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Judgment
S. Manikumar, J.—Challenge in this Writ Petition is to the order made in O.A. No. 310/01265/2014 dated 25.03.2015 by the Central Administrative Tribunal, Madras Bench, by which, directions have been issued to the writ petitioners, to consider the case of the 2nd respondent for appointment on compassionate grounds in any one of the posts other than those posts which fall under safety category, subject to the 2nd respondent satisfying the other criteria prescribed for considering appointment on compassionate grounds. The Tribunal has directed to complete the said exercise within a period of four months from the date of receipt of a copy of the order dated 25.03.2015.
Despite the directions to implement the above said order, within the specific time limit and to consider the case of the 2nd respondent for employment assistance on compassionate grounds, in any one of the posts other than those posts which fall under safety category, the writ petitioners have assailed the correctness of the order.
Facts in nut shell leading to the filing of the present writ petition are:--
"Father of the 2nd respondent, working as Ex-Trackman in the Madurai Division of the Southern Railway, died on 03.01.2010, in harness. Thereafter, the 2nd respondent''s mother made a request for employment assistance on compassionate grounds, in Grade-D posts. The request was considered and rejected by the Divisional Personnel Officer, Southern Railway, Madurai Division, Madurai, vide his letter dated 14.06.2011 on the grounds that the 2nd respondent was found unfit in all classes without assigning any reason. It is the case of the 2nd respondent that lateron, he came to know that he was medically found unfit for appointment, due to his high sugar level. Thereafter, on the request of the 2nd respondent, he was sent for re-medical examination to the Chief Medical Superintendent, Southern Railway, Madurai Division, Madurai, and, the 2nd respondent was found to be suffering from diabetes. Again he was found medically unfit for appointment and that the same was communicated vide letter dated 26.03.2012 of the Divisional Personnel Officer, Southern Railway, Madurai Division, Madurai."
Being aggrieved by the same, the 2nd respondent has filed O.A. No. 1325 of 2013 before the Central Administrative Tribunal, Madras Bench. After hearing the learned counsel appearing for both the parties, by order dated 05.06.2014, the Central Administrative Tribunal, Madras Bench, disposed of the said application granting liberty to the 2nd respondent to make a fresh representation to the writ petitioners and further directed them to consider the same, keeping in view of the orders of the Tribunal made in O.A. No. 381 of 2012 dated 15.03.2013, and upheld by this Court in W.P. No. 21082 of 2013 dated 01.08.2013. Once again, the request of the 2nd respondent has been rejected vide the order dated 04.08.2014, which constrained the 2nd respondent to again approach the Central Administrative Tribunal, Madras Bench, by filing O.A. No. 310/01265/2014.
Before the Central Administrative Tribunal, Madras Bench, the writ petitioners have filed a reply affidavit contending inter alia that after finding the 2nd respondent unfit, he was sent for re-medical examination. But he had suppressed the said fact at the time of final hearing of O.A. No. 1325 of 2013. According to them, three chances for medical examination were given and on all times, he was declared not fit for appointment in Railways. It is also the contention that on the third occasion, the 2nd respondent was sent for re-medical examination citing the orders in O.A. No. 381 of 2012 and thus the directions issued in O.A. No. 1325 of 2013 were duly complied with. The substance of the objections of the writ petitioners is that the 2nd respondent is suffering from diabetes and hence found unfit for appointment in all classes, in Railways.
