Karnataka High Court
Rishi Kumar vs Union Of India on 2 May, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF MAY, 2025
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE T.M.NADAF
WRIT PETITION NO.25044 OF 2022 (S-CAT)
BETWEEN:
RISHI KUMAR
AGED 30 YEARS
S/O SRI. MANOJ KUMAR
R/O BHAKLI (PO) KHASLI TALUK
REWARI DIST,
HARYANA - 123 302 ...PETITIONER
(BY SRI. ACHAPPA P B, ADVOCATE)
AND
1. UNION OF INDIA
S W RAILWAY
GADAG ROAD,
HUBBALLI - 580 020
REPRESENTED BY
GENERAL MANAGER
2. THE CHAIRMAN
RAILWAY RECRUITMENT BOARD
#18, MILLERS ROAD
BENGALURU - 560 046
3. CHIEF MEDICAL OFFICER
CENTRAL RAILWAY HOSPITAL
SW RAILWAY
HUBBALLI - 580 020 ... RESPONDENTS
(BY SRI. H.SHANTHI BHUSHAN, DSGI FOR R1-R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO A WRIT OF CERTIORARI,
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QUASHING THE ORDER DATED 20.09.2022 IN OA NO.170/00545/2020
PASSED BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL (CAT) AT
BENGALURU, PRODUCED HEREWITH AS ANNEXURE-A, AND ALLOW THE
OA NO.170/00545/2020 AND ETC
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.04.2025 AND COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, T.M. NADAF J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE V KAMESWAR RAO
AND
HON'BLE MR. JUSTICE T.M.NADAF
CAV ORDER
( PER: THE HON'BLE MR JUSTICE T.M.NADAF )
This petition is by the unsuccessful applicant calling in question
the order dated 20.09.2022, in Original Application
No.170/00545/2020, passed by the Central Administrative Tribunal,
Bengaluru, (for short 'CAT') vide Annexure-A to the writ petition,
whereby the application filed by the petitioner seeking to quash the
speaking order of ACMS/PME.RH/SBC received through e-mail on
28.08.2020, vide Annexure-A6, was dismissed.
2. The petitioner filed this petition seeking the following
relief:
"(a) A writ of certiorari, quashing the order dated 20.09.2022
in OA.No.170/00545/2020 passed by the Hon'ble Central
Administrative Tribunal (CAT) at Bengaluru, produced
herewith as Annexure A, and allow the
OA.No.170/00545/2020, and
(b) Direct the respondents to include the name of the
Petitioner in the Select List for recruitment for the post of Asst
Loco Pilot as per the Centralised Employment Notification No.
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CEN 01/18 issued by the Railway Recruitment Board (RRB),
dated 03.02.2018;
(c) Grant such other writs or orders as this Hon'ble court
deems fit in the circumstances of the case, in the interest of
justice."
3. A brief outline of facts leading to the present petition as
per the petitioner are as under:
In response to the Centralized Employment Notification issued
by the Railway Recruitment Board ('RRB' for short) on 03.02.2018,
the applicant being one of the aspirants to the post of Assistant Loco
Pilot ('ALP' for short) in Railway Department applied for the said
post. He has cleared first stage and second stage i.e., computer
based test and aptitude test. He was short-listed for verification of
documents and certificates and thereafter for medical examination.
Subsequent to the verification of the documents, the
applicant/petitioner was intimated to appear for the medical
examination at Railway Hospital on 05.09.2019. Subsequent to the
examination, he was communicated through email on 22.11.2019,
by the second respondent - Chairman, RRB that, he was found unfit
in Aye-one, Bee-one medical tests due to stuttering / stammering.
In the communication, he was informed that if he is dissatisfied with
the said communication, he may prefer an appeal before the Chief
Medical Director, South Central Railway, Hubballi through
respondent No.2. As per the communication, the petitioner
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preferred an appeal on 12.12.2019, against the decision of the
Medical Board seeking for re-examination, along with the Medical
Certificate issued by the Senior Medical Officer, Civil Hospital,
Rewari wherein the said hospital has remarked "stuttering is very
mild (not significant)".
4. It was the case of the applicant before the Appellate
Authority that as per the certificate issued by the PG Institute of
Medical Education and Research, Chandigarh, he was diagnosed as
having mild stuttering. In the said medical certificate there was a
note which specifies that, stuttering was not considered as medical
disability. The appeal preferred by the applicant / petitioner was
considered and he was advised to attend for re-examination on
09.03.2020 at Railway Hospital, Bengaluru. Subsequently, he was
referred to All India Institute of Speech and Hearing, on
10.03.2020, for thorough examination by the experts and
specialists. The experts on examination furnished a revaluation
report on 11.03.2020, stating that the applicant is having mild
stuttering and stuttering as a condition will not affect the work
efficiency of the petitioner, as per Annexure-A4.
5. It was his case that, he was informed by the RRB that he
would be communicated further, however, as he did not receive any
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information even after considerable time, he has approached
respondent No.3 - Chief Medical Officer, Bengaluru, as well as the
Chief Medical Superintendent of the Railway Hospital, Bengaluru, for
their intervention through email, however there was no response,
then he has sought for result of the re-examination from RRB on
28.08.2020. In response to his request, RRB communicated a
speaking order received from the office of the Chief Medical
Superintendent, Railway Hospital, Bangalore, wherein he has been
medically assessed as unfit for Aye-one and Bee-one, as per
Annexure-A6, due to speech fluent disorder for the post of ALP.
