Central Administrative Tribunal - Kolkata
Monohar Kumar vs Eastern Railway on 29 November, 2018
{
1'
t- m \l 1 O.A. 734.2016
f
•! ■
v CENTRAL ADMINISTRATIVE TRIBUNAL
i
KOLKATA BENCH, KOLKATA
No. O.A. 734 of 2016 Date of order: 29.11.2018
Present Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Monohar Kumar,
i
Son of Surendra Prasad,
Aged 25 years,
Residing at Vill. & P.O. Meghi
Dist. Nalanda,
Pin-803 111.
.. Applicant
(■
VERSUS-
1. Union oflhdia,'
Tlj pb ii g h^th e^Ge n e ra I'Ma ri age r
'4..
\
--•"■Wt
13 j
2. Th^jPRief^IrkpnnelfOffice'r'
'' Eas^^iWa>,y ^ *
1 J- i
\ \K6lkata - 700 001V' V /f
i
' ' • ■*". ,»••• A' / /
3. The Chief j^ledicaLDirecfor,
Eastern Railway^
B.R. Singh Hospital
Sealdah, Kolkata.
.. Respondents
For the Applicant Mr. A. Chakraborty, Counsel
For the Respondents Mr. S.K. Das, Counsel
ORDER (Oral)
Per Dr. Nandita Chatterjee. Administrative Member:
Aggrieved at the denial of opportunity for re-medical examination, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
2 O.A. 734.2016 "(a) Office Order dated 2/11/2015 issued by the Chief Medical Director, Eastern Railway cannot be sustained in the eye of law and as such the same may be quashed.
(b) An order do issue directing the respondents to. send the applicant for •.* re-medical examination for appointment in the post of Assistant Loco Pilot without taking into account the Railway Board's circular dated 5.6.2014."
2. Heard both Ld. Counsel, The respondents have filed a short reply as counter to the Original Application. Examined documents on record.
3. The applicant's submission, in brief, is that he had appeared in the selection test for appointment to the post of Assistant Loco Pilot pursuant to a notification of 2011. Having been declared successful, an offer of appointment was issued in his favour. The applicant, however, was declared medically unfit by the respondent authorities although the doctor of AIIMS Hospital, Patna had given him a fit certificate. The applicant had prayed for re-medical examination as
-r3/, per extant rules but his prayerNvas rejected on th^baSis of an amended circular.
As the amended circular^ad carffejntb prck^fter issuance of the Employment Notice, such circular waV'not appiicibpjli^iCca^ and^hepce, being aggrieved the applicant has approached the TribunaKih the^iristant Original Application.
The applicant has advafy5|^te ir/support of his claim namely:-
X •s.. >" ,.V'V /
./
That the circular dated 5r6.2014^shalPndt j3e^pplicable in his case as the Employment Notification was issued in 2011;
The applicant has cited Tribunal's orders dated 31.8.2015 in O.A. No. 542 of 2015 in support.
4. The respondents, in their short reply, have contended that on 25.6.2014, the applicant, a candidate for trainee ALP, Medical Category A I (Aye one), was examined by a three member Divisional Committee (as per Railway Board's letter dated 5.6.2014) which has unanimously opined that the applicant is having unaided substandard visual acuity in left eye with central traumatic cataract which is a progressive disease and, hence the candidate was declared unfit in Category A I (Aye one).
*- ... <
/
}
3 O.A. 734.2016
/
/5. The point of determination in this matter is whether the applicant is entitled i to medical re-examination as per rules of the respondent authorities. /
6. At the outset, we refer to Rule 522 (1) of Indian Railway Medical Manual f which is germane to the lis and is reproduced as under (with emphasis i supplied):-
"522. Provision for reconsideration of adverse reports:* The following provisions shall apply in regard to the reconsideration of adverse reports of Medical Examination.
