Union of India represented by the General Manager, Southern Railway v. Sajan Joseph Netto

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 07TH DAY OF FEBRUARY 2020 / 18TH MAGHA, 1941** ## **OP (CAT).No.37 OF 2020** **OA 10/2016 DATED 01-10-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** - **1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, PARK TOWN P.O., CHENNAI - 600 003.** - **2 THE DEPUTY CHIEF PERSONNEL OFFICER/RECRUITMENT, RAILWAY RECRUITMENT CELL, NO.5, DR.P.V.CHERIAN CRESCENT ROAD, EGMORE, CHENNAI - 600 008.** - **3 THE CHIEF MEDICAL DIRECTOR, SOUTHERN RAILWAY HEADQUARTERS,MOORE MARKET COMPLEX, PARK TOWN P.O.,CHENNAI - 600 003.** - **4 THE SR.DIVISIONAL MEDICAL OFFICER, HEALTH UNIT, NGO SOUTHERN RAILWAY, CHENNAI CENTRAL, CHENNAI - 600 003.** ## **BY ADV. SRI.S.RADHAKRISHNAN,SENIOR PANEL,RAILWAYS RESPONDENT/S:** **SAJAN JOSEPH NETTO, S/O.SENSON NETTO, RESIDING AT MULLASSERI MANNEL, AZHEEKAL P.O.,PRAYER (VIA),OACHIRA, KOLLAM DISTRICT, KERALA, PIN - 690 547.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07-02-2020, THE COURT ON 07-02-2020 DELIVERED THE FOLLOWING:** O.P.(CAT) No.37 of 2020 2 ## **JUDGMENT** Dated this the 7[th] day of February, 2020 ## **V.G.ARUN, J.** The Union of India and the Railway establishment are aggrieved by the order of the Kerala Administrative Tribunal, Ernakulam Bench in O.A.No.10 of 2016. The original application was filed by the respondent, challenging the rejection of his candidature for appointment to a Group -D post, for which he had applied, based on the notification No.5/2010 dated 15.12.2010 of the Railway Recruitment Cell. The essential facts, which culminated in the impugned order, are as follows:- As per notification No.5/2010 dated 15.12.2010, the Railway Recruitment Cell had invited applications for filling up the vacancies in Pay Band-1 of Rs.5,200-20,200 with Grade O.P.(CAT) No.37 of 2020 3 Pay of Rs.1800 in the Southern Railway and the Integral Coach Factory, Chennai. The posts falling under the notified Pay Band were (i) Sweeper-cum-porter (ii) Helper and (iii) Trackman in various Departments. The applicant participated in the selection process, cleared the requisite tests and was directed to report for document verification and medical examination on 21.01.2013. On medical examination, the applicant was found be medically unfit for employment, which fact was communicated to him by Annexure A3 letter dated 05.03.2013 and advised that, if he had any objection against the medical findings, he should report at the Railway Recruitment Cell, Chennai on 18.03.2013 and submit his appeal for re-medical examination. As advised, the applicant appeared before the Railway Recruitment Cell on 18.03.2013 and submitted request for re-medical examination supported by Annexure A4, certifying the applicant to be fit for O.P.(CAT) No.37 of 2020 4 employment. Accepting his request, the applicant was subjected to re-medical examination. According to the applicant, he received no further communication after the remedical examination and it was only by Annexure A1 letter dated 06.06.2014, that he was informed about the cancellation of his candidature for non-attendance of the re-medical examination. The original application was thereupon filed challenging Annexure A1 and for declaring as illegal, the cancellation of the applicant's candidature and to direct the respondents to consider the applicant for appointment. 2. The petitioners refuted the contentions in the original application and submitted that unlike other recruitments, where medical examination succeeds empanelment, in the recruitments by the Railways, medical examination precedes empanelment. It was pointed out that even though, based on Annexure R4 appeal and Annexure R5 O.P.