1N THE HIGH COURT OF JUDICATURE AT BILASPUR ‘ WRIT P511110»: N9. éii’i‘ 9F 2005 \ PETuml-mks ; /1. Union of India through the Ministry its General Manager, Ministry of /3. The Additional Divisional Railway Manager - (Appellate Authority) South Eastern Central Railway, Raipur Division, Raipur (C‘GJ /4. The Senior Divisional Electrical Engineer (TRS), South Eastern Central Railway, Raipur BNugi-La-e-pm (C.G.) S V_ RESPONDENTS : fl. Rajiv Nagaria, Section Engineer (TRS) (since removed) son of Shri D.P. Nagaria, resident of Qr.- No.508/B— Zone—l, Road No.33, Post BMY Charoda, Durg (Chhattisgarh). Central Administrative Tribunal, Jabalpur Bench. WRIT PETITION UNDER ARTICLE 224 OF THE x“ CONSTITUTION OF INDIA. l. PARTICULARS OF THE PETITIONERS: As mentioned in the cause title. Division, The \ I Railways, South Eastern $94 {A a§/ W)Centra1 Railway, Garden ....... wwwylww ReaCh’ Kéufafa' PEeseme§$\\‘L\’=5 “mgwQ”. The D1v1s1onal . Railway dam“........ Manager, South Eastern Central Railway, Raipur Division, Raipur 3EASI51’J’R HIGH COURT OF CHHATTISGAR. Writ Petition No. 6222 of 2005 f PETITIONERS : Union of India & Others RESPONDENTS '. Rajiv Nagaria & Another ORDER Hgn’ble Shri LM. Quddusi, J / 2 w/\ N. K. Agarwal Judge Post for: 3 -’l 1—201 O Sdl- N.K. Agarwal Judge For consideration g —11-201O HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Pet'rtion No. 6222 of 2005 PETITIONERS Union of India & Others Versus RESPONDENTS : Rajiv Nagaria & Another Writ Petition under Article 227 of the Constitution of India DB: Hon’bie ShriJustice LM. Quddusi & Hon’ble Shri Justice N. K. Agarwal. Present : Shri Abhishek Sinha, Advocate for the petitioners. Shri Arn'rito Das, Advocate for the respondent No. 1. JUDGMENT (Passed on 3 day of November, 2010) Per N.K. Agarwal, J. The instant petition is directed against the order dated 17.08.2005, passed by the Centrai Administrative Tribunal, Jabalpur Bench (for short ‘CAT’) in OA No. 58/04, aiiowing the petition preferred by the respondent No. 1, directing the petitioners herein to consider the case .of respondent No. 1 in accordance with Section 47 of the “Persons with Disabilities (Equal Opportunities Etc.) Act, 1995. Brief facts of the case are that. the respondent No. 1 was recruited by the Railway Recruitment Board, Bhopal, in A-lll category in the pay'scale of Rs. 2000—3200/6500-10500. He was directed to appear for medical examination in A/3 medicat classification at Central Hospital, Jhansi. The respondent No. 1 reported for medical examination on 05.08.97. On 16.08.1997 he was declared ‘fit’ vide certificate No. 284137 issued by Dr. D.K. Juneja. Sr-. DMO, Jhansi on 16.08.97. The respondent No. 1 was served with a charge sheet dated 17.01.2001 on the allegation that during medical examination conducted by Sr. DMO on 16.08.97, he had committed a serious misconduct. in that examination he had manipuiated the colour blindness test which was later deducted by the Medical Board on 17.01.2000, thus he had manipulated qualifying entries on the selection procedure to declare himself ‘fit’ in A-lll class. The respondent No. 1 denied the charges in toto. The petitioner examined Dr. S.B. Gupta, Dr. Ms. Rina Das, Dr. Bahadur and Dr. S.S. Bhatti. The respondent No. 1 examined Dr. DK Juneja as his witness. The respondent No. 1 was also examined by the enquiry ofncer. The disciplinary authority, vide order dated 01.10.2003 imposed punishment of removal from service. There against, appeal and revision preferred by the respondent No. 1 were also rejected vide orders dated 31.12.2003 & 19.10.2004 respectively. Thereafter, the respondent No. 1 field OA which was allowed by the CAT vide impugned order, against which the petitioners have tiled the instant petition for qu'ashing of the order dated 17.08.2005. Shri Abhishek Sinha, learned counsel appearing for the petitioners submits that on a complaint received by the Vigilance Cell. the respondent No. 1 was directed to appear before the Medical Board at Central Railway Hospital, Byeculla for medical examination. The respondent No. 1 appeared before the Board and accordingly report was issued on 17.01.2000 .in ‘which it is specifically mentioned that the rpondent No. 1 is Red and Green colours deicient. The es f respondent No,1 ha manilated te colour bliness test d pu h nd inasmuch as most colour vision deficiecies e due to geetic n ar n defect which passed on from parent to child. e would further subt that vision test usually tak H mi es approximateiy 20 minutes as p Indian Railways Medica er l Manual, for which 12 days time was taken b th doctor Juneja y e in the present case, which pre-suposes manipulation in p i eq medical examination. The Medcal Board held subsuently in its report dated 17.01.2000 that the respondent No.1 hs red- a green colour denciency. However, he appears to have been tutored in the Ishihara