Promotion denied due to low vision acuity
ABHISHEK MAHESHWARI
(Querist) 15 November 2014
This query is : Resolved
A person born with a vision defect and he has been declared fir at the time of recruitment with this vision defect. Can he be denied for further promotions due to this vision defect where medical fitness standards for entire cadre are same.
Sudhir Kumar, Advocate
(Expert) 15 November 2014
very vague query.
please specify the medical standards set for the higher post.
ABHISHEK MAHESHWARI
(Querist) 15 November 2014
in case of vision acuity medical std for the higher post is as same as for the current post i.e. at least 6/9 in better eye with or without glasses. in fact it is same for every post, age and category, except for visually challenged people.
ABHISHEK MAHESHWARI
(Querist) 15 November 2014
I am sorry sir since it is a public forum and I am new to it therefore I am a bit cautious while providing specific details.
Guest
(Expert) 15 November 2014
You have not mentioned whether you are in Government service or not.
However, if you are in Government service, once medical of a candidated is conducted for a post at the induction stage no subsequent medical is conducted by any Government department, unless he is considered to be unfit any more for the Government job according to the prescribed medical standards that too when declared unfit on examination by the medical board, not by a single doctor, of a Government hospital.
Sudhir Kumar, Advocate
(Expert) 15 November 2014
subsequent medical after joining can be conducted only in post specific cases. That can be done only if medical standard prescribed for the higher post are different than the initial post.
You have not specified any such details.
ABHISHEK MAHESHWARI
(Querist) 15 November 2014
ok here I represent the case
the person is suffering from Nystagmus(constant uncontrolled movement of retina in both eyes) secondary to macular hypoplasia and had been recruited in a public sector company as a clerk and declared fit at the time of recruitment. His vision acuity was 6/18 in both eyes at the time of recruitment. As per company's standards minimum vision acuity level is 6/9 in better eye.
After completing all eligibility criteria and minimum required tenor of service, he gave promotion exams and got selected for officer cadre, where again a medical check up has been done in the same way as it was done at the time of recruitment.
But this time this candidate has been declared medically unfit due to his vision defect which is incurable, and he is denied for any further promotion through out his career.
Medical standards for recruitment and promotion are same for any cadre , post, age or category in the organization.
There is no adverse change in the person's vision acuity during the service period then how can he be declared unfit for the same health issue which was present at the time of his recruitment.
Guest
(Expert) 15 November 2014
First of all, before anyone respond to your present query, please intimate, how you are concerned with the promotion case of a person, who is suffering from the disease "Nystagmus"?
ajay sethi
(Expert) 15 November 2014
answer query raised by Dhingraji
Sudhir Kumar, Advocate
(Expert) 15 November 2014
Please come clear with the facts as questioned by Mr Dhingra.
Are you the candidate himself?
Are you his friend?
Are you dealing official in PSU?
Are you just a stranger raising academic query?
Are you an advocate (or his colleague) who he approached to draft representation.
ABHISHEK MAHESHWARI
(Querist) 15 November 2014
unfotunatly I am the one who is facing all this.
Sudhir Kumar, Advocate
(Expert) 15 November 2014
given facts do not indicate any legality in denying promotion to you.
If you have already submitted representation then you can move to High Court. the persons promoted in lieu of you will also have to be made respondents.
ABHISHEK MAHESHWARI
(Querist) 15 November 2014
Thanks Sudhir Sir ,
I had made the representation to the company and the company did not accept my representation.
More over till date I have not been given the letter of medical unfitness, I have only been informed over telephone.
I asked for it several times in writing but there is no reply.
Instead it has been communicated to me that Company made a mistake in past by recruiting me but the same mistake can not be repeated twice.
Dr J C Vashista
(Expert) 16 November 2014
It is not understood how you were accepted in initial appointment (declared medically fit) having the disease of nystagmus, was it concealed/ manipulated by you.
However,obtain copy of medical standard required for the post of clerk in the PSU as well subsequent requirement on being promoted.
