ABHIMANYU SINGH YADAV V. UNION OF INDIA

OP (CAT)/36/2017

AI Insights

Abhimanyu Singh Yadav, a candidate in the 2007 Civil Services Examination, was initially allotted to the Indian Revenue Service (non-technical category) due to medical findings of defective color vision, which rendered him unfit for technical services like the Indian Police Service (IPS). Despite his higher rank and subsequent appeals, both the Central Standing Medical Board and the Appellate Medical Board confirmed his unfitness for technical services. Yadav's challenges to these findings and his subsequent allotment to a non-technical service were dismissed by the Central Administrative Tribunal, leading to this appeal in the High Court of Kerala.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 739167 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 08-02-2017
• Assessment Year: misc
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: THOMAS MATHEW NELLIMOOTTIL; N NAGRESH
• Assessee Lawyers: K JAJU BABU; RAHUL PRASAD; M U VIJAYALAKSHMI
• Keywords: Civil Services Examination; Indian Police Service; Indian Revenue Service; Medical Examination; Color Vision Defect

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017 / 19TH MAGHA, 1938 OP (CAT).No. 36 of 2017 AGAINST THE ORDER IN O.A.No.180/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 21.9.2016 PETITIONER(S)/APPLICANT. ABHIMANYU SINGH YADAV DEPUTY COMMISSIONER OF INCOME TAX, OFFICE OF THE COMMISSIONER OF INCOME TAX-I COCHIN CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, KOCHI.18, (RESIDING AT HOUSE NO.15, K.K.P NAGAR, U.C.COLLEGE, ALUVA-683102) NOW RESIDING AT 435, KAILASHPURI, BIKANER, RAJASTHAN-334001. BY ADVS.SRI.K.JAJU BABU (SR.) SRI.RAHUL IPE PRASAD SMT.M.U.VIJAYALAKSHMI RESPONDENTS/RESPONDENTS: 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF PERSONAL AND TRAINING, NORTH BLOCK, NEW DELHI. 110 003. 2. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, SECRETARY, PARYAVARAM BHAVAN, C.G.O COMPLEX, LODHI ROAD, NEW DELHI. 110 003. 3. THE SECRETARY , MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, NEW DELHI.110 003. 4. UNION OF PUBLIC SERVICES COMMISSION, REPRESENTED BY ITS SECRETARY, DHOLPUR HOUSE, SHAJAHAN ROAD, NEW DELHI. 110 003. OP (CAT).No. 36 of 2017 :: 2 :: 5. THE CHAIRMAN, CENTRAL STANDING MEDICAL BOARD, GOVERNMENT OF INDIA, SAFDARJANG HOSPITAL, NEW DELHI. 110 003. 6. THE CHAIRMAN, PERMANENT MEDICAL BOARD, DR. RAM MANOHAR LOHIYA HOSPITAL, NEW DELHI. 110 003. R4 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC UPSC R1-R3,R5 & R 6 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 08-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 36 of 2017 (Z) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1:TRUE COPY OF THE O.A.180/00178/2014 FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P2:TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN OA.180/00178/2014 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P3:TRUE COPY OF THE REPLY STATEMENT DATED 13.5.2014 FILED BY THE 2ND RESPONDENT IN OA.180/00178/2014 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P4: TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN OA.180/00178/2014 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P5:TRUE COPY OF THE REPLY STATEMENT DATED 10.10.2014 FILED BY THE 4TH RESPONDENT IN O.A.NO.180/00178/2014 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P6:TRUE COPY OF THE REJOINDER AFFIDAVIT FILED BY THE PETITIONER TO THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN O.A .NO.180/00178//2014 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P7:TRUE COPY OF THE ORDER DATED 21.9.2016 IN O.A. NO.180/00178/2014 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. // TRUE COPY // TKS P.S. TO JUDGE C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ------------------------------------ O.P.(CAT)No.36 of 2017 ------------------------------------- Dated 8th February, 2017 JUDGMENT Ravikumar, J. This original petition is directed against the order dated 21.9.2016 in O.A.No.178 of 2014 passed by the Central Administrative Tribunal, Ernakulam Bench. The petitioner is presently working as Deputy Commissioner of Income Tax in the Indian Revenue Service. A succinct narration of the facts which led to the grievances of the petitioner highlighted in O.A.No.178 of 2014 that culminated in the impugned order, is necessary for the disposal of this original petition. 2. In the Civil Services Examination conducted in the year 2007 the petitioner secured Rank No.192. Based on his ranking he opted Indian Police Service (technical category). Prior to the allotment medical examination was conducted. The Central Standing Medical Board at Dr.Ram Manohar Lohia Hospital, New Delhi examined the petitioner on 25.4.2008 and declared him unfit for Technical Services on account of `Colour Vision (High grade and Low grade) Defective'. Availing the appellate remedy he moved the Appellate Medical Board O.P.