6. As per the petitioner, the medical examination for the
post of ALP is to declare him fit in AYE-one medical examination, is
for vision test which is required in the interest of public safety. The
medical examination includes MMR/x-ray(chest)/ECG, urine
examination, blood sugar examination, fundus examination or any
other investigations/ observation as deemed fit by the medical
examiner, keeping in mind hypertension, diabetes, ischemic heart
disease, hearing, mental condition / reaction of the candidate. But it
does not say anything about the speech. Despite this, the RRB
declared the applicant unfit, due to stammering which has resulted
in denial of the post of ALP, is violative of Article-16 of Constitution
of India.
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7. It is his further case that there are many persons in
railways with the same condition of stuttering appointed in various
posts, as stammering is not considered as disqualification for
holding any posts in railways. He further contends that some of the
persons have been recruited to the post as ALP in places like
Ahmedabad with stuttering speech, as fit to hold the post by the
concerned Medical Board Of Railways, however, a different
treatment has been meted out at the hands of South Western
Railway.
8. He further states that, as per paragraph No.510(1)(A) of
Indian Railway Medical Manual, only vision test is required for Aye-
One medical examination, in the interest of public safety. The post
of ALP does not involve public contact as stated in the speaking
order, the only categories of Station Master, Guard, Ticket
Examiners, etc., will have public contact. The decision of the Medical
Examination Board is not based on ground reality and purely on
apprehension and their own individual perceptions. With this, the
petitioner called in question the speaking order at Annexure-A6
before the CAT in Original Application No.170/2020.
9. In response to the notice, the RRB appeared through its
counsel and filed reply statement to the application. The RRB has
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taken a specific contention that though the applicant was qualified in
the computer based test, aptitude test and document verification,
however he was declared unfit in the medical examination owing to
speech disorder on the basis of the report of the Railway Hospital,
Mysuru on 31.08.2019. The petitioner was given an opportunity of
appeal before the Chief Medical Officer, wherein he was permitted
for re-examination. In the said re-examination, he was found to
have stuttering which is a speech disorder. Stuttering is a
developmental speech disorder involving frequent problems with
normal fluency and flow of speech. Person with stuttering may also
stop during speech and make no sound for certain syllables.
Stuttering individual repeats, prolongs words, syllables or phrases.
The frequency of speaker's fluencies, as well as their intensity and
duration vary markedly from situation to situation and from day to
day. Stuttering increases during telephonic conversation. Even with
speech therapy stuttering relapses to various degrees later.
10. It is the specific contention of the RRB that, as per Indian
Railway Medical Manual ('IRMM' for short) Volume-1, paragraph -
511(3)(i), the medical examiner while evaluating a candidate has to
ascertain whether there is any speech defect. As per IRMM Volume-
I, Annexure-III (paragraph Nos.509, 512) at 12.14, "persons with
impediments like stammering are not suitable for jobs involving
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contact with public." It was the specific case of the RRB that two
tests are necessarily to be conducted before recruitment to ALP.
First test i.e., 'Aye-One' medical category examination is done in the
interest of public safety and 'Bee-One' medical category
examination is done in the interest of the candidate himself. Though
the job of ALP does not involve direct contact with the public,
however, the job involves constant communication with Onboard
Loco Pilots, Guards, Station Masters, Points man, Train Passing staff
in the stations and staff at Railway Crossing gates. Absence of a
clear audible speech may lead to accidents of trains, endangering
lives of the passengers. Also inability to communicate properly may
lead to obstruction in trains and delay in train movements. So far
as Bee-One medical category examination is done in the interest of
candidate himself or for his fellow workers or both. Candidate for
Bee-One medical category examination required to have a fluent
speech without any impediments. As such the decision taken by the
Divisional Medical Committee, declaring the applicant as unfit in
Aye-One and Bee-One medical category examination, is in
accordance with law and do not call for any interference.
11. RRB further states that, though the petitioner was
declared as unfit at the first examination, he was afforded an
opportunity of filing an appeal before the Chief Medical Officer along
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with the certificates issued by other Medical Institutions, through
the - RRB. The appeal preferred by the petitioner along with the
concerned Medical Certificates submitted by him, have been
forwarded to RRB to the Chief Medical Superintendent, Bengaluru
wherein the petitioner was called for medical re-examination. The
applicant - petitioner attended the medical re-examination
conducted by the Medical Board in class Aye-one, Bee-one on
09.03.2020 at Divisional Railway Hospital, Bengaluru. He was
further examined by a Specialist Medical Board, comprising of three
ENT Surgeons. On evaluation, it was found that, his speech was
monotonous with fluency mildly affected. He was referred to All
India Institute of Speech And Hearing, ('AIISH' for short) Mysuru on
11.03.2020, for re-evaluation, wherein the said institute has made a
subsequent provisional diagnosis, recommended fluency shaping
and stuttering Modification Therapy and follow-up after six months.
A note is made in the said recommendation which reads as under:
"Note; this is to clarify that stuttering is a variable speech disorder
which varies from situation to situation and from person to person.
Majority of persons who stutter improve with speech therapy.
However, the chances of improvement depends on multiple factors
such as; using therapy techniques in all situations, confidence,
speaking situation, listener's reaction, supportive environment etc."
