V. Kirubakaran vs Union Of India & Anr.

This OA has been filed by the applicant seeking the following relief:

Brief facts of the case, as submitted by the applicant are as follows:

The Applicant, belonging to a socially disadvantaged community and being hearing-impaired, was engaged as an Act Apprentice and subsequently appointed as a Substitute Trackman. However, upon medical examination, he was declared unfit in Bee-One (B-1) category on account of his hearing impairment. He was nevertheless permitted to undergo re-medical examination on the strength of a fitness certificate issued by a competent Government Medical Authority. The Applicant thereafter underwent Modified Radical Mastoidectomy at Government Stanley Hospital, Chennai, and was certified medically fit for Railway Service by the competent Government Medical Authority. Despite the said certificate, he was subjected to re-medical examination and again declared medically unfit. Aggrieved, the Applicant preferred O.A. No. 420/2014, which was allowed. However, the Respondents rejected his claim for appointment by the impugned order dated 02.12.2016. Hence, the present Original Application.

The learned counsel for the applicant submitted that he Respondents’ failure to consider the Applicant’s appeal for appointment despite his having undergone corrective surgery and being certified fit by the competent Government Medical Authority is arbitrary, unreasonable and a colourable exercise of power, and is therefore unsustainable in law. The impugned action is further contended to be in violation of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as the Applicant’s disability and subsequent medical fitness were not duly considered while deciding his claim for appointment.

He further submitted that the Respondents have also disregarded Railway Board's Letter No. E(NG)II/2006/RC-2/13 dated 25.09.2013, read with the earlier letters dated 17.09.2007, 18.02.2011 and 24.12.2012, providing concessions and facilities to Persons with Disabilities. The failure to extend due consideration to the Applicant’s ^{case is therefore contrary to the applicable Railway instructions.}Central Administrative Tribunal Hence, the impugned act of the respondents is non est in law.

Further, it is pointed out by him that Para 22 of O.M. No. 36035/3/2004-Estt.(Res) dated 29.05.2005 provides for relaxation of standards of suitability in open-market recruitment of Persons with Disabilities. The Respondents’ refusal to consider the Applicant’s appointment despite his post-operative fitness, while extending relaxed standards to other persons with disabilities, is discriminatory and impermissible. Such differential treatment is violative of Articles 14 and 16 of the Constitution of India, being arbitrary and discriminatory. Accordingly, the impugned order dated 02.12.2016 is liable to be set aside and the Applicant is entitled to the reliefs sought in the present Original Application.

In contrast, the learned counsel for the Respondents submitted that the Applicant, having been declared medically unfit in B-1 medical classification, preferred an appeal for re-medical examination, which was scheduled on 28.04.2008. Prior thereto, the ^{Applicant had undergone treatment for his right ear, as evidenced by}Central Administrative Tribunal the medical certificate dated 23.04.2008 issued by the Assistant Surgeon, ENT Department, Government Stanley Hospital, Chennai, marked as Annexure R-7. Upon examination by the Railway Medical Authorities, the Applicant was declared unfit in all medical categories by certificate dated 15.05.2008, marked as Annexure R-8. Thereafter, the Applicant submitted a representation dated 14.08.2008 to the 2nd Respondent seeking another re-medical examination, without disclosing that he had already undergone the appellate medical examination and had been declared unfit in all categories. The said representation is marked as Annexure R-9.

He further submitted that acting upon the representation, the 2nd Respondent, namely the Chief Personnel Officer, by letter dated 30.09.2008, advised the Senior Divisional Personnel Officer, Palakkad, to arrange for the Applicant’s re-medical examination, marked as Annexure R-10. The Applicant was accordingly directed to the Medical Authorities at Shoranur, who informed that he had already been medically examined on appeal and declared unfit in all categories. Subsequently, in view of further representations and requests received from various quarters, the matter was referred to the Chief Medical Director, Southern Railway, by letter dated 17.06.2010, marked as Annexure R-11. The Chief Medical Director, by letter dated 12.01.2011, clarified that there was no provision for a third re-medical examination, since the Applicant had already undergone re-examination on appeal and had been declared medically unfit. It was accordingly stated that no further appeal was available to the Applicant. The said communication is marked as Annexure R-12.

