Gujarat High Court
Naveen Venkata Yeluri vs The State Bank Of India on 19 July, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14643 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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NAVEEN VENKATA YELURI
Versus
THE STATE BANK OF INDIA & ANR.
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Appearance:
MS RAJVI PATEL(9620) for the Petitioner(s) No. 1
MR UDAY M JOSHI(380) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 19/07/2024
ORAL JUDGMENT
1. Heard learned Advocate Ms. Rajvi Patel on behalf of the petitioner and learned Advocate Mr. Uday Joshi on behalf of respondent- Bank.
2. Considering the nature of dispute the present petition is taken up for Page 1 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined final adjudication at this stage, with consent of all parties.
3. The present petition impugns a decision of the respondent- Bank of cancelling the offer of appointment given by the bank to the petitioner as a Probationary Officer on the ground of the petitioner not being medically fit for appointment.
4. Facts in brief as much as are necessary are enumerated hereinbelow:
4.1 On 05.10.2021 the respondent- Bank issued an advertisement for recruitment of Probationary Officer. The said advertisement inter alia envisage reservation of 4% to persons with benchmark disability as per Section 34 of the Rights of Persons with Disability Act, 2016. The total posts advertised were 2056 of which 20 posts were reserved for persons with locomotor disability. The petitioner falling under the said category since he has been diagnosed with Subtrochantric Femur Facture with Non Union. The disability referred to hereinabove had been certified by the medical authority under the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India. At this stage, it would also be relevant to mention that the petitioner is suffering from chronic kidney disease and has undergone kidney transplantation treatment in the year 2011.
4.2 The advertisement contemplated preliminary examination, online main examination and interview and whereas the petitioner having successfully cleared the same in the persons with disability category, the petitioner had been intimated vide a communication dated 15.03.2022 about being provisionally selected for appointment and having been allotted Page 2 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined Ahmedabad Circle and the petitioner being contacted for completing the formalities.
4.3 The said letter was forwarded by an E-mail dated 28.03.2022 whereby the petitioner was informed about document verification as well as about medical check up. The medical check up was scheduled at Apollo Hospital and whereas the petitioner was medically examined on 06.04.2022. It also appears that the petitioner had voluntarily got himself examined at a different hospital but to this Court since the said aspect may not be relevant for the present purpose the same is not being referred to. Vide a communication dated 25.04.2022, the petitioner was intimated about the Senior Medical Officer of the Bank having found the petitioner medically unfit. It was also intimated that appointment was subject to being declared medically fit and since the petitioner was certified otherwise therefore, the candidature to join the respondent Bank as Probationary Officer was cancelled and withdrawn. The petitioner being aggrieved by such a communication has preferred the present writ petition.
5. At this stage it would be relevant to refer to the report of Apollo Hospital as well as the report of Medical Examiner, which have been annexed with the affidavit-in-reply.
6. It appears that in medical examination dated 06.04.2022, it has been mentioned that the petitioner had undergone kidney transplant and is a case of chronic kidney disease. Based upon such report, the medical examiner of the respondent bank has opined that "he has chronic kidney disease, he is on dialysis. He was operated for kidney transplant in 2011." The said observation was in relation to Clause (14) of the report which inter alia Page 3 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined requires the medical officer to certify whether the health of the candidate in any way is likely to render him/her unfit for efficient discharge of duties in the service for the post in question.
7. It would also at this stage be profitable to refer to E Circular of the respondent bank dated 12.04.2012 whereby the bank has inter alia laid down the Standard of Fitness For New Recruits/Promotees. Clause C (ii)
(b) inter alia envisages that medical examiners should take opinion of Specialists before finalizing report and whereas the medical examiners should consider whether the candidate is fit for continuous service in the bank and whereas certain ailments like kidney ailments, congential heart diseases etc. were not to be missed. Circular at C (ii)(b) inter alia envisages that for kidney failures while Genito- Urinary Tract examination and investigations should be carried out, it is also stated that before declaration of a candidate as unfit, a Urologist report mentioning reason for disqualification was essential.
