Rajesh Kumar vs Union Of India

Nita Chowdhury, J

By filing this OA, the applicant is seeking the following reliefs:-

"8.1 to allow the OA and quashed the impugned order dt. 30.10.2015 (Ann. A-1) with all consequential benefits; and further direct the respondents to conduct remedial examination by the Medical Board and consequently release the appointment as per merit.

8.2 to pass any other or further order or direction which the Hon‟ble Tribunal deem fit and proper in the interest of justice."

Counsel for the applicant submitted that the applicant being physically handicapped (OH) applied for Group „D‟ post, which were advertised by the Respondents vide Notification No.220E/open-mkt/RRC/2013 and total vacancies so notified were 5679 and, according to the applicant, out of which, 170 vacancies were reserved for physically handicapped persons. The applicant appeared in the written examination on 9.11.2014 and further called for documents verification and also cleared all other formalities. Therefore, he was sent for medical test, which was held on 26.8.2015 but he was declared unfit in medical examination. Hence, his candidature was rejected vide result 30.10.2015 declared on the respondents‟ website. Thereafter the applicant filed an application under RTI on 9.11.2015 but the same was not replied to.

2.1 Counsel for the applicant drew our attention to policy decision of the Railway Board dated 5.6.2014 (Annexure-6) on the issue of medical examination and stated that vide said circular dated 5.6.2014, the following relevant directions were issued:-

"1. Medical examination - Medical examination of candidates will be done by a Medical Officer with adequate experience in doing medical examination and one specially nominated by the CMO/CMS/MD/ACMS in charge for this purpose.

II. If a candidate has been found to be unfit on grounds of vision/colour vision/hypertension /diabetes or any other condition/disease, the medical examiner will not issue any certificate and will put up his/her findings to the CMO/MD/CMS/ACMS in charge of the Unit/ Division/Sub-division/Production Unit.

III. The candidate, without having to submit any appeal, will then be immediately examined by a three member standing medical team consisting of 1) a specialist in the field; however if the specialist is not available within the Unit/Division/Production Unit, a senior doctor would be nominated in place of a specialist 2) the medical officer who has conducted the first medical examination and 3) the third being a senior medical officer specially nominated by the CMO/CMS/MD/ACMs in charge.

IV. This three member Board will examine the candidate at the earliest after the first medical examination report is put up to the CMO/MD/CMS/ ACMS in charge of the Unit/ Division / Sub-division. If necessary, the candidate would be kept in observation in bed, The accommodation charges etc. in this regard will be borne by the Railway Administration except for such investigations and/or consultation, which is not available in-house, for which the charges will be borne by the candidate concerned......"

2.2 Counsel submitted that in the case of the applicant, the same has not been followed before rejecting his case, as the case of the applicant has not been referred to a three member standing medical team after rejection of his case by the first medical examination report and further argued that the applicant should be given an opportunity to be examined by the medical board. In support of his contention, learned counsel also placed reliance on the decision of this Tribunal in OA No.383/2016 (Somvir vs. UOI and others) decided on 19.1.2018, as also the decision in OA 2720/2013 dated 22.7.2015.

In response to the aforesaid contentions of the learned counsel for the applicant, the respondents‟ counsel submitted that the said Circular dated 5.6.2014 is not applicable in the case of the applicant as he is under the category of handicapped candidates (OH) and quite in the case of Handicapped candidates, only the Chief Medical Superintendent is empowered to conduct the medical examination and counsel further submitted that there is no provision of providing a medical certificate to the candidate on completion of the medical examination. Result of the medical examination is conveyed to the Personnel Branch only.

3.1 Counsel further submitted that the applicant was declared unfit in physically handicapped quota (OH) having less than 40% disability as calculated vide Railway Board letter No.2008/H/23/1 dated 07.03.2008 wherein specific instructions were issued to follow DOP&T‟s letter No.36035/3/2004 Estt. (Res) dated 29.12.2005 and the Gazette Notification regarding calculation of the percentage of handicap in various categories.

3.2 Counsel also submitted that the candidate could have appealed against the results of the initial medical examination report vide Para 522(i) of IRMM 2000, which provides one month‟s time for preferring an appeal against the result of initial medical examination report. However, the applicant was declared medically unfit on 30.10.2015 and the applicant has filed his application on 5.12.2015 and also the same was not in accordance with the provisions of Para 522 of IRMM, as the same was not filed within the stipulated period and also the fact that applicant has not stated the reasons for filing the same belatedly. Counsel for the respondents submitted that reliance placed by the applicant on the decisions of this Tribunal in OA Nos.383/2016 and 2720/2013 are not applicable in the facts and circumstances of this case.

Heard learned counsel for the parties and perused the material placed on record.

So far as the main contention of the applicant in this case that as per the provisions of circular dated 5.6.2014, his case was required to be sent immediately for examination by a three member standing medical team is concerned, the said procedure is required to be done in the cases where a candidate has been found to be unfit on grounds of vision/colour vision/hypertension/diabetes or any other condition/disease but in the case in hand, the applicant having applied for the post in question under the category of physically handicapped (OH) and as per the averments of the respondents, the case of the applicant was declared unfit in physically handicapped quota (OH) due to less than 40% disability as calculated vide Railway Board letter dated 7.3.2008 wherein specific instructions were issued to follow DOP&T‟s letter dated 29.12.2005 and the Gazette Notification regarding calculation of the percentage of handicap in various categories and as per the provisions in the aforesaid DOP&T letter and gazette notification on the subject, only in those cases in which candidates, who suffered from not less than 40 per cent of relevant disability, are required to be considered under the said category. As per the Handicapped certificate annexed by the applicant at page 23 of the OA, the applicant was stated to be suffered from 44% disability.

However, the applicant was found to be less than 40% of relevant disability by the Chief Medical Superintendent and in the case of the applicant only the Chief Medical Superintendent is empowered to conduct the medical examination. As such the circular referred to by the applicant does not apply for handicapped candidates. Counsel for respondents has also referred to the provisions of said Railway Board circular dated 5.6.2014, which clearly mentions the modalities of appeal against any adverse report of initial medical examination, especially clause VII of the said circular. It is admitted fact that the applicant was declared medically unfit vide result declared on the respondents" website on 30.10.2015. If he was aggrieved by the said decision of the respondents, he ought to have taken resort to the provisions of Para 522(i) of IRMM 2000 but he has filed representation only on 5.12.2015 placing reliance of the said circular dated 5.6.2014 and also the decision of this Tribunal in OA 2720/2013 dated 22.7.2015. But the said decision of this Tribunal is not applicable in the case of the applicant as in the said case applicant therein appealed against declaration of his candidature as unfit by resorting to the provisions of Para 522 of IRMM, which is not the case in hand.

Further reliance placed by the applicant on the decision of this Tribunal in the case of Somvir (supra) is not applicable in the case of the applicant in view of specific averment of the respondents that in the case of Physically Handicapped candidates, the Chief Medical Superintendent is empowered to conduct the medical examination. Since appeal preferred by the applicant brought belatedly is not strictly in consonance with the provisions of Para 522 of IRMM, as such, this Court does not find any illegality in the action of the respondents.

In the result, for the foregoing reasons, the instant OA deserves to be dismissed and the same is accordingly dismissed. There shall be no order as to costs.