Central Administrative Tribunal - Delhi
Shashi Kant Khandal vs M/O Railways on 9 January, 2025
Item No.59 (Court -4) O.A. No.1191/2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1191/20
/2017
Reserved on: 16.12.2024
Pronounced on:________
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Shri Shashi Kant Khandal s/o Ramesh Chand
Khandal (Roll No 31069568) Age 28 years
Khandal,
Vill. Gorah Pura, City Rajgarh, P.O Dhigawara
City Rajgarh Alwar, Rajsthan-301414
Rajsthan 301414.
...Applicant
(By Advocate: Mr. B K Barera)
Versus
1. Union of India through
General Manager, Northern Railway,
Baroda House, New Delhi.
2. The Secretary, Railway Recruitment
Board, Chandigarh-160002.
3. The Chief Medical Director, Northern
Railway, Baroda House, New Delhi
Delhi.
...Respondents
(By Advocate: Mr. L C Singhi)
Singhi
----
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Item No.59 (Court -4) O.A. No.1191/2017
ORDER
Hon'ble Mr. Manish Garg, Member (J):
(J):-
"Healthy citizens are the greatest asset any country can have."― Winston S. Churchill In the present Original Application, filed under Section 19 of the Administrative Tribunals Tribunal Act, 1985, the applicant has prayed for the following relief(s):
"(a) " (a) to quash the impugned order dated 2-11-16 & 29-11-2016 rejecting the appeal of the Applicant for Medical re re-examination;
b) That the Honble Tribunal may graciously be pleased to pass an order of directing the respondents to get the applicant medically examined by an independent medical board or in any other Govt.
Hospital on the issue whether, the applicant has any eyes problem as per the Medical Requirement of the Railway for the post of Assistant Loco Pilot and the case of the applicant may be considered of his appointment to the the post of Assistant Loco Pilot on the basis of the medical report given by the independent medical Board with all consequential benefits including seniority, fixation of pay, arrears of pay and allowances from due date etc.
c) Medical the Hon'ble Tribunal Tribunal may be pleased to call for the records of Examination declaring the Applicant "UNFIT"
d) Any other order as this Hon'ble Tribunal may deem fit under the present facts and circumstances of the case.
case."
2. Highlighting the facts of the case case, learned counsel for the applicant submitted that the applicant appeared for an examination conducted by the Railway Recruitment Board vide Employment Notice No.01/2004 and got offer of appointment dated 03.02.2016 for the post of Apprentice Asstt. Loco Pilot (ALP). Subs Subsequently, the applicant was referred for medical examination examination. However, vide Fitness/Unfitness Certificate for appointment as a Non Non-Gazetted Railway Employee dated 26.02.2016,, the applicant was declared Page 2 of 12 Item No.59 (Court -4) O.A. No.1191/2017 unfit in Aye One category by Sr. Medical Officer, Northern Railway Hospital Delhi. Learned counsel further submitted that the applicant applied for re-medical re medical examination and has submitted fitness fit certificate of Govt. Hospital Jaipur, Rajasthan dated 09.05.2016 09.05.2016 in support of his request. Accordingly, the applicant was again called for further examination. However, again vide impugned letter dated 29.11.2016, the applicant was informed that after consideration, the Chief Medical Director has rejected the appeal appeal on the following grounds:
"1. The appeal submitted well beyond one month period.
2. Already examined by 03 members medical Committee so fulfil the Para VII also.
3. Railway Boards policy regarding the subject matter (Ref. Railway Board letter No. 2014/H/5/8(Policy) 2014/H/5/8(Policy) dated 31.12.2015), does not have any provision for consideration of above appeal as per Para. VIII (a) & (b)."
2.1. Learned counsel for the applicant further submit Learned submited that the applicant also deposited Rs.1000/-
Rs.1000/ through DD as required. The Govt. specialist certified the applicant as per the vision standards set by the Railways and since the applicant has been declared fit, he applied for re-medical re medical examination as per rules.