8. With the above factual background, the Court will now examine the contentions raised by learned Advocates for both the sides.
9. Learned Advocate Mr. Rajvi Patel for the petitioner would submit that the petitioner was wrongly declared as unfit more particularly it is contended that the guidelines of the Bank itself requires that a Specialist/Urologist report should be called for before the candidate is declared unfit for service. It is submitted that the medical officer having not sought for a Specialist/Urologist's report, the declaration of unfitness was not in accordance with the policy and therefore, this Court should intervene.
Learned Advocate would submit that merely being a case of kidney Page 4 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined transplant or requiring to undergo dialysis thrice a week, ought not to have been aspects which would have rendered the petitioner unfit for appointment. Thus submitting learned Advocate would request this Court to set aside the impugned order and to declare the petitioner fit for appointment.
10. As against the same, the present petition is vehemently opposed by learned Advocate Mr. Uday Joshi on behalf of the respondent- bank who would submit that the present petition is not maintainable before this Court more particularly on account of the bar of jurisdiction as mentioned at Clause (16) (XVII) of the advertisement which specifically states that only Mumbai Courts would have sole exclusive jurisdiction to try any cause/dispute arising out of the advertisement. Learned Advocate would further submit that the medical officer had clearly observed in his opinion that the petitioner was unfit for service more particularly since the petitioner was a case of kidney transplant and require dialysis thrice a week. Learned Advocate would submit that the report being unambiguous and the petitioner not denying that he is a patient of chronic kidney disease and had also undergone kidney transplantation, therefore, there was no further requirement of calling for opinion of Specialist/Urologist. Learned Advocate would also submit that as such the present case does not fall within the ambit of the Persons with Disability Act and whereas under
such circumstances reference to the said Act was completely misconceived. Thus submitting learned Advocate Mr. Joshi would request this Court to reject the writ petition.
11. In rejoinder, learned Advocate Ms. Patel would submit that since the policy of the Bank itself envisages calling for report from a Page 5 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined Specialist/Urologist, the said procedure could not have been bypassed.
12. Learned Advocate insofar as the contention regarding the petition not being maintainable would refer to decision of the Hon'ble Supreme Court in case of Maharashtra Chess Association vs. Union of India reported in 2020 (13) SCC 285 whereby according to learned Advocate Ms. Patel in a similar situation, the Hon'ble Supreme Court had inter alia observed that existence of alternative adequate remedy would not be a bar against High Court exercising jurisdiction under Article 226 of the Constitution of India. Thus submitting learned Advocate would request this Court to allow the writ petition.
13. Heard learned Advocates for the respective parties and perused the documents on record. The following issues arise for consideration of this Court namely [1] Whether Clause (16) (XVII) in the advertisement which states about disputes to be raised within Bombay High Court or before Bombay Courts would outs the jurisdiction of this Court and (2) Whether the petitioner was erroneously declared as unfit since the medical officer did not call for a report from Specialist/Urologist before declaring the petitioner as unfit for service.
14. Insofar as the first question is concerned, it would be apposite to refer to Clause 16(xviii) of the advertisement which reads as thus:
"16(xvii) Any legal proceedings in respect of any matter, claim or dispute arising out of this advertisement and/or an application in response thereto can be Page 6 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined instituted only in Mumbai and Courts /Tribunal Forums at Mumbai only shall have sole and exclusive jurisdiction to try any cause dispute."