(CAT) No.37 of 2020 5 medical certificate, the applicant was subjected to re-medical examination on 19.03.2013, the Medical Department omitted to inform the Railway Recruitment Cell about the examination and its result; causing Annexure A1 to be issued to the applicant stating that his candidature was cancelled for not attending the re-medical examination. It was submitted that on receipt of Annexure A1, the applicant had made Annexure R6 representation dated 12.06.2014 pointing out that he had attended the re-medical examination at the Health Unit, Egmore, Chennai on 19.03.2013. Immediately, Annexure R7 letter was sent to the Health Unit at Egmore seeking the result of the re-medical examination. Ext.R8 reply was thereupon received stating that the applicant was re-examined on 28.03.2013 at the Chief Medical Superintendent's Office and was certified “unfit for all classes _vide_ certificate dated 28.3.2013”. Even though belatedly, the fact that he was O.P.(CAT) No.37 of 2020 6 declared 'unfit' in the re-medical examination, was communicated to the applicant as per Annexure R9 dated 19.6.2014. It is contended that the applicant having suppressed receipt of Annexure R9, the original application, was liable to be dismissed for suppression of material facts. The applicant filed a rejoinder refuting the allegation of suppression. According to the applicant, he was never served with such a communication. 3. The Tribunal found the reasons, for finding the applicant medically unfit, were not forthcoming and that the statement made by the respondents based on Annexure R9 is at variance with the reasons stated in Annexure A1. Relying on its own decision in O.A.No.6 of 2016, which, according to the Tribunal was rendered under similar circumstances, the original application was allowed and the applicant directed to be permitted to appear for re-medical examination before a O.P.(CAT) No.37 of 2020 7 duly constituted Board and his eligibility assessed once again. 4. Heard Sri.S.Radhakrishnan, learned Counsel for the petitioners and Sri.T.C.Govinda Swamy, learned counsel for the respondent/applicant. 5. It is pointed out by the learned Standing Counsel that strict procedure is prescribed with respect to medical fitness of candidates and employees of the Railways in order to maintain the highest standard of efficiency and thereby ensure the safety of passengers. On facts, the submission is that the applicant was subjected to medical examination on 19.03.2013 and finding him to be suffering from Wolffs Parkinsons White Syndrome (WPW), which is a form of cardiac issue, the applicant was referred for cardiac advice as per Ext.P4 dated 24.01.2013. Accordingly, the Cardiologist examined the applicant on 25.01.2013 and issued Ext.P5 certificate dated 29.01.2013, diagnosing the applicant with O.P.(CAT) No.37 of 2020 8 WPW Syndrome - no tachyarrhythmia and found him to be 'unfit' from cardiac point of view. It was pursuant to the said finding that the applicant was issued with Annexure A3 communication dated 05.03.2013. It is submitted that the applicant had requested for re-examination and in support of his claim, had produced Annexure A4 certificate issued by a consultant Paediatrician. But the applicant was found unfit in the re-medical examination also. The Medical Department omitted to inform the Railway Recruitment Cell the fact that the applicant was re-examined and found unfit, which resulted in Annexure A1 communication dated 6.6.2014 being issued. On the applicant sending a representation pointing out the mistake in Annexure A1, explanation was sought from the office of the Chief Medical Superintendent, to which Ext.R8 reply dated 18.06.2014 was received stating that the applicant was re-examined on 28.03.2013 and certified 'unfit for all O.P.(CAT) No.37 of 2020 9 classes' _vide_ Ext.P8 certificate dated 28.03.2013. Immediately, Annexure R9 communication was sent to the applicant informing him that he was declared unfit in the remedical examination also. Ext.P7 is the despatch slip issued by the Postal Department evidencing receipt of Annexure R9 by the applicant. It is submitted that the procedure for remedical as prescribed in Ext.P3; the advance correction slip to Para 522 (1) of IRMM, was strictly complied with and therefore, the direction to conduct a further examination is illegal. It is submitted that as per Paragraph 501 (2) of the 'Medical Manual', 'no person will be deemed qualified for admission to the public service without satisfying 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'. Reliance is placed on the decision in O.P.