- (1.) AT the request of learned counsel for the parties, arguments were heard and the writ petition is being disposed off finally.
(2.) RESPONDENT i.e. Ministry of Railways(Railway Board), New Delhi, issued a Gazette Notification dated 10.01.2004 for a Combined Competitive Engineering Services Examination, to be held by the Union Public Service Commission(for short 'the UPSC') to fill up the vacancies in various services/posts. Category IV was relating to Electronics and Telecommunication Engineering. Petitioner was one of the candidates who appeared in the said examination and remained successful, his name was recommended for appointment, however, he was declared unfit in the service on medical ground i.e. on account of "Pathological Myopia, more than 4D", vide letter dated 23.06.2005. Petitioner preferred an appeal before the Appellate Medical Board, but without success. Thereafter, he preferred Original Application No.441/2005 before the Central Administrative Tribunal, Jaipur Bench, Jaipur (for short 'the Tribunal'), the same was also dismissed vide order dated 17.07.2007. Order of the Tribunal along with order of Medical Board and Appellate Medical Board have been challenged by the petitioner before this Court in the instant writ petition contending that members of Medical Boards constituted by respondents were having no specialization of disease "pathological myophia more than 4D". The writ petition was listed and following order was passed on 24.02.2010 in presence of both the parties, directing the respondents to constitute another Medical Board consisting of three Doctors of Pathological Department having specialization in the desease "Pathological Myopia more than 4D", of S.M.S. Hospital, Jaipur:- "Short controversy raised by the learned counsel for the petitioner challenging the impugned order dated 17.07.2007 passed by the Central Administrative Tribunal, Jaipur is that the Medical Board who has examined the petitioner is having no specialization to examine the disease pathological myopia more than 4 D. Thus, in the interest of justice, we direct the respondents to constitute another Medical Board consisting of three Doctors of pathological department having specialization in the disease pathological myopia more than 4 D, of S.M.S. Hospital, Jaipur and examine the petitioner afresh. After examining the petitioner, the report of Medical Board be submitted before this Court for perusal." The Medical Board of SMS Medical College, Jaipur examined the petitioner and in its report opined that patient's retinal condition is not suggestive of Pathological myopia at present. Thereafter, without examining the candidate in person, the Medical Board of Northern Railway, Central Hospital, New Delhi, examined the matter again in the light of report of SMS Medical College, Jaipur and it was opined that Mr. Arvind Kumar Agarwal is not having evidence of Pathological Myopia but he is having Progressive Pathology of Ratina in the form of Lattice Degeneration in both eyes. Hence, he is unfit as candidate in Indian Engineering Services. Submission of learned counsel for petitioner is that before filing appeal before the Appellate Medical Board, after declaring him unfit on the basis of first medical report dated 26.05.2005, he got himself examined at Dr. Rajendra Prasad Centre for Opthalmic Sciences, A.I.I.M.S., New Delhi on 16.07.2005 and it was opined, "No Pathological Myopia at present". He also got himself examined on 29.06.2005 by Dr. Ashwini C. Karanjgaokar, Sankara Nethralaya, wherein also it was opined that there was no Pathological Myopia. Petitioner also got himself examined from other specialised doctors. These reports were annexed with appeal, but Appellate Medical Board vide its report dated 21.07.2005 again declared petitioner as 'unfit' on account of "pathological myophia". He submitted that Appellate Medical Board did not mention "more than 4D" after pathological myophia. Petitioner again got himself examined on 22.12.2006 at ICARE Eye Hospital and Post Graduate Institute, Glaucoma Research Centre, Noida, Uttar Pradesh, wherein it was opined that there was no evidence of Pathological Myopia. He, therefore, submitted that medical reports of Medical Board as well as Appellate Medical Board of the respondents were not correct and petitioner was wrongly declared as 'unfit' by Medical Boards. He also submitted that as per direction of this Court, petitioner was examined by the Medical Board consisting of three specialised doctors of the subject of SMS Medical College, Jaipur and a definite opinion was given that patient's retinal condition is not suggestive of Pathological Myopia at present. He submitted that thereafter petitioner was not examined and only on the basis of said report, final report was prepared by the Medical Board of respondents and petitioner was declared unfit, vide order dated 10.08.2010, which is absolutely illegal and contrary to law. He, therefore, submitted that adverse report given against the petitioner may be set aside and the petitioner may be declared medically fit for appointment in the Indian Engineering Services, in which he has been selected. In the alternative, learned counsel for petitioner submitted that in case there is any further doubt in respect of medical fitness of petitioner, then a suitable direction may be given to an independent body like All India Institute of Medical Sciences(for short 'AIIMS'), New Delhi, to re-examine the petitioner, as per requirement of rule, particularly in respect of "Pathological Myopia more than 4D". Learned counsel for respondents opposed the writ petition, however, he fairly and frankly submitted that there are contradictions in various medical reports of petitioner. He, therefore, submitted that either respondents medical board may be directed to examine the petitioner again or an independent body may be directed to examine the petitioner.