12. Subsequent to the recommendations, the RRB sought for
clarification in order to eradicate any of the confusions, only with a
10
view to consider the candidature of the petitioner by a letter dated
03.06.2020, on three points which reads as follows:
i. Speech therapy for 06 months duration; will it cure the
stammering.
ii. Does stuttering increase during stress/work
pressure/tension/ demanding situations.
iii. Is stuttering completely curable.
13. In response to the letter supra, the RRB received report
from Doctor Sangeetha Mahesh, HOD-Clinical Services, AIISH,
Mysuru, as per Annexure-R2, which reads as under:
"With reference to the above, we hereby enclose the answers
to the clarification regarding stuttering with ascertained
literature along with references.
Question1: speech therapy for 06 months duration, will it
cure stammering?
Answer 1: treatment of stuttering includes the use of fluency
enhancing strategies or stuttering modification strategies.
Treatment for stuttering can be intensive (i.e., many hours
every day for relatively few weeks) or extensive (i.e., one or
two hours per week for several months to over years) and can
involve both individual as well as group treatment sessions
(St. Louis & Westbrook, 1987). Some individuals might
require just few hours of therapy and some might require up
to 1 year. An Indian study conducted by Arya & Geetha, 2013
reported that there is a significant decrease in dysfluencies
with treatment. The effectiveness of the treatment on
personal factors of an individual (e.g.: motivation, necessity
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of treatment, personality, self monitoring, sensitivity,
confidence etc).
Thus, answering to your first question, stuttering may or may
not recover with the duration of 6 months as it depends on
several personal factors as mentioned above.
Question 2: Does stammering increase during stress/ work
pressure/ tension/ demanding situations?
Answer 2: Stuttering is highly variable speech disorder. The
frequency of a speaker's disfluencies, as well as their intensity
and duration, vary markedly from situation to situation and
from day to day (Bloodstein & Bernstein Ratner, 2008;
Costello & Ingham, 1984; Yaruss, 1997a). Frequency of
stuttering varies with emotion and stress (Blood, Wertz,
Blood, Bennett, & Simpson, 1997; Ezrati-Vinacour & Levin,
2004; Vanryckeghem, Hylebos, Brutten, & Peleman, 2001;
Constantino, Leslie,, Quesal, & Yaruss, 2016).
Several studies have highlighted that person with stuttering
exhibits more stuttering in a social situational context.
Individuals have reported telephonic conversations to be
more problematic (Diehl, Robb, Lewis, & Ormond, 2019).
Ladouceur et al. (1982) also reported that adults with
stuttering stuttered significantly more during telephone,
conversations than during face-to-face interviews.
Thus opining to your second question, situational variability
and stress induced conditions increase the dysfluencies or
stuttering.
Question 3: Is stuttering completely curable?
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Answer 3: In a speech fluency disorder we address the
measure of treatment in terms of recovery. Any restoration to
a former or better condition can be termed as recovery. The
recovery rate in young adults with stuttering is reported to be
80% (Sheehan & Martin, 1986) - 94% (Mansson, 2005). As
reported by Finn (1997) support from family and friends,
proper rest, moderate exercise, nutrition,
psychiatric/psychological support are all vital components in
maintaining recovery from nutrition, therapy, proper
supervision, and stuttering. Persons with stuttering may
recover and show improvement soon after their therapy,
though they may later relapse to various degrees.
As reported by Kamhi (1982), occurrence of relapse could be
due to weak establishment and transfer of new speaking
modes, failure to develop or to use self-monitoring
adequately, the client's dissatisfaction with the new speech
mode, failure to eradicate social avoidance behavior, and
variability in the speech production mechanisms
Thus answering to your third question, an individual with
stuttering may recover with the fluency of 80-94% however,
relapse must also be considered. The occurrence of relapse
can be reduced with regular follow-ups and monitoring of the
speech fluency strategies.
14. With this, the learned counsel for RRB states that,
considering all the reports, the Chief Medical Officers passed a
speaking order, which does not call for any interference and sought
for dismissal of the application.
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15. It was urged by the petitioner, before the Central
Administration Tribunal that, he has been evaluated to be suffering
from very mild stuttering, which according him will not affect his
work efficiency as ALP. The Medical Certificate issued by the Civil
Hospital, Rewari and PGI, Chandigarh, states that he suffers a very
mild stuttering and same is not considered as a medical disability
according to the Gazette of India. He further urges that the AIISH,
Mysuru, to whom reference was made by Specialist Medical Board,
Bengaluru, has also confirmed that the petitioner suffers from mild
stuttering and, in general, stuttering as a condition will not affect
the work efficiency of the client. It is his case that, as per the report
of AIISH, Mysuru, stuttering is a variable disorder which varies from
situation to situation and from person to person. It was his further
contention before the Tribunal that there are chances of
improvement by speech therapy.
16. In reply, the RRB contended before the Tribunal that,
though he has cleared all the tests and also passed through the
document verification, but for the speech disorder, he was declared
unfit, which is subsequent to the certificate issued by the concerned
Medical Board and Experts which have been considered by the Chief
Medical Officer in speaking order. The main contention of the
respondent before the Tribunal is that, the person who is appointed
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as a ALP shall be in constant communication with various Control
Board, Station Masters, Signal Guard, etc. It is their specific
contention that to the query as to, whether the stammering
increases during the stress/ work pressure/tension or demanding
situations and whether stuttering is completely curable, the Senior
Medical Officer has responded and clarified the said question in clear
terms that, several studies have highlighted that persons with
stuttering exhibits more stuttering in a social situational context,
individuals have reported telephonic conversations to be more
problematic, also reported that the adults with stuttering, stutters
significantly more during the day time conversations, than during
face to face interviews and there may be a situation variability in
stress induced conditions, increase the dysfluencies or stuttering
and further stated that individual with stuttering may recover with
the fluency of 80 to 94%, however, relapse must also be
considered. The occurrence of relapse can be reduced with the
regular follow-ups and monitoring of speech fluency strategies. After
considering all these medical reports, the Medical Board is of the
opinion that the candidate as unfit for the post of ALP. Accordingly,
his candidature was rejected which is in accordance with the Rules
prescribed as stated supra and the procedure envisaged for the
selection of the candidate.
