Delhi High Court
Union Of India vs Ms. Satwinder Kaur on 10 July, 2014
Author: Vipin Sanghi
Bench: S. Ravindra Bhat, Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 10.07.2014
% W.P.(C) 1144/2014
UNION OF INDIA ..... Petitioner
Through: Mr. Malaya Kumar Chand, Advocate.
versus
MS. SATWINDER KAUR ..... Respondent
Through: Ms. Sahila Lambha & Ms. Karuna
Chhatwal, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The petitioner has preferred the present writ petition under
Article 226 of the Constitution of India to assail the order dated
13.11.2013 passed by the Central Administrative Tribunal, Principal
Bench, New Delhi ("CAT" in short) in O.A. No.2649/2012,
whereby:(i) the CAT allowed the aforesaid original application, and
quashed the orders dated 03.05.2012 and 19.06.2012 issued by the
petitioner, whereby the respondent was declared as medically "unfit"
by the Medical Board and the Appellate Medical Board of the
petitioner respectively, and; (ii) it directed the petitioner to take
consequential steps with respect to the respondent's selection for
Engineering Services Examination - 2011 in accordance with the
rules & instructions, within a period not exceeding four months from
W.P.(C.) No.1144/2014 Page 1 of 11
the date of receipt of the impugned order.
2. The respondent has a Bachelors Degree in Engineering from
Thapar University, Patiala in Electronics & Communication, having
secured 73.3% marks in the year 2008. The respondent joined M/s
HCL Technologies Limited as a Software Engineer and served in the
said organisation between 30.07.2008 and 17.12.2009. The
respondent appeared in the Engineering Services Examination - 2011
conducted by the Union Public Service Commission ("UPSC" in
short) in May 2011. The selection process for the said examination
consisted of a written test followed by personality test/ interview. The
selected candidates were required to undergo medical examination
before their recruitment.
3. It is not in dispute that the respondent was declared selected to
Electronics and Telecommunication Group on the basis of written
examination and interview results. The respondent attained merit
position No.129 in the final list of successful candidates. The
respondent was then called for medical examination at Lalit Narayan
Mishra Railway Hospital, North Eastern Railway, Gorakhpur on
19.04.2012. The respondent appeared before the Medical Board.
Respondent No.2, namely the Ministry of Railways declared the
respondent medically "unfit" for all the services, namely IRSSE,
AEE(EME), IOFS, INAS, ANSO, WPC/MO, IRSS, ISS, ITS Gp 'A'
and ITS Gp 'B' in JTO on account of her suffering from Systemic
Lupus Erythematosus ("SLE" for short).
W.P.(C.) No.1144/2014 Page 2 of 11
4. The respondent got herself examined at Post Graduate Institute
of Medical Education and Research ("PGIMER" in short),
Chandigarh. Dr. Shefali K. Sharma, Assistant Professor, Department
of Internal Medicine, PGIMER, Chandigarh, upon examination of the
respondent issued a certificate dated 14.05.2012 certifying that the
respondent was suffering from SLE. She further stated in the
certificate that:
"SLE is a chronic disease with a varied spectrum. She
has only skin involvement and no major organ is
involved. Also since the last one year the skin problem is
quiescent on minimal treatment.
On examination she has residual scars of a previous SLE
rash and alopecia. No other systemic abnormalities are
present. Her investigations reveal normal hemogram,
renal function test, liver function test, urine routine and
chest x-ray.
I strongly recommend that she is medically fit."
5. The respondent preferred an appeal for her second medical
examination supported by the aforesaid medical certificate. The
respondent was medically examined by the Appellate Medical Board
at North Central Railway Hospital, Allahabad on 04.06.2012 and once
again declared her "unfit" on the same ground vide communication
dated 19.06.2012.
6. The respondent again went back to PGIMER, Chandigarh for
medical examination and she was once again declared medically "fit"
vide certificate dated 31.07.2012, again issued by Dr. Shefali K.
W.P.(C.) No.1144/2014 Page 3 of 11
Sharma. The certificate issued by Dr. Shefali K. Sharma on this
occasion reads as follows:
"This is to certify that Miss Satwinder Kaur D/o Mr.
Gurbax Singh, 25/F CR No. 201102756529 is suffering
from Systemic Lupus Erythematosus (SLE) which is a
chronic disease with a varied presentation.
My patient has only skin involvement and no major organ
is involved. Also since the last one year the skin problem
is quiescent on minimal treatment.
She is fit to do any kind of job. She is living a normal
life.
On examination she has residual scars of a previous SLE
rash and alopecia. No other systemic abnormalities are
present. Her investigations reveal normal hemogram,
renal function test, liver function test, urine routine and
chest x-ray."
7. In the aforesaid background, the respondent preferred the
original application before the CAT, Principal Bench, New Delhi.