Get private consultancy of an opthalmologist (Eye-specialist)and find out whether you were/are fit for appointment of LDC and promotion(s).
If the consultant declares and advised you "fit for the post of LDC" nothing to worry and move an appeal before a medical board.
Sudhir Kumar, Advocate
(Expert) 16 November 2014
If the company feels that they had erroneously recruited you then they could (if their assumption is lawful) gone with proposal of retirement on medical grounds. However till such a decision is taken you cannot be denied any rights of an employee.
Now the facts are :-
(i) you are working in a post
(ii) you are part of a seniority list.
(iii) you might have cleared probation also so that further promotion can be due.
(iv) as apparent there is no reported lack of performance due to eyesight.
(v) you have been overlooked for promotion.
(vi) RR for higher post set no specific medical standard.
(vii) promotion is denied on medical ground
(viii)you have represented.
(ix) administration has no material to reply you in writing.
So now the case is fit and ripe enough to move to court. Hire advocate and file case in High Court.
ABHISHEK MAHESHWARI
(Querist) 16 November 2014
Sir the medical examination at the time of recruitment was comducted by company by its choice, at hospital decided by it
And report was directly submitted to the company,and is kept in company's record.
More over if it is assumed that I manipulated the facts then it is responsiblity of company to prove it.
I have a record of my regular medical checkup of last 10 years in which the vision acuity was observed same all the time.
As I already said there are no separate standards for clerks and officers, therfore if i am not fit for officer cadre then I am unfit for clerical cadre also.
Guest
(Expert) 16 November 2014
In your whole long discussion you do not seem to have stated anywhere whether you were asked to undergo for the fresh medical examination before consideration of your case for promotion or the promotion has been denied on account of your previous medical examination conducted at the time of recruitment.
ABHISHEK MAHESHWARI
(Querist) 16 November 2014
Dhingra sir please read my post to which you replied first time. I mentioned that a fresh medical done after I cleared the promotion exam and interview. In that medical I was declared unfit.
Sudhir Kumar, Advocate
(Expert) 16 November 2014
You have a good case to go to court. Now you have to engage a knowledgeable lawyer and there is no further use of blogging here.
Guest
(Expert) 16 November 2014
OK, whether medical exam of all the successful candidates was done or only yours after clearing the promotional exam?
ABHISHEK MAHESHWARI
(Querist) 16 November 2014
Thanks sir for your kind advise and guidance,
Everybody was gone under medical scanning it is mandatory for all selected candidates
Guest
(Expert) 16 November 2014
If all the candidates have undergone medical scannining, you may not be able to prove any discrimination of the management with you. For court case, you would need some solid evidence against the management, if you feel the management has tried to deviate from the set rules of recruitment and standards of vision. So, recheck the prescribed standards of vision for the promotional post, before you prepare for moving to the competent court.
Sudhir Kumar, Advocate
(Expert) 16 November 2014
If all candidates have faced medical examination you cannot prove discrimination.
But since the same test is not supported by any rule (as apparent from the facts so far disclosed) you can certainly argue against its illegality if no medical standard is prescribed to the post.
P.S. you stated it is mandatory. Please check how it is mandatory?
T. Kalaiselvan, Advocate
(Expert) 17 November 2014
The experts have rightly observed and properly viewed your case and also have suggested with some useful tips to how to solve the issue, especially the last leg of observation of the experts Mr. Dhingra and Mr Sudhir Kumar, who have noted that since all the candidates are required to undergo medical examination for the promotional post hence department cannot be held for discrimination or illegal to reject your candidature for the higher post, is meaningful. However, as advised, you may approach the higher competent authority or CAT for redressing your grievances in this regard. Not all the doors will be shut together, some may be kept open, make an entry through the doors kept open.
ABHISHEK MAHESHWARI
(Querist) 18 November 2014
thanks for al yours advices and guidance
Now I have option to move to the court.
Guest
(Expert) 18 November 2014
You are welcome.