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17. The Central Administrative Tribunal after hearing both
the sides dismissed the application stating that the
recommendations of the Railway Medical Board which has been
accepted by the RRB, in declaring the candidate as unfit for the post
of ALP cannot be termed as unreasonable or arbitrary. The reasons
for the said order contained in paragraph Nos. 9 to 13, which reads
as follows:
"9. The medical examination has concluded that there is no
doubt that the candidate is suffering from stuttering which is
classified as a speech defect. All the medical reports uniformly
convey this condition. The Doctors of the Civil Hospital Rewari
as well as PGI, Chandigarh, have opined that the candidate
suffers from mild stuttering, which is not considered as a
medical disability. On the other hand, the Railway Medical
Board has given a specific view after looking into the reports
of these Doctors as well as the specialist from All India
Institute of Speech and Hearing, Mysore, that the job
requirement of Assistant Loco Pilot, for which the applicant is
a candidate, (involves constant communication with on board
fellow staff LP/ ALP train passing staff in the station etc., and
absence of clear and smooth speech may lead to accidents of
trains endangering lives of the passengers.
10. After this opinion of the Railway Medical Board, with
CMS/SBC, Chairman RRB has declared him unfit for the job of
ALP/Tech in Aye-One and Bee-One medical categories,
rendering him unfit for the post of ALP which admittedly
requires Aye-One category of medical fitness.
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11. The respondents have entirely followed the prescribed
process for medical evaluation in this case. The applicant was
initially examined by Railway Hospital Mysore which opined
that the applicant be evaluated by a Divisional Medical
Committee consisting of Senior doctors, including an ENT
specialist. The Divisional Medical Committee, Railway
Hospital, Mysore declared him unfit for A-1 and B-I category
due to stammering. On appeal, his re-medical examination
was conducted by the Divisional Railway Hospital, Bangalore
by three Member Committee of ENT Specialists. They also
referred the applicant for an independent opinion from the
All-India Institute of Speech and Hearing at Mysuru. After this
detailed medical examination and obtaining of a separate
opinion from the expert of All India Institute of Speech and
Hearing, Mysore, the applicant has been declared as
medically unfit under Aye-One and Bee-One medical
category, which renders him unfit for the post of ALP. The
applicant has not alleged any malafide in the process of
medical examination. He has however prayed for a
reconsideration of the medical assessment by the
Respondents on the ground that his speech defect is minor
and hence cannot be construed to be an impediment in his
functioning as an ALP.
12. Matters relating to the medical evaluation of candidates in
the recruitment process involve expert determination. We
need to be very cautious in supplanting the process adopted
by the recruiting agency and substituting it by a Court
mandated review or a re-medical evaluation. In the present
case, the prescribed process of medical evaluation has been
followed by the Respondents. The expert medical opinion of
the medical board set up by the respondents is that the
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candidate is medically unfit for the post of Assistant Loco
Pilot. It has been assessed that his speech defect could affect
his functioning as an Assistant Loco Pilot, particularly in times
of stress, and keeping the nature of his duties, could
endanger the lives of passengers. There is no malafide
alleged by the applicant on the part of the respondents. The
prescribed process has also been duly followed. In such a
case, therefore, there appears to be little scope or reason to
have any further interference.
13. The Honourable Allahabad High Court in the case of Vivek
Kumar Vs. State of U.P. and Others 2020 ADJ Online 0073
had interalia observed as under:
"7. The scope of interference in matters relating to
assessment of fitness by a Medical Board constituted under
the statutory rules in exercise of powers under writ
jurisdiction, in our opinion, would be extremely limited.
8. The Courts have, time and again, emphasized the
need for caution when candidates seek to assail the
correctness of the findings of a Medical Board constituted
under a recruitment process adopted by the State
authorities, on the basis of some medical report obtained by
them.
11. In a case where a recruitment process has been
carried out as per prescribed statutory rules where under a
procedure has been prescribed for testing the medical fitness
of candidates by a duly constituted Medical Board, the report
of the Medical Board is not to be normally interfered with,
and that too, solely on the basis of a claim sought to be set
up by a candidate on the basis of some subsequent report(s)
procured by him from a private practitioner(s).
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12. It is not the case of the petitioner that the decision of
the Medical Board was arbitrary, capricious or not in
accordance with the procedure under the relevant statutory
recruitment rules."
18. Calling in question the order passed by the Central
Administrative Tribunal, the petitioner has preferred this petition.
19. Heard Shri.Ajith Achappa P.B., learned counsel appearing
for the petitioner and Shri.H.Shanthi Bhushan, learned DSGI
appearing for Respondent nos.1 to 3.
