IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.18065 & 17708 of 2009 W.P.No.18065 of 2009 Between: Unior of India, rep.by the Secretary, Ministry of Railways, Railway Board, New Delhi and 6 others ..... PETITIONERS AND K.Govinda Rao and 4 others .....RESPONDENTS W.P.No.17708 of 2009 Between: Unior of India, rep.by the Secretary, Ministry of Railways, Railway Board, New Delhi and 5 others ..... PETITIONERS AND G.S.V.Prasad and 5 others .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.18065 & 17708 of 2009 COMMON ORDER: (per Hon’ble Sri Justice Vilas V.Afzulpurkar) These two writ petitions are filed questioning the common order of the Central Administrative Tribunal, Hyderabad (hereinafter referred to as “the Tribunal”) dated 20.04.2009 passed in O.A.Nos.283/2008 and 634/2008 together with miscellaneous applications, moved therein. By the aforesaid order, the Tribunal has allowed the O.As holding that the applicants are entitled to the respective postings on medical de-categorization as decided by the Committee, and the Tribunal further held that the petitioners herein (Railways) have no right to subject the applicants for second medical test under Para-522(1) of Indian Railways Medical Manual, Volume-I. We have heard the learned Standing Counsel for the Railways and the learned counsel appearing for the contesting respondents. It is evident from the record that all the respondents herein (applicants before the Tribunal) were medically de-categorized on various dates between 2004 to 2007 and the duly constituted Committee recommended for alternative employment to each one of them. Even though the recommendations were made for the period 2004 to 2007, however, as no postings orders were given to the applicants, they approached the Tribunal in 2008 questioning the inaction on the part of the Railways. During hearing before the Tribunal, it was contended on behalf of the petitioners herein that they have constituted a Special Medical Board to review the cases vide proceedings dated 24.10.2008, and in view of that development the Department is waiting for the outcome of the Special Medical Board and once it is finalized, action as per the relevant Manual provision would be taken to accommodate the applicants in the alternative posts. The main contention of the learned counsel for the petitioners herein is that the interpretation placed by the Tribunal on Para-522 (1)(ii) of the Indian Railways Medical Manual Volume-I is erroneous, inasmuch as the Tribunal came to the conclusion that the petitioners herein have no such power to send the applicants to second medical examination . The relevant Para-522 of Indian Railway Medical Manual, Volume-I is extracted hereunder for the sake of convenience: 522-Provision for reconsideration of adverse reports: The following provisions shall apply in regard to the reconsideration of adverse reports of Medical Examination: (1) Candidates: (i) Ordinarily, there is no right of appeal against the findings of an examining medical authority, but if the Government is satisfied, based on the evidence produced before it by the candidate concerned, of the possibility of error of judgment in the decision of the examining medical authority, it will be open to it, to allow re-examination. Such evidence, should be submitted within one month of the date of communication in which the decision of the first medical authority is communicated to the candidate. The appellate authority may entertain the appeal within a reasonable time after the expiry of the said period, if it is satisfied that the appellant had sufficient cause for not preferring an appeal in time. Consultation and investigation charges will be recovered for appeal. (Min.of Railway's Letters No.91/H/5/1 dt.23.08.1991 and No.87/H/5/18 dt.26.10.1988) (ii)If any medical certificate is produced by a candidate as evidence about the possibility of an error of judgment in the decision of the first medical authority, the certificate will not be taken into consideration unless it contains a note by the medical practitioner concerned, to the effect that it has been given in full knowledge of the fact that the candidate has already been rejected as unfit for service by the medical authority appointed by the government in this behalf. (2) Railway Employees:- (i) The Railway employees may himself, on receiving the notice of failure to pass the examination, lodge an appeal within seven days from the date of adverse report, for reconsideration by the Chief Medical Director. This appeal will be directed through the Divisional Officer/District Officer of the employing Branch or the department concerned and CMS/MS in charge of the Division, who will respectively attach a report of the examination. (ii)A Principal Divisional or District Officer of the branch or department concerned may submit a requisition for reconsideration by the Chief Medical Director of the case of a Railway employee concerning whom an adverse certificate has been issued by an examiner authorised to do so. The requisition will include a statement of any special circumstances that appear worthy of consideration, and will be sent through the CMS/MS of the divisior who while forwarding it to the Chief Medical Director will attach a report of the examination. (iii) On receipt of an appeal under para (I) above, or a requisition under para (ii) above, the Chief Medical Director will after perusal of the papers, either issue summary orders or arrange at his discretion of such further special examination of the Railway employee as the circumstances of the case may require. The decision of the CMD will be final. (iv) A Railway employee who, having been examined by a competent medical authority, has been certified by the authority to be unfit to continue to discharge the duties formerly assigned to him, shall not be permitted to discharge such duties or the duties of any other class, competence for which has not been certified by the examiner, and the adverse certificate shall hold irrespective of the submission of an appeal under sub- para (I) above, or the submission of a requisition under sub-para (ii) above, until such time as under the instructions of the Chief Medical Director, the adverse certificate has been formally withdrawn or replaced. From the impugned order, it is evident that the Tribunal has relied upon para-522(1)(ii) whereas the relevant clause on which the petitioners have placed reliance is para 522(2)(ii) of the Indian Railway Medical Manual, Volume-I. The finding given by the Tribunal based on interpretation of para-522(1)(ii), therefore, has no application to the facts of the present case, inasmuch as the power of the Railways to subject the employees to the second medical test is clearly referable to sub-clause-(2)(ii), referred to above. In that view of the matter, the interpretation placed by the Tribunal on the aforesaid provision appears to be erroneous. It is evident that the medical invalidation of the respondents herein was not doubted by the railways earlier, inasmuch as even the Committee went into the said aspect and has already recommended alternative employment to the respondents way back in between 2004 to 2007. In any case, the decision to send the employees to second medical test has to be taken before his case for allotment of alternative employment is taken up. As is evident, in the present case, the alternative employment was already recommended by accepting the medical report at the first instance and therefore, sending the respondents to the second medical test does not arise. In that view of the matter also, we are of the view that the inaction on the part of the Railways in not posting the respondents to the alternative posts which were already recommended in their favour was clearly unjustified and the directions of the Tribunal to that extent does not warrant any interference. Subject to the clarification, as above, the order of the Tribunal is accordingly confirmed. The learned counsel for the petitioners fairly submits that the jurisdiction of this Court by these writ petitions is invoked only for the purpose of seeking clarification regarding interpretation of the Tribunal on para-522, as referred to above and with regard to the relief granted by the Tribunal, the petitioners are really not aggrieved. In view of the clarification, as above, these writ petitions shall stand disposed of, confirming the order of the Tribunal in other respects. No order as to costs. ___________________ V.ESWARAIAH,J ___________________________ VILAS V.AFZULPURKAR,J Dated: 09.09.2009 Dsr