(CAT)No.36 of 2017 2 and the Appellate Medical Board subjected him to medical examination at Safdarjung Hospital, New Delhi on 22.8.2008. The Appellate Medical Board also found him fit only for non-technical post. In such circumstances, the petitioner was allotted to Indian Revenue Service (non-technical category) and he was appointed as Assistant Commissioner of Income Tax as per order dated 17.12.2008. The contention of the petitioner is that aggrieved by his allotment he moved Annexure-A6 representation dated 9.2.2009 before the first respondent. The first respondent rejected the said representation as per Annexure-A7 order dated 11.6.2009. Thereafter, to alleviate the grievance he moved High Court of Rajasthan by filing S.B.Civil Writ Petition No.2478 of 2010. The High Court of Rajasthan took note of the nature of the lis involved in the case and held that the jurisdiction to adjudicate the issue lies with the Central Administrative Tribunal and consequently dismissed the said writ petition on 24.1.2014 with liberty to the petitioner to invoke the remedy available before the Central Administrative Tribunal. True that there was an observation in the said judgment that the question of limitation shall be considered sympathetically taking into account the fact that the writ petition was pending since 2010. Thereupon, the petitioner approached the Central Administrative Tribunal, Ernakulam Bench by filing O.A.No.178 of 2014. As noticed hereinbefore, the said original application was dismissed as O.P.(CAT)No.36 of 2017 3 per Ext.P7 order dated 21.9.2016. It is challenging the said order passed by the Tribunal that the captioned original petition has been filed. 3. We have heard the learned counsel for the petitioner, the learned Assistant Solicitor General of India and also the learned counsel appearing for the 4th respondent. 4. The specific case of the petitioner is that the Medical Board ought not to have found him unfit for technical services and at any rate, the recommendation in that regard ought not to have been accepted by the first respondent, the competitive authority especially in the light of the opinion of the Appellate Medical Board. Harbouring such a view and to get it materialised the petitioner moved the first respondent on 9.2.2009. Earlier, consequent to the finding that the petitioner is unfit for technical services, he was allotted to Indian Revenue Service as per Annexure-A5 dated 17.12.2008. In fact, it is thereafter that he moved the first respondent through Annexure-A6 representation dated 9.2.2009. Evidently, the petitioner assails the very finding of the Central Standing Medical Board as per Annexure-A4 dated 25.4.2008. The Central Standing Medical Board at Dr.Ram Manohar Lohia Hospital had subjected him to medical examination and O.P.(CAT)No.36 of 2017 4 then declared him as unfit for Technical Services on account of the `Color Vision (High grade and Low grade) Defective'. Upon availing the appellate remedy he was subjected to Appellate Medical Board examination at Safdarjung Hospital on 22.8.2008. Annexure-A7(a) is the report of the Appellate Medical Board. The findings entered by the Appellate Medical Board runs as follows:- “The candidate was examined for colour vision with Ishihara plates. He could not identify most of the colour plates. With Edrige Green Lantern candidate could identify primary colours. Candidate has low grade colour vision. Hence he is fit for Non-technical post.” It is relying on the aforesaid report of the Appellate Medical Board that the petitioner had staked a claim through Annexure-A6 for allotment to Indian Police Service. Evidently, the said prayer of the petitioner was rejected as per Annexure-A7 order by the first respondent on 11.6.2009. It was thereupon that the petitioner had moved the High Court of Rajasthan by filing S.B.Civil Writ Petition No.2478 of 2010. The said writ petition was dismissed as per Annexure-A14, but with the following liberty as also observation:- “Admittedly, for the controversy involved in this case, jurisdiction is left with the Central Administrative Tribunal, therefore, this writ petition is dismissed with liberty to petitioner to invoke the remedy before the O.P.(CAT)No.36 of 2017 5 Central Administrative Tribunal. It is expected that in the event of filing O.A. before the CAT, the question of limitation will be considered sympathetically because this writ petition is pending in this Court since 2010.” The word `admittedly' assumes relevance. It would suggest that the petitioner was not at all in a dilemma, at least, after moving the High Court he realised and recognised the fact that, as regards the controversy involved in the matter, the jurisdiction lies with the Central Administrative Tribunal. Whatever that be, it is a fact that the writ petition filed by the petitioner as early as in 2010 came to be dismissed as per Annexure-A14 order dated 24.1.2014 in Ext.P1 holding that the High Court lacks jurisdiction and it lies only with the Central Administrative Tribunal, as per judgment dated 24.1.2014. Thereupon, the petitioner moved the Central Administrative Tribunal Ernakulam Bench by filing O.A.No.178 of 2014. The Tribunal taking note of the observations made by the High Court of Rajasthan in Annexure-A14 order condoned the delay and considered the original application on merits and as already noticed, it ultimately culminated in Ext.P7 order of dismissal of the said original application. We have narrated the sequence in chronology to take note of the manner in which the petitioner who appeared for the Civil Services Examination in 2007 and got allotted to the Indian Revenue Service as early as in 2008 O.P.