2.2. The learned counsel for the applicant specifically drew attention to Annexure A8 A-8 dated 31.12.2015 regarding consideration of appeal of non-Gazetted non Gazetted candidates selected for Railway employment - Cases of candidates declared unfit upon medical examination, the relevant portion is reproduced herein Page 3 of 12 Item No.59 (Court -4) O.A. No.1191/2017 below:
"In all all cases of appeal to CMD, charges will however be payable by candidate and towards this end a candidate will be required to pay Rs.1000/-
Rs.1000/ through DD. In case of production units, such powers for consideration of appeal shall be vested in the CMD of the neighbouring/parent neighbouring/parent zone where tthe production unit belonged to earlier e or is currently situated."
2.3. The learned counsel for the applicant further relied upon the decision rendered in O.A. O.A. No.1065/2017 decided on 20.12.2022. The relevant para of the said judgment judgment reads as under:
"6. He Also rely upon the judgment passed by this Tribunal in OA No.1464/2017 decided on 09.02.2021. The relevant para of the said judgement reads as under:
"7.
" 7. One can easily imagine the amount of preparation, hard work, and the endeavour, which a candidate has to make, to come up to the level of selection, in the stiff competition. Each post has its own medical stipulations. Medical fitness for the post of Loco Pilot is required to be stiff. No one can take exception to the stand standards stipulated for that post. However, there must be transparency in evaluation of the selected candidates. To any exception. However, the vary purpose of the constitution of the Appellate Medical Board is to ensure that an independent assessment takes pl place. The letter, insofar as it provides for constitution of the Board shall include the Medical Officer, who examined the candidate initially, cannot be said to be legal. With such inclusion, the very purpose of constituting the Medical Board would be defe defeated. We direct that henceforth, the Medical Board shall be constituted in such a way that the Medical Officer, who examined the candidate at the initial stage, is not a part of the Board."
7. In view of the above, the OA is allowed and the impugned order is quashed. The Competent Authority shall re re-constitute the Medical Board comprising three Medical Officer, excluding the Medical Officer, who was involved in the medical examination of the candidate at the initial stage. The process shall be completed wit within a period of one month from the date of receipt of a certified copy of this Order."
2.4. Learned counsel further relied upon the judgemen judgement passed by this Tribunal in OA No. 157/2017 /2017 dated 09.12.2022 in the matter of Shri Amit Kumar vs. Union of India & Ors. For the sake Page 4 of 12 Item No.59 (Court -4) O.A. No.1191/2017 of better appreciation, the relevant para of the order is reproduced herein below:
"6. The applicant has participated in the selection process and has been declared successful. After reaching this far, as he is seeking a re-medical medical examination examination and his appeal is pending. It is seen that the applicant filed his appeal along with the medical certificate from a government hospital. Accordingly, in the aforesaid facts and circumstances and in the fitness of things, the O.A. is disposed of wit with a direction to the respondents to consider the case of the applicant for medical examination and constitute a medical board in which one member will be an expert from Dr. R. P. Centre for Ophthalmic Sciences, AIIMS, New Delhi. The said exercise shall be completed within a period of two months from the date of receipt of a copy of this Order."
2.5. Learned counsel for the applicant further submitted that in Learned all the aforesaid cases re-medical re medical examination was done pursuant to the orders passed by this Tribunal. Therefore, he prayed for a limited direction for re-medical re medical examination.
3. Opposing the grant of relief, learned counsel for the respondents relied upon the averments made in the counter affidavit. He specifically submitted that the applicant was found unfit because of "Kyphosis" which is an Orthopedic defect of the Spinal Cord and the case of the applicant is based upon false and frivolous facts. The applicant was examined at Northern Railway divisional hospital Delhi on 26.02.2016. On examinati examination he was found to have deformity of the Spine. He further drew attention to Para 511 of Indian Railway Medical Manual, General Physical Examination Examination:
"(1) (1) A candidate as well as serving Railway employee must be in good mental and bodily health and free fro from any defect likely to interfere with the effective performance of the duties of his Page 5 of 12 Item No.59 (Court -4) O.A. No.1191/2017 appointment.
(2) Examiners will use their own discretion as to the scope of general physical examination in each case and will judge cases on their merits, taking into consideration consideration the prospective duties of the examinee and also the age of the examinee and the need for continued fitness for the remaining years of service.
service."