(3.) WE have considered the submissions of the learned counsel for the parties and examined the order of Central Administrative Tribunal, Jaipur Bench, Jaipur as well as various medical reports of various Medical Boards of petitioner in respect of 'Pathological Myopia more than 4D'. For ready reference, it will be appropriate to quote the relevant rule with regard to medical examination of a candidate, who is declared successful in a combined competitive examination, conducted by UPSC. Appendix II of Notification dated 10.01.2004 reads as under:- "APPENDIX II REGULATIONS RELATING TO THE PHYSICAL EXAMINATION OF CANDIDATES _ _ _ _ _ 1 to 6_ _ _ _ 7. The candidate's eye-sight will be tested in accordance with the following rules. The result of each test will be recorded:- (i)_ _ _ _ _ (ii) _ _ _ _ x x x x x x x NOTE (1) (a) In respect of Technical Services mentioned at A above, the total amount of myopia(including the cylinder) shall not exceed -4.00 D. Total amount of Hypermetropia (including the cylinder) shall not exceed +4.00 D. Provided that in case a candidate in respect of the Services classified as "Technical"(other than the Services under the Ministry of Railways) is found unfit on grounds of high myopia the matter shall be referred to a special boards of three Ophthalmologists to declare whether this myopia is Pathological or not. In case it is not pathological the candidate shall be declared fit provided he fulfils the visual requirements otherwise. (b)_ _ _ _ _" Vide letter dated 23.06.2005(Annexure-6), petitioner was informed by the respondents that Medical Board which examined him on 18.05.2005 in connection with his candidature for the Combined Competitive Engineering Services Examination, 2004, have declared him unfit for the said service on account of Pathological Myopia more than 4D. It was also noted down that in case petitioner desires to appeal against the findings of the Medical Board, he may file appeal in writing, which should reach within 15 days of the date of issue of this letter. Letter dated 23.06.2005 is reproduced as under:- REGISTERED POST GOVERNMENT OF INDIA(BHARAT SARKAR) MINISTRY OF RAILWAYS(RAIL MANTRALAYA) (RAILWAY BOARD) No.2005/E(GR)I/7/1 New Delhi, dt. 23-06-2005 S-11 ROLL NO.- 66103 ARVIND KUMAR AGRAWAL, A-233, MAHESH NAGAR, 80 FEET ROAD JAIPUR RAJASTHAN-302015. Sub:- Engineering Services Examination-2004:-Medical Examination of the candidates. Dear Sir/Madam, I am directed to state that the Medical Board which examined you on 18.05.2005 in connection with your candidature for the above examination have declared you unfit for the following services. UNFIT For ALL SERVICES FIT For NONE on account of Pathological Myopia, more than 4D. 2. In case, you desire to appeal against the findings of the Medical Board, please note the following: (a) All communications should be addressed to the undersigned by name indicating your address for correspondence, roll number, rank and category and reference number and date of this letter. (b) Appeal in writing should reach within 15 days of the date of issue of this letter failing which it will be presumed that you are not interested in filing an appeal. (c) APPEAL AFTER THE STIPULATED PERIOD WILL NOT BE ENTERTAINED. (d) The medical examination by the Appellate Medical Board will be at your own cost. No TA/DA shall be given. (e) Enclose a bank draft of Rs. 100/- drawn in favour of "Pay and Accounts Officer, Railway Board, New Delhi". Please write your name, Roll No., Discipline, and rank on reverse of the draft. (f) Enclose a medical certificate by a registered Doctor on his printed letter head containing the doctor's(eye specialist in case of eye related finding) name, qualifications, registration number in the following format, disputing the findings of Medical Board. I have examined Mr./Ms. ______________, age ___ a candidate of Engineering Services Examination 2004 who signs as under and declared medically unfit by Medical Board on account of ____________________________________________ My findings upon examination are as under: ________________________________________________________________________________________ Candidate's signature Doctor's signature with attested by the doctor stamp and date (g) Filing of appeal does not enjoin upon the candidate right for medical examination by Appellate Medical Board. 3. In case you have sent communication as per (c) or (d) above and you do not receive any communication within 15 days you should get in touch with this office(Tele.No. 011-3303277, 011-3303321) immediately. Yours Faithfully Sd/- (Mamta Kandwal) Dy. Director Estt.(GR), Railway Board." ;