(1) Candidates:-
<i) Ordinarily, there is no right of appeal against the findings of an examining medical authority, but if the Government is satisfied, based on the evidence produced before it by the candidate concerned, of the possibility of error of judgment in the decision of the examining medical authority, it will be open to it, to allow re-examination. Such evidence, should be submitted within one month of the date of communication in which the decision of the first medical authority is communicated to the candidate. The appellate authority may entertain the appeal within a reasonable tirife^aftef the expiry of said period, if it is satisfied that the appellanhhad sufficient cause fdr^noKpreferring an appeal in time. Consultation andinvestigatibn'^hlfges^will be^recbyered for appeal.
/\\\ j j //%L .\ (Ministry of^ailwayf^ttlrMbMpysjljIt. 23'(§8/1991 and No. 87/H/5/18dt.
26/10/1!988)r \
>• c
<ii) If any medical certific^e^pfd^ijced^bf a candidate as evidence about the
possibility^ an error%1vjuagemenniUh'e decisiofrof me'first medical authority. the certificate wiiKmjt^betakenrtntocGn^deration urfless it contains a note by the medical practitioner'concerned. toJhe.effect that it has been given in full knowledqe^of the'fact that-the^candidate hVs/alreddv been rejected as unfit for service bv the'meclicarauthoritwaDbdinted4)v thdGovernment in this behalf."
A plain reading of the paragraphsrtranslaTes into the following:-
(a) Ordinarily there is no right of appeal against the findings of an examining medical authority;
(b)lf the government is satisfied, based on the evidence produced before it by the candidates concerned of the possibility of error of judgment in the decision and the examining medical authority, it will be open to allow re-examination:
(c)Such evidence should be submitted within one month from the date of communication whereby the decision of the first medical authority was communicated to the candidate.
ki' i { 4 O.A. 734.2016
(d)lf any medical certificate is produced by the candidate as evidence about the possibility of an error of judgment in the decision of the first medical authority, the certificate has to contain a note to the effect that it has been given in full knowledge of the fact that the candidate has already been rejected as unfit for service by the medical authority appointed by the government in this behalf.
Next, we examine the circular dated 28.7.2014 communicating Railway Board's letter dated 5.6.2014 on the subject matter of consideration of appeal of non-gazetted candidates declared unfit upon medical examination, which also refers to Para 522(l.) of IRMM . The said circular bearing SI. No. 82/2014 is reproduced below:- .^*3 U q?/ - -v rV Si. No. 82/2014 \ No. E.691/0/Pt.lll Kplkata 28th July, 2014 7 All concerned / 7 / / Sub: Consideration bf appeaUoLnon-gazetted^candidates selected for Railway employment - C^ses^oTcan^'ciatesfdediarld .unfit upon medical examination.
X. 's..
•v.
V
Railway Board's letter No^O-IA/H/S/S^PSlTcy) dated. 5.6.2014 along with ACS No. 1/2014 of Para 522 of IRMM, 2000 is forwarded for information, guidance and 'necessary action.
DA: As above (S. Ganguly) Asstt. Personnel Officer/R For Chief Personnel Officer Railway Board's letter No. 2014/H/5/8 (Policy) dated 5.6,2014 addressed to CPO/E. Railway, All Divisions / Units.
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 candidate selected for employment in various non-gazetted posts in Railway services and procedure for making an appeal and its disposal have been laid down in Para 522 (I) of IRMM, Third Edition, 2000. It is 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. This is resulting into a number of appeals for \ ¥ 5 O.A. 734.2016 / / 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.
y 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.