3.1. He further contended that the the applicant had come for appointment as an Assistant Loco Pilot of Railways, which belongs to Aye One medical Category requiring highest level of fitness in the interest of public safety. He was hence referred to Orthopaedic Surgeon at Northern Railway Central Hospit Hospital for expert opinion. Ortho opinion was as below:
"Patient has dorsal rounded Kyphosis. Kyphosis angle is approx 78 degrees. He has neurological deficit. He is not fit in Aye Aye-One."
3.2. It is further reiterated by the respondents' counsel that tthe applicant ant was again examined by a 3 member committee on 26 26- 02-16 16 as per RB Policy letter No.2014/H/5/8 (Policy) dated 31 31-12- 2015. He was declared unfit in Aye One due to Kyphosis and recommendation of Board were accepted by Chief Medical Superintendent, Divisional al Hospital, Delhi. Hence, the applicant is not entitled for any relief prayed for. 3.3. On the last date of hearing, i.e., 21.10.2024, the respondents were directed to place on records the opinion of the medical team, i.e., Medical Board consisting of three three doctors who examined and rejected the claim of the applicant herein. The learned counsel for the respondents, respondents therefore, relied upon the proceedings of the Page 6 of 12 Item No.59 (Court -4) O.A. No.1191/2017 Medical Committee for re-consideration re consideration of findings of initial Medical Examination of the applicant, applicant, which is reproduced as under:
"7. Reason for submitting the case to Committee: Kyphosis Kyphosis.
8. Clinical Examination: Special Board Consultation Orthopaedic Northern Railway Central Hospital. On Examination Dorsal Kyphosis Kyphosis.
9. Investigations done:
(i) X-Ray, Kyphosis, Angle D1-D12 D12 is approx 78 degrees.
(ii) X-Ray, X Ray, Done at Northern Railway Central Hospital.
P.No.6025.
(iii) No Neurological defect opinion not fit for ALP is Aye Aye-One.
10. Conclusion: Dorsal Kyphosis.
11. Recommendations: UNFIT IN AYE AYE-ONE."
3.4. Learned counsel for the respondents further submitted that the Learned action on the part of the respondents is fully justified in factual matrix of the case. He further submitted that the impugned order dated 29.11.2016 (Annexure A-2) A 2) has been passed in right perspective as per the rule position and no interference of this Tribunal is called for as well as no relief can be granted to the applicant It is further contended by the counsel for the respondents applicant.
that the fitness certificate which has been supplied by the counsel for the applicant for the purpose of re-examination re examination is relatable to the AYE-ONE ONE fitness. However, the applicant has been suffer suffering from Kyphosis and therefore no medical fitness certificate to that effect has been placed on record.
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4. Analysis 4.1 Applying precedent to the aforesaid detailed facts, we would highlight that case laws relied upon by the counsel for the applicant have ave no application to the facts of the case. We find that the applicant did not produce the the fitness certificate to the aailment in question, what was produced was a fitness certificate in respect of AYE One category only.
4.2 The re-medical re medical examination cannot be claimed as a matter of right, more particularly, when the applicant was examined by medical board consisting of three doctors. No fitness certificate was issued qua Kyphosis.
4.3 In WP(C) 13821/2024 & connected matters - STAFF SELECTION COMMISSION & ORS Vs Aman decided by the Hon'ble High Court on 24.10.2024, has observed as under:
under:-
"10.38 In our considered opinion, the following principles would apply:
(i) The principles that apply in the case of recruitment to disciplined lined Forces, involved with safety and security, internal and external, such as the Armed and Paramilitary Forces, or the Police, are distinct and different from those which apply to normal civilian recruitment. The standards of fitness, and the rigour of the examination to be conducted, are undoubtedly higher and stricter.
(ii) There is no absolute proscription against judicial review of, or of judicial interference with, decisions of Medical Boards or Review Medical Boards. In appropriate cases, the Cour Court can interfere.