After considering the rival submissions and contentions of the learned counsel appearing for the parties and taking note of the decision of the Hon''ble Division Bench of this Court in W.P. No. 21082 of 2013 dated 01.08.2013, the Central Administrative Tribunal, Madras Bench, at paragraph Nos. 8 to 11 in O.A. No. 310/2014, has ordered as follows:--
"8. The Hon''ble High Court Madras in its order dated 01.08.2013 in W.P. No. 21082/2013, while affirming the order of this Tribunal in OA 381/2012 dated 15.03.2013, observed in para-5 as follows:--
"5. We are unable to accept the stand taken by the learned counsel for the petitioners as the said provision viz., para-511 9 (d) speaks about constitutional disorders commonly deemed progressive and chronic disorders liable of recurrent exacerbation of a disabling kind. No record has been placed by the Railway administration to establish that diabetes is said to be a constitutional disorder commonly deemed progressive and chronic disorders liable of recurrent exacerbation of a disabling kind. Medical experts opine the diabetes is a condition where the body fails to utilize the ingested glucose properly. Further, there is a school, of thought that a diabetic is not suffering from a disease, but only a disorder that could be managed. Approximately, as of 2011 as per survey, 62.4 million (as against 1.2. billion Indian population) are diabetics, which is stated to increase in 2030 to 110.1 million form the large work force of our country. Diabetics usually has no impact on individual''s ability to do a particular job, and in most cases the employer may not even know that his employee has diabetes. As the impact of diabetes and its management varies among individuals, there cannot be a blanket ban on giving public employment to persons with diabetes. The matter largely rests on individual assessment, such assessment may occur in two different situations, first when the applicant is offered a placement/job subject to passing a medical fitness test. In such cases, the fitness is assessed whether the applicant can perform the functions of that particular job/assignment, with or without accommodation, not solely upon being diagnosed as a diabetic. The second situation is when on medical evaluation the employee being a diabetic, could affect his job performance or safety, in such situation there shall be an assessment as to whether an employee could safety carry out his duties assigned...."
In the Judgment in W.P.4268/2015 dated 03.03.2015, the Hon''ble High Court of Madras has held as under:--
"9. Today, India has become the diabetic capital of the world. It is common perception that diabetes is more of a disorder than a disease. The decisions relied upon by the learned counsel for the petitioner, came before the advent of the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Today, quite a number of posts on the non technical side are reserved even for persons, who are physically challenged. Therefore, to reject the candidature of the second respondent on the sole ground that he is a diabetic, cannot be accepted and the Tribunal was right in allowing the claim of the second respondent. We find no merits in the writ petition. "
Since the OA on hand is identical to the case in which the Hon''ble High Court of Madras has rendered its findings cited supra and following the same ratio, the orders passed by this Tribunal in OA Nos. 546/2014 and 1743/2013, the respondents are not justified in rejecting the case of the applicant herein on the ground of Diabetes. The applicant could be considered for appointment on compassionate grounds against any one of the posts which do not come under safety category, if he is otherwise found eligible for appointment under the compassionate appointment scheme.
Accordingly, the respondents are directed to consider the case of the applicant for appointment on compassionate grounds in any on the of the posts other than those posts which fall under safety category subject to the applicant satisfying the other criteria prescribed for considering appointment on compassionate grounds. This exercise shall be completed within a period of four months, from the date of receipt of a copy of this order. The OA is allowed as above. No order as to costs."
Assailing the correctness of the order made in O.A. No. 310/01265/2014 dated 25.03.2015, Mrs. Bhavani Subbaroyan, learned counsel for the petitioner submitted that the Central Administrative Tribunal, Madras Bench, has failed to consider that as per Paragraph 511(9)(d) of Indian Railway Medical Manual Volume I, persons with constitutional disorder, inter alia deemed progressive and chronic disorders liable of recurrent exasperation of a disabling kind, are not eligible to be considered for appointment to Railway services. She also submitted that the Tribunal ought not to have ignored the opinion of the Railway Medical Authority, as regards the magnitude of the disease. It is her further contention that the Railway Board Circulars cannot be interpreted by the Tribunal to suit the convenience of the persons seeking employment assistance on compassionate grounds.
Heard the learned counsel for the petitioners and perused the material available on record.
The 2nd respondent''s father, died on 03.01.2010 and his mother M. Mookayee, has submitted a representation dated 24.01.2011 seeking employment assistance to her son Mr. M. Packiaraj. Upon considering the representation, Mr. M. Packiaraj has been sent for medical examination. The then Assistant Personnel Officer/SEM has sent a letter dated 14.06.2011 to the mother of the 2nd respondent, stating that Mr. M. Packiaraj is found unfit, in all classes and therefore the request for employment assistance on compassionate grounds, has been rejected. The letter dated 14.06.2011 is extracted hereunder:
"When your son Sri. M. Packiyaraj, was sent for medical examination, prior to appointment on compassionate grounds, he was found unfit in all classes.