8. The grievance of the respondent was that a proper medical
examination was not conducted by the petitioner. It was also the
respondent's case that the petitioner had not objectively assessed the
respondent's case and had not examined whether her medical
condition, i.e. the disease SLE was such as to interfere in the
discharge of her responsibilities while in service. Merely because the
said disease is uncurable and chronic, she could not be declared
"unfit".
W.P.(C.) No.1144/2014 Page 4 of 11
9. The grievance of the respondent was that the opinions of the
Medical Board as well as the Appellate Medical Board did not contain
any reasons for the same. Even though the medical certificate issued
by Dr. Shefali K. Sharma was placed before the Appellate Medical
Board, the said Appellate Medical Board did not indicate any reasons
for its disagreement with the said medical certificate.
10. The CAT in its order concluded that neither the opinion of the
Medical Board, nor that of the Appellate Medical Board contain the
basis on which the opinion with regard to the unfitness of the
respondent was confirmed. The CAT observed that the said opinions
were non-speaking, and thus, do not comply with the principles of
natural justice. This was so, particularly in the face of the medical
opinion of Dr. Shefali K. Sharma.
11. The CAT also observed that the main object of the medical
examination was to examine whether the candidate could render
continuous effective service for the petitioner. In this respect,
reference was made to a Gazette notification dated 08.01.2011 bearing
No.2010/E.(GR)I/18/2, whereby the Engineering Services
Examination Rules -2011 were notified by the Ministry of Railways
(Railway Board). The CAT relied upon paragraph 13 of Appendix-II
which sets out the regulations relating to physical examination of
candidates. The said paragraph, in effect, states that "in case of doubt
regarding health of a candidate the Chairman of the Medical Board
may consult a suitable Hospital Specialist to decide the issue of fitness
or unfitness of the candidate for Government Service. ..... ..... ..... .....
W.P.(C.) No.1144/2014 Page 5 of 11
When any defect is found it must be noted in the certificate and the
medical examiner should state his opinion whether or not, it is likely
to interfere with the efficient performance of the duties which will
be required of the candidate".
12. The CAT held that in the present case, there was no evidence to
suggest, nor had the petitioner stated, that any reference was made to
consult a suitable hospital specialist to decide on the fitness, or
otherwise, of the respondent and that there was no conclusion, much
less any material to support the conclusion, that the respondent was
medically "unfit" such that the unfitness is likely to interfere with the
efficient performance of the duties, which would be required of her.
13. The Tribunal also considered the fact that Dr. Shefali K.
Sharma was aware of the purpose of the respondent's medical
examination - that the respondent had applied for the service in
question, and on that basis, she had opined that the respondent was
"fit" for the job. The extent of the respondent's disease was also
taken note of, by observing that only the respondent's skin was
involved and there was no major organ involved in the disease. The
fact that the respondent had worked for over a year with M/s HCL
Technologies Ltd. as a Software Engineer between the period
30.07.2008 and 17.12.2009, was also taken note of.
14. The CAT also placed reliance on the decision of the Bombay
High Court in Ranjit Kumar Rajak Vs. State Bank of India, 2009 (5)
BomCR 227, and a few other decisions, including those of this Court
W.P.(C.) No.1144/2014 Page 6 of 11
and the Supreme Court.
15. The submission of learned counsel for the petitioner is that the
SLE is not a curable disease and complete sustained remissions are
rare. He submits that the Medical Board as well as the Appellate
Medical Board consisted of experienced, qualified and competent
medical doctors. The Medical Board consisted of one Physician, one
Surgeon, one Eye Surgeon and two co-opted members including one
Dermatologist and Gynaecologist, who were competent to give their
opinion with regard to the medical fitness/ unfitness of the candidate.
The Appellate Medical Board consisted of one Physician, one
Surgeon, one Ophthalmologist along with a Senior DMO. The
submission is that the Medical Board had a senior qualified Physician
with the same basic qualifications as that of Dr. Shefali K. Sharma,
Assistant Professor, Department of Internal Medicine, PGIMER,
Chandigarh.
16. Learned counsel submits that the purpose of conducting
medical examination of the successful candidates is to ensure that the
recruited candidates are able to render efficient and continuous service
to the petitioner, and the disease does not interfere with the efficient
performance of the duties, which would be required of the recruited
candidates. Learned counsel submits that the fact that the Medical
Board, as well as the Appellate Medical Board, had opined that the
respondent was "unfit" shows that the said Medical Boards had
considered the aspect whether the medical condition of the respondent
would interfere with the efficient performance of her duties, which
W.P.(C.) No.1144/2014 Page 7 of 11
would be required of the respondent.
