Ravinder Kumar vs Union Of India And Ors

Heard learned counsel for the applicant.

The OA has been filed seeking the following relief:

"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order declaring to the effect that the whole action of the respondents declaring the applicant medically unfit in all Medical categories for appointment in Railway due to 'Diabetic Mellitus' is illegal and arbitrary and consequently pass an order directing the respondents to appoint the applicant to any suitable post after re-medical examination of the applicant with all the consequential benefits at an early date.

(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant with the costs of litigation."

Briefly, the facts of the case as stated by the applicant ,are asfollows:

(i) The father of the applicant working at the post of Gangman in Delhi Division of Railways was declared medically unfit in all medical categories of Indian Railway services and consequently retired on 09.06.2015. On account of this, the applicant was considered for compassionate appointment and was sent for medical examination. However, he was declared unfit in all medical categories due to 'Diabetes Mellitus' as reported by CMS, Delhi vide memo dated 02.09.2015 referred to in letter dated 10.05.2016 sent by CMD, Northern Railway, Baroda House to the applicant. Aggrieved by the order, the applicant submitted a request for re-examination which was refused. He then submitted his representation dated 21.03.2016 to the Senior DPO regarding re-medical examination but till date no final decision has been taken.

(ii) The applicant submits that only on the basis of one Urine Test, he was declared unfit in all medical categories but no copy of the said certificate dated 02.09.2015declaring him medically unfit has been given to him. He has been medically examined from other hospitals and is not being found to be suffering from any said conditions. He submits that even if he was suffering from 'Diabetes Mellitus', he cannot be denied appointment and declared medically unfit for all the categories. In this connection, he has referred to the following court orders:

1) Union of India versus The Registrar, CAT, WP No. 14760/2015 decided on 22.06.2015

2) Union of India & Ors versus The Registrar, WP No. 4268/2015 decided on 03.03.2015

3)Union of India & Ors versus The Registrar, CAT, WP No.21082/2013 decided on 01.08.2013

4) Union of India & Ors versus The Registrar, CAT, WP No. 33859/2015 decided on 27.10.2015

(iii) The applicant further submits that the Railway Board has issued a circular dated 08.01.2016 to the effect that appointment should not be denied due to Diabetes Mellitus (Annexure A/2).

In the grounds the applicant has referred to a number of cases in support of his contention as also the Railway Board circular dated 08.01.2016 referred above.

The respondents have in their counter reply submitted that the applicant had come to the Northern Railway Division Hospital on 25.08.2015. On examination he was found to be diabetic and so was declared unfit in all medical categories vide Memo No. 364683 dated 02.09.2015. The respondents have mentioned the results of his blood test in terms of certain parameters relating to fasting sugar level, post prandial level and test for HbA1C. It is further submitted that the representation of the applicant dated 21.03.2016 has been considered and replied vide order dated 10.05.2016. They have further contended that findings in any private hospital are not binding and only the test results by Railway Board are relevant. The candidate has progressive chronic physical disease which will require continuous treatment and hence will become a liability for the Railways right from the date of appointment. His case is distinct from physically challenged candidates who are appointed on posts specifically reserved for them after relaxation in the criteria for medical examination.

The applicant has filed a rejoinder more or less reiterating what has been said in the original application.

Heard learned counsel for the applicant as also the respondents and carefully perused the documents that have been submitted.

Respondents, through M.A. No. 44 of 2019 have also placed on record certain document which is not complete and goes with the heading Annexure-III (Para 509,512) below which is mentioned ' DETAILED GUIDELINES EXPLAINING PROCEDURES OF MEDICAL EXAMINATION & SPECIFIC DISEASES AFFECTING FITNESS OF STAFF. The respondents have referred to it as an "extract of relevant medical manual", and, according to which they have declared the applicant medically unfit.

Under para 4 with the heading 'General', the following entry is there:

4.1. The majority of Railway workers are responsible directly or indirectly, for safety of travelling public and it is, therefore essential that they should have a very high standard of physical and mental fitness. The examination for candidates has to be very thorough and strict to ensure that they are fit in every respect for the particular job when they are selected, so candidates recruited and trained will continue to be fit to work till the age of superannuating without having to be unfitted at a stage when their mature experience will be-the most useful to the Railways. It should be remembered that premature decategorisation creates serious difficulties for the administration in finding alternative employment to the decategorised staff with out much loss of emoluments. In the event of Premature invalidation or death, the administration will have to pay pension for a very prolonged period and the efforts and expense on training would be wasted."