Hence, you may seek appointment on compassionate grounds to any other eligible ward."
Absolutely, there are no reasons in the letter dated 14.06.2011, as to why he was found unfit for appointment. It is a vague reply. Subsequently, vide representation dated 08.08.2011, the 2nd respondent has sought for re-medical examination. Once again, vide order dated 26.03.2012, the Divisional Personnel Officer, Divisional Office has rejected the request of the 2nd respondent on the ground that he was found unfit. Letter dated 26.03.2012 reads as follows:--
"This is to inform you that you have been found Medically Unfit for All Classes even when you were subjected to Re-medical examination. As you have been found unfit for all classes, you cannot be appointed on compassionate grounds."
Here again, nothing could be deduced from the reply, as what are the reasons, based on which, the authority has come to the conclusion that the 2nd respondent was found unfit. Time and time, courts have consistently held that an administrative order should contain reasons for the conclusion. Reference can be made to few decisions.
"(i) In Alexander Machinery (Dudley) Ltd. v. Crabtree reported in 1974 ICR 120 (NIRC), it was observed:
"Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at."
(ii) In Gurdial Singh Fijji Vs. State of Punjab and Others, , the Supreme held as follows:
"''Reasons'' are the links between the materials on which certain conclusions are based and the actual conclusions."
(iii) In McDermott International Inc. Vs. Burn Standard Co. Ltd. and Others, , the Supreme Court, at Paragraph 57, held that reason is a ground or motive for a belief or a course of action, a statement in justification or explanation of belief or action."
Material on record discloses that in a similar case, a request for employment assistance on compassionate grounds was denied to one Mrs. Arockiammal, whose husband M. Manikandan, while working as a Commercial Clerk, died in harness. Railways denied employment to the wife, on the ground that she was found unfit. Being aggrieved, the said Arockiammal has filed O.A. No. 381 of 2012 before the Central Administrative Tribunal, Madras Bench. The Tribunal granted the relief to her. Citing the very same Paragraph 511(9)(d) of Indian Railway Medical Manual Volume -I and contending inter alia that diabetes is a chronic disorder, the Union of India represented by General Manager, Southern Railway and the Divisional Personnel Manager, Divisional Office, Southern Railway, Madurai, have filed W.P. No. 21082 of 2013 before this Court. After rejecting the objections of the Railways as condemnable and taking note that diabetes is only a disorder, which is controllable and manageable, the Hon''ble Division Bench of this Court, vide its order dated 01.08.2013 in W.P. No. 21082 of 2013 at paragraphs 5, 7, 8 and 9, has ordered as follows:
"5. We are unable to accept the stand taken by the learned counsel for the petitioners as the said provision viz., Para 511 9(d) speaks about constitutional disorders commonly deemed progressive and chronic disorders liable of recurrent exacerbation of a disabling kind. No record has been placed by the Railway Administration to establish that diabetes is said to be a constitutional disorder commonly deemed progressive and chronic disorders liable of recurrent exacerbation of a disabling kind. Medical experts opine that diabetes is a condition where the body fails to utilise the ingested glucose properly. Further, there is a strong school of thought that a diabetic is not suffering from a disease, but only a disorder that could be managed. Approximately, as of 2011 as per survey 62.4 million (as against 1.2 billion Indian population) are diabetics, which is stated to increase in 2030 to 110.1 million form the large work force of our country. Diabetes usually has no impact on an individuals ability to do a particular job, and in most cases the employer may not even know that his employee has diabetes. As the impact of diabetes and its management varies among individuals there cannot be a blanket ban on giving public employment to persons with diabetes. The matter largely rests on individual assessment, such assessment may occur in two different situation, first when the applicant is offered a placement/job subject to passing a medical fitness test. In such cases, the fitness is assessed whether the applicant can perform the functions of that particular job/assignment, with or without accommodation, not solely upon been diagnosed as a diabetic. The second situation is when on medical evaluation the employee being a diabetic, could affect his job performance and/or safety, in such situation there shall be an assessment as to whether the employee could safely carry out his duties assigned. In such circumstances, the assessment can hardly be based on a single blood sugar test.
....
