasik suregery persons in their subsequent advertisements proves that if such candidates were to be considered ineligible, the condition needed to be specified in the advertisement itself. Even from the common oint of view, one would think that once a person is fulfilling all the medical standards with regard to the six parameters namely near vision, distant vision, night vision, colour vision, binocular vision and field of vision, he should be considered eligible. That the applicant is meeting all standards prescribed under the parameteres of the advertisement is not disputed by the respondents. At the same time, it is also true that the learned counsel for the respondents gave a detailed narration of medical experts' advice whereby it was indicated that Lasik surgery persons are liable to suffer from night vision problems at a later stage. They also have a problem of occurence of other vision problems in future years. Accordingly, they may not be ideally suited to be considered for appointment to the post of Assistant Loco Pilot.
8. However, keeping in view that in the instant case, the advertisement did not contain any specific indication that Lasik surgery persons are not eligible for appearing for the post of Assistant Loco Pilot and the applicant thus met all the medical standards specified, we are of the view that it will not be justified to deny him appointment to the post of Assistant Loco Pilot on this ground. For future, the Railways have already changed the policy and have started declaring such persons as unfit and hence, such issue is not likely to arise in future.
9. In view of the observations made in para 7 of 8 above, the impugned order dated 06.09.2017 is quashed and the OA is allowed. The respondents are directed to reconsider the case of the applicant in the light of above observations and as per the medical standards stipulated in the advertisement within a period of three months from the date of receipt of certified copy of this order. No costs. "
7. In this backdrop, the learned counsel for the petitioner submits that the earlier original application was allowed by the Tribunal vide order dated 6 February 2019, accordingly, the respondent-Railways should have complied the same. The order dated 6 February 2019 was not challenged by the respondent-Railways before the higher Court, accordingly, it attained finality. It is further submitted that the advertisement admittedly did not categorically state that the candidates who had undergone eye surgery would not be entitled for the post of Assistant Loco Pilot. It is further submitted that the error committed by the respondent-Railways in the advertisement issued in the year 2014 was subsequently rectified. In the subsequent selection process initiated in the year 2018, wherein it was categorically mentioned that candidates who have undergone Lasik Surgery of the eye are ineligible. In short, it is sought to be urged that since the advertisement did not disclose the parameters of the medical fitness, accordingly, petitioner cannot be declared to be non-suited merely he had undergone the Lasik Surgery.
8. Learned counsel appearing for the respondent submits that the respondent-Railways are bound by the circular/ policy/ guidelines framed/issued for medical fitness from time to time. The Ministry of Railways (Railway Recruitment Board) vide circular dated 11 November 2013, clearly provided that candidates who have undergone Lasik Surgery in the past or during the service period shall be unfit for certain categories of posts. In view thereof, it is submitted that the impugned judgment does not suffer from any irregularity and perversity.
9. We have considered the rival contentions advanced on behalf of the parties and gone through the record.
10. It is not in dispute that the Railway Board vide circular dated 11 November 2013, provided the medical fitness guideline. The relevant part is extracted:-
"Sub:- Revision of Policy Guidelines for medical fitness of candidates and employees of various medical categories who have undergone LASIK Surgery in the past or during service period. Procedure New Recruit Existing Employee All surgeries done to correct refractive error.
(Mandatory declaration from the candidate about such surgeries.) Unfit in A&B Categories.
Unfit in A&B Categories.
In addition to the declaration the examining medical officer will use all the equipment at his/her disposal and opinion of specialist, wherever available, to come to a reasonable conclusion about the declaration being true or otherwise."
11. The advertisement may not have disclosed that the candidates who have undergone Lasik Surgery are unfit for the post, that would not benefit the petitioner for the reason that the medical standard was duly formulated and communicated by the Railway Recruitment Board by the afore noted circular, which was binding upon the Medical Board undertaking the medical fitness of the candidates. The medical fitness guideline was issued prior to the advertisement, therefore, would apply to examine the medical fitness of the candidates.
12. In the facts and circumstances of the case, we are unable to to take a different opinion than that taken by the learned Tribunal. We find no illegality or perversity in the order impugned.
13. The writ petition is being devoid of merit is, accordingly, dismissed.
Order Date :- 31.3.2023 Abhishek Singh