Central Administrative Tribunal - Kolkata
Arun Kumar vs S E Railway on 11 May, 2018
1 O.. 136.2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH
No. O.A. 136 OF 2016 Date of order: II Mt'1 j0jg
Present: Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Arun Kumar,
Son of Kameshwar Prasad Yadav,
Resident of Village - Babu Chak,
P.O. - MOhammadpur,
Via. - Khagaul,
District - Patna (Bihar),
Pin Cdde-80110&
Applicant
Vs.
H
1. Umon'of lnda?eJv'i'ce4hrough the
- r
I
General Mar
So'uth-EastethRpiiWay,.
Garden Reaci,
Kolkata.
The Chief Medical Director,
Central Hospital,
South Eastern Railway,
-C
Garden Reach,
Kolkata.
The Senior Divisional Personnel Officer,
South Eastern Railway,
Adra Division, Adra.
The Chairman,
Railway Recruitment Board,
Ma Ida.
Respondents
For the Applicant : Mr. M.P. Dixit, Counsel:
Mr. R.P. Singh, Counsel
For the Respondents Mr. A.K. Banerjee, Counsel
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':r% 2 o.a. 136.2016
ORDER
Per Dr. Nandita Chatteriee1 Administrative Member:
Aggrieved at not being appointed to the post of Assistant Loco Pilot under / Category No. 1, the applicant has filed the instant application under Section 19 of the Administrative Tribunal Act, 1985 seeking the following relief:- 1.
11 That your Lordships may graciously be pleased to quash and set aside the impugned reason denying the applicant from appointment to the post of Assistant Loco Pilot as contained in Annexure A/8 dated 11.8.2015.
That your Lordships may graciously be pleased to direct/command the Respondents to issue offer of appointment letter to the post of Assistant Loco Pilot in favour of the applicant henceforth.
That the. Respondents be further directed to grant all consequential benefits in favour of the applicant including arrears of pay, seniority etc. at par with other selected persons on the basis of same employment notice.
Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the-applicant.' Il. Heard Ld. Counselfôr the' pØlicant andrespondentS perused available pleadings, documents on recod. No rejoinder, although volunteered to be filed on 19.8.2016, is found on record.
Ill. The submission of the ap'Ølicant, as canvasseq through his Ld. Advocate, is as follows:-
The applicant had responded to an Employment Notice No. CEN-01/201 1 issued by respondent No. 4 for appointment to the post of Assistant Loco Pilot under Category No. 1. The applicant appeared in the written exam on 15.7.2012, in a psycho test held on 9.1.2013 and thereafter received an order dated 15.4.2013 confirming his selection/final appointment against the said post subject to completion of other formalities as required by the respondent authorities (Annexure "A-2' to the O.A.).
That, the applicant was issued with a temporary appointment order dated 15.7.2013. That, applicant was subsequently sent for a medical test at Adra but was issued with an 'unfit" certificate. The applicant, in the meanwhile, had oa 136.2016 consulted local medical authorities on 6.9.2013 and 1.10.2015 and such medical authorities, however, had declared him fit in all respects. / II That, his appointment was denied on the basis of medical report of one / Shri Tanay Kr. Mitra and hence there being no cogent grounds to deny him appointment the applicant has filed the instant application.
Per contra, the respondents, as represented by their Ld. Counsel argued IV.
as follows:-
That, the applicant, having been found selected for the post of Assistant Loco Pilot by RLD, Malda, against the Employment Notice No. 1/01, was recommended for appointment as Assistant Loco Pilot, subject to his being.fOund suitable for the requisite medical qualifications for the said post.
That, Para 8 and 8(a) of the said notification bearing No. 1/2011 had clearly mentioned that candidates recommended for appointment will have to pass requisite medical fitness test(s) conducted by the Railway Administration to ensure that the candidates arernedicalIy1itto carry out their duties connected with the post.
That visual acuity standard is one of the important standards of medical fitness of Railway staff and the medical requirements against the medical standards for "A-i" category are as follows:-
"A-i Physically fit in all respects. Visual standards distance vision 6/6, 6/6 without glasses: Near Vision Sn 0.6.0.6 without glasses (must clear fogging test) .and must pass tests for colour vision, Binocular vision, Field of Vision & Night Vision."
IS.E. That the applicant was sent to the Chief Medical Superintendent Railway/Adra for the requisite medical examination but was declared "unfit" in the requisite category and was, accordingly, informed vide letter dated 21.8.2013.
