Abhishek Ranjan vs Union Of India & Ors

Dr. Sanjiv Kumar, Member (A)

The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quash the order dated 10.09.2008 and letter dated 10.11.2005 for making the applicant medically unfit and to direct the respondents to appoint him on alternative post as per medically fit categories in view of existing circular at the relevant time, and direct any other order / direction as deemed fit, and to award cost.

The facts of the applicant is that he had applied vide employment notice No. 1/2004-05 to the post of Diesel Assistant in the pay scale of Rs. 3050-4590 which is category 33 of the said advertisement and the roll Number of the applicant was 4001402. Respondents issued admit card to the applicant and he appeared in preliminary examination on 02.11.2004 and main examination on 13.03.2005 and he was declared qualified for the post and thereafter called for psychological test on 08.07.2005 and he qualified. A call letter was issued to him to appear in the verification of the document and medical test (vision test) on 04.10.2005 respectively. The applicant appeared for verification of document on the respective dates and his medical was done by the Railway doctors but he was declared medically unfit on 14.10.2005 in vision test. As per Railway doctor letter dated 10.11.2005 the distant vision of the applicant was in left eye 6/9 and right eye 6/9 against the benchmark of 6/6 in both eyes for distant vision for the post of Diesel Assistant, although his near vision was as per standard.

Respondents directed the applicant vide letter dated 10.11.2005 that if he wishes to file an appeal against the declaration of medically unfit, then he may submit an appeal alongwith fitness certificate. Thereafter, the applicant had appeared before Patna Medical College and Hospital, Patna for vision test on 22.11.2005, as he doubted the report of Railway doctors. The Patna Medical College and Hospital, Patna gave him fitness certificate for the distant vision and it was recorded left eye 6/6 and right eye 6/6 as per standard. Accordingly, the applicant was made to appear before the Railway authorities against medical report dated 14.10.2005 alongwith certificate about the fitness of the applicant from Patna Medical College and requested for re-examination of his vision test. He was called by Railway authorities for vision test vide letter dated 30.01.2006 and he appeared on 02.08.2006 alongwith fitness certificate given by the Patna Medical College, but he was again declared medically unfit for job by the Railway doctor on 22/23.02.2006, but no order was communicated to him as he was orally told about his vision fitness.

The applicant says that as two Railway doctors have given two different reports, the second one giving 6/18 for both the eyes for distant vision is at variance with the earlier report of 6/12, hence, there is contradiction in the medical report of the department and he emphatically states that these reports are unreliable, and he has no problem in vision and hence he again approached the authorities to get him rechecked, but the authorities did not accede his request. He says that there is a malafide intention of the department, who intentionally and illegally declared him unfit in vision test and causing him monetary loss. The applicant filed OA No. 13/2009 against the said order dated 10.11.2005 and 10.09.2008 before Patna Bench of this Tribunal, but the same was dismissed due to lack of jurisdiction. So finally be came before this Tribunal. The applicant further states that the respondents have not considered his case for appointment against the alternative post asper the existing circular, which clearly speaks that a candidate unfit in one category, he shall be given alternative post as per his fitness in the said medical category (Vide circular No. 211/99) and prays that the impugned order may be quashed and he may be given alternative post.

Counter affidavit has been filed by the respondents wherein basic facts of the applicant is not disputed, but the respondents claim that although his medical certificate from Patna Medical College was not as per norms because it did not declare clearly that the doctor testing his eyes, knew that he had already been tested by the Railway Medical Board and declared him unfit in eye test and in view of that they were conducting the test, so without attaching that certificate the test report from the Patna Medical College was not legally valid, but department considered his case sympathetically, hence one cannot say that anyone had any malafide against the applicant. He was given ample opportunity of being tested second time by a qualified Board, and his eye test was again adverse and he was medically disqualified in the vision test. They further say that the employment notice No. RRB/GKP/01/2004-05 dated 19.06.2004 for various categories including the post of Diesel Assistant, against category No. 33, as issued by the office of General Manager (Personnel), North Eastern Railway, Gorakhpur and for which the applicant had applied, had clearly mentions the following clauses:-

“10. MODE OF SELECTION

........