17. On the other hand, the submission of learned counsel for the
respondent is that all manifestations of SLE are not debilitating. She
submits that neither the Medical Board, nor the Appellate Medical
Board have opined with regard to the effect that SLE has had on the
respondent. On the other hand, Dr. Shefali K. Sharma has opined that
only the respondent's skin is involved in the said disease, and no
major organ is involved. She has further opined that the respondent
has residual scars of a previous SLE rash and alopecia. No other
systemic abnormalities were found to be present. The respondent's
investigations reveal normal hemogram, renal function test, urine
routing and chest x-ray. She submits that merely because the
respondent is suffering from SLE, she does not automatically become
liable to be declared "unfit", as it needed examination by the Medical
Board and the Appellate Medical Board whether the said disease was
such as to interfere with the efficient performance of her duties, which
would be assigned to the respondent.
18. She submits that even though the respondent had placed the
first medical certificate issued by Dr. Shefali K. Sharma - certifying
her to be medically "fit" before the Appellate Medical Board, the
Appellate Medical Board has neither dealt with the said medical
certificate, nor addressed the issue whether the manifestation of SLE
in the respondent was such as to interfere with the efficient
performance of her duties, which would be required of the respondent.
W.P.(C.) No.1144/2014 Page 8 of 11
19. Having heard learned counsel for the parties, perused the
documents and the impugned order, we are of the opinion that there is
no illegality in the order passed by the CAT, which would call for
interference by this Court in exercise of its power of judicial review.
20. No doubt, the opinion of the Medical Board and the Appellate
Medical Board cannot be contested by resort to medical opinion of
another specialist in the field. However, it is evident that neither the
Medical Board, nor the Appellate Medical Board have addressed
themselves to the issue whether the defect/ disease suffered by the
respondent, and its manifestation, is likely to interfere with the
efficient performance of duties by the respondent required of her. The
petitioner has proceeded only on the basis that the respondent is
suffering from a chronic disease.
21. The petitioner has relied upon paragraphs 11(i) and 11(k) of
Appendix-II of the aforesaid rules which, in effect, state that the
Medical Board should observe the following additional points: "(i)
that he does not suffer from any inverterate skin disease; ..... ..... .....
(k) that he does not bear traces of acute chronic disease pointing to
an impaired constitution;". The Medical Board, as well as the
Appellate Medical Board, appear to have proceeded only on the basis
that the respondent suffers from SLE, which is uncurable and a
chronic disease. However, that, by itself, could not have been a
ground to reject the respondent's case as being medically "unfit".
Before doing so, the Medical Board as well as the Appellate Medical
Board ought to have examined whether the disease, or defect was
W.P.(C.) No.1144/2014 Page 9 of 11
likely to interfere with the efficient performance of her duties, which
would be required of the respondent. On this aspect, there is no
opinion given by either by the Medical Board, or the Appellate
Medical Board despite the fact that, at least, the Appellate Medical
Board was aware of the medical opinion given by another expert,
namely Dr. Shefali K. Sharma, Assistant Professor, Department of
Internal Medicine, PGIMER, Chandigarh.
22. It also appears that the petitioner did not take care to constitute
the Medical Board, as well as the Appellate Medical Board, with due
application of mind. When the respondent was found to be suffering
from SLE, in the Appellate Medical Board, the petitioner should have
ensured the inclusion of a medical doctor with expertise in the
relevant field, i.e. in the field of internal medicine. The petitioner
appears to have gone about the rejection of the respondent's
candidature in a casual manner, which betrays non-application of
mind by the Appellate Medical Board to the relevant considerations.
23. Merely because a disease may be chronic, or uncurable, it
cannot lead to medical unfitness for seeking employment with the
respondent. For example, Diabetes can be chronic and incurable. Can
it be said that a patient of Diabetes would be denied employment by
the petitioner without any other considerations? In our view, the
answer cannot be an absolute 'No'. It would need examination as to
what is the nature of employment; what are the conditions of service,
the nature of duties and responsibilities to be performed by the
candidate, if appointed; and such other relevant considerations before
W.P.(C.) No.1144/2014 Page 10 of 11
answering the issue whether the candidate is 'fit' or 'unfit' for the job
in question. The aforesaid aspects have not been considered either by
the Medical Board, or by the Appellate Medical Board. The
respondent is a Computer Engineer and her job would entail working
on the computer in an office environment. There is nothing on record
to suggest that she would not be able to efficiently discharge her
duties & responsibilities, if employed by the petitioner, particularly
when she has successfully rendered service for over a year with an
established Indian entity in the field of computers.
24. For the aforesaid reasons, we are not inclined to interfere with
the impugned order and, accordingly, dismiss this petition leaving the
parties to bear their respective costs.
VIPIN SANGHI, J.
S. RAVINDRA BHAT, J JULY 10, 2014 B.S. Rohella W.P.(C.) No.1144/2014 Page 11 of 11