Mr. Abhay Verma, Advs v. KAPIL GURJAR

1. The present writ petition has been filed impugning the Order dated 11.11.2022 [‘impugned order’] passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi [‘Tribunal’] in O.A. No. 42 of 2020 [‘O.A.’], titled as Kapil Gurjar v. Ministry of Railways & Anr., whereby the Tribunal allowed the petition and directed the issuance of an appointment letter in favour of the respondent.

2. Brief and undisputed facts relevant to the present petition are stated as under: - 2.[1] The petitioner had issued a notification inviting applications for vacancies to the post of Sub-Inspector in the Railway Protection Force PRATAP SINGH 17:26 [‘RPF’] vide Notification No. 02/2018 dated 01.06.2018, pursuant to which the respondent had applied on 29.06.2018 under the OBC category for appointment as a Sub-Inspector [‘SI’] in Class Bee-One. 2.[2] The respondent was called upon to participate in the Computer Based Test [‘CBT’], the Physical Efficiency Test [‘PET’] and the Physical Measurement Test [‘PMT’]. 2.[3] The respondent successfully qualified the aforesaid tests, pursuant to which his name was included in the list of empanelled candidates shortlisted for the post of Sub-Inspector. 2.[4] The respondent was called for a medical examination vide letter dated 29.06.2019. Pursuant to the medical examination conducted on 06.07.2019, the respondent was declared medically ‘unfit’ vide Medical Memo NO. 423306 dated 08.07.2019. 2.[5] Aggrieved thereby, the respondent preferred an appeal against the said medical opinion seeking a re-medical examination. It was the case of the respondent before the Appellate Authority that both, government and private ophthalmologists, had issued fitness certificates certifying that he was ‘FIT’ for employment as his vision had been corrected. 2.[6] The Appellate Authority thereafter constituted a Medical Board comprising three doctors to assess the medical status of the respondent. Upon examination, the Medical Board observed that the respondent had been correctly declared medically ‘UNFIT’ in the initial medical examination, as he had undergone Lasik Surgery for vision correction in both eyes. 2.[7] Aggrieved by the Order passed by the Appellate Authority dated 17:26 26.09.2019, the respondent filed O.A. No. 42 of 2020 before the learned Tribunal. 2.[8] The matter remained pending before the Tribunal and led to a reference to the Full Bench of the Tribunal on the issue of jurisdiction to adjudicate grievances relating to selection, recruitment and appointment in the RFP. 2.[9] The petitioner approached this Court vide W.P.(C) 3604/2021, W.P.(C) 1345/2022 and W.P.(C) 13011/2022 for seeking directions of expeditious disposal of its petition by the Tribunal and also for interim measures pending disposal. The said petitions were disposed of by the coordinate Bench of this Court with issuance of appropriate directions.

2.10 This issue of jurisdiction was decided by the Full Bench of the Tribunal vide judgment dated 22.09.2022 and it opined that the Tribunal had the jurisdiction to decide these issues. Thereafter, the O.A. was finally decided on merits vide impugned order dated 11.11.2022 in favour of the respondent herein. The Tribunal, vide impugned order allowed the O.A. and directed the petitioner to confirm the appointment of the respondents as a Sub-Inspector, along with all consequential benefits on a notional basis, within a period of six weeks from the date of the impugned order. Submissions on behalf of the petitioner

3. The only submission made by the learned counsel for the petitioner was that the at the time of the respondent’s medical examination in June, 2019, the guidelines dated 11.11.2013 read with Paras 510, 512(9) Note (a) and 522 of the Indian Railway Medical Manual, 2000 [‘IRMM’], as clarified by the relevant correction slip, expressly prohibited eye correction through 17:26 glasses or refractive surgery such as LASIK, and therefore the respondent’s candidature was rightly rejected vide letter dated 08.07.2019, with the subsequent statutory appeal also being rejected on 26.09.2019.

3.1. It is contended that the judgment of the Supreme Court in Dalbir v. Union of India[1] was rendered in personam, as explicitly recorded by the Supreme Court itself and later reaffirmed by the Division Bench of this Court in Navdeep v. Union of India[2]; and thus the said judgment of the Supreme Court has no retrospective application to concluded recruitment process of the year 2018.

3.2. It is contended that the subsequent Notification dated 25.08.2022 permitting candidates who have undergone LASIK surgery for Class Bee- One is prospective and cannot endure to the benefit of the respondent herein, whose recruitment process stood concluded much prior to the issuance of this notification.