(e) Finally the candidates will be called to the office of RRB for verification of all certificates and counselling before, recommending them for appointment to the Railway administration, who will verify and issue appointment order subject to the candidate passing requisite medical fitness test.

(f) The appointment of candidate would be subject to their being found medically fit in the appropriate medical classification. They will be considered in due course for promotion to higher grades/posts according to rules/orders enforced from time to time.

GENERAL

14.2 The decision of Railway Recruitment Board, Gorakhpur in all matters relating to eligibility, acceptance or rejection of applications, penalty for false information, mode of selection, allotment of posts to selected candidates etc will be final and binding on the candidates and no representation or correspondence shall be entertained regarding rejection and it shall not be obligatory on this RRB to inform the candidates about such rejection.

14.3 Candidates are advised to observe the authorized advertisement issued by the Railway Recruitment Board, Gorakhpur for correct and complete information.

For Safety category posts like Diesel / Electric Assistant & Assistant Station Master candidates whose vision does not meet the standard indicated below need not apply. If any candidate apply and selected for categories of Diesel / Electric Assistant & Assistant Station Master and who fail in the prescribed medical examination for these categories conducted by the Railway authority before appointment will not be eligible for any alternative appointment in any other category on the Railway.

The candidate who apply for the post of Diesel /Electric Assistant & Assistant Station Master will have to enclose a medical certificate from any eye specialist regarding vision in the prescribed proforma.

MEDICAL FITNESS TEST: The candidate recommended for appointment will have to pass requisite Medical Fitness test(s) conducted by the Railway administration to ensure that the candidates are medically fit to carry out the duties connected with the post. Visual Acuity Standard is one of the important criteria of medical fitness of Railway staff. Candidates are not eligible for any alternative appointment if they fail in the final medical examination conducted by the Railway before appointment for any reason. The medical standard for different categories are outlined below.

A-1 Physically fit in all aspect Visual Standards – Distance vision: 6/6, 6/6 without glasses Near vision: Sn. 0.6, 0.6 without glasses (Must clear fogging test) colour vision & Night vision must be present.”

On perusal of these conditions in the employment notice they want to say that clearly at two places in para 15 and 17 it was mentioned that, if any candidate apply and selected for categories of Diesel / Electric Assistant and Assistant Station Master and who fail in the prescribed medical examination for these categories conducted by the Railway authorities before appointment will not be eligible for any alternative appointment in any other category in the Railway. So no one can claim any alternate employment. They further say that in the call letter of document verification and vision test it was specifically mention that, “it is necessary to clearly understand that this call letter does not provide any right or claim for appointment, it is merely a stage of entire selection process”. As the applicant failed in vision test twice by the committee of three experts, he was found unfit for the job and finally not selected. The respondents further say that the applicant could not get finally selected and was not placed in the selection panel, so the earlier circulars where alternative jobs are suggested are not meant for candidates like him, who are not in select panel and was only undergoing a selection process which was not final as yet. The applicant has come very late before this Tribunal and he has not explained the delay in filing this OA. They further point out that at no point of time earlier the applicant had ever claimed before the authorities of alternate appointment, he is coming up with a new case altogether which is not supported by the employment notice and the conditions laid down in it. Hence, there is no merit in the case of the applicant and the same may be rejected and OA may be dismissed.

Rejoinder affidavit has been filed by the applicant wherein para 8 is very material in which it says that contents of para 11, 12, 13, 14 and 15 of the counter affidavit are denied as stated. The applicant has claimed the alternative post as per his fitness in the medical category on the basis of circular No. 211/99. After this sentence a sentence has been by hand which is not also certified. It is not known when it is interpolated but it states that so employment notice No. RRB/GKP/1/04-05 for safety category like Diesel /CA/ASM will not be eligible for any alternative appointment in any other category on the Railway, was wrong. But how it was wrong, he does not explain as these conditionalities were there in the employment notice itself at two different places. There is no other new fact or grounds emerging from this, as most others he has reiterated in his earlier averments.