(CAT) No.223 of 2019, O.P.(CAT) No.37 of 2020 10 setting aside a similar order in O.A.No.6 of 2016, which order was relied on by the Tribunal in the impugned order. 6. The learned Counsel for the applicant supported the findings of the Tribunal and submitted that Annexure A4 certificate is conclusive proof of the applicant having recovered from his temporary phase of unfitness. It is submitted that unless the medical certificate produced by the candidate at the time of re-medical examination is given due consideration, the re-medical examination would be rendered a farce. It is submitted that having issued Annexure A1, which was the cause of action for filing the original application, the respondents cannot bring forth a totally different reason, than the one stated in Annexure A1, for rejecting the candidature of the applicant. 7. From the rival contentions, the following undisputed facts emerge:- O.P.(CAT) No.37 of 2020 11 The applicant was found medically unfit in the initial medical examination and was thereupon referred to a Cardiologist, who after examination, diagnosed the applicant to be suffering from WPW Syndrome. In the re-medical examination also, the applicant was found to be medically unfit from cardiac point of view due to WPW pathway. 8. A communication gap between the Chief Medical Superintendent and the Railway Recruitment Cell regarding the applicant's re-medical examination, had resulted in Annexure A1 letter being sent to the applicant. On realising this mistake, it was immediately corrected by issuing Annexure A9 letter, informing the applicant that his candidature was cancelled since he was found unfit in the remedical examination also. Ext.P8; the certificate prepared after the re-medical examination bears the applicant's signature. Therefore, irrespective of whether the applicant O.P.(CAT) No.37 of 2020 12 was served with Annexure A9 communication or not, he cannot plead ignorance about the result of his re-medical examination. Being so, we find substance in the contention, of the applicant having suppressed this material fact in the original application. 9. In Anneuxre R1 Notification No.5/2010, it is clearly stated that the applicant should be physically fit in all respects. As per paragraph 501 (2) of the Medical Manual, only persons without any disease, constitutional affliction or bodily infirmity, will qualify for appointment. The applicant has no contention that WPW Syndrome is not a constitutional affliction which would render him unfit. The certificate Annexure A4 issued by a Paediatrician certifying the applicant to be fit for employment is only a self serving document. Moreover, nothing is stated in Annexure A4, of the Doctor having conducted cardiac examination of the applicant; which O.P.(CAT) No.37 of 2020 13 competence on the Paediatrician is also suspect. Therefore, the finding of the Railway Medical Board that the applicant was unfit for employment in the Railways is well founded. 10. The only other question remaining for consideration is as to whether the Tribunal could have directed the Railways to subject the applicant for re-medical examination and to assess his eligibility once again. To answer the question, the decision of the Honourable Apex Court in _**State of Utarpradesh and others v. Pankaj Kumar Vishnoi [(2013)11 SCC 178]**_ is referred to, wherein a similar direction to conduct re-medical examination was interfered with. The following observation of the Apex Court is contextually relevant:- “ _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_ O.P.