Rathod Anil vs Union Of India & Others

L. Narasimha Reddy, J

The Union Public Service Commission (UPSC) issued an advertisement dated 27.09.2017 for Engineering Services Examination (ESE), 2018, for recruitment to the various posts in different service of Government of India. Reservation is also made in favour of the Orthopedically Handicapped (OH), with certain conditions. The applicant obtained degree of Bachelor of Technology in Mechanical Engineering in 2015 and is an OH candidate. The results of the written test were declared, the UPSC processed the case of the applicant under OH category and recommended and selected him. This is subject to medical fitness of the candidates.

The Railway Medical Board examined the applicant. He was declared unfit on account of disability on both the lower limbs. The same result ensued in the Appellate Medical Board. A communication in this behalf was issued to him on 20.03.2019. This OA is filed, challenging the order dated 20.03.2019 and to set aside the 1st Medical Board report dated 21.12.2018 and the Appellate Medical Board report dated 30.01.2019. he has also prayed for a direction to treat him as a candidate with disability of 50-55%, and consequently to appoint him to the post.

The applicant contends that there is a serious error in the finding of the 1st Medical Board and the Appellate Medical Board, and the same is evident from the certificate obtained by him from an independent hospital. He contends that from the beginning of his career, he was treated as partially disabled, and that he is able to discharge all other functions required for the post of Mechanical Engineer.

The respondents filed a detailed counter affidavit. It is stated that the applicant was found to be having disability in both the limits, and having regard to the nature of duties of the post of Mechanical Engineer in the Railways, he was treated as unfit. They contend the Primary Board as well as the Appellate Board have consistently found the applicant to be unfit, and there is no merit in the contentions of the applicant.

We heard Ms. Ritu Kumar, learned counsel for the applicant and Mr. R.V. Sinha, Mr. KK Sharma and Mr. VSR Krishna, counsel for the respondents.

The applicant was successful up to the stage of selection. He claimed the status of physically disabled candidate and he was selected in that category in the Engineering service. As is common for any other selection, the selected candidates are subjected to medical test; whether handicapped or otherwise. It is only on being found medically fit, the department issued the order of appointment. The applicant was subjected to the medical test by a Railway Medical Board. The Board comprised of five Medical Officers, and their finding is recorded through a speaking order. It reads as under:-

"Shri Rathod Anil with ESE Rank No.136, with Roll No.1013417, a candidate of ESE 2018 directed for Medical Examination by Railway Board vide ref. No.2018/E(GR)1/7/1 Dated 15/11/2018 Under PH-Category. For being considered against the vacancies reserved for them, the physically disabled persons should have disability of forty percent (40%) or more. The functional classification in their case shall be consistent with the requirement of the concerned services/posts as detailed in Annexure-I of Engineering Service Examination Rules, 2018 (copy enclosed) vide Extraordinary Gazette published by the Gazette of India Dated: 27/09/2017, Physically Disabled Category identified person with a functional classification of Sub-category of One Arm affected (OA) and One Leg affected (OL) and Hearing Impaired (IH)/Partially Deaf (PD) are eligible for appointment.

This candidate has submitted disability certificate issued from District Hospital, Bidar dated 25/05/2009 duly mentioning, he is a case of PPRP Both lower limbs with deformity with shortening with disability percentage of 50 to 55%. The disability assessment done at CH/UBL comes to 100%.

This disability of PPRP Both Lower Limbs with Deformity with Shortening with Disability percentage of 100% is not extended for appointment in all services in ESE of Physically Disabled Category posts as per Annexure-I of Engineering Service Examination Rules, 2018 vide Extraordinary Gazette published by the Gazette of India Dated: 27/09/2017.

Accordingly, the Medical Board recommends Shri Rathod Anil with ESE Rank No.136, with Roll No.1013417, a candidate of ESE 2018, is UNFIT for ALL Services."

Since the applicant disputed the findings of the primary Medical Board, he was subject to the test by the Appellate Medical Board. This concurred with the finding of the Primary Medical Board and held that the disability in the case of applicant is 100%.

A serious contention is raised to the effect that the disability is only on one leg. The Board, however, found it to be different. What is more important is that the applicant filed a disability certificate issued by the District Orthopaedic Surgeon-cum- Medical Superintendent, District Hospital Bidar dated 30.10.2018. In the column pertaining to loco motor, it is mentioned that the disability is on both legs. This is filed as a part of Annexure A-7 at pages 112 and 113. The applicant cannot disown the certificate filed by him.

Once the disability is on both legs, and it is not included in the permissible categories of disability, we find it difficult to interfere with the impugned order as well as the certification made by Primary and Appellate Medical Boards.

We do not find any merit in the OA and it is, accordingly, dismissed. There shall be no order as to costs.