The respondents have filed supplementary counter affidavit where they emphatically say that on the offering alternative appointment in the event of candidate failing in the prescribed medical examination Railway Board has issued various directions from time to time. Instructions contained in the railway Board‟s circular No. 211/99, provides for offering alternative appointment to candidate empanelled by Railway Recruitment Board but failing in prescribed medical examination as per decision made by the General Manager on the request of the concerned candidate. The important aspect of this letter are as follows:-

i. The candidate has to be empanelled by the RRB.

ii. The candidate fails in prescribed medical examination by the indenting Railways.

iii. Request to be made by the candidate to the General Manager of the Indian Railways.

iv. The decision taken by the General Manager shall be final with regard to the acceptance or rejection of the request.

They emphatically say that Shri Avinash Kumar in OA No. 430/2009, Avinash Kumar vs. Union of India and others of Patna Bench cited by the applicant in rejoinder affidavit is not comparable with the case of present applicant. In the cited case this Tribunal allowed the OA and directed the respondents to consider the case of the applicant for alternative appointment on the basis of being found successful for the post of ECRC for which he had applied or to the post of senior clerk. He was an empanelled candidate by the RRB Ranchi and thus meeting the requirement of RB No 211/99.

The present applicant is neither empanelled by RRB, Gorakhpur nor was found suitable and recommended for appointment to the post of Diesel Assistant against which he had submitted application. The process to consider for offer of alternative appointment lies with the General Manager of inducting Zonal Railways to whom request is required be made by the failed candidate. In this case the applicant did not clear the stage of empanelment hence there is no question for considering his alternative appointment. He failed to become eligible for the first appointment itself for which he applied. Hence, the provision of various circulars of Railway Board regarding offer of appointment does not apply in this case. Shri Abhishek Ranjan is fully governed by the provision of the Railway Board‟s letter No. E (RRB)/2001/25/21 dated 04.09.2021 according to which a candidate applying for post of Diesel Assistant is required to enclose a vision certificate in prescribed proforma. On being found suitable in written examination the candidates are asked to appear for vision test which is different from medical examination which is conducted by the Zonal Railways for the empanelled candidates whose names are recommended for offer of appointment by the RRBs. Those who fail in vision test need not be empanelled. Hence, the applicant does not fulfil any of the four criteria listed above as per Railway Board‟s Circular No. 211/99 and this OA is liable to be rejected.

The respondents have further filed second supplementary counter affidavit where they stated that Railway Board had issued a letter dated 07.08.2000 about withdrawal of provision of alternative appointment of Group „C‟ and „D‟ posts, and the Board had further issued letters dated 17.02.2006 and 22.09.2006 where in Diesel Assistant had been re-designated as TR Assistant Loco Pilot. Hence, all rules governing Loco Pilot is applicable to the applicant and Railway Board‟s letter dated 04.09.2001 is not applicable in the case of the applicant and the contention of the applicant is wholly incorrect and false and has been made with ulterior motives.

The applicant has filed supplementary rejoinder affidavit in which the applicant reiterates the facts as stated in the OA and emphasizes that as per provision of Railway Board RBE No. 211/99 dated 20.08.1999 and the order dated 30.11.2010 passed in OA No. 430/2009 – Avnish Kumar vs. Union of India and others the applicant is eligible for alternative employment. Hence, his OA should be allowed.

The case came for last hearing on 10.05.2023. Shri S.K. Kushwaha, learned counsel for the applicant and Shri Bablu Singh, learned counsel for the respondents were present and heard. We have gone through the records carefully and considered the rival contentions.

The applicant had applied pursuant to the RRB, Gorakhpur notification dated 19.06.2004 which is at pages 23 to 27 of the counter affidavit. Simple perusal of the same on page 27 of the counter affidavit at para 15 of the said notification it is mentioned, “for safety category post like Diesel / Electric Assistant and Assistant Station Master candidate whose vision does not meet the standard indicated below need not apply. If any candidate apply and selected for the categories of Diesel / Electric Assistant and Assistant Station Master and who failed in the prescribed medical examination for these categories conducted by the Railway authority before appointment will not be eligible for any alternative appointment in any other category in the Railways”. In another para 17 under the heading “Medical Fitness Test” the notification reads, “the candidate recommended for appointment will have to pass requisite medical fitness test conducted by the Railway administration to ensure that the candidates are medically fit to carry out the duties connected with the post. Visual acuity and standard is one of the important criteria of medical fitness of Railway staff. Candidates are not eligible for any alternate appointment if they fail in the final medical examination conducted by the Railways before appointment, for any reason”. Hence, within the said notification of vacancies itself it was clearly mentioned that no one will be eligible for any alternate appointments. In the instant case clearly the applicant had applied for the post of Diesel Assistant and he failed to clear the eye test. Hence, no one can claim anything different than what was advertised as it will go against the constitutional right of equal opportunity in public employment to others.

