OP(CAT) No. 131 of 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940 OP (CAT).No. 131 of 2018 AGAINST THE ORDER/JUDGMENT IN OA 596/2017 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 22-12-2017 PETITIONER(S)/RESPONDENTS IN OA 1 UNION OF INDIA, REPRESENTED BY ITS GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI - 600003. 2 DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, THIRUVANANTHAPURAM DIVISION, THIRUVANANTHAPURAM - 695014. 3 SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, THIRUVANANTHAPURAM DIVISION, THIRUVANANTHAPURAM - 695014. BY ADV.SRI.S.RADHAKRISHNAN,SENIOR PANEL,RAILWAY RESPONDENT(S)/APPLICANT IN OA : HARIKRISHNA VARANASI, S/O. BALAKRISHNAIAH, C/O. CHALAMNAIDU HOUSE, DOOR NO.4-121/4, KOTHAVALASA VILL & P.O., VIZIANAGARAM, ANDHRA PRADESH, PIN - 535183. THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 131 of 2018 (Z) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE O.A.NO.180/00596/2017 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS RAILWAYS IN O.A. NO.180/00596/2017 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 22ND DECEMBER 2017 IN O.A. NO. 180/00596/2017 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ## RESPONDENTS EXHIBITS NIL TRUE COPY SKS P.A TO JUDGE ## **C.T. RAVIKUMAR & A.M. BABU,JJ. = = = = = = = = = = = = = = = = = OP(CAT) No.131 of 2018** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 6[th] day of July, 2018_ ## **JUDGMENT** ## **C.T. RAVIKUMAR J.** This original petition is filed against the order dated 22.12.2017 in O.A.No.180/00596/2017 passed by the Central Administrative Tribunal, Ernakulam Bench. The petitioners herein were the respondents therein and the respondent herein was the applicant therein. The respondent had responded to Annexure A1 notification issued by the petitioners for appointment to the post of Ticket Examiner/Ticket Collector. After culmination of the selection process he was offered the appointment subject to medical examination. In the medical examination virtually, he was found unfit to a post which requires B-2 medical classification. The Medical Board also confirmed the same. In the said circumstances virtually he was denied appointment as per Annexure A6. It is in the said circumstances that he filed the above mentioned original application before the Central Administrative Tribunal seeking the following reliefs:- (i) Call for the proceedings leading upto Annexure A7, and set aside Annexure A6 communication. (ii) Direct the respondents to consider the applicant for the post of Ticket Examiner in view of the order of the Hon'ble Supreme Court in S.K.M.Haider vs Union of India and Others in OP(CAT) No.131 of 2018 **-: 2 :-** 2011 (4) SCC 700, and complete the process of appointment within a time frame stipulated by this Hon'ble Tribunal. (iii) Pass such further or other orders as this Hon'ble Tribunal may be pleased to deem fit and proper in the circumstances of the case. 2. The petitioners herein resisted the contentions of the respondent/applicant and contended that in terms of Annexure A1 notification the prescribed medical standard of vision as regards the post of Ticket Examiner/Ticket Collector is B-2. Evidently, before the Tribunal the respondent/applicant contended that he is entitled to get the benefit flowing from the decision of the Hon'ble Apex Court in **S.K.M.Haider vs Union of** **India and Others** reported in **2011 (4) SCC 700** and in fact, prayer No.2 is also for a direction to the respondents to consider him as fit for appointment to the post of Ticket Examiner/Ticket Collector in the light of the said decision. 3. Per contra, the petitioners herein contended that the said decision is virtually one rendered under Article 142 of the Constitution of India and therefore it is applicable only to the petitioner therein and not available to be followed as a binding precedent. It is the further contention that the declaration made OP(CAT) No.131 of 2018 **-: 3 :-** thereunder by the Apex Court pertains only to promotion to the post of Ticket Examiner/Ticket Collector. Such contentions were repelled by the Tribunal and the Tribunal ultimately held that the petitioner's case falls squarely within the purview of the decision of the Apex Court in **S.K.M.Haider's** case and consequently set aside Annexures A6 and A7. As a necessary sequel a direction was issued to the petitioners herein to consider the application for the post of Ticket Examiner/Ticket Collector in the light of the judgment of the Apex Court in **S.K.M.Haider's** case and complete the process of appointment within the time stipulated therein, disregarding Annexure R1 (a) decision of the Railway Board. It is in the said circumstances that the captioned Original Petition has been filed. 4. We heard the learned Senior Counsel appearing for the petitioners. 