This Court is conscious of the legal position that there is no vested right to secure appointment on compassionate grounds. Yet, when the Court finds that there has not been an objective consideration or arbitrary approach, this Court is not denude of jurisdiction from extending its arms under Article 226 of Constitution. In the case on hand, there is no dispute that the second respondent was eligible for being considered for appointment on compassionate grounds, the application filed by her was well within a time, she was otherwise found eligible to secure employment. Therefore, to deny employment to the second respondent on speculation that what might occur in future is unreasonable. Medical experts state that blood glucose levels fluctuate throughout the day, which is also the case of people without diabetes, and one test result cannot be an assessment of the overall health of a person with diabetes.
Therefore, the Tribunal was perfectly justified in observing that the interpretation given by the Railway Administration appears to be a narrow interpretation and for trivial reasons, the case of the second respondent was rejected. By taking note of the peculiar facts and circumstances, we find that there is no error in the order passed by the Tribunal, granting the relief. Accordingly, the writ petition being devoid of merits, is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
The petitioners/Railway Administration is directed to comply with the direction issued by the Tribunal in O.A. No. 381 of 2012, dated 15.03.2013, within a period of twelve weeks from the date of receipt of a copy of this order."
Reverting to the case on hand, when the petitioners have denied employment assistance vide the order dated 26.03.2012, he has approached the Central Administrative Tribunal, Madras Bench by filing O.A. No. 1325 of 2013. After considering the objections of the Railways, by order dated 05.06.2014 in O.A. No. 1325 of 2013, the Tribunal has granted permission to the 2nd respondent herein, to make a representation enclosing a copy of the orders passed by the Tribunal and this Court and further directed the official respondents to consider the representation keeping in view the orders of the Tribunal made in O.A. No. 381 of 2012 and upheld by the Hon''ble Division Bench of this Court in W.P. No. 21082 of 2013 dated 01.08.2013 within a period of 60 days from the date of receipt of a copy of the said representation. Again, after re-medical examination and without assigning any reasons for treating the 2nd respondent as unfit for all classes, by impugned order in DPO/MDU No. U/P353/OA 1325/2013 dated 04.08.2014, the Divisional Personnel Officer, Divisional Office, Madurai has rejected the request of the 2nd respondent and the said order dated 04.08.2014 is impugned in the subsequent O.A. No. 310/01265/2014.
Sequence of events and the material on record disclose that right from the beginning, by citing the same Paragraph 511(9)(d) of Indian Railway Medical Manual Volume I, request of the 2nd respondent has been rejected. The 2nd respondent is stated to have been found unfit for all classes, in the re-medical examination, without assigning any reasons. Though, as early as on 01.08.2013, the Hon''ble Division Bench of this Court, has considered the provisions relied on, by the Railways and categorically observed that diabetes usually has no impact on the individual''s ability, to do a particular job and in many cases the employer does not know that the employee has got diabetes and further held that the reasons for denial of employment assistance, was improper. Still, the Divisional Personnel Officer, Southern Railway, Madurai Division, Madurai, without considering the judgment of the High Court in proper perspective, seemed to be harping on the same objections made on the earlier occasions. Unnecessarily, he has driven the 2nd respondent to Tribunal, to pursue, for legal remedy. Material on record further discloses that right from 2011, when the 2nd respondent had lost his father in harness, and in indigenous circumstances, has prayed for employment assistance on compassionate grounds. Needless to state that the scheme is framed by the Government and implemented, even in Public Sector Undertakings, Boards, Corporations etc., to tide over the financial constrain of the bereaved family. When a dependent of a government servant or railway employee, in the case on hand, in indigent circumstances, prays for employment assistance, on compassionate grounds, the authority, is expected to show compassion, subject of course to the rules prescribing eligibility criteria. But, merely because, he has authority, he cannot reject the requests, without any assigning any reasons, and drive the applicant to Courts/Tribunals. For four years the respondent has been making requests to provide employment assistance, but the same has been denied by citing the only reason that he has been found unfit for all classes. As observed earlier, in none of the replies, the reasons for arriving at the conclusion as to why the 2nd respondent was found unfit are mentioned, excepting to state, he is medically unfit for all cases. The decision made in Arockiammal''s case is self explanatory and declaratory, and so far as the case on hand is concerned, the judgment of this Court has not been applied in letter and spirit, except to make a simple reference. At this juncture, it is also to be noted that the Tribunal vide order dated 05.06.2014 in O.A. No. 1325/2014, has directed the writ petitioners to consider the representation of the 2nd respondent, keeping in view the order of the Tribunal in O.A. No. 381/2012, upheld by this Court in W.P. No. 21082/2013 dated 01.08.2013. Even in the order dated 04.08.2014, impugned before the Tribunal, the Divisional Personnel Officer, has only stated as follows:--
