Central Administrative Tribunal - Jaipur
Mukesh Kumar vs Union Of India on 18 July, 2012
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL, JAIPUR BENCH Jaipur, this the 18th day of July, 2012 Original Application No.287/2008 CORAM: HONBLE MR. JUSTICE K.S.RATHORE, MEMBER (JUDL.) HONBLE MR. ANIL KUMAR, MEMBER (ADMV.) Mukesh Kumar s/o Shri Chhotey Lal, r/o B-59, Tara Nagar, Jhotwara, Jaipur .. Applicant (By Advocate: Shri Shiv Kumar) Versus 1. Union of India through General Manager, North Western Railway, Jaipur 2. General Manager, North Western Railway, Jaipur 3. Divisional Railway Manager, Bikaner Division, North Western Railway, Bikaner. .. Respondents (By Advocate: Shri V.S.Gurjar) ORDER (ORAL)
The short controversy involved in this OA is that vide impugned orders dated 2.6.2008 (Ann.A/1) and 7.4.2006 (Ann.A/2) the applicant was informed that he is declared unfit for required medical category B-1 and also not entitled to be given appointment in other category.
2. Preliminary objection has been raised by the respondents that the present OA has been filed after a delay of more than two years as the candidature of the applicant was rejected vide letter dated 7.4.2006 (Ann.A/2). The applicant was accordingly informed that he was declared unfit in medical category B-1 and was not found suitable for other alternative post in view of the office order dated 20.9.2005.
3. The learned counsel appearing for the applicant referred to medical certificate Ann.A/4 wherein it is stated that the applicant is unfit for B-1 category and fit for B-2 category. After referring the medical certificate, the learned counsel referred Rule 509 of the Indian Railway Medical Attendance Rules for appointment to non-gazetted railway servants, according to which, medical examination of candidates for appointment to non-gazetted railway service and for periodical medical re-examination of serving railway employees includes - (i) general physical examination and (ii) vision tests.
4. The learned counsel appearing for the applicant further referred clause B-1 and B-2 of Rule 510 of the said rules, which is reproduced as under:-
B. Vision tests required B-1 Such station and yard non in the interest of supervisory, shed and the employee himself other staff, excluding or his fellow workers shed man, as are engaged or both. on duties where failing eye sight may endanger themselves or other employees from moving vehicles. Road Motor drivers, Permanent Way Mistries, Gang Mates, Keymen, and staff of the Railway Protection Force.
B-2 Certain staff in workshops and engine rooms engaged on duties when failing eye sight may endanger them- selves or other employees from moving parts or the machinery and crane Drivers on open line.
5. Having referred the aforesaid provisions, further referred to Rule 512 of the said rules, wherein, the following are the standards of visual acuity requirements:-
Class Distant vision Near vision
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A-1 . A-2 .. A-3 B-1 6/9, 6/9 with or without Sn.0.6, 0.6 with or without glasses. Power lenses not glasses when reading or to exceed 4D. close work is required. B-2 same as above -do- C-1 C-2
6. After referring the above provisions, the learned counsel Shri Shiv Kumar submits that in view of the medical certificate, the applicant was fit for B-2 medical category and since the standards of B-1 and B-2 medical categories are same, thus, the applicant is also entitled for B-1 category but the applicant was wrongly denied appointment on account of declaring unfit in B-1 category.
7. The submissions made on behalf of the applicant is strongly controverted by the learned counsel appearing for the respondents stating that the applicant was declared medically unfit for required medical category B-1 in the medical examination for appointment to the post of Gangman as per certificate dated 12.4.2005 (Ann.A/4) and his claim for appointment in the alternative category is not sustainable. Further submits that the OA preferred by the applicant is not within the statutory period of limitation as prescribed under Section 20 read with Section 21 of the Administrative Tribunals Act, 1985 as the applicant was declared unfit for B-1 medical category for appointment to the post of Gangman in view of the certificated dated 12.4.2005, as such, the cause of action, if any, accrued to the applicant on 12.4.2005. Therefore, the Original Application preferred by the applicant in the year 2008 is hopelessly barred by limitation in view of the ratio decided by the Honble Supreme Court in the case of D.C.S.Negi vs. Union of India in Special Leave to Appeal (Civil) No.7956 vide judgment dated 7.3.2011 and this OA deserves to be dismissed only on this ground alone.
8. In reply to the submissions made on behalf of the applicant that the General Manager may relax the provisions in the case of temporary appointment to the post of non-gazetted services including class IV and labourers grades as given in para 510 of Indian Railway Medical Attendance Rules, the learned counsel for the respondents submits that the applicant cannot claim as a matter of right to exercise the discretion. The applicant was not found suitable for alternative post and was rightly denied alternative appointment.
9. The learned counsel appearing for the respondents placed reliance on the judgment rendered by the Honble Supreme Court in the case of Dilip Kumar Garg and Another vs. State of Uttar Pradesh and others reported in (2009) 4 SCC 753, where in para 15 and 17, the Apex Court observed as under:-
15. In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualification for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a court of appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. (See Union of India vs. Pushpa Rani and Official Liquidator v. Dayanand reported in (2008) 9 SCC 242 and (2008) 10 SCC 1 respectively).
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17. In Tata Cellular vs. Union of India [(1994) 6 SCC 651] it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a rule under Article 309 of the Constitution.
10. Having heard the rival submissions of the respective parties and upon careful perusal of the medical certificate and the relevant rules as well as the judgment referred to by the respective parties, there is no doubt that the OA has been filed after a lapse of more than 3 years as the cause of action was available to the applicant in the year 2005 and further the cause of action was made available to the applicant on 7.4.2006 when the applicant was informed about rejection of his candidature on the ground of medical category vide Ann.A/2. The applicant having knowledge of rejection of his candidature on the ground of medical category sought information under RTI Act vide application dated 26.5.2008 and the information was furnished on 2.6.2008, just to prove this OA within limitation. In our considered view, this OA deserves to dismissed on the ground of limitation as per the ratio decided by the Honble Apex Court in the case of D.C.S. Negi (supra) wherein the Honble Apex Court observed as under:-
.. A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant
11. Even otherwise also, we have examined the case on merit. On merit, the case of the applicant does not stand on the face of medical certificate wherein the applicant was found medically unfit in the required medical category, as such, he was denied appointment. The Honble Supreme Court in the case of Dilip Kumar Garg (supra) held that the administrative authorities have experience in administration and the Court must respect this, and should not interfere readily with administrative decisions unless there is clear violation of some constitutional provision or statute. Therefore, in view of the ratio decided by the Honble Supreme Court in the case of Dilip Kumar (supra), also the OA does not survive on merit.
12. Consequently, the OA deserves to be dismissed not only on limitation but also on merits and the same is hereby dismissed with no order as to costs.
13. In view of the order passed in the OA, no order is required to the passed in MA No.321/2009, which stands disposed of accordingly.
(ANIL KUMAR) (JUSTICE K.S.RATHORE) Admv. Member Judl. Member R/