Rajesh Kumar Meena vs Ministry Of Railways And Ors

This Original Application (OA) has been filed by the applicant claiming the following reliefs:-

"a) Direct the Respondents to review the physical fitness of the Applicant in accordance with a rationale criteria bearing in mind th 5% disability already declared; and

b) Give appointment to the Applicant after assessing his physical fitness and declaring him to be medically fit and/or

c) Pass any such order as this Hon"ble Tribunal may deem appropriate."

Pursuant to the advertisement issued by the respondents on 30.08.2012, the applicant has applied for Group "D" post having pay scale of Rs.5200-202009 with GP of Rs.1800. The applicant has qualified in written examination as well as physical eligibility test. Thereafter the applicant was called for verification for the medical examination on 04.06.2014. The applicant has declared unfit for the Group "D" post as his two fingers are amputated. Thereafter he has approached the Government Hospital where he was declared as 5% disabled but physically fit to perform the duties of a Group D post. The applicant approached the respondents on 31.07.2014 with the medical certificate for reviewing their decision in order to consider him for appointment to the Group "D" post. When the applicant has not received any communication from the respondents, he filed RTI application asking the fate of his application but is of no avail. The applicant has approached this Tribunal by filing the OA No. 4147/2014 where the respondents were directed to take appropriate decision in the said matter after an intimation to the applicant. When the respondents failed to take any action in this regard, the applicant had filed a Contempt Petition and pursuant to the notice issued therein, the respondents had decided the representation of the applicant wherein the applicant"s earlier application dated 31.07.2014 along with other similarly placed cases treated as an appeal and was forwarded to the Railway Medical Authorities for further action. The respondents have failed to disclose any reason for rejection of the candidature of the applicant. The DRM, Northern Railway, wrote to Assistant Personnel Officer on 24.02.2015 to re-examine the case of the applicant and conduct a re-medical examination. The applicant appeared before Review Medical Board Ambala on 11.03.2015 and his case was rejected by the said Board which was of the opinion that his loss of right hand is a permanent disability, and as it could not be cured, the applicant could not be declared fit for the Group "D" post and forwarded opinion to the Northern Railway that the applicant is unfit for the Group "D" post The applicant has approached this Tribunal for redressal of his grievances of rejection.

Notices were issued to the respondents and they have filed their reply stating therein that the applicant suffers 5% disability amputation of his two fingers of right hand and after Review Medical Board"s opinion, the applicant"s candidature was rejected. It was further submitted that the applicant cannot be considered along with the persons who have 40% disability under reservation quota for PWD category. It is also stated by the learned counsel for the respondents. That applicant has concealed this information at the time of filing the application form for the abovesaid post.

Heard learned counsel for the parties at length and perused the records.

The question raised by the applicant in the present Original Application is whether he can be considered for the Group "D" post with the 5% disability having two fingers amputated. During the course of the arguments, learned counsel for the respondents has drawn our attention to the Rule 511 of Chapter V regarding General physical examination of candidates for appointment to the Gazetted Railway Service which reads as under:-

"(1) A Candidate as well as a serving Railway employee must be in good mental and bodily health and free from any defect likely to interfere with the effective performance of the duties of his appointment.

(2) Examiners will use their own discretion as to the scope of the general physical examination in each case and will judge cases on their merits, taking into consideration the prospective duties of the examinee as also the age of the examinee and need for continued fitness for the remaining years of service.

(3) Measurement of height, weight and chest girth will be recorded if specifically required. The skin, the connective tissues, the circulatory, respiratory, digestive, nervous, genitourinary, skeletal and muscular system will be subjected to such examination as is deemed necessary. The principal points attended to are connected with ascertaining:-

(a) the condition of heart and lungs;

(b) the condition of teeth and gums (well filled teeth will be considered as sound);

(c) whether there is any evidence of abdominal disease;

(d) whether there is any hernia or tendency of hernia;

(e) whether there is any degree of hydrocoele, varicose veins or piles;

(f) whether there is free movement of the joints;

(g) whether there is any inveterate skin disease

(h) whether hearing in each ear is good and whether there is any disease of the ear;

(i) whether there is any speech defect;

(j) whether there is any contagious disease of the eyes or any other condition likely to lead to impairment of vision;

(k) whether there is any acute or chronic disease pointing to an impaired constitution; and

(l) whether there is any communicable disease."

After glancing through the above-stated clause, we do not find disability for unsuitability of amputation of two fingers for the post of Group "D". However, condition mentioned in Clause 511(1) says that the serving Railway employee must be in good mental and bodily health and free from any defect likely to interfere with the effective performance of the duties of his appointment. Thus, it is very clear that if such bodily infirmity, which does not affect the performance of day to day duties, the employee can be considered for the appointment.

The Railway Medical Board has given observation that whole hand is amputated whereas only two fingers of right hand are amputated. Hence, such an observation by this Board is erroneous and contrary to previous medical opinion It is further observed by this Tribunal that there are large number of cutting by hand in the Medical Certificate dated 05.06.2014. This creates a doubt in the mind of this Tribunal whether the case of the applicant has been considered in true spirit or not.

Thus, we are of this view that this case may be remanded back to take the decision by the competent authority after taking expert advice whether amputation of two fingers could hamper the day to day functioning of the applicant for the post of Group "D". They are directed to take this decision within a period of 60 days. If it is found that his amputation of two fingers would not hamper his day to day functioning, then he should be considered for appointment to Group "D" post, otherwise they may cite the legal/rule position in this regard.

With the above directions, we dispose of this Original Application. There shall be no order as to costs.