15. It is the contention on part of the learned Advocate for the respondent that the above clause conferring jurisdiction on Courts within Mumbai being the Courts which could try a dispute arising from the advertisement, the writ petition before this Court was not maintainable. In this regard it would be beneficial to refer to decision of the Hon'ble Supreme Court in case of Maharashtra Chess Association (supra) wherein the Hon'ble Supreme Court was considering a similar situation. It would appear that by-law of the second respondent before the Hon'ble Supreme Court inter alia laid down that all suits/legal actions against the federation shall be instituted in the Court at Chennai where the registered office of All India Chess Federation is situated and functioned. It would appear that the second respondent All India Chess Federation was joined as a respondent in a writ petition filed by the Maharashtra Chess Association and a preliminary objection had been raised before the Bombay High Court as regards the jurisdiction of the Bombay High Court being ousted on account of the Clause referred to hereinabove. The said contention had found favour with the Bombay High Court and whereas the Hon'ble Supreme Court vide the said decision reversed findings of the Bombay High Court. Observations of the Hon'ble Supreme Court at paragraphs no. 21 and 22 being relevant for the present purpose is reproduced hereinbelow:
"21. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter.
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"22. This brings us to the question of whether Clause 21 itself creates a legal bar on the Bombay High Court exercising its writ jurisdiction. As discussed above, the writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction. This is in marked contradistinction to the jurisdiction of a civil court which is governed by statute. In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case.
16. The above observations clearly indicate that writ jurisdiction of a High Court being discretionary existence of an alternate adequate remedy is merely an additional factor to be considered while deciding whether to exercise the writ jurisdiction or not. The High Court according to the Hon'ble Supreme Court is required to take a holistic view of the facts to determine whether the petition should be entertained or not. The Hon'ble Supreme Court has explained the holistic view at paragraphs no. 23 and 24 of the said decision and whereas the said paragraphs are also quoted hereinbelow for benefit:
"23. At this juncture it is worth discussing the decision of this Court in Aligarh Muslim University v Vinay Engineering.15 In that case, the contract between the parties contained a clause conferring jurisdiction on the courts at Aligarh. When the High Court of Calcutta exercised its writ jurisdiction over the matter, this Court held:
"2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh Court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Page 8 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable."
24 The court examined the facts holistically, noting that the contract was executed and to be performed in Aligarh, and the arbitrator was to function at Aligarh. It did consider that the contract conferred jurisdiction on the courts at Aligarh, but this was one factor amongst several considered by the court in determining that the High Court of Calcutta did not have jurisdiction."
17. Now considering the facts of the present case holistically it would appear that while the advertisement itself had been issued by the respondent Bank through its Central Recruitment and Promotion Department Corporate Center, Mumbai yet it would also appear that the petitioner was based in Ahmedabad. The petitioner had applied for Ahmedabad and the petitioner appeared in the preliminary examination which was held at Ahmedabad. After clearing the preliminary examination, the petitioner had been called for online main examination which was held at Ahmedabad. Having cleared the online main examination, the petitioner was called for interview and whereas the venue for interview was also at Ahmedabad. The document verification of the petitioner was held at Gandhinagar i.e within the State of Gujarat and the medical examination of the petitioner was also conducted at Apollo Hospital Ahmedabad. Thus it would appear that as far as the petitioner is concerned, except for the advertisement being issued by the recruitment centre of the bank at Mumbai, all other events from preliminary examination to document verification and medical examination had taken place in Ahmedabad or within the State of Gujarat. Thus in the considered opinion of this Court, taking a holistic view of the matter, the present dispute is required to be heard by this Court since all except one of Page 9 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined the event which has led to filing of this petition had taken place in Ahmedabad or within the State of Gujarat i.e within the territorial jurisdiction of this Court.
18. Thus considering, clause 16(xviii) of the advertisement would not oust the jurisdiction of this Court and while there would not be any bar against exercise of discretion, even taking a holistic view of the entire dispute, this Court is of the considered opinion that the present dispute should be adjudicated by this Court.
19. As far as question no. 2 is concerned, the relevant portions of the applicable circular dated 12.04.2012, are reproduced hereinbelow for benefit:
STANDARDS OF MEDICAL FITNESS FOR THE NEW RECRUITS/PROMOTEES:
B. General Guidelines:
"(c) Wherever considered necessary, Medical Examiners should take the opinion of specialists before finalising the report. They should always consider whether the candidate is fit for continuous service in the Bank for a long period.
Cases such as kidney ailments, congenital heart diseases, rheumatic heart, malignant hypertension, diabetes, juvenile/or otherwise and HIV positive cases should not be missed.