5. The relief sought for by the applicant/respondent herein in the Original Application would reveal that he sought for a declaration to consider him for appointment to the post of Ticket Examiner/Ticket Collector in the light of the decision of the Apex Court in **S.K.M.Haider's** case. In that case the appellant came OP(CAT) No.131 of 2018 **-: 4 :-** out successful in the examination conducted for promotion to the post of Ticket Examiner/Ticket Collector and his name was also placed in the provisional selection list. However, he was declared unfit in medical examination conducted by the Chief Medical Director and the Medical Board and he failed in vision tests. The appellant therein approached AIIMS and was declared medically fit. Even then he was denied promotion. It is in the said circumstances that he approached the Central Administrative Tribunal, Chandigarh Bench. The Tribunal dismissed the Original Application. Then the matter was taken up before the High Court of Punjab and Haryana. The High Court virtually affirmed the order passed by the Tribunal. The contention of the petitioners herein, the Union of India and others including Railways before the Apex Court was that going by para 510 of IRMM the nongazetted railway services have been divided into three broad groups, namely, Group A, B and C for the purpose of vision tests. These groups are also sub divided into different classes, such as A-1, A-2, A-3 etc. The medical standard prescribed for the post of Ticket Examiner/Ticket Collector is class B-2, for vision test. The contention is that since the appellant therein had failed in the test OP(CAT) No.131 of 2018 **-: 5 :-** and found medically unfit he was not entitled to get promotion. Evidently, the Apex Court rejected such contentions and ultimately held that the appellant therein was entitled to get promotion to the post of Ticket Examiner/Ticket Collector. The said direction was issued based on a declaration as hereunder. For the purpose of proper disposal of the Original Application we think that it is necessary to extract the declaration made by the Apex Court and it runs as follows: Suffice it to say that categorisation of posts for the purpose of vision tests must have nexus with the object set out in para 510. Having regard to the objective of division of groups/classes for the purpose of vision tests under para 510 of IRMM, the post of Ticket Collectors cannot be held to be covered by Class B-2 but rather will be covered by Class C-2. Any inconsistency in categorisation of railway posts in Annexure IV, in our view, must not operate against the appellant in getting promotion to the post of Ticket Collector. 6. The contention of the learned Senior Counsel appearing for the petitioners herein is that at best it could be taken that said declaration in **S.K.M.Haider's** case was in respect of promotion to the post of Ticket Collector. In the case on hand, the respondent herein applied for direct recruitment from **-: 6 :-** OP(CAT) No.131 of 2018 open quota. We are afraid the said contention cannot be upheld. The categorisation essentially is based on the requirement of medical standard for discharging the duties attached to the post of Ticket Examiner/Ticket Collector. In such circumstances we are of the considered view that the source of recruitment to the said post is absolutely irrelevant as the main factor to be looked into is the medical fitness to perform the duties attached to the post of Ticket Examiner. When that be so, the petitioners cannot be heard to contend that the standards for medical vision in respect of promotees and direct recruit should be different as long as the appointment is to the post of Ticket Examiner/Ticket Collector irrespective of the fact that such appointment is sought to be effected by direct recruitment or by promotion. In such circumstances, classifying persons based on the source of appointment would amount to include discrimination, according to us. 7. The question whether the respondent herein was entitled to get the benefit of the decision in **S.K.M.Haider's** case. As noticed hereinbefore, the learned counsel attempted to canvass the position that the decision in **S.K.M.Haider's** case is OP(CAT) No.131 of 2018 **-: 7 :-** rendered by the Apex Court under Article 142 of the Constitution of India. We find it very difficult to accept the said contention. The above extracted recitals from the decision in **S.K.M.Haider's** case would reveal that after referring to para 510 of IRMM and the categorisation of posts for the purpose of vision tests the Apex Court held that having regard to the objective of division of groups/classes for the purpose of vision tests under Para 510 of IRMM the post of Ticket Collectors would not be held to be covered by class B-2 but it is covered class C-2. Thus it is evident that, that is nothing but a declaration as regards the categorisation