Allowed

Union of India, v. Shymon S.

Kerala HC13 Nov 2020OP (CAT)/15/2017

Case brief

AI extract

What is this about?

The High Court allowed the petition challenging the Central Administrative Tribunal's order directing a fresh medical examination for a railway recruit declared unfit. The Court held that a candidate who fails the medical examination cannot later seek a fresh test on grounds of improved health.

What did the court decide?

The order of the Central Administrative Tribunal directing a fresh medical examination is set aside, and the original application is dismissed.

Union of India, Vs Shymon S. — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942

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OP (CAT).No.15 OF 2017(Z)

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AGAINST THE ORDER IN OA 180/323/2016 DATED 15-11-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONERS:

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1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF RAILWAY, NEW DELHI.

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2 RAILWAY RECRUITMENT CELL, SOUTHERN RAILWAY, REPRESENTED BY ITS CHAIRMAN, RAILWAY RECRUITMENT CELL, NO.5, P.V.CHERIAN CRESCENT ROAD, (BEHIND ETHIRAJ COLLEGE), EGMORE, CHENNAI600008.

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3 THE CHIEF PERSONNEL OFFICER RECRUITMENT SECTION, SOUTHERN RAILWAY, PARK TOWN, CHENNAI-600003.

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BY ADV. SRI.S.RADHAKRISHNAN, SC, RAILWAYS

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RESPONDENT:

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SHYMON S., S/O.SUDHAKARAN G.S., SHEENA MANDIRAM, VEMBAYAM P.O., THIRUVANANTHAPURAM-695615.

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04-11-2020, THE COURT ON 13-11-2020 DELIVERED THE FOLLOWING:

O.P.(CAT)No.15/2017

JUDGMENT

Dated this the 13^th day of November 2020

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Gopinath, J.

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This Original Petition has been filed by the Union of India (in the Department of Railways) and its officers challenging the order dated 15.11.2016 in O.A.No.180/232/2016 on the file of the Central Administrative Tribunal Ernakulam Bench.

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The brief facts are that the Railways had issued a notification calling for applications for filling up various categories of posts. The notification is on record as Annexure R-1 along with the reply statement filed before the Tribunal. The notification prescribed medical standards for each category of posts. The respondent/ applicant before the Tribunal was found unfit upon medical examination. The medical examination report is on record as Annexure-R4 along with the reply statement filed by the present petitioners before the Tribunal.

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On 14.12.2015, the respondent/applicant submitted a letter which is on record as Annexure-A4 along with the Original Application filed by the respondent/applicant stating that his medical categorization was on account of a minor defect in his eyesight for which he had undergone treatment following which his

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O.P.(CAT)No.15/2017

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eyesight is normal and requesting for a fresh medical examination. He produced therewith a medical certificate to show that the problem noticed on examination by officers of the Railways no longer subsists. He prayed that his candidature may be accepted after affording to him an opportunity to undergo a fresh medical examination. That request was not considered. He, therefore, approached the Tribunal and filed O.A.No.180/323/2016. The Tribunal allowed the Original Application and directed the Railways to conduct a fresh medical examination of the respondent/applicant to determine whether he has the required medical classification to obtain appointment. That order is under challenge before us.

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Sri. S. Radhakrishnan, the learned Standing Counsel appearing for the petitioners would contend that, though the Tribunal directed in its order that the order shall not be treated as a precedent, the Railways will be flooded with several such requests and further that, in law, a person, who has failed in the medical examination during the process of selection, cannot thereafter contend that his condition having improved, he should be subjected to further medical examination and consequential appointment, if it is found that his condition had improved. He would submit that the law in this regard is very clear and has been settled by the decision of the Supreme Court in State of U.P . v. Pankaj Kumar Vishnoi; (2013) 11 SCC 178 and Indian Council of Agricultural

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O.P.(CAT)No.15/2017

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Research and another v. Smt.Shasi Gupta; AIR 1994 SC 1241 . He would also place reliance on the judgments of this Court in O.P.(CAT)No.223/2019 and O.P.(CAT)No.37/2020, where a Division Bench of this Court has, in almost identical situations, held that persons who do not qualify in the medical examination held during the course of selection cannot later request for a fresh examination on the ground that the condition which led to a lower medical classification in the first round has subsequently improved upon treatment.