The matter has been considered at length in Board's Office and 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:-
Medic§OExamination - MedidkLex'lmination of candidates will be done^by a^WedicanOfflcer with adequate experience in doing medical /examination /andVone Especially nominated by the 0^0/CMS?MD^#;infGh^e. \ II. *lf a cariSida!e'dias:been?dOnd„fo be unfit on grounds of vision / color ^vision/hypert^oh/diabetics^pr any othef| condition/diseases, the ^edica^ex^minefivSilfet^suf any cejpcate and will put up his/her i ^findings in\'GjlMMD/ACMS/C[vlS in charge of the Llnit/Bivisi0n/Si]bfiBivisi6n?Rr6Hubtion Unit/ The .•candidates, without having<to;submit an appeal, will then be immediatelyEexamined-bf^a th'ree/mefriber standing medical team consisting of 1);a?specialist jp^Ke^i^ld; however if the specialist is not a\/aila6le'within_the-unitJdiyisi6n./Production Unit, a senior doctor would be^nbrninated-in-pla'ce of a specialist 2) the medical officer who has conducted the first medical examination and 3) their third being a senior medical officer specially nominated by the CMO/CMS/MD/ACMS in charge.
IV. This three member team will examine the candidate at the earliest after the first medical examination report is put up to the CMO/MD/ACMS/CMS in charge of the Unit/Division/Sub-Division. If necessary, the candidate would be kept in observation in bed. The accommodation charges etc. in this regard will be borne by 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.
V. In case the candidate absconds or absents himself willfully prior to/during examination by the three member medical team, the decision of the first medical examiner would prevail and ho further appeal shall lie with any higher authority including Railway Board. .VI. This committee 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 committee's decision, as ✓
6 O.A. 734,2016 1 accepted by the respective CMO/MD/ACMS/CMS in charge of the Unit/Division/Sub-Division, will be final and no appeal will be entertained against this decision, VII. Once a decision has been taken at the level of the f-r Divisional/Production Unit in charge and the candidate has been declared fit/unfit by three members committee, no further appeal shall lie with any higher authority including Railway Board.
VIII. Consideration of specific cases;-
(a) Once the 03 member committee has taken a decision on the grounds of conditions like hypertension, sub-standard vision and diabetes and the same has been accepted by the respective CMO/CMS/MD/ACMS in charge of the Unit/Division/Sub-Division, any representatipn/appeal shall be dealt with on the basis of records and findings of the Committee and the candidate will not be subjected to examination, fb) Only in specific and exceptional cases in which there is an objective record of a disease (ike an X-Ray finding, ECO 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 candidates if he is satisfied that there are genuine ground for consideration of such an appeal. Such evidence should be submitted within one month of the date of communication of the decjsion of .the CMO/MD/ACMS/CMS in charge of the Unit/Division/Sub-Division/l^foduetioy^lPto'the candidate. However, such an appeal shall be entertaiS'eti' only if. the c/r/didate\produces a certificate from Government/Private debtor ofJiirfp^^/gp|cialtresjpswhich the candidate has been found unfit. Such a'certificat^shbufe lalso^ohtain a note that the Government/Private specialist was aware of the fact thamhe^candidate has^already been declared unfit during medical.examination.co'hductepmiaTLappropriatermedical committee appointed by the GovernmenHn thisfegard^l;^^y%imei|t/Privat'e^pecialist should also certify that he is fully/aware of physi^^&4is|b^stantlams set b&the railways, and that he is aware that cases^of appeal,%|ns{iltatjon a^l«ifivestigatibn'charges as applicable, will however, be recovered-'separate1y;dn^ca%<dCPfoductioh units, such powers .for consideration of appeaPshdlkbe vested in the^etvl.pj>ofrthe/neighboring/parent zone to which the production unit'belonged4o..earlier." • ' // /^ >. X,' '-k.v v ^ / (IX) For all cases, the highesrieveLof^appearshall lie with the CMD and there is no further provision for review againsfthe*deGisiomof a CMD i.e. in case the appeal has been rejected by the CMD or the candidate is again found unfit upon re-medical examination carried out as per the orders of the CMD, no further appeal shall lie with any higher authority including Railway Board."
