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2017 DIGILAW 259 (CAL)

Rabi Kanary v. Union of India

2017-03-07

NISHITA MHATRE, TAPABRATA CHAKRABORTY

body2017
JUDGMENT : Nishita Mhatre, J. The instant writ petition has been preferred challenging an order dated 13th July, 2001 passed by the learned Tribunal in OA No. 741 of 2000. 2. Mr. Bose, learned advocate appearing for the petitioners submits that the father of the petitioner No. 1 expired on 29th January, 1989 while working as a Safaiwala under South Eastern Railway. Responding to an application for grant of compassionate appointment, the railway authorities asked the petitioner No. 1 to appear for a medical examination. Subsequent thereto, by a letter dated 17th September, 1997, the respondent No. 6 intimated the petitioner No. 1 that upon medical examination he has been declared unfit and that as such it was not possible to give him appointment in railway service as per extant rule. Thereafter the petitioner No. 1 got himself medically examined by one Dr. R.S. Majumder, a retired Chief Medical Officer, Chief Cardiologist, South Eastern Railway, Metro Railway, Calcutta, who upon examining the petitioner issued a fit certificate recording that it was within his knowledge that the petitioner No. 1 had already been declared unfit for a post of B & below category by the Railway Medical Officer. On the basis of the said certificate, the petitioner No. 1 submitted an application for re-medical examination. Such prayer was refused by the respondents by a letter dated 4th May, 1998. Challenging the same the petitioners approached the learned Tribunal and by an order dated 24th August, 1999, the learned Tribunal disposed of the original application being O.A. No. 541 of 1999 with a direction upon the respondent authorities to re-consider the prayer for re-medical examination as per the relevant rules. Pursuant to the said order, the Railway Medical Officers conducted a re-medical examination of the petitioner No. 1 and he was asked to obtain report of drug assay of Enalipril since he had a history of hypertension and as he was taking the drug Enalipril and that such examination was required to assess the present blood level. Such fact would be explicit from the letter at page 29 of the writ petition addressed by the respondent No. 5 to the pathologist, Ranbaxy/Trivedi & Roy/Wochkard/Medinova/Nightangle. 3. Mr. Such fact would be explicit from the letter at page 29 of the writ petition addressed by the respondent No. 5 to the pathologist, Ranbaxy/Trivedi & Roy/Wochkard/Medinova/Nightangle. 3. Mr. Bose submits that the petitioner No. 1 duly contacted all the pathologists as referred to in the said letter of the respondent No. 5 and it was ascertained that such blood examination facility is not available in their respective laboratories. After such fact was intimated by the petitioner No. 1, the respondents did not press for such blood assay examination any further and by a letter dated 20th January, 2000 it was intimated that the respondent No. 3 has accepted the opinion of the medical board that the petitioner No. 1 is unfit for all categories in the Indian Railway Service due to hypertension. Challenging the said order the petitioners preferred an original application being OA No. 741 of 2000 and the same was rejected by the order impugned in the present writ petition. 4. Records reveal that in the instant writ petition an order was passed on 22nd February, 2002 requesting the learned counsel appearing for the Union of India to take instructions as to whether the opinion of the medical board would stand in the way of appointment as Safaiwala, particularly when hypertension is a controllable infirmity. The learned Counsel was also requested to take into consideration the judgment of Bombay High Court in the case of Mary Stella Fernandes (Mrs.) v. Municipal Corporation of Greater Bombay & Anr., decided on 14.01.1992. Subsequent thereto, the claim of the petitioner No. 1 was rejected by an order dated 30th August, 2003 observing, inter alia, that "hypertension is a progressive decease and if not controlled it may lead to hypertensive retinopathy, hypertensive renalopathy and may also give rise to coronary artery disease". Thereafter, the matter again appeared before this Court on 17th August, 2016 when this Court observed that since a long period of time has lapsed after the communication of the order dated 30th August, 2003 and as the petitioner is presently 40 years old, it would be in the fitness of things for the petitioner No. 1 to be examined by a team of doctors and that accordingly it would be appropriate to send him for such examination to the S.S.K.M Hospital rather than the Railways Medical Board. Pursuant to such direction of this Court, the petitioner No. 1 was examined by a Medical Board consisting of three Specialist doctors, namely, Dr. Nirmalendu Sarkar, Dr. M. Khan and Dr. S. Mondal. By a letter dated 18th October, 2016, it was intimated that Dr. M. Khan examined the petitioner No. 1 for ophthalmological problem and found him otherwise fit in respect of the same and that Dr. Nirmalendu Sarkar examined the petitioner No. 1 and found him otherwise fit. By the said letter it was further intimated that Dr. S. Mondal had advised for some investigations and that he would give his final opinion after completion of such investigations. Subsequent thereto, by a letter dated 2nd December, 2016 Dr. Mondal observed that the petitioner No. 1, presently 40 years of age, is physically fit from the cardiological point of view and that he is able to do all kind of physical activities. 5. Mr. Bose argues that though the certificate produced by the petitioner No. 1 upon examination by one Dr. R.S. Majumder, a retired Chief Medical Officer, Chief Cardiologist, South Eastern Railway, Metro Railway, Calcutta fulfilled the provisions of Para 523(1)(ii) of the Indian Railway Medical Manual, the learned Tribunal illegally refused to grant any weight-age to the same on a purported plea that the same was not supported by a Railway doctor and that a civil surgeon cannot take the place of a Railway doctor. 6. He further submits that with the passage of time there has been an advancement in medical science and in the procedures towards detection and control of ailments and that as such the medical examination conducted by Specialist doctors in the year 2016 should be more acceptable compared to the medical examination conducted by the Railways about seventeen years ago in the year 1999. 7. Heard Mr. Bose and considered the materials on record. The order impugned in the present writ petition was passed in the year 2001 and a decision was arrived at by the learned Tribunal taking into consideration a medical examination report of the year 1999. The order dated 30th August, 2003 was also passed on the basis of the medical examination report of the year 1999 and upon observing that "hypertension is a progressive decease and if not controlled it may lead to hypertensive retinopathy, hypertensive renalopathy and may also give rise to coronary artery disease". The order dated 30th August, 2003 was also passed on the basis of the medical examination report of the year 1999 and upon observing that "hypertension is a progressive decease and if not controlled it may lead to hypertensive retinopathy, hypertensive renalopathy and may also give rise to coronary artery disease". Seventeen years thereafter, the Specialist doctors, upon examining the petitioner no. 1, has found him to be fit. Undoubtedly, the said medical report is more acceptable compared to the report of the year 1999. The past history of hypertension and the measure, magnitude and degree of such ailment suffered by the petitioner in the year 1999 does not disentitle him from being appointed in the year 2017 in view of the present medical report of the year 2016. 8. For the reasons discussed above, the order dated 13th July, 2001 passed by the learned Tribunal in O.A 741 of 2000 and the order dated 30th August, 2003 are set aside and the respondents are directed to appoint the petitioner No. 1 in a suitable vacancy commensurate with his qualification, within a period of eight weeks. 9. With the above observations and directions, the writ petition is disposed of. 10. There shall, however, be no order as to costs. 11. Urgent photostat certified copy of this order, if applied for, be given to the parties.