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The respondent/applicant before the Tribunal had not entered appearance, despite service of notice.

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We have considered the contentions raised and perused in the order of the Tribunal. The Tribunal has proceeded on the basis that the facts of the present case are such that, it would be appropriate that a second chance be given to the respondent/applicant to determine his medical classification. The Tribunal has held that the order is not to be treated as a precedent. We are, however, unable to approve of the view taken by the Tribunal especially in the light of the fact that the issue has been considered and decided by a Division Bench of this Court in O.P.(CAT)No.223/2019 and in O.P.(CAT)No.37/2020, wherein, after placing reliance on the judgment of the Supreme Court in State of U.P . v Pankaj Kumar Vishnoi; (2013)11 SCC 178 and

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O.P.(CAT)No.15/2017

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the provisions of the Indian Railways Medical Manual, this Court has, in no uncertain terms, held that when a person does not achieve required medical classification during the medical examination as part of the selection process, he/she cannot later, on the ground that the condition which led to a lower medical classification has improved on account of treatment, seek that his/her candidature be considered for appointment. Of course, those were cases where the medical condition which led to a lower medical classification was different and possibly more serious. However, that cannot be a reason for us to depart from the view taken in those cases.

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In the result, O.P.(CAT) will stand allowed. Ext.P3 order of the Central Administrative Tribunal in O.A.No.180/323/2016 dated 15.11.2016 will stand set aside and that Original Application will stand dismissed.

sd/-

A.M.SHAFFIQUE

JUDGE

sd/-

GOPINATH P.

JUDGE

acd

O.P.(CAT)No.15/2017

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1-	TRUE COPY OF OA. NO.180/323/2016 FILED BY THE RESPONDENT ON 06/04/2016.
ANNEXURE A3	TRUE COPY OF THE ORDER DATED 17/11/2015 ISSUED BY THE 2ND PETITIONER.
ANNEXURE A1	TRUE COPY OF CALL LETTER FOR WRITTEN EXAMINATION.
ANNEXURE A2	TRUE COPY OF THE COMMUNICATION DATED 07/05/2015 ISSUED BY THE OFFICE OF 2ND PETITIONER.
ANNEXURE A4	TRUE COPY OF THE REPRESENTATION DATED 14/12/2015 MADE BY THE RESPONDENT ALONG WITH MEDICAL RECORD SUMMARY DATED 09/12/2015.
ANNEXURE A5	TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISABILITY ASSESSMENT BOARD DATED 05/01/2016.
ANNEXURE A6	TRUE COPY OF THE REPRESENTATION OF THE RESPONDENT DATED 10/01/2016.
EXHIBIT P2-	TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN.OA.NO.180/323/2016 DATED 20/07/2016.
ANNEXURE R1	TRUE COPY OF THE EMPLOYMENT NOTIFICATION NO. RRC 02/2013 DATED 21/09/2013.
ANNEXURE R2	TRUE COPY OF THE EXTRACT OF MANUAL OF RAILWAY RECRUITMENT BOARDS, 2007.
ANNEXURE R3	TRUE COPY OF THE MEDICAL MEMO NO.23/07/137 DATED 23/07/2015.
ANNEXURE R4	TRUE COPY OF THE MEDICAL CERTIFICATE NO.004818 DATED 27/07/2015.
ANNEXURE R5	TRUE COPY OF THE MEDICAL EXAMINATION PAPER DATED 27/07/2015.
ANNEXURE R6	TRUE COPY OF THE RAILWAY BOARD'S LETTER NO.2014/H/5/8(POLICY) DATED 31/12/2015.
ANNEXURE R7	TRUE COPY OF THE EXTRACT OF PARA 222 OF INDIAN RAILWAY ESTABLISHMENT CODE VOLUME I.
EXHIBIT P3-	A TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA. NO.180/323/2016 DATED 15/11/2016.

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O.P.(CAT)No.15/2017 7

Union of India, v. Shymon S.

Case brief

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Union of India, v. Shymon S.

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