Union Of India (Uoi) vs Mahesh Chand And Anr.
2002 Latest Caselaw 554 Del

JUDGMENT

S.B. Sinha, C.J.

1. This petition is directed against a judgment an order dated 10th July 1998 passed by Central Administrative Tribunal in OA NO. 722/97 whereby and whereunder the Original Application filed by the respondent was allowed.

2. The basic fact of the matter is not in dispute.

3. The respondent was working as Rakshak in the grade of Rs. 825-1200. He was medically de-categorised by an order dated 12th October 1994. He later on was absorbed as a Parcel Porter in a lower grade being Rs. 775-1025 on 4thMarch 1995 upon having been adjudged suitable by a Committee appointed therefore. A post of Ticket Collector fell vacant. The respondent applied for the said post against promotion quota. He qualified in the written test as also in the interview. However, he was not sent for medical examination. An Original Application was therefore, filed on an apprehension of the petitioner t hat he might not have been declared medically de-categorised in terms of Para 573 of the Indian Railway (Medical) Manual. The respondents contended that in terms of the said provision, the petitioner was not entitled to be promoted to the post of Ticket Collector.

The relevant provisions are as under:

"572. Discharge of a patient from a mental hospital - (1) The patient when cured will be discharged from the mental hospital on being so certified by the Superintendent.

(2) Even if the patient is not fully cured, he may be discharged from the mental hospital on the written application of the relative to the Superintendent that he will look after the patient, provided of course that the patient should not be dangerous to himself or others.

573. List of posts in which staff having recovered from mental diseases should not be employed (a) Any duties which will entail the charge of a locomotive or a moving vehicle, for example, driver, shunter, guard, etc.

(b) Any duties connected with locomotives or moving vehicles where interference by the employee in charge might result in disaster.

(c) Any duties connected with signalling.

(d) Any duties in connection with running trains which would subject the individual to great mental strain for example, "Control".

(e) Any technical duties involving more than ordinary and self-control.

(f) Any duties connected with the traveling public which demand a firm control over the temper for example, Platform Inspector, Assistant Station Master, Booking Clerk, Ticket Collector, etc.

(g) Any duties which involve a higher financial responsibility than ordinary clerical duties, for example, Pay Clerk, Cash Witness, etc.

(h) Any duties in which loss of control or a relapse of the disorder might result in loss of life and damage to property.

(i) Any other class of employment in the Railway, which although not specified above, is considered by the head of the department or the Divisional Superintendent to be unsuitable for a Railway employee who has been subject to mental instability and is quite possibly liable to recurrence."

4. It stands admitted that the petitioner had been suffering from epilepsy. He, however, got himself medically checked up by the All India Institute of Medical Sciences and it was found that he is cured of the said disease. The petitioner, however, was medically checked up by the Chief Medical Superintendent of Northern Railway who opined:

"A medical board to examine the above named employee was held on 19.4.99 and findings & recommendations were sent to C.M.D./N.R. Baroda House New Delhi vide this office letter of even no. dated 1.5.99 (Photostat copy enclosed.) C.M.D./NDLS vide letter No. 99-Med/1/1082 dated 5.5.99 has accepted the recommendations, which are as under:-

RECOMMENDATIONS

"The members board are of the opinion that Sh. Mahesh Chand Parcel Porter be declared fit for duty with following restrictions:-

(i) He should not be put on any duties dealing with general public

(ii) He should not be put to duties involving travel by train where he has to get down the train and board again at quick intervals like TTE etc.

(iii) He should also not work close to railway track Rly. yard and Rly. bridges.

(iv) He should be away from fire.

(v) He should avoid swimming.

(vi) He should not drive any vehicle.

The above restrictions are permanent and irrevocable."

5. The learned Tribunal, by reason of the impugned judgment, held:

"In the circumstances and in view of the fact that the petitioner had already passed the written test as well as the interview and his name appears at serial No. 5 in the panel, the respondents shall pass appropriate orders and send him for medical examination to the appropriate medical authorities in accordance with the rules. In case the petitioner is found medically fit by the appropriate medical authorities, petitioner will be entitled to all consequential benefits from the date his juniors have been given the same benefits."

6. The petitioners filed a Review Application after expiry of the period of limitation. The Tribunal refused to condone delay, as in its opinion, no sufficient cause had been made out therefore.

7. It further held that the Review Application did not satisfy the tests of Order 47 Rule 1 of the Code of Civil Procedure read with Rule 17 of the Central Administrative Tribunal Procedure Rules, 1987.

8. Mr. Gangwani, learned counsel appearing on behalf of the petitioner would submit that the respondent herein was guilty of suppression of material facts, in so far as he ought to have disclosed before the authorities that he had been suffering from a mental disease. In any event, the learned counsel would contend, having regard to the circulars issued by the Railway Board, the respondent cannot be offered a job of Ticket Collector.

9. Ms. Maini, learned counsel appearing on behalf of the respondents, however, submitted that it is not a case where the respondent was appointed for the first time. His entire records were before the Departmental Promotion Committee and in fact the petitioner herein had all along been aware that the respondent had also been appointed on a lower post having been medically de-categorised.

10. We agree with the learned counsel for the respondent. It was not a case of fresh appointment. The service records of the respondent were before the Department Promotion Committee. They, therefore, were and/or are presumed to be aware of the illness of the respondent. Para 573 of the Indian Railway (Medical) Manual wherein Mr. Gangwani placed reliance, in our opinion is not applicable. Epilepsy cannot be equated with a mental disease. In any event, the respondent had been found medically fit even by the doctors of the All India Institute of Medical Sciences. He passed the written test as also the interview. He was found fit even by the Medical Superintendent of Northern Railway.

11. In this view of the matter, we are of the opinion that the respondent cannot be said to be guilty of suppression of any material facts so as to entitle the petitioner herein not to offer him an appointment in a promotional post although he has been found fit therefore.

12. We, therefore, do not find any infirmity in the judgment passed by the learned Tribunal. However, with a view to do complete justice, we are of the opinion that in the event the petitioner is of the opinion that the job of Ticket Collector should not be entrusted to the respondent, he may be posted in an equivalent post.

13. This writ petition is disposed of with the above-mentioned directions but without any orders as to costs.