(CAT)No.36 of 2017 6 attempted to get alleviated his grievance relating denial of allotment to the Indian Police Service. The facts expatiated above would reveal that after the allotment pursuant to the Civil Service Examination conducted in 2007 now, eight years have elapsed. The contention of the petitioner is that the facts borne out from records would reveal that he cannot be accused of laches or lapses and that he was pursuing the matter diligently. It is true that the Tribunal, imbibing the spirit of the observation made by the High Court of Rajasthan, did not go into the question of limitation at all and evidently considered the matter on merits. But, at the same time, a close scrutiny of the impugned order of the Tribunal would reveal that the Tribunal had also addressed the question as to whether it is pragmatic at this distance of time, to interfere with the selection and allotment made long ago and also took note of the fact that any order for re-allotment would have a chain of adverse effect. Normally, when a matter was admitted without looking into the question of limitation such an issue ought not to have been taken into account. But, the question is, in the circumstances obtained in this case, whether the Tribunal is justified in considering the matter in that regard as well, apart from considering the contentions on merits. 5. The learned Assistant Solicitor General submitted that the petitioner had not attributed malafides on the authorities. It is the O.P.(CAT)No.36 of 2017 7 further submission that as regards the officers alloted to Indian Police Service pursuant to the Civil Service Examination conducted in 2007 induction training was conducted in 2007. Those came out successful in the induction training were given posting in the Indian Police Service cadre. The learned counsel appearing for the petitioner submitted that it is absolutely incorrect to say that the petitioner had not attributed malafides on the authorities. A careful scanning of Ext.P7 impugned order itself would reveal that the petitioner had attributed malafides. But, at the same time, there can be no doubt with respect to the position of law that allegation of malafides should be very specific. In the case on hand, what was alleged by the petitioner is that he was declared as unfit for technical services due to extraneous reasons in order to favour some other candidates. Apart from the said vague allegation no material has been furnished by the petitioner in support of the said contention. In the light of the reports of the Medical Boards there is also no scope for attributing and sustaining legal malafides, as well. In such circumstances, the contention of malafides is only to be repelled and rightly it was rejected by the Tribunal. We will now consider the merits of the other contentions. As noticed hereinbefore, the petitioner came out successful in the Indian Civil Service Examination, 2007 with rank No.192. But, securing a higher rank by itself would not confer a candidate any right to be allotted to any O.P.(CAT)No.36 of 2017 8 particular service of his choice. This position is very much evident from Appendix-III to the Civil Services Examination Rules, 2007 which was extracted in the impugned order and it runs as follows:- “For the IPS and other Police Services, Group “A” and “B” Indian Railway Traffic Service Group “A” in the Railway Protection Force and other Services concerned with the safety of the public, higher grade of colour vision is essential but for others, lower grade of colour vision should be considered sufficient. Satisfactory colour vision constitutes recognition with ease and without hesitation of signal red, green and yellow colours.” 6. Obviously a higher grade of colour vision is essential for getting allotment to technical services. The Indian Police Service belongs to technical service and admittedly, Indian Revenue Service is a non-technical category. The Central Standing Medical Board at Dr.Ram Manohar Lohia Hospital conducted medical examination of the petitioner on 25.4.2008. The finding of the said Board was as follows:- “-The candidate was colour blind on Ishihara Chart. -On E.G.Lantern high grade color vision was defective, low grade colour vision was present. -High grade colour vision was defective on E.G.Lantern as well as Ishihara chart. -Thus candidate was declared for non-technical services and unfit for technical services on account of defective high grade colour vision. -Proper procedure as per Cazette has been followed.” O.P.(CAT)No.36 of 2017 9 The Appellate Medical Board at Safdarjung Hospital subjected the petitioner for medical examination, pursuant to his appeal, on 22.8.2008 and recorded its findings as extracted earlier. Thus, it is obvious that the Central Standing Medical Board, on examination, found the petitioner with defective high grade colour vision and declared him unfit for technical services. At the same time, it was found that low grade colour vision was present. In the appeal the Appellate Medical Board too found that he was having low grade colour vision and hence, fit for non-technical post. Thus, it can be seen that both the Central Standing Medical Board as also the Appellate Medical Board found the petitioner not fit for technical services and at the same time found him fit for non-technical posts. Later, the Department of Personnel & Training addressed Annexure R1(2) letter dated 31.3.2009 of Ext.P2 to the Chairman of the Medical Board at Safdarjung Hospital. It is stated therein that a V.I.P. reference has been received in support of the claim of the petitioner and in order to give a reply the Appellate Board was required to furnish its comments. The relevant portions of Annexure R1(2) read thus:- “Shri Abhimanyu Singh Yadav has now expressed in his memorandum that his medical examination conducted by Appellate Medical Board is not in accordance with the guidelines of the Gazette Notification. You are, therefore, requested to examine his memorandum O.P.