(d) In the cases where, despite a specialist's opinion, the Medical Examiner is unable to come to a final conclusion regarding the fitness or otherwise of the candidate, he may obtain the opinion of a second specialist. Even then if the Medical Examiner finds any difficulty in coming to a conclusion about fitness or otherwise of a candidate, he may refer such cases to the Bank's Senior Medical Officer at Local Head Office through the Asstt. General Manager (PER&HRD). If necessary, the Circle authorities may refer these cases to Corporate Centre for guidance in the matter.
(e) It may be clarified that in the final evaluation of the candidate's health,
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NEUTRAL CITATION
C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024
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Specialist's opinion is a very important aspect in declaring the candidate fit/unfit for service. While declaring a candidate unfit for service, the Medical Examiner should clearly state the reasons for arriving at this conclusion. In cases where the Medical Examiner considers that a minor disability disqualifying a candidate for Bank's service can be cured by treatment (surgical/medical) within a reasonable period of time, say, 3 to 6 months, a statement to that effect should be recorded in the report."
C. Standards of Fitness for New Recruits / Promotees
(ii) SYSTEMATIC EXAMINATION
(b) Complete check-up of Genito Urinary System with stress on testicles
(males), hydrocele or hernia, etc. should be detected if any. If hydrocele or hernia of minor or major degree is present the candidate should be advised to undergo an operation and then should be referred for fresh examination.
A routine urine test should be carried out. In urine, the presence of Glycosuria would necessitate Glucose Tolerance Curve. If considerable albuminaria is present, the candidate should be rejected after a thorough investigation.
Of late, there have been many cases of kidney failures, resulting in a transplant. Hence Genito-Urinary Tract examination and investigations should be carried out by Medical Examiner. In evaluation of such cases. Congenital Kidney Tumours, Nephritis Pyeletes. Pyelo Nephritis. Malignant Hypertension and such cases which damage the kidney in due course, would be disqualification for service. However, before declaring a candidate as unfit on these accounts an Urologist's report clearly mentioning the reasons for disqualification is essential."
20. A perusal of the above quoted paragraphs would indicate that the general guidelines with regard to standard of medical fitness for new recruits/ promotees inter alia state about the importance of a specialist.
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While clause (c) confers discretion on the medical examiner to take opinion of specialist, the overall evaluation of candidate health by a specialist is declared to be an important aspect for holding the candidate fit/unfit for service as per clause (c).
20.1 The issue acquires further importance when one considers the standard of fitness for new recruits more particularly the clauses pertaining to systematic examination of the candidates. Clause C (ii) (b) inter alia states that there have been cases of transplant recently and whereas Genito- Urinary Tract Examination should be carried out by medical examiner and in such evaluation "Congenital Kidney Tumours, Nephritis Pyeletes, Pyelo Nephritis and Malignant Hypertension would be a disqualification for service." Having observed as thus, the guidelines require a Urologist report clearly mentioning reason for disqualification being essential.
21. At this stage, the reference is made to the report of medical examination which had declared the petitioner unfit for service. The medical examiner had declared the petitioner unfit on account of chronic kidney disease, chronic renal disease and hemodialysis thrice a week. Clause C (ii)
(b) reproduced hereinabove does not contemplate the ailments as mentioned by the medical examiner as being a disqualification for appointment.
22. At this stage, this Court seeks to rely upon decision of Division Bench of this Court in case of Rajdeepsinh Takhatsinh Zala vs. State of Gujarat in Letters Patent Appeal No. 1136 of 2018 dated 02.11.2018. Paragraphs no. 10, 11 and 12 of the said decision being relevant for the present purpose are quoted hereinbelow for benefit:
Page 12 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined "10. In the backdrop of the aforesaid facts as emerging from the record, the legal position is required to be examined. The Supreme Court in Union of India v.