Upon an examination of the above noted circular it is seen that there are two possibilities for reexamination in case of candidates declared unfit in medical examination:
(i) The medical examination of candidates will be done by a Medical Officer and if the candidate is found unfit on grounds of vision, the Medical Officer will put up his/her findings to the in-charge of the unit. Thereafter the candidates, without having to submit any appeal will then have to be immediately examined by a three member
7 O.A. 734.2016 / standing medical team comprising of a specialist in the field, the / / medical officer, who had conducted the first medical examination / tr and a senior medical officer specially nominated.
(ii) The second possibility is that of appeal as mentioned in para VIII (b) . of the policy that states as follows (emphasis supplied):-
"VIII. Consideration of specific cases:-
(a)Once the 03 member committee has taken a decision on the grounds of conditions like hypertension, sub-standard vision and diabetes and the same has been accepted by the respective CMO/CMS/MD/ACMS in charge of the Unit/Division/Sub-Division, any representation/appeal shall be dealt with on the basis of records and findings of the Committee and the candidate will not be subjected to examination.
(b)Only in specific and exceptional cases in which there is an objective record of a disease like 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 bv the CMP. CMUofUbe Zone fna'V drdeflor re-medical examination of such _____ if he is satisfied^hVt thejgaregenuine^g'rQuh'd, for consideration of such an candidates appeal. Such evidence shopld be subl^SwfthirLpne montlTof the date of communication of the decision of tjle- Cfyl^l^Gl^slGlOlSiin chargeNof the Unit/Division/Sub- Division/Production unrho the7£ar^ilciate.l66vfe^rjsuch fnrappeal shall be entertained only if the candidate^produ?es!3^rfflcllfcfr.omiGove™ent/Private doctor of the specialty/specialties ip-which fhe-candfdat^Ras^been|ound unfit. jSuch a certificate should also contain a note tfrat the Go^drpri^nf/Prtvate^pebialist vyas aware of the fact that the candidate has already^been declared* ilnfitVlmg^nedical examination conducted by an appropriate medicaj commitfee^ppdintkdfe^tge/Sovernment in this regard. The Government/Private 'specialist should also certifvshat h&is-fullv aware of physical & vision standards set bv the railwavs/andlhat-hejs^aware tfist/JaseS of appeal, consultation and investigation charges as *applicable, will however^be' recovered separately, tn case of Production units, such powers^for consideration-of appeal shall be vested in the CMD of the neighbonng/parent zone to which the-production-ilfm belonged to earlier.
(IX) For all cases, the highest level of appeal shall lie with the CMD and there is no further provision for review against the decision of a CMD i.e. in case the appeal has been rejected by the CMD or the candidate is again found unfit upon re-medical examination carried out as per the orders of the CMD, no further appeal shall lie with any higher authority including Railway Board."
The respondents have admitted in their reply that the applicant was examined on 25.6.2014 by a three member standing medical team. In 522 (I) of IRMM as well as the amended circular of 5.6.2014, the primary medical examination of candidates would be conducted by a medical officer who have served as the first medical authority and the three member team would only b-i' i 8 O.A. 734.2016 convene for immediate re-examination of the candidate concerned. The finding of the Divisional Medical Committee is quoted as under:-
t.
r NOTE
No. HM/25/E
Dated 25.6.14
Sub: Re medical examination of Sri Manohar Kumar
S/o. Surendra Prasad (D.O.B. 17.3.91}
Ref.: Rly. Board's letter No. 2014/H/5/8 (Policy) Dated 5.6.14 Name: Sri Manohar Kumar, candidate for Tr. ALP Medical category = A I (Aye One) G-36 Memo No. 898675 dated 14.5.14.
Brief History: Sri Manohar Kumar, S/o Surendra Prasad aged 23 yrs 1 month 27 days, Is a candidate for Tr. ALP in medical category A-l (Aye one) was examined By' Dr. Kamalendu Mondal, ACMS/BT on 3.6.14. The following findings were noted:
The candidate is having sub-standard vfeual'-a^cuity/iQ fLE-i.with retractive error.