(iii) The general principle is, however, undoubtedly one of circumspection. The Court is to remain mindful of the fact that it is not peopled either with persons having intricate medical knowledge, or were aware of the needs of the Force to which the concerned candidate seeks entry. There is an irrebuttable presumption that judges are not medical men or persons conversant with the intricacies of medicine, therapeutics or medical conditions. They must, therefore, defer to the decisions of the he authorities in that regard, specifically of the Medical Page 8 of 12 Item No.59 (Court -4) O.A. No.1191/2017 Boards which may have assessed the candidate. The function of the Court can only, therefore, be to examine whether the manner in which the candidate was assessed by the Medical Boards, and the conclusion lusion which the Medical Boards have arrived, inspires confidence, or transgresses any established norm of law, procedure or fair play. If it does not, the Court cannot itself examine the material on record to come to a conclusion as to whether the candidate te does, or does not, suffer from the concerned ailment, as that would amount to sitting in appeal over the decision of the Medical Boards, which is not permissible in law.
(iv) The situations in which a Court can legitimately interfere with the final outcome of the examination of the candidate by the Medical Board or the Review Medical Board are limited, but well-defined.
defined. Some of these may be enumerated as under:
(a) A breach of the prescribed procedure that is required to be followed during examination constitutes a legitimate ground for interference. If the examination of the candidate has not taken place in the manner in which the applicable Guidelines or prescribed procedure rocedure requires it to be undertaken, the examination, and its results, would ipso facto stand vitiated.(This (This follows from the well well-established principle, enunciated in Taylor v Taylor, (1875) 1 Ch D 426 and subsequently followed by the Privy Council in N Nazir Ahmed v King Emperor, AIR 1936 PC 253 and by the Supreme Court in a catena of cases including State of UP v Singhara Singh, AIR 1964 SC 358 that, where the statute, or the law, requires an act to be done in a particular manner, that act has to be done in that manner alone and in no other, all other modes of doing the act being necessarily forbidden. )
(b) If there is a notable discrepancy between the findings of the DME and the RME, or the Appellate Medical Board, interference may be justified. In this this, the Court has to be conscious of what constitutes a "discrepancy". A situation in which, for example, the DME finds the candidate to be suffering from three medical conditions, whereas the RME, or the Appellate Medical Board, finds the candidate to be suffering ffering only from one of the said three conditions, would not constitute a discrepancy, so long as the candidate is disqualified because of the presence of the condition concurrently found by the DME and the RME or the Appellate Medical Board. This is because,use, insofar as the existence of the said condition is concerned, there is concurrence and uniformity of opinion between the DME and the RME, or the Appellate Medical Board. In such a circumstance, the Court would ordinarily accept that the candidate suffe suffered from the said condition. Thereafter, as the issue of whether the said condition is sufficient to justify exclusion of the candidate from the Force is not an aspect which would concern the Court, the candidate's petition would have to be rejected.
(c) If the condition is one which requires a specialist opinion, and there is no specialist on the Boards which have examined Page 9 of 12 Item No.59 (Court -4) O.A. No.1191/2017 the candidate, a case for interference is made out. In this, however, the Court must be satisfied that the condition is one which requiresires examination by a specialist. One may differentiate, for example, the existence of a haemorrhoid or a skin lesion which is apparent to any doctor who sees the candidate, with an internal orthopaedic deformity, which may require radiographic examination and analysis, or an ophthalmological impairment. Where the existence of a medical condition which ordinarily would require a specialist for assessment is certified only by Medical Boards which do not include any such specialist, the Court would be justifi justified in directing a fresh examination of the candidate by a specialist, or a Board which includes a specialist. This would be all the more so if the candidate has himself contacted a specialist who has opined in his favour.
(d) Where the Medical Board, be it the DME or the RME or the Appellate Medical Board, itself refers the candidate to a specialist or to another hospital or doctor for opinion, even if the said opinion is not binding, the Medical Board is to provide reasons for disregarding the opinion an and holding contrary to it. If, therefore, on the aspect of whether the candidate does, or does not, suffer from a particular ailment, the respondents themselves refer the candidate to another doctor or hospital, and the opinion of the said doctor or hospitall is in the candidate's favour, then, if the Medical Board, without providing any reasons for not accepting the verdict of the said doctor or hospital, nonetheless disqualifies the candidate, a case for interference is made out.