20. Shri.Ajith Achappa P.B., submits that the petitioner has
passed in all the examinations/in all the tests conducted by RRB. He
has also cleared the document verification, but was declared unfit
on account of speech stuttering. He contends that as per the
guidelines envisaged in IRMM Annexure-P of paragraph No.509, the
Guideline 12.14 provides for speech and which states that persons
with impediments like stammering are not suitable for jobs involving
contact with public. The post for which the petitioner applied does
not involve contact with public and the said guideline does not
provide stammering as a disqualification for the candidates who do
not come in contact with public. The nature of job with which the
post is identified, does not involve any direct contact with the
public. However, on the other hand, it involves constant
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communication with the Board, Fellows staffs, LP/ALP staff, Loco
Pilots, Assistant Loco Pilots, Train Passing Staff in the station, staff
at a railway crossing gates on the upcoming trains or following Loco
Pilots/Assistant Loco Pilots.
21. He further argues that, the Medical Board of the
respondents, the Appellate Authority as well as the CAT have
completely lost sight of the guideline, which has resulted in rejecting
of the candidature of the petitioner, who is otherwise befit the post.
All the medical reports issued by the AIISH, Mysuru clearly states
that there is a mild stuttering, which cannot be a disqualification to
declare the petitioner as unfit for the post.
22. He further argues that this Court on 14.08.2023, after
hearing the parties, directed the respondent - RRB to submit the
petitioner for further / fresh medical examination. The order dated
14.08.2023 reads as follows:
"Heard Shri N.Khetty, learned counsel for the petitioner and
Shri Nishan Unni, learned CGC for respondents.
After substantial hearing, to a specific query posed by this
Court to the learned Standing Counsel for the Railways,
whether the petitioner would be fit for the post of (i) Assistant
Loco Pilot (ALP) Aey-One (ii) Technical Grade-III, Signal and
Telecommunication Department (Bee-One), learned Standing
Counsel for Railways submits that pending consideration of
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this writ petition, if a direction is issued to the Railways to
have a fresh medical examination, the same shall be
undertaken.
In the light of the above, we direct that petitioner shall be
referred to All India Institute of Speech and Hearing, Mysuru,
for fresh medical examination by giving specific details of
duties and responsibilities of both posts and seeking a specific
opinion whether the petitioner would be medically fit for
appointment to either or both posts.
The Institute shall be at liberty to conduct scientific/medical
examination, if required."
23. As per the directions of this Court, the petitioner was
subjected to fresh medical examination, on 12.01.2024, at AIISH,
Mysuru. The petitioner submitted a copy of the report along with a
memo dated 10.06.2024, as Annexure-D. As per the report, the
provisional diagnosis shows that 'clinically fluent speech'. At
remarks, it is stated that during the clinical interview, the client was
able to maintain fluency in his speech without any dysfluencies.
Also, that the client is using slow rate of speech and following the
prolonged speech technique. In general, this will not affect the
physical work efficiency of the client. As per the report, dated
07.02.2024, on the medical examination conducted on 12.01.2024,
in terms of the order passed by this court on 14.08.2023, the
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learned counsel submits that the stammering/stuttering and
stressing speech, which is mild in nature, will not affect the physical
work efficiency of the petitioner.
24. To buttress his contentions, he has relied upon the
judgment of the Hon'ble Apex Court in the case of Mohammed
Ibrahim v. Chairman And Managing Director and Others1 and
argues that as per the judgment of the Hon'ble Apex Court supra,
subsequent to the coming into force of the Disabilities Act, and,
people who do not qualify under the said act, would be termed as
disabled are to be deemed as persons of ability or else they would
become excluded class of people who are neither able or disabled,
which cannot be sustained or permitted. He stresses upon
paragraph No.20 of the judgment, wherein the Hon'ble Apex Court
has held that the Court has to travel beyond the provisions of the
Disabilities Act and discern a principle which can be rationally
applied. He further argues that the Hon'ble Apex Court in Paragraph
no. 14 of the said judgment, while referring the case of Pranay
Kumar Poder vs. State of Tripura2 in an identical case of color
vision deficiency, held that colour vision deficiency is neither
impairment of vision and in that sense falling within the disability
1
Civil Appeal No.6785-2023
2
2017 (2) SCR 797
22
spectrum calling for treatment under the Rights of Persons with
Disabilities Act, 2016, nor is it of such condition as to bar sufficiently
qualified persons' entitlement to be employed in an organization
that can accommodate the educational attainments and talents. As
per the judgment, he urges that the petitioner not being barred
under Disabilities Act'2016, the petitioner cannot be held to be
disabled / unfit on the pretext of he having an alleged problem of
suffering and more so when the severity is denoted as 'no
deficiency'. Further, he relied on the judgment rendered by the
Central Administrative Tribunal, Hyderabad in the case of DVS
Shiva Prasad Vs. Union of India and Others3, wherein the
Tribunal has held that, stammering will not be counted as a
disqualification for appointment as Guard in Railways, because
generally he does not come in direct contact with public, further
held that the prescribed A-2 standard mentioned above is sight only
and therefore slight speech defect could not be taken into effect
particularly when the employment notice was silent about it.