of posts for the purpose of vision tests under para 510 with respect to the post of Ticket Collectors. In such circumstances, in terms of Article 141 of the Constitution of India it is the law. 8. The learned counsel further attempted to contend that even in such circumstances the respondent herein, he is not entitled to be considered for appointment to the post of Ticket Examiner/Ticket Collector. It is contended that the notification in question was issued prior to the decision in **S.K.M.Haider's** case. To one of our pointed questions, the learned counsel submitted OP(CAT) No.131 of 2018 **-: 8 :-** that the procedures culminated in the non-selection of the respondent was after the decision in **S.K.M.Haider's** case. The learned counsel also relied on a decision of the Apex Court in **AIR 1994 SC 1241 (Indian Council of Agricultural Research and Another vs Smt.Shashi Gupta)** to buttress his contentions. In fact paragraph 7 of the said decision was relied on by the learned counsel and the same reads as follows:- “7. We do not agree with the reasoning and the conclusions reached by the tribunal. We are of the view that once Medical Board and the Appellate Medical Board found the respondent medically unfit for the post of Scientist Grade S the tribunal had no jurisdiction whatsoever to have got over the medical opinions and directed her appointment to the service. The Tribunal outstepped its jurisdiction and acted with an utter perversity, Medical fitness is the sine qua non for appointment to public services. It is the inherent right of an employer to be satisfied about the medical fitness of a person before offering employment to him/her.” 9. The decision in **Smt.Sashi Gupta's** case (supra) was rendered by a Two-Judge Bench of the Apex Court and the subsequent decision in **S.K.M.Haider's** case was also rendered **-: 9 :-** OP(CAT) No.131 of 2018 by a Two-Judge Bench. In such circumstances, there cannot be any doubt that we are bound by the decision in **S.K.M.Haider's** case. As noticed hereinbefore, there is yet another reason to hold that we are bound by the decision in **S.K.M.Haider's** case. The decision in **Smt.Sashi Gupta's** case pertains to a different post in a different establishment and as regards **S.K.M.Haider's** case it pertains to the very same post and the question is whether for appointment to the particular post what should be the prescribed medical standard. 10. The learned counsel further contended that if the applicant/respondent herein is considered for appointment in the light of the decision it would amount to violation of Article 14 and 16 of the Constitution of India inasmuch as others similarly situated were deprived of a chance for partaking in the selection for public employment. At the first blush the said contention would appear to be attractive. But at the same time, when once it is found that the case of the respondent falls is squarely within the purview of the decision in **S.K.M.Haider's** case we are of the view that the benefit flowing from the said decision cannot be denied to the respondent on the aforesaid ground as well, as OP(CAT) No.131 of 2018 **-: 10 :-** despite his participation he was found unfit for appointment solely due to the non-application of the position of law settled by the Apex Court, on the subject. Taking note of the fact that petitioners herein were parties in **S.K.M.Haider's** case and if they had deviated from the dictum laid down by the Apex Court therein they cannot be permitted to take advantage of such deviation to deny the benefit flowing from the said decision to the respondent herein. When **Haider's** decision is cited before us which carries a declaration to the effect that as regards the post of Ticket Examiner under Railway the medical standard required is C-2 and not B-2 and when the very same question arises for consideration in this case on hand, we have no hesitation to hold that the said decision is binding on us. The Apex Court held that the law is declared by the Supreme Court it could not be byepassed by the High Court on the ground that some points had not been considered (See the decision in **Suganthi Suresh Kumar vs. Jagdeeshan (AIR 2002 SC 681)** . When a declaration as aforementioned was made by the Apex Court in **Haider's** case, we are of the view that we cannot assign any other reason to byepass the said declaration, when once, it is found that the OP(CAT) No.131 of 2018 **-: 11 :-** respondent's case squarely falls within the purview of the said decision wherein the Apex Court made such a categorical declaration. In short, we do not find any reason to interfere with the impugned order of the Tribunal and this original petition is liable to be dismissed in limine. Accordingly, this Original Petition is dismissed. Sd/- **C.T. RAVIKUMAR Judge** **sd/-** **A.M. BABU Judge** sks/7.7.2018