Chart and reads most of them luently f and the order assed by the Tribunal is without jurisdiction and p deserves to be ashed. qu On the other hand, Shri Amrito Das, learned counsel appearing for respondent No. 1 would contend that there is nothing on record which would even suggest any manipulation on the part of respondent No. 1. The prosecution witness did not depose anything regarding alleged manipulation by the respondent No. 1 in the medical examination conducted on 16.08.1997. There is no iota of evidence regarding alleged manipulation by the respondent No. 1. Dr. DK Juneja who medically examined the respondent No. 1 on 16.08.97 and who issued the finesses certificate also deposed that after the examination as per rules the medical certificate was issued. Subsequent tests conducted were also not in conformity with the mandate of Indian Railway Medical ManuaL There is nothing on record to prove alleged red-green denciency as genetic, and in such circumstances, the Tribunai has rightly allowed the petition and the instant petition deserves to be dismissed. We have heard the counsel appearing for the parties and perused the records. The core question involved in the present petition is whether the petitioner has been able to prove that the respondent No. 1 was - having red-green colour deficiency since inception i.e. said deficiency is genetic ?. We have gone through the entire evidence available on record and we find that the respondent No. 1 was medically examined by Dr. DK Juneja on 16.08.97 and in his statement before the inquiry officer he has supported the certificate issued by him. There is nothing against the respondent No. 1 on record to the effect that he influenced Dr. Juneja in any way in securing the fitness certificate. Though, in the subsequent test conducted by the petitioners, the respondent No. 1 was found red-green colour deficient, but no definite Opinion regarding red—green colour deficiency of the respondent as genetic was expressed by the doctors examined by the petitioners during enquiry. As per medical test book (Page 129 of paper book) most colour vision deficiencies are inherited as a result of a genetic defect which is passed on from parent to child. However, the disorder can also be acquired due to problems caused by general or ocular disease or by side-effects from medication or toxic poisoning. The statement of Dr. Juneja fully supports the case of the respondent No. 1. in such circumstances, in our opinion, the Tribunal has rightly allowed the respondent’s petition. It is well settled principle of law that this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present Case. The Supreme Court in case of Union of India & Others v. Flight Cadet Ashish Rai1 has observed in para 6 as under: “6. There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record there is no scope for interference. The duty of the court is, (a) to confine itself to the question of legality; (b) to decide whether the decision- making authority exceeded its powers; (c) committed an error of law; (d) committed breach of the rules of natural justice; and (e) reached a decision which no reasonable tribunal would have reached; or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner: (I) Illegality: this means the decision-maker must understand correctly the law that regulates his decision—making power and must give effect to it. namely, Wednesbury (ii) lrrationality, unreasonableness. (iii) Procedural impropriety”. 11. The Supreme Court in case of Reliance Energy Ltd. & Another v. Maharashtra State Road Development Corpn. Ltd & Othersz has observed in para 39 as under: "39. ln Reliance Airport Developers (P) Ltd. v. Airports Authority of India§ the Division Bench of this Court has held that in matters of judicial review the basic test is to see , ‘ 2006 (2) scc 364 ‘~ 2 2007 (8) scc 1 L _ l l l l // \ T whether there is any infirmity in the decision-making process and not in the decision itself. This means that the decision- maker must understand correctly the law that regulates his decision-making power and he must give effect to it othen/vise it may result in illegality. The principle of “judicial review" cannot be denied’even in contractual matters or matters in which the Government exercises its contractual powers, but judicial review is intended to prevent arbitrariness and it must be exercised in larger public interest. Expression of different views and opinions in exercise of contractual powers may be there, however, such difference of opinion must be based on specmed norms. Those norms mayabe legal norms or accounting norms. As long as the norms are clear and properly understood by the decision-maker and the bidders and other stakeholders, uncertainty and thereby breach of the rule of law will not arise. The grounds upon which administrative action is subjected to control