(e) Similarly, if the Medical cal Board requisitions specialist investigations such as radiographic or ultrasonological tests, the results of the said tests cannot be ignored by the Medical Board. If it does so, a case for interference is made out.
(f) If there are applicable Guidelin Guidelines, Rules or Regulations governing the manner in which Medical Examination of the candidate is required to be conducted, then, if the DME or the RME breaches the stipulated protocol, a clear case for interference is made out.
(v) Opinions of private, or evenven government, hospitals, obtained by the concerned candidate, cannot constitute a legitimate basis for referring the case for re-examination.
re examination. At the same time, if the condition is such as require a specialist's view, and the Medical Board and Review Medical cal Board do not include such specialists, then the Court may be justified in directing the candidate to be re re- examined by a specialist or by a Medical Board which includes a specialist. In passing such a direction, the Court may legitimately place reliancee on the opinion of such a specialist, even if privately obtained by the candidate. It is reiterated, however, that, if the Medical Board or the Review Medical Board consists of doctors who are sufficiently equipped and qualified to pronounce on the candidate's ate's condition, then an outside medical opinion obtained by the candidate of his own volition, even if favourable to him and contrary to the findings of the DME or the RME, would not justify Page 10 of 12 Item No.59 (Court -4) O.A. No.1191/2017 referring the candidate for a fresh medical examination.
(vi) The he aspect of "curability" assumes significance in many cases. Certain medical conditions may be curable. The Court has to be cautious in dealing with such cases. If the condition is itself specified, in the applicable Rules or Guidelines, as one which, by its very existence, renders the candidate unfit, the Court may discredit the aspect of curability. If there is no such stipulation, and the condition is curable with treatment, then, depending on the facts of the case, the Court may opine that the Review M Medical Board ought to have given the candidate a chance to have his condition treated and cured. That cannot, however, be undertaken by the Court of its own volition, as a Court cannot hazard a medical opinion regarding curability, or the advisability of allowing llowing the candidate a chance to cure the ailment. Such a decision can be taken only if there is authoritative medical opinion, from a source to which the respondents themselves have sought opinion or referred the candidate, that the condition is curable with treatment. In such a case, if there is no binding time frame within which the Review Medical Board is to pronounce its decision on the candidate's fitness, the Court may, in a given case, direct a fresh examination of the candidate after she, or he, has as been afforded an opportunity to remedy her, or his, condition. It has to be remembered that the provision for a Review Medical Board is not envisaged as a chance for unfit candidates to make themselves fit, but only to verify the correctness of the deci decision of the initial Medical Board which assessed the candidate.
(vii) The extent of judicial review has, at all times, to be restricted to the medical examination of the candidate concerned. The Court is completely proscribed even from observing, much le less opining, that the medical disability from which the candidate may be suffering is not such as would interfere with the discharge, by her, or him, of her, or his, duties as a member of the concerned Force. The suitability of the candidates to function as a member of the Force, given the medical condition from which the candidate suffers, has to be entirely left to the members of the Force to assess the candidate, as they alone are aware of the nature of the work that the candidate, if appointed, would hav have to undertake, and the capacity of the candidates to undertake the said work. In other words, once the Court finds that the decision that the candidate concerned suffers from a particular ailment does not merit judicial interference, the matter must rest there. The Court cannot proceed one step further and examine whether the ailment is such as would render the candidate unfit for appointment as a member of the concerned Force."
4.4 In light of guiding principles as enumerated in Aman ( Supra), there is no material placed on record by the applicant except depositing the prescribed amount of Rs.1000/ Rs.1000/- as fees for re-medical Page 11 of 12 Item No.59 (Court -4) O.A. No.1191/2017 examination either in form of any independent medical fitness certificate or medical opinion. The sole basis of depositing amount of Rs. 1000/-
1000/ cannot be a ground to seek medical re re-examination that too after gap of several years. Itt has to be remembered that the provision for a Review Medical Board is not envisaged as a chance for unfit candidates to make themselves fit, but only to verify the correctness of the decision of the initial Medical Board which assessed the candidate.
5. CONCLUSION In view of the above, above we do not find any merit in the present OA.. Accordingly, the same is dismissed dismissed. All pending applications shall stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sb/
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