Clearly this is in very general terms and at best can be taken as a statement of intention and cannot be given any wider application to cover specific areas of medical examination. Thus it lends no support to the case of the respondent as argued by the learned counsel for the respondent.

In Para 12.7 of the same document relating to Diabetes, it is stated as below:

"12.7 Diabetes

12.7.1 Diabetes controlled by diet alone: These have no risk of hypoglycaemia and may, therefore, be passed fit for all categories.

12.7.2 Diabetes controlled by diet and oral hypoglycaemic drugs: They have a small risk of prolonged hypoglycaemia. Therefore, it would be a disqualification for duties on foot plate except those on shunting engine.

12.7.3 Diabetes controlled by diet and insulin: There is definite risk of hypoglycaemia and would be a disqualification for train working and train passing duties."

A perusal of the above shows that:

1) There is no condition relating to Diabetes in which disqualification in all categories is prescribed.

2) It relates to the established condition of Diabetes. In the present case, the applicant on the basis of certain tests is found to have high sugar level. There is nothing on record to show that he is suffering from diabetes and even if this was the case, as per rules submitted by the respondents themselves, disqualification for all categories would not be a natural outcome.

Learned counsel for the respondents has also submitted a copy of Indian Railway Medical Manual, Volume-II and specifically referred to Para 9 of the said manual. This is reproduced as follows:

"(9) Infective conditions and other disorders:

Candidates: Candidates exhibiting the under noted conditions will be rejected irrespective of the employment sought:-

(a) Contagious and infective disorders: provided that the condition of the candidate having ceased to be contagious or infectious, the sequealae arising from such disorder will not be regarded as disqualifying, unless they are in themselves likely to interfere immediately or later with the efficient performance of the duties of their appointment. The following conditions fall inter-alia under the above category:-

(i) Pulmonary tuberculosis.

(ii) Venereal infection

(iii) Trachoma and other infectious ocular diseases.

(iv) Leprosy

(b) Conditions commonly predisposing to invalidity or seriously enhancing the candidate's liability to occupational risks, eg:-

(i) Hernia, and well marked hydrocoele, varicose veins or piles: provided that such conditions having been satisfactorily treated by operation, the evidence of their previous existence shall not disqualify;

(ii) Un-descended testes, intra-abdominal in position, and un-associated with an inguinal hernia, should not be a cause for rejection. Ectopic testes, located in the inguinal canal, abdominal wall or thigh, being more liable for trauma/torsion, should be passed fit only after the examinee has undergone surgical treatment:

(iii) Flat foot, or knock knees, except in sedentary occupations;

(iv) Epilepsy;

(v) Asthma,

(vi) Otorrhea.

(c) Conditions rendering the association of the candidates with other objectionable, e.g:-

(i) Repulsive inveterate skin diseases.

(ii) Ozoena

(iii) Foetor associated or otherwise with pyorrhoea Alveolaris.

(d) Constitutional disorders commonly deemed progressive and chronic disorders liable of recurrent exacerbation of a disabling kind.

It can be seen from a plain reading of the Rules that it lists out only conditions for which candidates will be rejected irrespective of the appointment sought. It is a fairly comprehensive list but I see no mention of Diabetes Mellitus. The learned counsel for the respondents referred to Para 9(d) above and argued that the case of the applicant is covered by this. By no stretch of imagination can 'Diabetes Mellitus' be construed as falling in this category and the argument completely lacks validity. The same holds for the part of the counter reply in which it has been submitted that on account of this, the candidate has a progressive, chronic physical disease, which would require continuous treatment; and hence would become a liability to Indian Railways right from the date of appointment. This contention too is devoid of force as not being based on facts.

The applicant, on the other hand, has submitted a copy of the Railway Board circular dated 08.01.2016, the relevant portion of which is reproduced as below:

" In the recent past, it was observed that in a number of cases, especially in cases of compassionate ground appointment, Hon'ble Courts have ordered that the candidates suffering from Diabetes Mellitus are to be taken in Railway Service even though they were declared unfit for Railway services by the Competent Medical Authorities. The Hon'ble Courts in their various judgments have held that Diabetic Mellitus is not a disease. Keeping in view the persistent observations coming from Hon'ble Courts, a three member committee was constituted to examine the issue."