by judicial review are classifiable broadly under three heads, namely, illegality, irrationality and procedural impropriety. In the said judgment it has been held that all errors of law are jurisdictional errors. One of the important principles laid down in the aforesaid judgment is that whenever a norm/benchmark is prescribed in the tender process in order to provide certainty that norm/standard should be clear. As stated above “certainty” is an important aspect of the rule of law. ln Reliance Airport Developers§ the scoring system formed part of the evaluation process. The object of that system was to provide identification of factors, allocation of marks of each of the said factors and giving of marks at different stages. Objectivity was thus provided." 12. The Supreme Court in case of State ofA.P. v. P.V. Hanumantha Rao (dead) through LRs & Another3 has observed in para 30 & 33 as under: “30. True it is that remedy of the writ petition available in the High Court is not against the “decision" of the subordinate court, tribunal or authority but it is against the “deCision- making process“. In the “decision-making process”, if the court, tribunal or authority deciding the case, has ignored vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice t 33. No doubt, it was held that neither in exercise of the power of writ under Article 226 nor in supervisory jurisdiction under Article 227, the High Court will convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence. The power of the High Court in writ jurisdiction to interfere where important evidence has been overlooked and the legal provisions involved are misinterpreted or misapplied has been recognised even in the case of Sawarn 3 2003 (10) scc 121 the party complaining. o Singh1 on which strong re!iance was placed on behalf of the State. The relevant observations are: (SCC p. 872‘ para 13) “13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law.” 13. The Supreme Court in case of Guljar Singh & Others v. Deputy Director (Consolidation) & Others" has observed in para 16 as unden “16. It is very impottant for the disposal of this case to refer again to the relevant portion of the judgment of the High Court to elaborate on this observation made by the Court: “Learned counsel for the appellants of all the three writ petitions argued before me that share of one or the other is being shown to be less than what they had claimed. lt is further argued by all the appellants that as to their share, claims were not properly considered. l may remind it here that this Court is exercising its jurisdiction in supervisory-cum- revisional power and cannot decide the intricate questions of facts relating to shares. Rather, from the perusal of the impugned order, it is clear that in a detailed judgment of 14 pages the learned Deputy Director of Consolidation has given reasons for its findings on shares of each one of the patties. ln the circumstances, it cannot be said that the Deputy Director of Consolidation has not complied with the directions of the Allahabad High Court while disposing of the writ petition." (emphasis supplied) It has been rightly pointed out by the High Court that the High Court in the exercise of its revisional-cum-supervisory power cannot go into the intricate details of facts and decide the questions raised therein. We are in agreement with these views of the High Court, except that in exceptional cases such orders which are based on perversity and arbitrariness could be interfered with by the High Court." 14. Further, the Supreme Court in case of B.K. Muniraju v. State of Karnataka & Otherss has observed in para 22 as under: “22. lt is settled law that a writ of certiorari can only be 'issued in exercise of extraordinary jurisdiction which is " 2009 (12) scc 590 s 2008 (4)'SCC 451 31 different from appellate jurisdiction. The writ jurisdiction extends oniy to cases where orders are passed by inferior courts or tribunals or authorities in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. ln regard to a findin of fact recorded by an inferior tribunal or authority, a writ o certiorari can be issued only if in recording such a finding‘ the tribunal/authority has acted on evidence which is legally inadmissible, or has refused to admit an admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. lt is needless to mention that a pure error of fact, however grave, cannot be corrected by a writ." Therefore, in the facts and circumstances of the case, the illegality or petitioners utterly failed to demonstrate the irregularity committed by the Tribunal so as to invoke the extraordinary jurisdiction of this court under Article 226/227 of the Constitution of lndia. For the reasons mentioned hereinabove, the petition fails and is accordingly dismissed. No order asto costs. Sdf- l LM_QuddU$i Judge Sd/— N. K. Agarwal Judge