That, the applicant did not submit any appeal within the stipulated period as laid down in SrI. No. 214/91 regarding re-medical examination. On receipt of his appeal dated "nil" however, the Railway administration providpd the applicant .-..- • _________
- _______ 157 4 o.a. 136.2015 an opportunity of re-examination which was held on 22.1.2015. The opinion of the medical board held on 22.1.2015 is as under:-
"Medical Board has carefully examined Sri Arun Kumar, 33 yrs, S/o Shri Kameshar Prasad Yadav on date and opines that he is not fit in lye one (A-
1) medicl category as his naked eye vision is not as per standard of A-i;
which has been accepted by CMD/GRC. As, such the previous certificate No. 673369, dt.- 20.08121.08.20.13-2014 will stand good." That, as per Para. 7.08 as well as para 8 note (c) of Employment Notice No. 1/2011, it has categorically been stated that:
"it may be noted that candidates qualifying in examination(s) for the post but failing in prescribed medical examination(s) for the post will not any case be considered for any alternative appointment."
Which has further been suported by RBE No. 90/89 circulated vide SrI. No. 111/09 by CPO/Garden Reach.
Regarding the reference to pné Shri Tanay Mitra, the respondents have t argued that Sri Tanay Mdra w - isO declared unfit in the requisite medical category in A-2 medical category on .remedical examination and that Shri Mitra had preferred an Ok, which is still under consideration befqre the concerned authorities.
ISSUE The issue which is to be decided by us is whether the applicant is entitled to final appointment which has been denied to him on the grounds of being medically unfit in the requisite medical category by the respondent authorities.
FINDINGS ..'
.0
(i) In their reply, the Respondents have affirmed that the centralised
Employment Notice Nb. 1/11 dated 13.8.2011 had clearly mentioned it para 7.08
that the appointment of the selected candidates is subject to hisTher passing requisite medical fitness test to be conducted by the Railway Administration and in Para 8 Note(c) it was further mentioned that "it may be noted that candidates qualifying in examination(s) for the post but failing in prescribçd medical 45> .17ii S o.a. 136.2016
-'I (I examination(s) for the post will not, any case be considered for any alternative :' appointment."
(ii) I The communication dated 15.4.2013 of the RRB Malda (Annexure A-2) to the O.A. vide which he was empanelled for the post of Assistant Loco Pilot Cat No. 1 is reproduced below:-
RAILWAY RECRUITMENT BOARD, MALDA Kalibari Railway, Colony, P.O. Jhaljhalia Malda, W/Bengal NO. RRB/MLDT/CEN-1/201 1/(Cat-01)/ALP Dt: 15.4.2013 To Arun Kumar Vill- Babuchak, P0. Mahmmadpur, Via-Khagaul, P.S. - Fulwari Shrif, Dist. - Patna State: Bihar Pin Code - 801105 Roll No. 23111014010824 Sub: Empanelment for the post of Assistant Loco Pilot Cat. No. Olin Scale Rs 5200-20200: Grade Pay -- Rs. 1900/- of CEn-011201 1. This is to inform you that'y.o'Qt name has been recommended: for the post of Assistant Locô Pilot, CAT- No; 1, in scale Rs. 520020200, Grade Pay - Rs. 1900/- of CEN-01/201 1 to the Chief Personnel Officer, Suth Eastern Railway, Garden Reach, Kolkata. An offer of appointment letter will be issued to you in: due course ty the office of the Chief Personnel Officers, South Eastern RaiIway,.Grden Reach, .Kolkata, provided you are found suitable in all respect under the recruitment rules. No further correspondence will be entertained in this regard by this office. This is a letter of information only, not an appointment letter.
For Chairman Railway Recruitment Board/Malda"
(Hi) the temporary appointment letter dated 15.7.2013 (Annexure A-3 to the O.A.) states the following in para 1 as follows:-
"I have to inform you that you have been selected to undergo training in Elect/Diesel/Traction as a Tr. Asst. Loco Pilot (Elect/Diesel) for a period of 151 daVE subject to passing the prescribed medical eamination by the Authodzed Medical Officer of the Railway and prodi4iction of your original certificates and satisfactory proof in support of your age (date of birth) or Matriculation Certificate etc."
