OA No. 171/2012. Case: Nishant Ranjan Vs Govt. Of India, Ministry of Railway, Railway Board through Secretary and Union Public Service Commission through its Secretary. Central Administrative Tribunal
| Case Number | OA No. 171/2012 |
| Counsel | For Appellant: Shri Amit Kumar, Advocate and For Respondents: Shri Rajiv Manglik and Sh. Krishan Kumar, Advocates |
| Judges | Syed Rafat Alam, J. (Chairman) and Dr. B.K. Sinha, Member (A) |
| Issue | Administrative Tribunals Act, 1985 - Section 19; Constitution Of India - Articles 14, 16, 19, 21; Persons With Disabilities (equal Opportunities, Protection Of Rights And Full Participation) Act, 1995 - Sections 2(i), 32, 33 |
| Judgement Date | May 01, 2014 |
| Court | Central Administrative Tribunal |
Order:
Dr. B.K. Sinha, Member (A), (Principal Bench, New Delhi)
1. The short issue for our consideration in the instant case is that whether the action of the Medical Board and the Appellate Board declaring the applicant 'unfit' for all services on account of 'bilateral flat foot' is contrary to the regulations relating to physical examination of candidates attached as Appendix to the Engineering Services Examination Rules, 2010 [hereinafter referred to as 'ESE Rules, 2010'].
2. The case of the applicant, in brief, is that he is a IIT Graduate and has been serving NTPC ' a Public Sector Enterprise (PSE) of the Government of India since 29.05.2009. He appeared in the Engineering Services Examination under the ESE Rules, 2010 and was placed at serial no.32 in order of merit. He appeared before the Medical Board and was declared unfit for all services on account of bilateral flat foot as communicated vide letter dated 11.08.2011. An appeal filed by the applicant was rejected by the Appellate Board communicated vide letter dated 14.09.2011 declaring him unfit for all services. The order of the Appellate Board goes ahead to state that it was final and no further correspondence would be entertained in this regard.
3. The applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 against the afore two orders of the Medical Board and that of the Appellate Board, seeking the following relief(s):-
a) Quash/set aside the order of Railway Board dated 11.08.2011 whereby the petitioner has been declared unfit for engineering services on the ground that the petitioner is bilaterally flat foot;
b) Quash/set aside the order contained in letter of Ministry of Railway dated 14.09.2011 containing order of Appellate Medical Board;
c) Direct the respondent to consider the petitioner for appointment to the post in Indian Engineering Services as per his position in the merit list and as per choice of the petitioner;
d) In the alternative, declare the Regulation 2(b) of Regulations relating to the Physical Examination of candidates ultra vires and violative of Articles 14, 16 and 19 of the Constitution of India as it confers unfettered power to respondent to declare a person unfit for service on conjecture and issue direction to consider the applicant for appointment as per prayer (c);
e) pass such further order and orders as it may deem fit in the facts and circumstances of the case.
4. The principal argument of the applicant is that the Medical Board conducts the physical examination under the overall parameters of Regulations relating to physical examination of candidates which are contrary to the provisions of Articles 14 & 16 of the Constitution. The latter provides guarantee of equal opportunity to all citizens in matters of appointment to any office and the same cannot be taken away by subjective satisfaction of the executives. Moreover, the Regulations mention various disabilities which make a person unfit but flat foot has not been mentioned as a disability rendering a person unfit for appointment to the post in question. The yardstick governing the medical examination is to secure continuous effective service for the Government and to prevent losses being caused to it on account of premature death occurring. Thus, the learned counsel for the applicant has argued that being bilateral flat foot is no bar to the applicant rendering effective service for long periods. Moreover, such medical examination creates classes of citizens - those who have cleared the medical fitness and those who have not. Article 14 of the Constitution does not allow any such artificial distinction to be made. The learned counsel further submits that the applicant has been a brilliant student and is discharging his duties in the NTPC satisfactorily. Moreover, there are many engineering services included in the IES where flat foot is not a disability. The applicant has also relied upon the principle of reasonable accommodation and that the costs involved in his rejection far outweighs the gains from rejection as there are no commensurate compensatory factors. The learned counsel for the applicant repeatedly referred to studies that indicated that flat foot does not deter or interfere with the inability of the persons to serve effectively. It was on this account that even the Australian Air Force had recruited personnel suffering with flat foot. Moreover, medical and congenital conditions do not rule out the right to life as held by the Hon'ble High Court of Andhra Pradesh at Hyderabad in the case of K. Gangadhar versus A.P. State Road Transport Corporation and Another [2007 (1) ALD14]. Therefore, the learned counsel for the applicant has eloquently argued that the reliefs prayed for, as noted above, may be granted to the applicant.
5. The respondents have filed a counter affidavit stating therein that the Engineering Services Examinations are conducted annually by the Railways through UPSC for recruitment to the Engineering Services in the Civil, Mechanical, Electrical and Electronics and Telecommunication disciplines. Medical examination of the candidates of Engineering Service is admittedly governed by the Regulations relating to examination of the candidates (Appendix-II of the CSE Rules, 2010). Para 11 (h) of the CSE Rules, 2010 clearly provides that the limbs, hands and feet of the candidates are required to be well formed and developed and that there should be free and perfect motion of all his joints. Para 11(j) also provides that there is no congenital malformation or defect. The services included in the IES are not sedentary services but require performance of active/effective duties. The respondents further submit that the applicant was examined both by Medical Board and Appellate Medical Board at Gorakhpur and his case was conclusively rejected as being medically unfit for all services as his limbs are not well formed and, therefore, he does not meet the medical requirements. Regarding the information given by one Dr. V K Sinha, Associate Professor (Ortho), Patna Medical College & Hospital, Patna and Dr Ajay Gupta, Prof. Orthopedics MAMC & LNJP Hospital, New Delhi, the respondents have submitted that they have no value as the duly constituted Medical Board/Appellate Medical Board are to determine the medical fitness of candidates required to secure continuous effective service. The respondents have also submitted that if the plea of the applicant were to be accepted then there would be no requirement of the medical boards at all. Entry to services would be governed by the...
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