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"In view of the above established facts the following procedure for deciding medical fitness of candidates suffering from diabetic conditions (diagnosed as per above parameters) is laid down:-

For different types of appointments including compassionate, PwD (Non-gazetted) etc., candidate if found diabetic in first examination (as per above parameters) should be re-examined.

Re-examination would be done by a "THREE MEMBER MEDICAL COMMITTEE" comprising of one physician of P.G. Qualification/Endocrinologist if available; one ophthalmologist & headed by a SAG medical officer of the divisional/zonal hospital. Recommendation of the Committee will be accepted by CMS/MD/CMO/ACMS in-charge as the case may be.

Purpose of re-examination will be the thorough clinical evaluation and investigation to rule out any complication of Diabetes or involvement of any End Organ.

If some investigations are to be performed for which the facility is not available in-house, the same should be arranged from recognized private labs/clinic & the charges for the same are to be paid by the candidate only.

If there is no complication or involvement of End Organ, the candidate will be declared "FIT IN CEY ONE OR BELOW".

Establishment Directorate has to readjust those candidates as per available vacancy."

In this regard it has been contended by learned counsel for the respondents that the circular is dated 08.01.2016 which is after the case of the applicant was taken up.

Be that as it may, the thinking on this issue is apparently clear in the said Railway Board circular. It is being clarified that if a candidate is found diabetic in first examination then there should be re-examination as the purpose of the re-examination is to rule out any complication of Diabetes or involvement of any end organ and if there is no complication or involvement of end organ, the candidate will be declared "FIT IN CEY

ONE OR BELOW".

This circular, taking into account various judgements of the Courts, lays down the current view which is very clear that there has to be re-examination in all such cases and the purpose is to ascertain that there are no complications or involvement of any End Organ. Except as laid down in the circular, disqualification is not permitted. As said before, it is true that this circular was issued after the case of the applicant was considered but it must not be lost sight of that this was issued in view of several court orders on the subject and for correcting a system which was flawed. Thus any adjudication on the issue now must take into consideration the directions contained in this circular which has been issued by the respondents under the stated circumstances.

The applicant has also placed on record a judgment passed by Hon'ble High Court of Madras in WP No. 21082/2013, the relevant portions thereof are quoted as under:

"5. We are unable to accept the stand taken by the learned counsel for the petitioners as the said provision viz., Para 511 9(d) speaks about constitutional disorders commonly deemed progressive and chronic disorders liable of recurrent exacerbation of a disabling kind. No record has been placed by the Railway Administration to establish that diabetes is said to be a constitutional disorder commonly deemed progressive and chronic disorders liable of recurrent exacerbation of a disabling kind. Medical experts opine that diabetes is a condition where the body fails to utilise the ingested glucose properly. Further, there is a strong school of thought that a diabetic is not suffering from a disease, but only a disorder that could be managed. Approximately, as of 2011 as per survey 62.4 million (as against 1.2 billion Indian population) are diabetics, which is stated to increase in 2030 to 110.1 million form the large work force of our country. Diabetes usually has no impact on an individuals ability to do a particular job, and in most cases the employer may not even know that his employee has diabetes. As the impact of diabetes and its management varies among individuals there cannot be a blanket ban on giving public employment to persons with diabetes. The matter largely rests on individual assessment, such assessment may occur in two different situation, first when the applicant is offered a placement/job subject to passing a medical fitness test. In such cases, the fitness is assessed whether the applicant can perform the functions of that particular job/assignment, with or without accommodation, not solely upon been diagnosed as a diabetic. The second situation is when on medical evaluation the employee being a diabetic, could affect his job performance and/or safety, in such situation there shall be an assessment as to whether the employee could safely carry out his duties assigned. In such circumstances, the assessment can hardly be based on a single blood sugar test.

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.......Therefore, to deny employment to the second respondent on speculation that what might occur in future is unreasonable. Medical experts state that blood glucose levels fluctuate throughout the day, which is also the case of people without diabetes, and one test result cannot be an assessment of the overall health of a person with diabetes."