(iv) The communication dated 22.8.2013 bearing No. I MD/13/3606 of SE.Railway furnished by the respondents during hearing is reproduced below:-
- --
5 o.a. 136.2016'
Adra, dt. 22.8,2013T0
"No. MD/13/3606
To
The Sr. Divi. personnel Officer
S.E. RIy/Adra
,
Sub- Arun Kumar, Sb. KamesWar Prasad Yadav, a candidate for appointment in Aye one category as Tr. ALP. Ref.- Your M. Memo No. E(ELS/Sl) Tr. ALP/RRB MLDTI04/1 3 Dt. 15.7.2013.
Arun Kumar, S/o Kameswar Prasad Yadav, a candidate for appointment in Aye one category as Ti. ALP appeared to this hospital on 20.8.2013 in connection with his medical examination. He was examined and declared unfit for Aye one category. Accordingly an unfit certificate no. --673369 dt-20.8./2108.2013 has been issued in his favour which is enclosed here with for your further disposal.
End. One unfit certificate as above.
Chief Medical superintendent/Adra Subsequently in response to his appeal he was subjected to a re- examination on 22.1.2015 at Central Hospital / Garden Reach which was reportedly communicatedto him on 12.1.2015 by the respondent authorities. U The results of medical board report consequent to the examination on 22.1.2015 was conveyed by the Chief Medical Superintendent Adra on 19.3.2015 to the concerned respondent authority and reads as follows-
SOUTH EASTERN RAILWAY/ADRA OFFICE OF THE CHIEF MEDICAL SUPERINTENDENT, S.E. RAILWAY, ADRA Dated: 19.3.2015 No. MD1131790 Chief Personnel Officer, S.E. Railway, Adra Medical Board report in favour of Sri Arun Kumar, Sb. Sri Sub:
Kameshwar Prasad Yadav, a candidate for Tr. ALP I Aye one Category.
Ref.: Your M. Memo. No. - E(ELS/SI)Tr. ALP/RRB/MLDTI04M3 dt.
15.7.2013.
Sri Arun Kumar, S/o Shri Kameshwar Prasad Yadav, a candidate for Tr.
/ •r--C(- ---
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H.)? 7 o.a. 136.2016 /7
ALP in Aye one category was examined by the Medical Board at Central / Hospital / CRC on 22.1.2015 to determine his fitness or otherwise.
Opinion of the medical Board is furnished below for your information and necessary action -
"Medical Board has carefully examined Shri Arun Kumar, 33 yrs., Sb Kameshar Prasad Yadav on date and opines that he is not fit in Aye One (A-i) medicl category as his naked eye vision is not as per standard of A-i. which has been accepted by GMD/GRC.
As such, the previous certificate No. - 673369, dt.- 0.8.121.8.2013 will stand good.
Chief Medical Superintendent IAdra."
Hence, as far as the Railway Medical authorities of the respondents are concerned, the applicant has been considered unfit both during the initial medical examination as well as during the re- medical examination respectively.
(v) it is seen, however, from communication of the respondent authorities dated 21.8.2013 (Annexure'A-4 to the O.A.) while, on the subject of appeal, the applicant had been informed as follows:-
xxxxx xxxxx xxxx
xxxxx
1. Candidates-
i)Ordinarily, there is no right of appeal from the findings of an examining medical authority, but if Govt. are satisfied on the evidence produted before them by the candidate concerned on the possibility of an error of judgment in the decision of the examining medical authority, it will be open 'to them to allow re-examination. Such evidence should be submitted within one month of the date of the ommunication in which the decision of the finst medical authority is communicated to the candidate otherwise, ordinarily, no request for an appeal for a second medical examination will be considered. U) If any medical certificate is produced by a candidate as evidence about the possibility of an error of judgment in the decision Of the first medical authority, the certificate will not be taken into consideratiøn unless it contains a note by the medical Practitioner concerned to the effect that it has been given in full knowledge of the fact that the candidate has already been rejected as tinfit for service by the medical authority appointed by the Govt. in this behalf.
Medical Examh,er Sr. DivI. Medical Officer/Ac.ra"
The applicant in the context of para (ii) of the said communication approached one Mahavir Netralaya, Patna (Annexure A-5 to the O.A) wherein I '1 S ca. 136.2016 Dr, U.C. Mathur, Eye Specialist and in Charge certified that his visual acuity in accordance with the requirements of the respondents. An iflegible certification dated 6.9.2013 refers to rejection order of the respondent authorities. The applicant further approached one Advanced Eye Care of Patna whiein, on 1.10.2015 a prescription has been issued to him by an unidentified individual advising that "no intervention is called for at the moment". Being issued by an js placed individual not identified as a registered medical practitioner, no reliance F on the same.