"However, in your case you have been declared unfit for all classes in the re-medical examination also. Hence, your request for appointment is not accepted"
When the Tribunal has specifically directed to consider, with reference to an earlier order of a Hon''ble Division Bench of this Court, the representation of the 2nd respondent, should have been considered, in terms of the judgment, as held in A.P.S.R.T.C. and Others Vs. G. Srinivas Reddy and Others, ,, the Supreme Court has considered an issue, as to how the administrative authorities, take a decision in a matter, which requires consideration, the facts or the legal questions involved. The Supreme Court has also explained, as to how an authority has to consider, if the Court directs him to consider, when observations or findings are recorded. In the order of the Court and in cases, where, a simple direction is given, without reference to the above. The significance and the meaning of the directions given by the Courts to "consider a case" explained by the Supreme Court in Paragraphs 14 to 20 are worth reproduction.
"14. We may, in this context, examine the significance and meaning of a direction given by the court to "consider" a case. When a court directs an authority to "consider", it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in the High Courts being disposed of with a direction to "consider" the claim/case/representation of the petitioner(s) in the writ petitions.
Where an order or action of the State or an authority is found to be illegal, or in contravention of the prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to "consider" and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision-making process, rather than the decision itself.
The High Courts also direct the authorities to "consider", in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of the power of judicial review, directs the authority to "consider" and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs "consideration" without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to "consider" afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, the High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so.
Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to "consider" the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to "consider" the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court.
We may also note that sometimes the High Courts dispose of the matter merely with a direction to the authority to "consider" the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to "consider" the matter afresh. Be that as it may.
There are also several instances where unscrupulous petitioners with the connivance of "pliable" authorities have misused the direction "to consider" issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to "consider" and dispose of the representation. When the court disposes of the petition with a direction to "consider", the authority grants the relief, taking shelter under the order of the court directing him to "consider" the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order "to consider" as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to "consider", may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court''s direction to "consider" the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders "to consider".
Therefore, while disposing of the writ petitions with a direction to "consider", there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The court should also normally fix a time-frame for consideration and decision. If no time-frame is fixed and if the authority does not decide the matter, the direction of the court becomes virtually infructuous as the aggrieved petitioner will have to come again to court with a fresh writ petition or file an application for fixing time for deciding the matter."
Considering the persistent attitude of the Divisional Personnel Officer, in consistently rejecting the case of the 2nd respondent, without assigning any valid reasons, with due reference to what is observed and held by this Court made in W.P. No. 21082 of 2013 and finding no merit in the writ petition, we dismiss the same, with a cost of Rs. 10,000/- to be paid by the Divisional Personnel Officer, Southern Railway, Madurai Division, Madurai, who has passed the order dated 04.08.2014, to the 2nd respondent. Directions of the Central Administrative Tribunal, Madras Bench to consider the case of the 2nd respondent for employment assistance on compassionate grounds to any one of the posts other than those posts which fall under safety category, subject to the 2nd respondent satisfying the other criteria prescribed for compassionate appointment shall be complied within 15 days from today. The only reason for rejection is medical fitness. The respondent has not been found unfit in respect of any other criteria. It is made clear that the writ petitioners should not fish out new reasons for rejection, and strictly comply with the directions, regarding the eligibility criteria prescribed for compassionate appointment and directed to comply with the orders of the Tribunal within the time stipulated to avoid further litigation. Learned counsel for the appellant is directed to communicate the order of this court to the petitioners today itself. Post on 16.11.2015 for reporting compliance. Consequently, the connected M.P. is closed. No costs.