3.3. On these grounds, the petitioner prays for setting aside the directions of the Principal Bench in the impugned order dated 11.11.2022. Submissions on behalf of the respondent

4. Learned counsel for the respondent contended that while certain forms of eye procedures such as Radial Keratotomy are specifically mentioned in IRMM, LASIK surgery was conspicuously absent from any list of prohibited procedures during his time of appointment. On the contrary, Rule 512(10) IRMM permits even more invasive procedures such as intra-ocular lens implant surgery and allow candidates with defective binocular vision to be considered in Class B at the discretion of the 2022 SCC OnLine SC 1037 2023: DHC: 6173- DB 17:26 competent medical authority. 4.[1] He contended that the initial medical unfitness declared in 08.07.2019 was arbitrary, unreasoned, and unsupported by any express prohibition under IRMM. The rejection of the medical appeal also relied on a misinterpretation of IRMM provisions, despite the fact that the Railway Board itself had acknowledged its inability to detect past LASIK surgery and had not formally banned it. 4.[2] He relied upon the Division Bench judgement of this Court in Ms. Sreeja K. v. Union of India[3] wherein it was held that vision correction through LASIK surgery to conform to visual acuity standards cannot be a disqualification. He also placed reliance on the order Of CAT Ernakulam Bench wherein it was recorded that ‘Lasik surgery’ is not mentioned in clause 512(9) of IRMM and allowed the said original application. 4.[3] The reliance was also placed on Dalbir (supra) judgment wherein the LASIK surgery for B-1 category was permitted for RPF. 4.[4] Reliance is also placed on subsequent policy developments, including UPSC advertisements, which permit LASIK surgery for similarly situated Central Armed Police Forces and expressly allow LASIK for RPF personnel in category Bee-One. Findings and Analysis

5. This Court has heard the learned counsel for the parties and has perused the record.

6. The Tribunal vide impugned order dated 11.11.2022 has held that the objective of medical intervention is to correct physical infirmities, and once W.P.(C) 3196/2012, Judgment dated 29.05.2012. 17:26 an applicant meets the prescribed medical standards after such correction, past medical history cannot be used to disqualify him. The Tribunal opined that in the absence of any rule or as per any conditions in the vacancy notification and the IRMM expressly barring a candidate who has undergone LASIK surgery, the respondent’s rejection was unsustainable.

7. Noting that the respondents primarily contested jurisdiction of the Tribunal to entertain the petition, which stood conclusively settled in favour of the respondent vide separate order dated 22.09.2022, the Tribunal allowed the OA vide impugned order dated 11.11.2022 in favour of the respondent, set aside the impugned medical certificate dated 08.07.2019, and declared the applicant medically fit. The respondents were directed to issue the appointment within six weeks, with the applicant entitled to all consequential benefits on a notional basis.

8. This Court is exercising certiorari jurisdiction over the decision of the Tribunal dated 11.11.2022 and not deciding an appeal over the said decision. The parameters of the certiorari jurisdiction of this Court under Article 226 of the Constitution of India has been authoritatively delineated in Syed Yakoob v. K.S. Radhakrishnan[4] stating that certiorari jurisdiction under Article 226 is a limited supervisory power of the Court to correct jurisdictional errors and patent errors of law committed by lower courts or tribunals, such as acting without or in excess of jurisdiction, failure to exercise jurisdiction, violation of natural justice, or errors of law apparent on the face of the record; the High Court does not act as an appellate authority and cannot re-appreciate evidence or interfere with findings of fact, except AIR 1963 SC 477 17:26 where such findings are based on no evidence or are vitiated by wrongful admission or exclusion of material evidence amounting to an error of law. The relevant paragraphs of the judgment reads as under: - “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v Syed Ahmad Ishaque[5], Nagandra Nath Bora v Commissioner of Hills Division and Appeals Assam[6] and Kaushalya Devi v Bachittar Singh[7]).

AIR 1958 SC 398 AIR 1960 SC 1168 17:26

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.” (Emphasis Supplied)

9. The petitioner has not disputed the finding of the Tribunal that neither the vacancy notification dated 01.06.2018 nor the IRMM stipulated any provision prohibiting eligibility of a candidate for category Bee-One, whose corrected vision is as per the prescribed requirements of IRMM after LASIK surgery.