From the perusal of record, further, it is noticed that after the applicant failed first time in the eye test, he obtained an eye test report from Patna Medical College Hospital dated 06.12.2005, which is at page 25 of the OA. But clearly from the format of the said certificate it is evident that it is not as per the prescribed format by the Railways which specifically stipulated that the test conducting ophthalmologist should have mentioned that he knew that already the Railway Medical Board had declared him unfit in eye test and after full knowledge of the same they were conducting the test and giving the said report, but in spite of the said report dated 06.12.2005 not being with proper wordings and acceptable, the Railway authorities accepted the same on sympathetic ground and considered his case to refer him to another Board, which again found him unfit in terms of eye test. Hence, at this stage it may not be right to fault the two eye tests conducted by the multiple exports of the department by pointing out to some variance in the two reports which were although in few weeks‟ difference, but they were in different point of time and place. Hence, we have hardly any doubt that the applicant has not in any way able to establish that he has proper eye sight which makes him fit for the job for which he had applied.

The applicant‟s contention that the Railway authorities were hostile to him and were prejudiced and wanted to victimize him and they had malafide against him, also is not established as he has not identified any one and made the said person who is hostile as respondent in the case, so malafide is also not established as stated in the OA.

The applicant has opened an old circular of the Railways which mentions of alternate appointment, but that circular RBE No. 211/99, as the respondents have pointed out that the said policy has changed since and the said circular was modified subsequently vide their letter No. E(RRB)2001/25/21 dated 04.09.2001 which mentions at para 4 that, “Candidates selected for the category of Assistant Driver, ASMA Motorman will also not be eligible for any alternative appointment if they fail in the final medical examination conducted by the Railway before appointment, for any reason”. The same is there in the counter affidavit at page 19. They have shown evidences that the post applied for by the applicant squarely falls within the purview of this circular.

But in the instant case, as in the vacancies advertisement itself, conditions laid down are very clear and the applicant has not actually been selected and empanelled and he was still in the process of selection, and the test of eye is the part of the selection process and before his selection he was rejected. And as specifically mentioned in the advertisement that no alternative employment will be offered to any such candidate who failed in such required eye test for such technical post, as was applied for by the applicant. The applicant is clearly not eligible for any such benefit for alternative appointment.

The request of the applicant to consider representation for alternative appointment at page 8 of the supplementary rejoinder affidavit dated 11.08.2011 also appears to be very late as well as it is not evident that it was received in any of the Railway offices. It appears to be merely created for the purpose of record to show his due diligence in giving such application. Either way, on the basis of the conditions laid down in the vacancy circular itself, there is no case for any alternative employment for those who had failed the prescribed eye test, as mentioned earlier. The specific case (OA No. 430/2009, Avinash Kumar vs. Union of India and others) quoted by the applicant in his favour also doesn‟t help to build his case, as it is not comparable with the case of the present applicant and clearly distinguishable. In the said case the Court directed to give alternative appointment on the basis of being found successful for the post of ECRC for which the said applicant had applied and he was an already empanelled candidate by the RRB Ranchi and thus meeting the requirement of RRB No. 211/99. Failing medical test in the said case was not the same as eye test in the present case. In the said case medical test was post selection, and before joining; whereas in the present case eye test was part of the selection process as is clear from the vacancy circular.

So from any point of view and evidence on record there is not merit in the case of the applicant. Hence, we pass following orders:-

“The OA is dismissed. Associated MAs, if any, stands disposed of. No costs.”