25. Refuting the submissions of the learned counsel
appearing for the petitioner, Sri.Shantibhushan, vehemently
submits that, the selection was done in accordance with the Rules
and Guidelines set forth by the IRMM and as per the Guidelines, a
3
(1993) 23 Administrative Tribunals Cases 23
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person having deficiency in speech or stammering is not fit for the
post of ALP, as same requires constant communication with
Controlling Board, Station Master, Signal Guard, Oncoming Loco
Pilot and any shortcomings would be vulnerable to the public
interest and safety of passengers travelling in the train and so also
cause obstructions in the smooth running of the trains over the
tracks, causing obstructions in movements. The RRB declared the
petitioner unfit after receiving the concerned reports from the
experts in the field and satisfying itself on each queries. That apart,
on the appeal filed by the petitioner against the first certificate of
declaring him unfit, he was re-examined and after receipt of report
and recommendation the CMO by a speaking order declared him as
unfit. The reason for the rejection of the appeal was stated as the
frequency of stuttering varies with emotion and stress, the
frequency of the speaker's dysfluencies as well as their intensity and
duration vary markedly from situation to situation and from day to
day, stuttering increases during telephonic conversations even with
speech therapy stuttering relapses to various degrees later.
26. He further states that, the order clearly states that as per
IRMM, Volume-I, page-53, paragraph no.501(3) the main objective
of medical examination is to secure continuous effective service and
in the case of candidates for permanent appointment to prevent
24
early pension or payment in case of premature death. In this case
stammering is likely to interfere with the continuous effective
service, as IRMM Volume-1, Page-511(3)(i), states that "person
with impediments like stammering are not suitable for jobs involving
contact with public." Aye-One medical category is a public safety
category in which the candidate should have a speech without any
impediments. The job in Aye-one involves constantly communicating
with on board loco pilots, guards, station masters, points man, train
passing staff in the stations and staff at railway crossing gates.
Absence of clear and smooth speech may lead to accidents of trains
endangering lives of passengers. As a candidate he had to undergo
Bee-One medical category examination which involves Technician
Grade-III, Signal And Telecommunication Department, wherein the
ability to speak smoothly is required for communicating signal
including temporary and permanent caution order, condition of
tracks including obstruction over the tracks and upcoming trains.
27. Sri. H.Shanthi Bhushan, furnished a copy of duties of
Diesel Assistant, wherein he submits that the duties of ALP are also
similar to that of the duties of Diesel Assistant. So far as Diesel
Assistant ON RUN, has to perform several duties, which are
enumerated under the head 'ON RUN', in Sl.Nos.1 to 15. The same
are extracted for the easy reference:
25
"1. He shall assist the driver in sighting the signal aspects.
He shall call out the aspects displayed by the signals/caution
boards/speed boards/ speed indicators from the sighting
distance loudly. He shall not engage himself in any other
activity while approaching signals/cautious driving area.
2. He shall look back frequently during the journey to see
whether the train is following in a safe and proper manner;
especially on curvature where full train length is visible he
will ensure that the train is complete.
When a train passes a gang working on the line or a manned
level crossing gate, the Assistant driver shall look back to
ascertain if everything is all right with the train and if any
signal is being exhibited, warning them of any danger of an
accident.
3. He shall keep watch on the trains passing through other
lines and inform driver if any abnormality is noticed. He shall
exhibit danger signal to the guard of the other trains if
required.
4. He shall exchange signals on behalf of driver when
deputed by the driver.
5. He shall be responsible for attending any irregularity on
line like ACP, hose pipe disconnection, brake binding hot axle,
fire fighting etc.
6. He shall be extremely cautious and vigilant during all
types of abnormal working like single line working, total
failure of communication, signal defect, load parting, load
dividing breakdowns, accidents etc.
7. He will drain MR1, MR2, J filter cocks, check fuel
balance, examine under-frame equipment and shall feel the
axle boxes for warm running whenever the train stops for
more than 15 minutes (in case he is working on mail/express,
passenger trains, the time limit shall not apply due to
predetermined halts.)
8. He shall record in the repair book every 30 minutes, the
various oil and air pressures, speed, notch etc. He shall also
record timings of train movement.
26
9. He will keep the driver's cab clean and tidy to ensure
proper work environment.
10. He shall uncouple the locomotive when it has to
detached for loco purposes.
11. If a driver becomes in capacitated while the engine is in
motion, the assistant driver if duly qualified may work the
train to the next station cautiously if the assistant driver is
not duly qualified he shall bring the train to a stop and
arrange to protect the train as per extent instructions. He
shall then send a message to the station master of the
nearest station to make arrangements for a driver to take
over train and for so doing he may take the assistance of the
guard.
12. On single line Section where ball-token has to be
collected on run he will ensure that previous ball-token is
handed over to the authorized station staff and proper fresh
ball-token is collected.
13. In case the loco shuts down or fails on graded section in
consultation with driver, he will apply hand brakes and
wooden wedges and pin down wagons to avoid running away
of the train.
14. In case of derailment involving his train, he shall help
the driver.
a. In switching on flasher light.
b. Switching on and off head-light if flasher light has
failed.
Protecting adjacent line on multiple line sections at the
earliest and his own line in single line section in the direction
of traffic.
Assisting the driver in passing memo to the train driver of
other lines/through other railway staff through field
phone/nearest level, crossing gate/personally to advice
control and nearest station.
15. If, for any reason during the run, there is a likelihood of
the train running past signal at danger or running on to an
27
abstraction, he shall use his discretion to apply emergency
brakes without waiting to be warned by the driver to take
emergent action to stop the train.
The above duty list is not exhaustive and is subject to
instructions issued by local power officers and other
instructions issued by H.Q. either through G & SR or other
means."