Relevant portion from the judgment passed in WP No. 4268/2015, is also reproduced below:

"9. Today, India has become the diabetic capital of the world. It is common perception that diabetes is more of a disorder than of a disease. The decisions relied upon by the learned counsel for the petitioners, came before the advent of the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Today, quite a number of posts on the non technical side are reserved even for person, who are physically challenged. Therefore, to reject V. RAMASUBRAMANIAN, J AND P.R. SHIVAKUMAR, J RS the candidature of the second respondent on the sole ground that he is a diabetic, cannot be accepted and the Tribunal was right in allowing the claim of the second respondent. We find no merits in the writ petition."

The Hon'ble High Court in WP No. 33859 of 2015 held as under:

"3. Facts in nut shell leading to the filing of the present writ petition are:-

Father of the 2nd respondent, working as Ex-Trackman in the Madurai Division of the Southern Railway, died on 03.01.2010, in harness. Thereafter, the 2nd respondent's mother made a request for employment assistance on compassionate grounds, in Grade-D posts. The request was considered and rejected by the Divisional Personnel Officer, Southern Railway, Madurai Division, Madurai, vide his letter dated 14.06.2011 on the grounds that the 2nd respondents was fount unfit in all classes without assigning any reason. It is the case of the 2nd respondent that lateron, he came to know that he was medically found unfit for appointment, due to his high sugar level. Thereafter, on the request of 2nd respondent, he was sent for re-medical examination to the Chief Medical Superintendent, Southern Railway, Madurai Division, Madurai, and, the 2nd respondent was found to be suffering from diabetes. Again he was found medically unfit for appointment and that the same was communicated vide letter dated 26.03.2012 of the Divisional Personnel Officer, Southern Railway, Madurai Division, Madurai.

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Considering the persistent attitude of the Divisional Personnel Officer, in consistently rejecting the case of the 2nd respondent, without assigning any valid reasons, with due reference to what is observed and held by this Court made in W.P. No. 21082 of 2013 and finding no merit in the writ petition, we dismiss the same, with a cost of Rs. 10,000/- to be paid by the Divisional Personnel Officer, Southern Railway, Madurai Division, Madurai, who has passed the order dated 04.08.2014, to the 2nd respondent. Directions of the Central Administrative Tribunal, Madras Bench to consider the case of the 2nd respondent for employment assistance on compassionate grounds to any one of the posts other than those posts which fall under safety category, subject to the 2nd respondent satisfying the other criteria prescribed for compassionate appointment shall be complied within 15 days from today. The only reason for rejection is medical fitness. The respondent has not been found unfit in respect of any other criteria. It is made clear that the writ petitioners should not fish out new reasons for rejection, and strictly comply with the directions, regarding the eligibility criteria prescribed for compassionate appointment and directed to comply with the orders of the Tribunal within the time stipulated to avoid further litigation."

I find that the present case is squarely covered by the judgments passed by the Hon'ble High Court of Madras referred above.

I also find that the respondents have failed to establish that the applicant even suffered from Diabetes Mellitus. Further, from a reading of the material placed on record in the form of instructions and the Indian Railway Medical Manual, the respondents have failed to satisfy that there is any Rule which prescribes that the mere fact of having Diabetes Mellitus in itself makes a candidate unfit for employment in all categories. The existing Indian Railway Medical Manual contains no such reference and only refers to constitutional disorders of a progressive and chronic nature which are liable of recurring exacerbation of a disabling kind. Thus, it is clear that Diabetes Mellitus in itself is not considered a disability unless it leads to any other complication of a disabling kind. The guidelines for medical examination also do not support the case of the respondents as discussed in Para 8 above. The circular of the Railway board dated 08.01.2016 also refers only to complication on account of Diabetes from the involvement of any end organ. Thus, from the Rules themselves, it is sufficiently clear that the respondents have grossly erred in their judgment as there is no medical evidence to suggest that in the case of the applicant, complications resulting from Diabetes Mellitus have arisen.

In the context of the above discussion and examination, the OA is allowed with the direction to the respondents to consider the case of the applicant for appointment to any suitable post after medical re-examination in accordance with the prescribed rules. No costs.