In view of the foregoing, the Respondents contended that the Applicant had exhausted the prescribed opportunity for appellate medical examination and, having been declared unfit in all categories, was not entitled to a further medical examination or appointment. The Respondents therefore prayed for dismissal of the Original Application.

We have considered the rival submissions made by the learned counsel on either sides, perused the pleadings and materials available on record.

We find that, in terms of the provisions of the IREC/IRMM, a candidate is required to undergo medical examination and be found medically fit by the competent Railway Medical Authority before appointment or engagement in the Railways, in accordance with the medical standards prescribed for the post concerned. In the present case, the Applicant was initially found medically unfit in B-1 medical classification, which was the prescribed standard for the post of Trackman for which his engagement was considered. He was duly informed of the finding and of his right to seek re-medical examination under the applicable rules vide letter dated 12.02.2008. After undergoing treatment at a State Government Hospital, the Applicant availed the opportunity of re-medical examination. However, upon such examination, he was again found unfit in all medical categories vide certificate dated 15.05.2008. Thus, the Applicant’s appeal for re-medical examination was duly considered by the Respondents and the Applicant was afforded an opportunity of being re-examined by the Railway Medical Authorities. Having been found unfit in all classes upon such re-examination, the Applicant could not be engaged to the post in question. We, therefore, find no arbitrariness, mala fides or colourable exercise of authority on the part of the Respondents in declining his engagement.

We also take note of the nature of duties in the Indian Railways, particularly in safety-category posts, where the safety of the employee, fellow railway personnel and a large number of passengers is directly involved. The prescribed medical standards are consequently intended to ensure that candidates engaged in such posts possess the requisite medical fitness. Under the IREC/IRMM, the relevant medical fitness has to be assessed by the competent Railway Medical Authority in accordance with the standards prescribed for the particular post. In such circumstances, the fitness certificate issued by a private medical practitioner or by a State Government medical institution, though relevant as evidence of treatment or general medical condition, cannot by itself substitute the medical fitness certification required under the Railway rules for appointment or engagement. The Applicant’s eligibility for engagement was therefore required to be determined on the basis of the assessment made by the competent Railway Medical Authority.

We further find that the Applicant does not fall within the statutory category of Persons with Disabilities for the purpose of the concessions claimed by him. His application was pursuant to the internal notification issued for engagement of course-completed Act Apprentices as substitutes in Group ‘D’ safety-category posts, in the context of the Railway Board’s instructions dated 25.09.2013 and 03.10.2013 and the relevant DoPT Office Memorandum dated 29.12.2005. The concessions applicable to Persons with Disabilities, therefore, cannot be invoked to dispense with or relax the prescribed medical standards applicable to the post in question. The engagement of course-completed Act Apprentices as substitutes in Group ‘D’ safety-category posts was only a stop-gap arrangement, undertaken in view of the large number of vacancies and pursuant to the powers vested in the General Manager. Such engagement remained subject to the prescribed eligibility and medical requirements. No relaxation of the requisite medical fitness standard was permissible in the Applicant’s case merely by virtue of his status as a course-completed Act Apprentice.

We also find from the records that the Applicant was not singled out for adverse treatment. Other similarly situated candidates who were found medically unfit were likewise denied engagement as substitutes. The decision of the Respondents was thus based on the uniform application of the prescribed medical standards and not on any discriminatory consideration. Consequently, the Applicant has failed to establish any violation of Articles 14 or 16 of the Constitution of India, or any arbitrary or discriminatory exercise of power by the Respondents.

In the above circumstances, and after thoughtful consideration based on the findings, we do not find any infirmity in the impugned order dated 02.12.2016, warranting our interference. In the result, the OA is dismissed. No order as to costs.