He relied on the judgment of Hon'ble Apex Court in the case of
SECRETARY, MINISTRY OF DEFENSE AND OTHERS VS. A.V.
DAMODHARAN4 wherein the Hon'ble Apex Court held that the
Medical Board is an expert body and its opinion is entitled to be
given due weight, value and credence.
28. As per the board members to conclude that the petitioner
as unfit for Aye one and Bee One, medical category examination is
due to speech fluency disorder, which can aggravate during periods
of stress and anxiety, which is in accordance with law and does not
call for any interference and the Tribunal after considering the entire
material on record passed the order dismissing the application and
seeks to dismiss the petition.
29. Having heard the learned counsel for the parties, the
only question that arises for our consideration is:
"Whether the declaration by the RRB on the report of
Medical Board, as the petitioner unfit for the post of ALP
4
2009(9)SCC 140
28
is arbitrary and against the principles and Rules of
Recruitment and warrants any interference, as sought by
the petitioner?
30. Our answer to the question framed is in negative for the
following:
REASONS
The undisputed facts are that the petitioner has been qualified
in all the tests. He passed through the document verification, but he
was held unfit for all opted post due to Aye-one and Bee-one
medical category for stuttering. As per the duties on run, issued
under the Ministry of Railway Board in No.99/M/Safety/7/2/c/5/c-PI,
dated 10.03.2000, there are several duties casted on the ALP which
he is duty bound to adhere while discharging his duties. As per the
clarification issued by the Head Of Clinical Services, produced at
Annexure-R2, on the query of stammering increases during
stress/work pressure/tensions/stress demanding situations, the
answer is given specifically that situational variability and stress
induce conditions increase the dysfluencies of stuttering.
31. As per the, report dated 07.02.2024 on re-evaluation of
the petitioner conducted on 12.01.2024, the pre-existing diagnosis
states that there is clinically fluent speech. In the remarks column
29
of the report it is stated that 'during the clinical interview, the
client was able to maintain fluency in his speech without any
dysfluencies. Also, client is using slow rate of speech and
flowing and following the prolonged speech technique'. In
general, this will not affect the physical work efficiency of
the client (emphasis supplied). From the remarks in the report,
it is manifestly clear that in the clinical speech, the petitioner was
responding slowly, and with prolonged speech technique
maintaining his fluency. As per the duties casted On Run stated
supra, especially duty Nos.1, 6, 8, 11, 14 and 15, involves stress
and work pressure. As per the clarification at Annexure-R2, the
situational variability and stress induced conditions increase the
dysfluencies or stuttering. A flawless communication is sine-qua-non
for the post of ALP. A stress situation is susceptible to disturb
mental condition, which could impair a natural/normal speaking
capacity and leads to dysfluencies in speech, which may cause in
slow communication or prolonged communication or no
communication sometimes, with Control Board and other Co-
Workers, such as Station Master, Signal Guards, etc. The situations
like this cannot be ruled out. Especially, as per duty No.11, 'ON
RUN' supra, an ALP who is suffering from speech disorder may not
be in a condition to communicate with the Control Board, the said
30
situations, to get instructions to control the train involving stakes of
several passengers travelling on the train.
32. In India, trains are main veins of transportation of
common people, utmost care shall to be taken by the Recruitment
Board, while appointing pilots as well as ALP, as the job of ALP
involves frequent communications with several persons, such as
control board and co-workers, etc. Failure in appointing a proper
person may endanger the public property, as well as the life of the
passengers on board. Considering this object, the RRB on
recommendations of the Medical Board declared the petitioner unfit
for the job.
33. It is a well settled principle that the employer is the best
person to prescribe Rules and qualifications befitting to a job
considering the work with which the job is identified. It is well
settled principle of law that normally it is for the Recruitment
Authority for the State to decide the qualification required and the
Courts cannot substitute the requirement on the assessment of
what the requirement should be. It is the prerogative of the
employer. However, the only test applicable is that whether the
exercise done by the employer smells with arbitrariness or involves
any discrimination causing injustice to a particular candidate or
31
involving any bias or malafides on the part of the Recruitment
Board.
34. The Tribunal in its order had clearly stated that there is
no malafides alleged by the applicant on the part of the
respondents. Though an attempt is made in a feeble voice while
arguing, so also is adieu memoria, by the learned counsel for
petitioner that, screening of medical examination report before this
Court amounts to bias against the petitioner. On a query on this
argument, the petitioner counsel is answer less as he is not having
any document or evidence as base for said argument/contention.
35. So far as the judgments relied on by the petitioner, the
judgments are distinguishable on facts and principles for more than
one reason. In the judgment of Hon'ble Apex Court, in the case of
Mohammed Ibrahim's referred supra, the candidate was
appointed as Assistant Engineer (Electrical) joined the duties,
subsequently on medical examination he was found unfit due to
defective color vision and he was terminated from the service. On
petition before the High Court the learned Single Judge set-aside
the order on the premise that there is no base for the discharge on
defective color vision and the order passed by the Superintendent
Engineer falls short of Medical Expert's report. In appeal the Division
32
Bench has set-aside the order and the Hon'ble Apex Court set-aside
the order of the Division Bench and restored the order of the
learned Single Judge and directed the respondent therein to appoint
and continue the appellant's service as an Assistant Engineer
(Electrical). The distinguishable facts in the judgment of Hon'ble
Apex Court in the case of Mohammed Ibrahim's, are at paragraph
Nos.15, 16 and 27 reads as follows:
"15. It is further pointed out that in the hierarchy of posts,
the junior most would be a lineman: the next in line would be
a Technical Assistant, who is a diploma holder; above whom
would be the Junior Engineer (Grade-II). It was emphasized
that the Junior Engineer (Grade-II) would thus supervise and
oversee the work of Technical Assistants and Lineman who
would be the individuals or employees responsible to actually
visit the site. The AE would be in a position therefore, fourth
in the hierarchy above the Lineman, Technical Assistant and
Junior Engineer (Grade-II). It was highlighted -based upon
the organizational division of the corporation that there are
several branches where Assistant Engineers are
accommodated. For instance, the AE who functions as a
Section Officer, can also be asked to participate as AE
(Substation Maintenance). In other words, these posts are
inter-changeable. Likewise, the AE (Shift Engineer) is inter-
changeable with Substation Maintenance Department AEs.
