Union of India and others vs Vijith Krishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 31ST DAY OF OCTOBER 2017/119TH KARTHIKA, 1939 OP (CAT).No. 309 of 2017 (Z) ----------------------------- AGAINST THE ORDER IN OA 180/00024/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 7/7/2015 PETITIONERS: ------------- 1. UNION OF INDIA REPRESENTED BY SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, NORTH BLOCK, NEW DELHI.110001. 2. THE DIRECTOR (IES) MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, NORTH BLOCK, NEW DELHI. 110001. 3. THE DEPUTY DIRECTOR (IES) MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, NORTH BLOCK, NEW DELHI.110001. BY ADVS.SRI. R.V. SINHA SRI. AMIT SINHA RESPONDENT: - -------------- VIJITH KRISHNAN AGED 25 YEARS, S/O SRI.KRISHNAKKUTTY MARAR, RESIDING AT KURUMANGHAT HOUSE, THAYYUR PO, ERUMAPETTY (VIA) THRISSUR.680584. THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 31-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 309 of 2017 (Z) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1(IMPUGNED)COPY OF THE ORDER/JUDGMENT DATED 7.7.2015 IN O.A NO.180/00024/2014, EXHIBIT P2( COLLY) COPY OF OA NO.180/00024/2014 EXHIBIT P3 COPY OF REPLY STATEMENT TO OA NO.180/00024/2014 ON BEHALF OF THE PETITIONERS HEREIN. EXHIBIT P4 COPY OF REJOINDER FILED BY THE RESPONDENT HEREIN IN RESPONSE TO REPLY STATEMENT FILED ON BEHALF OF THE PETITIONERS HEREIN BEFORE THE ID.TRIBUNAL. EXHIBIT P5(COLLY) COPY OF LETTER DATED 16.5.2017 ALONG WITH THE REPORT DATED 9.1.2017 OF SAFDARJUNG HOSPITAL, NEW DELHI. EXHIBIT P6 COPY OF NOTE DATED 28.6.2017 OF THE MINISTRY OF SOCIAL JUSTICE & EMPOWERMENT. EXHIBIT P7 COPY OF LETTER DATED 23.8.2017 FROM SAFDARJUNG HOSPITAL NEW DELHI. EXHIBIT P8 COPY OF ORDER DATED 31.8.2017 PASSED BY LD.TRIBUNAL IN CONTEMPT PETITION (CIVIL) NO.180/00103/2016, RESPONDENT(S)' EXHIBITS ----------------------- NIL KS TRUE COPY P.S. TO JUDGE ## **P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **============================== O.P.(CAT) No. 309 of 2017** ## **==============================** ## **Dated this the 31[st] day of October, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The respondents in O.A. No. 180/00024/2014 filed before the Central Administrative Tribunal, Ernakulam Bench, are the petitioners before this Court. The challenge is against Ext.P1 order passed, way back on 7th July, 2015, whereby the 2[nd] respondent in the O.A. was directed to refer the applicant to the appellate authority for getting the actual percentage of visual disability assessed and to pass appropriate orders, based on the said report. 2. Heard Sri.R.V.Sinha, learned counsel appearing for the petitioners at length. 3. The basic issue involved in this case is with regard to the eligibility of the respondent/applicant to get appointed OPCAT 309/2017 2 to the post of Grade-IV of the Indian Economic Service pursuant to the selection conducted by the Union Public Service Commission. As a matter of fact, the applicant claimed to have the benefit of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, based on the certificate procured by him from the Medical College (where it is certified that he was having 40% disability). 4. Going by the factual position narrated in Ext.P1, it is seen that the petitioner was subsequently caused to be examined by the Central Standing Medical Board of Dr.RML Hospital, New Delhi, where the visual disability was reassessed as only 20%. This made the petitioner to prefer an appeal against the said order, whereupon he was directed to appear before the Central Standing Medical Board of Safdurjung Hospital, New Delhi. The said hospital referred the applicant to Dr. Rajendra Prasad Centre for Opthalmic OPCAT 309/2017 3 Sciences, AIIMS, New Delhi, and by virtue of their proceedings dated 22.11.2003, (as extracted by the Tribunal in Ext.P1) it was pointed out that the actual disability could be ascertained only after 'cataract surgery' and putting up of Intra Ocular Lens Implantation, as advised. But the applicant hesitated to conduct the 'cataract surgery' stating that he had some family history of post operative cataract surgery complications, leading to blindness. The said version appears to have been glibly swallowed by the Tribunal and it was held in Ext.P1, that the applicant could not be compelled to undergo cataract surgery, against his will. It was accordingly, that the Appellate Authority was directed to assess the percentage of visual disability, in turn giving further direction to have the matter considered again by the 2[nd] respondent vide Ext.P1. 