Central Administrative Tribunal - Ernakulam
Deepesh K vs Union Of India Represented By Secretary ... on 20 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 61 OF 2011
Friday, this the 20th day of July, 2012
CORAM:
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Deepesh K
Kakkadankandy House
Payam East PO
Iritty (via) Cannanore District - 670704 ... Applicant
(By Advocate Mr.TCG Swamy )
versus
1. Union of India represented by Secretary to
Government of India
Ministry of Railways, Rail Bhavan
New Delhi - 110 001
2. The General Manager
Southern Railway
Headquarters Office, Park Town PO
Chennai - 600 003
3. The Senior Divisional Personnel Officer
Southern Railway
Palakkad Division, Palakkad
4. The Chief Medical Superintendent
Railway Hospital
Palakkad
5. The Chief Medical Officer
Southern Railway
MMC- , 4th Floor
Chennai - 600 003 ... Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil )
The application having been heard on 20.07.2012, the Tribunal on the
same day delivered the following:
O R D E R
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER The applicant, a candidate selected for appointment to the post of Technician Signal Maintainer Gr.II is aggrieved by order dated 03.02.2010 issued by the third respondent produced as Annexure A-l . Annexure A-l is an order by which the case of the applicant was rejected as medically unfit by the Railway Authorities. In Annexure A-1, no reasons are stated.
2. The applicant is an M.Sc. in Physics and Bachelor of Education. He responded to a Notification Annexure A-2 issued by the Railway Recruitment Board, Southern Railway for appointment to the post of Technician Signal Maintainer Gr.ll. Annexure A-2 the post in question is Category No.121 and medical standard required for appointment to the post is " B-1". The applicant having responded to the Notification, participated in the selection process and qualified in the same and was placed in the rank list as per Notification dated 22.10.2008 published by the Railway Recruitment Board, Thiruvananthapuram in its web site produced as Annexure A-3 and his roll number is 4026263. In the light of Annexure A- 2, his case was provisionally recommended for appointment as evident from a letter dated 09.02.2009. Subsequently the applicant was directed to undergo medical examination in the office of the Chief Medical Superintendent, Railway Hospital, Palakkad, the 4th respondent herein. The third respondent issued Annexure A-1 order stating that the applicant has been examined and rejected as ` unfit for appointment' as Apprentice Technician Gr.II / Signal to work in Signal and Telecommunication Department. It is also stated that the applicant may seek re-medical examination to the Chief Medical Superintendent, Railway Hospital, Palakkad through the Divisional Personnel Officer with the support of a detailed medical certificate issued by a competent medical practitioner within one month from the date of communication of the letter. A certificate indicating that the medical certificate is being given with the full knowledge that the applicant was found medically unfit by the Railway authorities was also required to be affixed. The applicant submitted an appeal to the Chief Medical Superintendent, the 4th respondent as directed along with the copy of the medical certificate issued by the Assistant Surgeon, Government Taluk Hospital Taliparamba. Annexure A-5 is the copy of the appeal dated 8.2.2010 addressed to the 4th respondent. subsequently by letter bearing No.J/P268/VII/VoI.VII dated 09.02.2010, the third respondent again directed the applicant to appear for a medical examination vide Annexure A-6. The applicant was again examined by the same authority who examined the applicant earlier and no further remarks were given to the applicant, though of course, subsequently the applicant received copy of the same under the Right to Information Act. True copy of the communication received by the applicant is produced as Annexure A-7. The endorsement in Annexure A-7 only indicates that the applicant had undergone Lasik surgery. No other reason is stated. The applicant had also received copy of the relevant Rule as published in the Indian Railway Medical Manual and a true copy of the same is produced as Annexure A-8. A perusal of Annexure A-8 shows that the candidates who have undergone Radial Keratotomy may not be considered for recruitment to A-l, A-2, A-3 and B-1 medical categories. However, those candidates with such operation may be considered for recruitment in B-2 categories and below. It is the case of the applicant that he had not undergone Radial Keratotomy but only " Zyoptis Laser treatment " which is a treatment different from Radial Keratotomy. Annexure A- 9 is the certificate issued by the Vasan Eye Care, Consultant Refractive Surgeon indicating that Radial Kelatotomy is a treatment different from Zyoptis Laser Treatment. Though the applicant made a representation to the 3rd respondent followed by another representation dated 30.08.2010 addressed to the 5th respondent , copies of which are produced as Annexures A-11 and A-12. He received a communication Annexure A-13 to the effect that candidates who had undergone Radial Keratotomy were not to be considered for recruitment to "B-1" category. Annexure A-13 also indicates that candidates who had undergone Radial Keratotomy were not to be considered for recruitment to "B-1" category. Annexure A-13 also indicates that the eligibility or otherwise of a person who had undergone Zyoptis Laser treatment is also not available from the Railway Board, which means that undergoing Zyoptis Laser treatment has not been declared as disqualification. It is the case that in the Indian Air Force even for appointments to the post of Pilot, persons who have undergone Zyoptis Laser treatment beyond the age of 20 years are entitled to apply. In evidence he has produced the notification published in this regard in Mathrubhumi Thozhil Vartha which is produced as Annexure A-14. In the circumstances there is no reason to declare the applicant as unfit for appointment to the post of Technician Signal Maintainer Gr.ll. It is the case that Annexure A-1 to the extent it declines appointment of the applicant as Technician Signal Maintainer, Grade II is arbitrary , discriminatory and liable to be quashed. He is entitled to be considered to the medical categories A-1, A-2, A-3 and B-1. He has not undergone Radial Keratotomy but only Zyoptis Laser treatment which is a treatment distinct and different from Radial Keratotomy. Therefore, according to him he is fit both as per his physical condition as also eye sight. It is evident from the certificates issued by the competent authorities that he was fit. As per Railway Medical Manual a person who had undergone Radial Keratotomy may not be considered for appointment to a post carrying A-1, A-2, A-3 and B-1 categories. The applicant has undergone Zyoptis Laser treatment and there is no provision declaring him as unfit for appointment to the post carrying medicine classification "B-1" and above. Annexure A-1 is therefore illegal and wrong.
