Union of India and Others v. Arul Das K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941** ## **OP (CAT).No.223 OF 2019** **ORDER IN OA 6/2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 18.6.2019** ## **PETITIONER/S:** - **1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, PARK TOWN P. O., CHENNAI - 600003.** - **2 THE CHAIRMAN, RAILWAY RECRUITMENT CELL, NO.5, DR. P. V. CHERIAN CRESCENT ROAD, EGMORE, CHENNAI - 600008.** - **3 THE CHIEF MEDICAL SUPERINTENDENT RAILWAY HOSPITAL, SOUTHERN RAILWAY, PALAKKAD - 678002.** **BY ADV. SRI.S.RADHAKRISHNAN,SENIOR PANEL,RAILWAYS** ## **RESPONDENT/S:** **ARUL DAS.K S/O. KRISHNANKUTTY, RESIDING AT PEECHIYODE HOUSE, KODUVAYUR POST, PALAKKAD - 678501.** **R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SMT.KALA T.GOPI R1 BY ADV. SRI.B.NAMADEVA PRABHU R1 BY ADV. SRI.R.S.SARAT** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 30.10.2019,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT) 223 of 2019 2 ## **JUDGMENT** Dated this the 30[th] day of October, 2019 ## **V.G.ARUN, J.** The Union of India and the Railway establishment have filed the original petition aggrieved by Ext.P6 order of the Central Administrative Tribunal, setting aside Annexure A2 order in the original application and directing the petitioners/respondents before the Tribunal to re-constitute a Medical Board after giving due notice to the applicant and to conduct medical examination of the applicant by specialised doctors, who shall provide all supporting reports/documents to show that the applicant is fit/unfit for all categories by giving reasons for such opinion. It is further directed that in the event of the applicant being found fit by the Medical Board, he should be considered for appointment. O.P.(CAT) 223 of 2019 3 2. The brief facts in the original application are as follows:- The Railway Recruitment Cell of Southern Railway had initiated recruitment process for filling up of the posts of Trackman/Helper/Porter/Peon/Safaiwala/Khalasi etc as per notification dated 21.9.2013. The process of selection to the notified post involved written test followed by physical efficiency test, document verification and medical examination. The applicant successfully completed written examination and physical efficiency test and was called for document verification on 31.08.2015. After completion of the document verification, the applicant was sent for medical examination to the Railway Hospital, Palakkad. On medical examination, the applicant was found to be having high blood pressure (hypertension) and hence unfit for railway service. O.P.(CAT) 223 of 2019 4 As mandated in the Indian Railway Medical Manual (IRMM), the applicant was referred to a Committee of three doctors, including a Physician. On examination of the applicant, the Committee also found the blood pressure level of the applicant to be very high (systemic hypertension). The Committee reiterated the opinion of the Doctor who examined the applicant initially that, the applicant was unfit in all categories in Indian Railway. Annexure A2 communication was thereafter sent to the applicant, based on the decision of the Committee, informing him the opinion of the Committee. 3. On receipt of Annexure A2, the applicant sought reconsideration of the decision declaring the applicant to be unfit, based on certificates of health obtained from the Community Health Centre, Koduvayur and the District Hospital, Palakkad. The request for reconsideration of O.P.(CAT) 223 of 2019 5 ## Annexure A2 not being considered, the original application ## was filed seeking the following reliefs:- _“(i) Call for the records leading to the issue of Annexure A2 and quash the same;_ _(ii) Direct the respondents to subject the applicant for a fresh medical examination at a fairly higher level and direct further to grant all the consequential benefits, including appointment against one of the posts for which the applicant was sent for medical examination; alternatively,_ _(iii) Direct the respondents to consider the applicant for appointment atleast against one of the vacancies earmarked for Persons with Disability, for which the recruitment was initiated in terms of the Employment Notice bearing No.2/2013;_ _(iv) Award costs of and incidental thereto;”_ 4. Before the Tribunal, the challenge against Annexure A2 was on the ground that it is bad for non-application of mind, _ultra vires_ the statutory rules and in violation of the constitutional guarantee enshrined in Articles 14 and 16. Note (ii) of sub-paragraph (2) of Paragraph 512 of the IRMM was relied on to contend that the Manual does not provide for a classification as “unfit in all classes” and that the wrong O.P.(CAT) 223 of 2019 6 classification is indicative of the arbitrariness behind Annexure A2. 5. In the reply statement, the respondents submitted that a Committee of three doctors had, after thorough examination of the applicant, certified him to be unfit in all categories in Indian Railway. It was submitted that the applicant was declared to be unfit by invoking Paragraph 501 (2) of the IRMM, on being detected with high blood pressure by the doctor who examined him initially on 17.9.2015 and thereafter, by the Committee of doctors on 21.9.2015. It was submitted that, in view of paragraph VII of Annexure R5 Circular, once a candidate is declared to be unfit by the competent medical authorities, the question of subjecting him for further medical examination does not arise. 