;\V'1 _ y ^\ As per Rly Board's )etter"Nor2O14/.^§ff^ii0yidate^ 5..6,'2014 the case was put up to MD/BRSH and accordingly MD/BRSH^iiogiihat|d?03 MembersNcommittee, Dr. Mrs. Gopa Sinha, CMS/SDAH, DijSs. Ho^^*A'bl3l3jfe^)/BRSfe& DrZ-femalendu Mondal AGMS/BT for Medical Examinati^ofthlSfliaal^fe^l ~ ' w Recommendation of Divisional 'Mea'ical^Odm.^itteeT^?'' G; ;
"N_ .r' The Three Members Committ^e^as:^amiRi§0%'ej^fent on 25)6.14 and is of unanimous opinion that the Sri Manohar>Kumar; S/o Surend^Pfas^d^aged 23 years 1 month 27 days is having unaided Sub^Stahdafd V|sTiaLAcuity'in'fLE):with' central traumatic cataract which is a progressive disease.X X Hence, the candidate is declared unfif imcategorylA-l, (Dr. Kamalendu Mondal) (Dr. S, Home) (Dr, Mrs. Gopa Sinha) ACMS/BT ACHD(Eye)/BRSH CM.S/SDAH PCE Doctor/BRSH Specialist/BRSH"
We also find that a communication dated 24.9.2014 (A-3 to the O.A.) addressed to the applicant by the respondent authorities advising him to approach the respondents for reconsideration of his adverse medical report as per Para 522 (I) of the Railway Medical Manual within one month from the date of communication with supporting medical certificates. The applicant having received the communication dated 24.9.2014, produced the medical certificate X' r-
l-
; 9 O.A. 734.2016 dated 13.10.2014 from AIIMS Hospital, Patna. Hence, the applicant was correct /■ in his action in responding to the respondents' communication dated 24.9.2014, It is however, contradictory on part of the respondents to advise the applicant on 24.9.2014 to approach the respondents in appeal and to simultaneously reject i his prayer on the ground of policy dated 5.6.2014 when clearly the latter policy was dated prior to the respondents' communication to the applicant.
The following issues emerge from the actions of the respondents:-
(i) The applicant had responded to an Employment Notification of 2011 and his offer of appointment was dated 30.4.2013. The medical examination being a pre-recruitment formality, only such instructions would be applicable and govern the field when the employment notification was issued Wn^thisabbntext, this Tribunal had, while disposing of O^A. No.^S^fof^iOilS oh 3d>8.2015, found that the i '• \; I//%, \' applicant's case hid^em^edVa^terior to^eireular dated 5.6.2014
-<;;. $ Z-
v*- \-5 ,s and diredtefethe ^Ses^n#||^8!h©Rlfjes -to^iullject the applicant to re-medicare^amination,/The:!app|i^i'nt in th^instant O.A. is similarly / •:
circumstanced'.
/ /
(ii) Although the p'oJicyxdatedS&.2&W \n4s idrwarded to all concerned on 28.7.2014, the applicant-had-been advised in September, 2014 to approach the authorities for re-examination within one month with supporting medical certificate implying that the respondents were acting in terms of Rule 522 (I) of 1RMM which was applicable during the candidates offer of appointment.
(iii) Again, even in the amended circular, there is a scope of appeal/re examination which states that the Government/Private Specialist should also certify that he is fully aware of his vision standard set by the Railways and that he is aware that the candidate has already been certified as unfit according to the standards.
• i / K / 10 O.A. 734.2016 / / / Therefore, in our considered view, the applicant deserves to be reexamined both in terms of 522 (I) of IRMM as well as by virtue of Vlll(b) of V policy dated 5.6.2014. We therefore direct the respondent authorities to arrange for such reexamination within six weeks of receipt of this order, communicate their findings to the applicant immediately on conduct of such reexamination and take further necessary actions as per Rules.
6. With these directions, the O.A. is disposed of. No costs.
------ ------ K /y rr /•
(Dr. Nandita Chatterjee) (Bidisha Banerjee)
Administrative Member Judicial Member
SP
i