(CAT) No.37 of 2020 14 _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 instant case also, medical examination of the applicant was conducted on three occasions and on all three occasions, the Doctors had found the applicant to be medically unfit. In such circumstances, the Tribunal should not have directed for yet another examination of the applicant on the specious reasoning that the result of the re-medical examination was not communicated to the applicant and that erroneously the non-appearance of the applicant for remedical examination was cited in rejection of his candidature. The omission on the part of the Railway authorities to inform the applicant about the result of his re-medical examination or communication of a wrong reason for rejection of candidature do not justify the direction for yet another medical examination. O.P.(CAT) No.37 of 2020 15 In the result, the original petition is allowed, by setting aside the impugned order of the Tribunal. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/07.02.2020x O.P.(CAT) No.37 of 2020 16 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE O.A.NO.180/10/2016 DATED 01/01/2016.** - **EXHIBIT P1/A1 TRUE COPY OF LETTER BEARING NO.RRC/EN 05/2010/ME DATED 06/06/2014 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.** - **EXHIBIT P1/A2 TRUE COPY OF COMMUNICATION BEARING NO.RRC/EN 05/2010/PET DATED 17/12/2012 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.** - **EXHIBIT P1/A3 TRUE COPY OF LETTER NO.RRC/E.NO.05/2010 DATED 05/3/2013 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT.** - **EXHIBIT P1/A4 TRUE COPY OF CERTIFICATE ISSUED BY THE CONSULTANT PAEDIATRICIAN,DR.RAO'S CHILDREN CLINIC DATED 15/3/2013.** - **EXHIBIT P1/A5/1&2 TRUE COPY OF THE MEDICAL MEMO DATED 18/3/2013 ISSUED BY THE RESPONDENT FOR RE-MEDICAL EXAMINATION.** - **EXHIBIT P1/A6/1&2 TRUE COPY OF THE PRESCRIPTION MEMO DATED 19/3/2013 & 20/3/2019 ISSUED BY THE HEALTH UNIT/EGMORE.** **EXHIBIT P2** **TRUE COPY OF REPLY STATEMENT FILED BY THE PETITIONERS IN O.A.NO.10/2016 DATED 05/02/2016.** O.P.(CAT) No.37 of 2020 17 - **EXHIBIT P2/R1 TRUE COPY OF THE EMPLOYMENT NOTIFICATION NO.05/2010 DATED 15/12/2010.** - **EXHIBIT P2/R2 TRUE COPY OF THE MEDICAL MEMO NO.21/1/28 DATED 21/01/2013.** - **EXHIBIT P2/R3 TRUE COPY OF THE MEDICAL CERTIFICATE NO.008783 DATED 24/30.01.2013.** - **EXHIBIT P2/R4/1&2 TRUE COPY OF THE APPEAL DATED 18/3/2013 WITH THE ENCLOSURE.** - **EXHIBIT P2/R5 TRUE COPY OF THE MEDICAL MEMO NO.18/03/03 DATED 18/3/2013 FOR REMEDICAL.** - **EXHIBIT P2/R6 TRUE COPY OF THE LETTER DT. 12/6/2014 MAKING APPEAL AGAINST UNFITNESS.** - **EXHIBIT P2/R7 TRUE COPY OF THE LETTER NO.RC/EN 05/2010 DATED 18/6/2014 ADDRESSED TO ACMS/HU/EGMORE.** - **EXHIBIT P2/R8 TRUE COPY OF THE LETTER NO.M/MD/84/GENL. DT. 18/6/2014 ISSUED BY CMS/CHENNAI DIVISION ADVISING, ALL CLASS UNFIT.** - **EXHIBIT P2/R9 TRUE COPY OF THE LETTER NO.RR/EN 05/2010/ME DATED 19/6/2014 INTIMATING THE UNFITNESS.** - **EXHIBIT P2/R10 TRUE COPY OF PARA 222 OF THE EXTRACT OF THE INDIAN RAILWAY ESTABLISHMENT MANUAL VOL.I.** - **EXHIBIT P3 A TRUE COPY OF THE ADVANCED CORRECTION SLIP NO.1/2014 TO SUB PARA (I) OF PARA 522 DATED 05/06/2014.** - **EXHIBIT P4 A TUE COPY OF THE REFERENCE LETTER** O.P.(CAT) No.37 of 2020 18 **ISSUED BY DR.KAVITHA SURESH, ADDITIONAL CHIEF MEDICAL SUPERINTENDENT TO THE SENIOR DMO/RH/PER, DATED 24/01/2013.** - **EXHIBIT P4 (A) TYPED COPY OF EXHIBIT P4.** - **EXHIBIT P5** - **A TRUE COPY OF THE CERTIFICATE ISSUED BY THE CARDIOLOGIST DATED 25/01/2013.** - **EXHIBIT P5 (A) TYPED COPY OF EXHIBIT P5.** - **EXHIBIT P6 A TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT.** - **EXHIBIT P7 A TRUE COPY OF THE DESPATCH SLIP FOR BULK MAIL, COUNTER SIGNED BY THE POSTAL AUTHORITIES.** - **EXHIBIT P8 A TRUE COPY OF THE CERTIFICATE NO.ABCE.35/12-13/73 DATED 19/28.03.2013.** - **EXHIBIT P9 A TRUE COPY OF THE JUDGMENT PASSED BY THE DIVISION BENCH OF THE HON'BLE HIGH COURT OF JUDICATURE AT MADRAS IN WP NO.19705 OF 2016.** **EXHIBIT P10** **A TRUE COPY OF THE ORDER DATED 01/10/2019 PASSED BY THE CAT ERNAKULAM BENCH IN O.A.NO.180/10/2016.**