The crucial documents to be examined in this context is the applicant's
(vi) temporary appointment letter dated 15.7.2013 (Annexure A-3 to the O.A.) wherein it is categorically stated that the applicant was selected to undergo training as a Trainee Assistant Loco Pilot (Elect/Diesel) for a period of 151 days subject to passing the presribømediCal examination by the Authorized Medical Officer of the lRaiiwaya'fld prQductiofl.
The certification dated 22.8.2013 was issued by the CMS, Adra. The medical board constituted to re-ex?mine him based on his appeal was at Central Hospital/GRC. Nowhere has the applicant challenged these certifjcations as having been issued by an medical authority of the respondents not aythorised to certify his medical suitability/fitness.
Further, presunably the applicant had furnished his certification annexed at Annexure A-5 dated 6.9.2013 while appealing to the respondent aijithorities but there is nothing on record or in the pleadings to prove that such certification was not considered by the medical board while finalising the results of his medical re- examination.
(vH) The actions of the respondent authorities have been challenged on the following grounds and our observations on each of such grounds are as follows:-
7-1 9 o.a. 136,2016
(a) That, Annexure A-8 to*-the O.A. which contains a reference to the representation of one Shri Tanay Mitra is bad in law and *ithout any substance:-
Having peruSed the medical board's order dated 22.120115 which is entirely in the context of the applicant MD/13/790 dated 1.3.2015 of the Respondnt authorities is established as having been ièsued by a competent medical board of the respondent authorities in terms of clause 1 of his letter of temporary appointment (at Annexure A-3 to the O.A) and as not influenced by 4the result of Shri Tanay Mitra.
That the actions of the respondents are illegal andcontrary to settled principles of law:-
The fact that his visual acUity:had to..abide by the requisite standards was known to the applicant right from the stage of adverti4ement and also during the stage ;ofissue of his letter of temporary appointment. Such prior information.cannot be. saidto be against principlds of natural justice or equity as claimed in the application. That, the impugned actions have been alleged to be di5criminatory and against the principles of promissory estoppels:- As the respondents have clarified that in the case of a simiJarly placed candidate namely, Shri Tanay Mitra, the same relection. order had followed, disdrimination as alleged does not stand to be proved. Regarding the issue of Promissory Estoppel, it has been held in K. Channegowda v. Karnataka Public Service Commissior, (2005) 12 tL '7 :
SCC 688 that unsuccessful candidates are stopped from :challenging the selection criteria. , . •i•" .
In Union of, India v. M. Chandrasekharan, (1998) 3 5CC 694 the principle of e'stoppels were applied to candidates who appeared for the DPC after being made aware of the procedure for promption before they sat for the written tests and appeared for interpiiew. Such 10 o.a. 135.2016 candidates on not being selected, were not permitted to turn around 4 I / and contend the selection results.
In this case also, as the candidate had been made aware of his necessity to qualify in the medical examination, right at the inception from the stage of advertisement and also in his temporary appointment letter which he accepted uncpnditionally, the candidate cannot now turn around and question the decision of the Railway authorities at his not being able to successfully qualify in the requisite medical category.
(d) It is noted here that as the candidate was an applicant for the post of Assistant Loco Pilot, the importance of vision acuity is undrscored and the respondent authorities were absolutely within their rights in not finally selecting the candidate whose standard of vision acuity failed to meet the requisite standards.
VI. In U n io n: of India V. Asutosh Kumar Srivastava (200) 1 soc isa it has been held that the jurisdibtion of OAT is confined to monitoring whether the concerned rules relating to the interview or viva voce have been complied with, it cannot sit in judgment on merits relating to the persona interviewed and allot marks of its own.
In this case also we confine ourselves on adjudication of the issue as to the concerned rules had been followed in the case of the applicant. Since the requirements against the medical standards for A-i category has been laid down by the respondent authorities and the applicant at no stage challenged the same, we are of the considered view that the respondents had abided by their relevant rules and procedures in deciding upon the appoiptment of the applicant. • •
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77,77 , r r o.a. 136.2016 AccOrdiflIY. we do not find any reason for judicial intervention and
- VII.
consider the applibatiofl as liable for dismissal on merit nd is dismissed
-
8 ccordingly.
Parties will bear their respective costs.
(Bidisha Bneriee)
-- (Dr. -------------------
Nandita Chattrjee) ----------------
Judicial Mmber
AdminiStrati Member
sP
V