(CAT)No.36 of 2017 10 thoroughly and furnish your comments to this Department at the earliest. Further, it is informed that a V.I.P. Reference has been received in support of Shri Abhimanyu Singh Yadav's claim and this Department is required to give a reply at the earliest.” Thereupon, as per Annexure R1(3) of Ext.P2 the Appellate Medical Board offered its comments re-iterating its earlier opinion. In other words, the Appellate Medical Board opined that the petitioner is fit for only non-technical posts. As per Annexure R1(3) the Appellate Medical Board replied thus:- “As per our report, the candidate was examined for color vision both by E.G.Lantern & Ishihara Book. On Ishihara book, the candidate was not able to read most of the plates and on E.G.Lantern, he could identify the primary colours. Hence he was having low grade color vision and fit for Non-Technical posts only. We, the board, stand with our decision.” 7. There cannot be any doubt with respect to the position that colour vision can be detected only on medical examination. As noticed hereinbefore, the Central Standing Medical Board once subjected the petitioner to medical examination on 25.4.2008 and declared him unfit for technical services and found him fit only for non- technical services. The materials on record would again reveal that though twice the Appellate Medical Board certified with regard to the fitness of the petitioner, on both the occasions they opined that the O.P.(CAT)No.36 of 2017 11 petitioner is fit only for non-technical services. In fact, the Appellate Medical Board examined the petitioner on 22.8.2008. When that be the specific medical opinion we do not know under what circumstances the petitioner could take up the contention that ignoring the said expert opinion on a matter which could be detected only on medical examination, the first respondent ought to have ignored the medical opinion and found him fit for technical services. Evidently, accepting the Medical Board opinion and acting upon it the first respondent found that the petitioner is unfit for allotment to technical services and consequently allotted him to Indian Revenue Service (non-technical category). This was done as far back as on 17.12.2008. Merely because at a later point of time, that is, about two years thereafter, on being approached personally the petitioner was issued with certificates by hospitals to the effect that he is not affected with colour vision cannot be accepted by the first respondent and indubitably, they cannot be the foundation for reversing his earlier order of allotment, in the circumstances explained hereinbefore. 8. We have no hesitation to hold that when two sets of certificates are available, one issued by the Medical Boards attached to Dr.Ram Manohar Lohia Hospital and Safdarjung Hospital pursuant to the reference for medical examination as part of the selection process for the purpose of allotment and the other set issued by certain O.P.(CAT)No.36 of 2017 12 ophthalmologists attached to some other hospitals when he approached them personally, the latter cannot outweigh the former certificates. The petitioner was subjected to medical examination prior to allotment by the Central Standing Medical Board at Dr.Ram Manohar Lohia Hospital, New Delhi and then, by the Appellate Medical Board such certificates carrying their definite findings to the authorities for the purpose of allotment such certificates should be given due weight. The other set of certificates which were issued by individual ophthalmologists cannot in any way denude the validity of the certificates issued by duly constituted Medical Boards. In the circumstances, we do not find any reason to hold that the Tribunal went wrong in upholding the decision of the first respondent based on the certificates carrying the specific opinions/comments on the fitness or otherwise of the petitioner for allotment to technical or non-technical services. The action on the part of the first respondent cannot be said to be an arbitrary action or a malafide action. We have already found that though the petitioner made a feeble attempt to attribute malafides he had failed to adduce any material to substantiate the same. In the circumstances obtained as above we have also no doubt in holding that the mere fact that the Tribunal has also considered the question whether it is pragmatic to grant re-allocation and also the question it would have a chain effect, if the application is allowed, cannot be O.P.(CAT)No.36 of 2017 13 reasons for interfering with the impugned order. The fact that such a consideration was also undertaken by the Tribunal, cannot make the impugned order illegal or perverse. The long and short of the discussion is that we do not find any palpable illegality or perverseness warranting an interference with the order of the Tribunal. In short, the petitioner is not entitled to the reliefs sought for and this writ petition is liable to fail and accordingly, it is dismissed. Sd/- C.T.RAVIKUMAR Judge Sd/- K.P.JYOTHINDRANATH Judge TKS "