6. After considering the rival contentions, the Tribunal O.P.(CAT) 223 of 2019 7 went on to hold that the applicant was declared medically unfit for all categories, without following the medical norms, since the blood pressure levels recorded by the BP monitor was not provided to him. According to the Tribunal, the fact that the authorities rejected the applicant's candidature, without disclosing the results of the examination and furnishing him with the details creates an impression that the medical examination was not done in a transparent manner. Based on the findings, Annexure A2 was set aside and the respondents were directed to constitute a Medical Board for examination of the applicant, to furnish the details of the examination and to appoint the applicant, if he is found fit by the Medical Board. 7. The challenge against the Tribunal's order is on the ground that under the impugned order, an unqualified O.P.(CAT) 223 of 2019 8 candidate is being provided with an additional opportunity to qualify himself, by acquiring the requisite eligibility through medical treatment. That, under the Railway Medical Manual, there is no provision for conducting re-examination of a candidate, declared unfit at the preliminary examination and thereafter, by the three member Committee. It is contended that the compulsion to empanel a medically unfit person will be at the cost of passenger safety, and that the impugned order would set a bad precedent, inasmuch as there will be a tendency for similarly placed candidates to approach the Tribunal seeking identical relief, based on self serving certificates obtained from willing Doctors. It is also contended that the finding of the Tribunal that the details regarding the blood pressure levels of the applicant is not made available, is factually incorrect. O.P.(CAT) 223 of 2019 9 8. At the outset, we have to notice that the applicant has not raised any allegation of _mala fide_ against the Railway authorities, in declaring him to be medically unfit. The seriousness of the railway establishment in ensuring intake of only healthy employees is reflected from Paragraph 501 (2) of the Medical Manual, which reads as follows: _“No person will be deemed qualified for admission to the public service who shall not satisfy the Government, or the appointing authority, as the case may be, that he has no disease, constitutional affliction or bodily infirmity unfitting him, or likely to unfit him for that service.”_ 9. In view of the finding of the Tribunal that the blood pressure levels of the applicant was not available for perusal, the petitioners have produced Exts.P3 and P4 along with the original petition. Ext.P3 is the proforma for medical examination of the applicant prepared at the time of his initial examination. In Ext.P3, the blood pressure level of the O.P.(CAT) 223 of 2019 10 applicant is recorded as 180/90 (systemic hypertension). Ext.P4 is the proceedings of the three member Committee dated 21.9.2015. The Committee found the applicant to be having systemic hypertension (172/96) Dyslipedmia. The Committee unanimously recommended the applicant to be unfit for “all categories in Indian Railways”. Clause 12.6 of Ext.P5 guidelines explains the procedure for medical examination and the specific diseases affecting fitness of staff. The relevant portion of Clause 12.6 dealing with hypertension reads as under:- _“12.6 Hypertension: Each case must be judged individually taking all relevant factors into account, but as a general guide, a hypertensive employee free from other signs can be declared fit for any jobs if B.P. is not more than 190/100. In the case of candidates BP of over 140 systolic and 90 diastolic would be a cause for rejection. In arriving at a decision, age, obesity, family history, cardiac conditions, glycosuria, albuminuria, evidence of atherosclerosis etc. should be taken into consideration. Evidence of atherosclerosis is more important than actual levels of blood pressure in assessing risk. Those with a blood pressure persistently above 200 systolic or 110 diastolic and those on ganglion blocking drugs should_ O.P.(CAT) 223 of 2019 11 _not be passed for train working or train passing duties. A station master who is supervisory and not doing train passing duties may be passed under such circumstances, but not one on train passing duties.”_ Thus, Clause 12.6 prescribes different standards for serving employees and candidates seeking appointment. Accordingly, hypertensive employees with BP level of not more than 190/100 can be declared fit for any job, provided they are free from other signs. In arriving at this decision, age, obesity, family history etc will be taken into consideration. But in the case of aspiring recruits, BP level of 140 of 90 would result in rejection of their candidature. The applicants blood pressure having having been recorded at 180/90 during medical examination, the rejection of his candidature cannot be faulted as it was in accordance with the Medical Manual. 