5. Obviously, the direction given was to have the assessment conducted, in turn directing the 2[nd] respondent OPCAT 309/2017 4 to pass appropriate orders. In other words, no positive order directing to appoint the person concerned was given or as to how the assessment was to be made was also not specified by the Tribunal. It is this order that has now been challenged after three years. 6. At the very outset, this Court is not at all impressed with the version as pleaded in the Original Petition so as to sustain the challenge, in so far as the order under challenge was passed more than three years ago. It is settled law that the jurisdiction of this Court cannot be invoked to extend relief to persons who were simply sitting resting on arm chairs, unmindful of their rights and interest, if any. The sequence of events given in the Original Petition is as to the communications and correspondence between the authorities. But it remains a fact that, the Union of India was the 1[st] respondent in the O.A. and as such, the inter communications between the various authorities of the OPCAT 309/2017 5 Government cannot be a reason to condone the inordinate delay of three years. We find support from the ruling rendered by the Apex Court in **Rabindranath Bose & Others v. Union of India & Others AIR 1970 SC 470,** to decline interference on this score. 7. Another aspect to be noted is that, the Tribunal, as per Ext.P1 had given only a direction to have the disability assessed by the Appellate Authority and to pass appropriate orders by the 2[nd] respondent. It is specifically pleaded in paragraph 4(xix) of the Original Petition that, pursuant to the said order, the applicant was got examined in terms of the said direction. A copy of the report dated 9.1.2017 forwarded along with letter dated 16.5.2017 of the Central Standing Medical Board, Safdarjung Hospital, New Delhi has been produced as Ext.P5. Having complied with the said direction, nothing further remains to be challenged, with regard to the order passed by the Tribunal as per Ext.P1. OPCAT 309/2017 6 For this reason also, interference is not possible. 8. Coming to the merit of the case, we are not at all happy with the reasoning given by the Tribunal in Ext.P1, especially that, when the Expert Body says that the disability can be assessed only after doing the 'cataract surgery', no benefit can normally be extended to any person, who is not willing to act as advised by Experts, referring to the alleged family history of post-operative cataract surgery complications, which is not proved as well. This Court does not intend to have further deliberation in this regard as it is open for the petitioner to challenge the adverse orders passed by the Tribunal by way of Ext.P8 dated 31.8.2017, virtually widening the scope of Ext.P1 order, in the course of dealing with the contempt of court proceedings. It is seen that, as per the said order, some wider directions have been given by the Tribunal, virtually directing the appointment to the applicant; which direction OPCAT 309/2017 7 is not there in Ext.P1. If Ext.P8 order is not liable to be sustained in the eye of law, the petitioner is free to have it challenged by way of appropriate proceedings. Obviously, the relief sought for in the present Original Petition does not include any relief challenging Ext.P8 order. As such this Court does not intend to deal with Ext.P8 verdict passed by the Tribunal. 9. In the above facts and circumstances, interference is declined and the Original petition is dismissed, however, without prejudice to the rights and liberties of the petitioner to challenge the correctness of Ext.P8 by way of appropriate proceedings in accordance with law. It is also made clear that the reasoning given by the Tribunal in Ext.P1, which has played a significant role in passing Ext.P8, could also be subjected to challenge by the petitioner, if such challenge is sustainable with reference to the undisputed facts and the relevant provisions of law. This is more so, since there OPCAT 309/2017 8 cannot be any estoppal against law. With the above observations, the Original Petition stands dismissed. ## **Sd/-** **P. R. RAMACHANDRA MENON JUDGE** **Sd/SHIRCY V. JUDGE** **ks.** True copy P.S. To Judge OPCAT 309/2017 9 OPCAT 309/2017 10