3. In the reply statement filed by the respondents the relevant portion stated in para 8 is as under:-
8. "As per the provisions under Para 512 (ix) of Indian Railway Medical Manuel, 2000, candidates who had undergone Refractive Eye surgery is unfit for Aye one, Aye two, Aye three and Bee one(Train running, train passing and open line duties).Signal Maintainer category comes under Bee One medical classification. As Radial Keratotomy and Zyoptis Laser treatment are refractive eye surgeries to change the refractive surface of the cornea, even if the candidate had undergone Zyoptis Laser treatment he cannot be made fit for Aye one, Aye two, Aye three and Bee one. The applicant has undergone Zyoptis Laser treatment in both eyes as per Annexure-A5/3. "
4. We have heard the counsel on both sides. Annexure A-13 is issued by the Chief Health Director, Southern Railway. It is issued under Right to Information Act. It is stated that with reference to B-1 classification , distant vision - 6/12.6/24 with or without glasses. Power of lenses not to exceed 4D. Near vision - Sn 0.6, 0.6 with or without glasses when reading or close work is required. Radial Keratotomy - candidate have undergone Radial Keratotomy may not be considered for recruitment to B-1 category. However candidates with such operation may be considered for recruitment in B-2 category and below, if otherwise medically fit. Regarding Zyoptix Laser treatment no intimation is available. Therefore, it is the admitted position that Zyoptix Laser treatment is not specifically included as a disqualification for appointment in B-1 category. Annexure A-5(3) is the certificate issued by the Vasan Eye Care which performed surgery on the applicant. As per the certificate, the applicant had undergone Zyoptis Laser treatment in both eyes on 25.02.2009. This was a FDA approved procedure for improving the quality and quantity of vision. Yet another certificate issued by the Vasan Eye Care, Annexure A-9 as per which Radial Keratotomy is a Corneal Refractive Procedure. It is an old procedure by doing radial cuts in the cornea. Zyoptis Laser treatment is a new procedure for correcting the refractive error by changing the cornea thickness by Excimer Laser. From the above two certificates issued by the concerned hospital, where the applicant underwent surgery is a Corneal Refractive procedure and in that place Zyoptis Laser treatment is a new procedure for correcting the refractive error. It is nowhere in the medical manual stated that Zyoptis Laser treatment is a disqualification to appointment to B-1 category.
5. In this connection, it may be noticed that the Apex Court in 2011 (1) SLJ SC 492 , held that " it would be seen from Para 510 of IRMM that Non-
Gazetted Railway services have been divided into three broad groups, namely, Groups 'A', 'B' and 'C"for the purpose of vision tests. These three groups have been divided into different classes. Group A has been divided in Classes A-I, A-2 and A-3 while Groups B and C have been divided in two classes each, viz; B-1, B-2 and C-l, C-2 respectively. The division of Groups A, B and C for vision tests appears to have been made keeping in mind the objective , viz., 'in the interest of public safety'; 'in the interest of the employee himself or his fellow workers or both' and 'in the interest of administration only'. The classification of different staff in various 'classes' is apparently founded to achieve the above objective."
. From the above, it can be seen that B-1 categorisation is intended as a safety measure for the employees and nothing to do the public safety.
6. In the light of the above aspects and in the absence of any specific inclusion of the Zyoptis Laser treatment as a disqualification for B-1 category of appointment , it must be held that the applicant who underwent Zyoptis Laser treatment cannot be disqualified for employment in the category of B-1. We declare so. To that extent Annexure A-1 is quashed and we direct the authorities to consider the applicant as fit for employment in B-1 category and do the needful and consider him for appointment to the post applied for with consequential benefits. This shall be done, at any rate, within three months from the date of receipt of a copy of this order.
7. OA is allowed as above. No costs.
Dated, the 20th July, 2012.
K GEORGE JOSEPH JUSTICE P.R.RAMAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER vs