Satya Prakash Vasisht, 1994 Supp (2) SCC 52, has, after perusing the relevant rules as applicable in the facts of the said case, observed that it was clear that the requirement that the candidate should be free from colour blindness is only for the post of Drivers and traffic staff in sub-clause (ii) and that does not apply to sub-clause (i) relating to Constables, Head Constables and Sub-Inspectors (Executive). The court held that it was obvious that the disqualification of colour blindness has no application to subclause (iii). The court observed that there was clearly discernible basis for the disqualification of colour blindness for persons appointed as Drivers and traffic staff, the nature of whose duties are different from that of a Sub-Inspector (Executive).
11. Moreover, a Division Bench of this court in Khant Harishchandra Amarsinh v. Superintendent of Police (supra) has, in a similar set of facts, held that when there was no provision which disqualified or rendered "colour blindness" unfit for the post of Unarmed Police Constable, the termination of the services of the petitioner therein could not be said to be in consonance with the terms of his appointment. The court held that merely because the order of appointment stipulated that the appointment was subject to medical unfitness, does not necessarily ipso facto lead to unerring inference that such an appointment, despite the colour blindness certified by the Medical Board is not legal and proper. The court held that whether a particular type of unfit certificate by the Medical Board would be ground of termination of service or cancellation of the appointment order or not, will have to be adjudicated upon the terms and conditions of the service and the governing rules. It cannot be ipso facto judged that the colour blindness is itself disqualification for any post in question.
12. In the light of the law laid down in the above decisions, it clearly emerges that in case any candidates are sought to be disqualified on the ground that they suffer from colour blindness, there has to be a specific provision in the rules providing for such disqualification. In the facts of the present case, a perusal of the relevant Page 13 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined rules clearly indicates that no such disqualification has been provided for the post in question. Under the circumstances, it is not permissible for the respondents to adopt a stand that the appellants herein are not qualified for the post of Lok Rakshak. The learned Single Judge was, therefore, not justified in holding that every kind of deficiency or incapacity is not to be mentioned in the recruitment rules, and therefore, merely because it has not been specifically provided in the rules, it cannot be presumed that the petitioner therein should be treated as medically fit in spite of negative opinion after the examination."
23. From the observations of the Division Bench, it clearly appears that when a candidate is disqualified on the ground of suffering from a particular ailment, then there has to be a specific provision in the Rules, which provides that disqualification on the basis of such ailment. As noted hereinabove, neither chronic kidney disease nor chronic renal disease nor hemodialysis has been mentioned as a disqualification.
23.1 With regard to the above it requires to be emphasized that the circular as referred to and quoted hereinabove, inter alia states that in case of kidney failure resulting in transplant, while appropriate investigation should be carried out by the medical examiner and whereas certain specific ailments have been mentioned as a disqualification for service. The report of the medical examiner does not refer to any of the diseases mentioned in the sub-paragraph. Thus it would appear very clearly that the petitioner has been declared unfit on very general basis i.e. suffering from chronic kidney disease without specifying whether the same falls under the category as found in Clause C (ii) (b) at its sub-paragraphs.
24. Having observed as thus now this Court would consider as to the reliefs which could be granted. While as noted hereinabove the medical Page 14 of 15 Downloaded on : Fri Aug 02 22:41:51 IST 2024 NEUTRAL CITATION C/SCA/14643/2022 JUDGMENT DATED: 19/07/2024 undefined examiner has declared the petitioner unfit on basis of certain conditions which as noted hereinabove were not a disqualification as per the Circular, therefore, the cancellation of the offer of appointment made to the petitioner is clearly unsustainable and is required to be interfered with. Therefore, impugned communication dated 25.04.2022 is hereby quashed and set aside.
25. The respondents are directed to give appointment to the petitioner as a Probationary Officer and whereas if the petitioner completes the probation successfully, then the petitioner shall be entitled to appointment with effect from the date when the candidates selected as Probationary Officer pursuant to the selection in question were given appointment on long term basis. In view of the peculiar facts of this case, there shall not be any financial benefits in favour of the petitioner.
26. With the above observations and directions, the present petition stands disposed of as allowed.
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