The AEs are also expected to work in the office of the
Superintending Engineer (SE). They can be deployed to work
as AE (Material Management) or AE (CAUP) in the office of the
Executive Engineer or even as AE (General) in the office of
33
the SE office only. The AE (General) in the office of the SE
can interchangeably use for AE (Lines) in the Substation.
16. It was argued that there are sufficient safeguards to
ensure that a person like the appellant can be posted in a
position in not merely in one department but several
departments or units which may not require actual field
participation. It is also emphasized that the mandate of
accommodation or reasonable accommodation requires the
employer to ensure that every person's talent is utilized to
the utmost, within the limitations that she or he is placed
inadvertently. Therefore, the employer in the present case,
was clearly under a duty to accommodate the appellant and
continue with his employment.
27. TANGEDCO, during the hearing was unable to show
how it employing the appellant in one of the many
departments or units [as AE (Material Management) or
AE (CAUP) in the office of the Executive Engineer or even
as AE (General) in the office of the SE or as AE
(General)] is not possible. The hierarchy of posts further
indicates that the primary inspection responsibilities of
technical nature are upon Junior Engineers, who oversee
the work of Technical Assistants, and that of Linemen. It
is evident that the AE works at a position of overseeing
supervisory work of Junior Engineers. This could involve,
at the field stage, satisfaction after visual inspection.
Sufficient safeguards (whenever the appellant's services
in that regard are absolutely essential, and he is
deployed on some occasions) can be taken, to ensure
that he is accompanied by those without any colour
34
vision deficiencies or impairments. TANGEDCO's units
and organizational structure, in this court's opinion, have
sufficient possibility for accommodating the appellant in a
unit or department which may not require utilization of
skills that involve intense engagement with colour. As
stated earlier, these are AE (General) in SE office, AE
(CAUP) in EE office; AE (Material Management). The
TANGEDCO, is under an obligation to ensure that the
appellant is therefore, suitably accommodated in any
such general department or establishment."
36. In the judgment supra, there are hierarchy of posts
wherein the work of the Assistant Engineer (Electrical) is only
supervisory in nature, as there are other Technical Assistant, Junior
Engineer Grade-I, Grade-II. The said Juniors could assist the
Assistant Engineer in performance of his duties. That apart, there
are several other Departments where he can be accommodated. The
observations of the Hon'ble Apex Court in the case of Mohammed
Ibrahim's supra at paragraph No.27 extracted above, distinguishes
the case on hand from the present case and on the application of
the judgment of the Hon'ble Apex Court.
37. In paragraph No.27, the Hon'ble Apex Court in the case
of Mohammed Ibrahim's supra, it is clearly stated that the
35
Assistant Engineer works at a position of overseeing supervisory
work of Junior Engineers. This could involve, at the field stage,
satisfaction after visual inspection. Sufficient safeguards (whenever
the appellant's services in that regard are absolutely essential, and
he is deployed on some occasions) can be taken, to ensure that he
is accompanied by those without any colour vision deficiencies or
impairments. That apart, TANGEDCO's units and organizational
structure, have sufficient possibility for accommodating the
appellant therein, in a unit or department which may not require
utilization of skills that involve intense engagement with colour. This
is a distinguishing factor in the case before the Hon'ble Apex Court
for interfering in the order passed by the Division Bench. In the case
on hand, the post applied by the petitioner involves an individual
duty casted only on him, which involves flawless communication and
there could not be any assistance by any other persons.
38. So far as the second judgment relied on by the petitioner
rendered by Central Administrative Tribunal, Hyderabad, was
pertaining to appointment of a Guard in Railways, who does not
come in direct contact with public. The duties appended and
identified with the post of Assistant loco-pilot are different than that
of a Guard, which involves stress, work pressure tension which
varies from situation to situation and day-to-day. In the facts and
36
circumstances of the case, both the judgments relied on by the
petitioner are not applicable to the facts of the case and are
manifestly distinguishable.
39. The Tribunal having taken into consideration of all the
situations, considered the case of the petitioner, especially in
paragraph No.12, which we have extracted above, has rightly come
to the conclusion that the declaration of the petitioner as unfit for
the post of ALP cannot be held to be unreasonable. We are in
complete agreement with the view taken by the Central
Administrative Tribunal. In the facts and circumstances, the petition
fails and liable to be dismissed, as devoid of merit, accordingly.
40. For the above reasons, we pass the following:
ORDER
i. Petition is dismissed as devoid of merits. ii. In the facts and circumstances of the case, there is no order as to cost.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(T.M.NADAF) JUDGE JJ CT: BRS