10. In this context, it will be profitable to refer the decision of the Honourable Supreme Court in _**State of**_ O.P.(CAT) 223 of 2019 12 _**Utarpradesh and others v. Pankaj Kumar Vishnoi**_ . _**[(2013) 11 SCC 178]**_ The bare minimum facts are that Pankaj Kumar Vishnoi, who was seeking compassionate appointment, failed in the physical examination test conducted to the post of Sub Inspector. The rejection of his candidature was challenged on the ground that the claim being for compassionate appointment, he should not have been subjected to physical examination test. Even though the writ petition was dismissed, in appeal the Division Bench allowed the writ petition and directed the petitioner to be subjected to a physical test once again and granted appointment, if found suitable. The Honourable Supreme Court interfered with the judgment of the Division Bench and made the following observation with regard to the grant of a second chance for physical examination:- O.P.(CAT) 223 of 2019 13 “ _22. It is accepted position that the respondent appeared in the test and could not qualify. Once he did not qualify in the physical test, the High Court could not have asked the Department to give him an opportunity to hold another test to extend him the benefit of compassionate appointment on the post of Sub-Inspector solely on the ground that there has been efflux of time. The respondent after being disqualified in the physical test could not have claimed as a matter of right and demand for an appointment in respect of a particular post and the High Court could not have granted further opportunity after the crisis was over.”_ 11. In the case at hand also, the competent body, namely the three member Committee, having found the applicant unfit, it was not for the Tribunal to interfere with or substitute the finding based on certain self serving medical reports procured subsequently and produced by the candidate. As rightly contended by the learned Standing Counsel for the Railways, the intention behind setting strict standards for physical examination of candidates prior to their appointment and conduct of periodical review of the health condition of the existing employees is in the better interest of the multitude of railway passengers. Any relaxation in this O.P.(CAT) 223 of 2019 14 matter will be to the peril of the travelling public. 12. With respect to the finding of the Tribunal that Annexures R3 and R4 are silent about the reason for finding the applicant unfit in all categories, it is submitted that in Annexure R4, the reason has been clearly noted as 'systemic hypertension'. We find substantial force in the submission. The factual and legal basis on which the impugned order was rendered being erroneous, the original petition is allowed and the impugned order of the Central Administrative Tribunal in O.A.No.6 of 2016 dated 17.6.2019 is set aside. No order as to costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/ 30.10 O.P.(CAT) 223 of 2019 15 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE O.A.NO.180/06/2016 DATED 28.12.2016.** **EXHIBIT P1/A1 TRUE COPY OF COMMUNICATION BEARING NO.RRC/EN 02/2013/PET DATED 07.05.2015 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.** - **EXHIBIT P1/A2 TRUE COPY OF LETTER BEARING NO.RRC/EN 02/2013/ME DATED 17.11.2015 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.** - **EXHIBIT P1/A3 TRUE COPY OF CERTIFICATE OF HEALTH DATED 21.11.2015 ISSUED BY THE CIVIL SURGEON, COMMUNITY HEALTH CENTRE, KODUVAYUR.** - **EXHIBIT P1/A4 TRUE COPY OF CERTIFICATE OF HEALTH DATED 24.11.2015 ISSUED BY THE CIVIL SURGEON, DISTRICT HOSPITAL, PALAKKAD.** - **EXHIBIT P1/A5 TRUE COPY OF THE REPRESENTATION OF THE RESPONDENT DATED NIL.** - **EXHIBIT P1/A6 TRUE COPY OF THE RELEVANT PAGES OF CHAPTER V OF IRMM VOL.I** - **EXHIBIT P2 TRUE COPY OF REPLY STATEMENT FILED BY THE PETITIONERS IN O.A.NO.06/2016 DATED 25.02.2016.** - **EXHIBIT P2/R1 TRUE COPY OF THE EMPLOYMENT NOTIFICATION NO.RRC 02/2013 DATED 21.09.2013.** O.P.(CAT) 223 of 2019 16 **EXHIBIT P2/R2 TRUE COPY OF THE EXTRACT OF MANUAL OF RAILWAY RECRUITMENT BOARDS, 2007.** **EXHIBIT P2/R3 TRUE COPY OF THE MEDICAL MEMO NO.31/8/93 DATED 31.08.2015.** **EXHIBIT P2/R4 TRUE COPY OF THE MEDICAL CERTIFICATE NO.OS 1278 DATED 17/23.09.2015.** **EXHIBIT P2/R5 TRUE COPY OF THE RAILWAY BOARD'S LETTER NO.2014/H/5/8 (POLICY) DATED 05.06.2014. EXHIBIT P2/R6 TRUE COPY OF THE EXTRACT OF PARA 222 OF INDIAN RAILWAY ESTABLISHMENT CODE VOLUME I. EXHIBIT P2/R7 TRUE COPY OF THE EXTRACT OF PARA 501(2) OF IRMM. EXHIBIT P3 A TRUE COPY OF THE REPORT OF THE MEDICAL EXAMINATION BY THE RAILWAY HOSPITAL DATED 17.09.2015 AND 18.09.2015** **EXHIBIT P4 A TRUE COPY OF THE MEDICAL REPORT NO.J/MD.141/SC DATED 21.09.2015. EXHIBIT P5 A TRUE COPY OF THE RELEVANT EXTRACT OF ANNEXURE III TO THE IRMM VOL.I (2000 EDITION). EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 18.06.2019 PASSED BY THE CAT ERNAKULAM BENCH IN O.A.NO.180/06/2016.**