Delhi High Court - Orders
Ajay Meena vs Airport Authority Of India And Anr on 23 December, 2022
Author: Jyoti Singh
Bench: Jyoti Singh
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 17282/2022 & CM APPL. 54931/2022
AJAY MEENA ..... Petitioner
Through: Mr. Ranjit Sharma, Advocate
with Petitioner-in-person.
versus
AIRPORT AUTHORITY OF INDIA
AND ANR. ..... Respondents
Through: Mr. Digvijay Rai and
Mr. Archit Mishra, Advocates.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 23.12.2022
1. Present writ petition has been filed by the Petitioner seeking the following reliefs:
"i. issue an appropriate writ/order/Direction in the nature of mandamus, directing the respondents to carry out review medical examination of the petitioner and consider him for appointment as Junior Executive under the Airport Authority of India in terms of Advertisement No.02/2022 along with all consequential benefits;
AND ii. Pass such other order/s as may be deemed fit & proper."
2. Brief narrative of facts, shorn of unnecessary details is that being qualified and eligible, Petitioner applied for Junior Executive (Air Traffic Control) pursuant to an advertisement no. 02/2022 under the Airport Authority of India as an ST candidate. Petitioner was successful in the CBT, scoring 98.031 marks, which is evident from the CBT result. Thereafter, Petitioner was called for document verification on 04.10.2022, followed by viva voce test and testing for psychoactive substances. Petitioner cleared all the tests successfully, save and except, test for psychoactive substance in respect of one parameter namely, 'AMPHETAMINE SCREEN URINE.' In all other Signature Not Verified Digitally Signed W.P.(C) 17282/2022 Page 1 of 5 By:KAMAL KUMAR Signing Date:23.12.2022 21:20:29 respects the Test Report dated 07.11.2022, is in favour of the Petitioner.
3. The prime ground of challenge in the present writ petition is that the medical report dated 07.11.2022, as per which the test for 'AMPHETAMINE SCREEN URINE' is 'non-negative', itself notes that there are limitations of procedures and the test being limited only to screening, in case of 'non-negative' results, the same be confirmed by gas chromatography/mass spectrometry (GC/MS) and therefore, the Respondents should have put the Petitioner to the required confirmatory tests, before coming to a conclusion that the Petitioner is unfit for appointment.
4. Learned counsel for the Petitioner further submits that Petitioner has scored high marks in the merit and has cleared all other parameters of medical fitness and it would be unfair if he is rejected without giving a second chance for a review medical examination. It is also submitted that Petitioner has never consumed amphetamines or any other related drug and exhibits no symptoms which emerge by consuming the said drug. He further submits that amphetamine is a prescribed drug for weight loss and is not sold over the counter and it is only to substantiate his stand that the Petitioner is requesting for a review medical examination. Learned counsel places reliance on various orders of this Court to contend that even in recruitments relating to the Armed Forces and the Para Military Forces this Court has been directing conducting of Review Medical Boards and it can hardly be debated that the physical and medical standards required in the Forces are no less stringent than those in the ATC. Counsel for the Petitioner places reliance on orders passed by this Court in Faizan Siddiqui v. Sashastra Seema Bal, in W.P.(C) 7208/2008 decided on 03.05.2011 and Vipin Kumar v. Union of India & Anr., in Signature Not Verified Digitally Signed W.P.(C) 17282/2022 Page 2 of 5 By:KAMAL KUMAR Signing Date:23.12.2022 21:20:29 W.P.(C) 2341/2012 decided on 30.04.2012 as well as on an order of the Division Bench of this Court in Vicky v. Union of India & Ors., in W.P.(C) 4260/2016 decided on 13.05.2016.
5. Per contra, Mr. Digvijay, learned counsel appearing on behalf of the Airport Authority of India submits that it was stated in the call letter for document verification etc. that the candidate will be tested for various psychoactive substances which include amphetamine and it was made clear that non-negative test report for any of the psychoactive substances will lead to disqualification and the candidate will not be considered eligible. He further submits that the post in question is a sensitive post requiring the appointee to work in the Air Traffic Control and therefore medical fitness, more particularly, a negative test for psychoactive substances is a crucial requirement. Distinguishing the orders relied upon by the Petitioner, it is submitted that the said orders relate to recruitments in the Armed Forces/CPMf and cannot be applied in case of an appointment in the ATC. Petition is also opposed on the ground that there is no provision in the advertisement or in any Rules, which entitles the Petitioner to seek a second medical examination, more particularly, for the reason that a drug like amphetamine will not be detected in any test which is conducted at this stage.
6. I have heard learned counsels for the parties and examined their rival contentions.
7. From the facts of the case it is an undisputed position that Petitioner has successfully cleared all the tests and is high-up in merit. Insofar as the medical test is concerned, the medical report is in favour of the Petitioner, save and except, the test 'amphetamine screen urine', for which the test is non-negative. It is true that the candidates were informed that if they tested non-negative for any of the psychoactive Signature Not Verifiedsubstances they will stand disqualified for selection, however, it Digitally Signed W.P.(C) 17282/2022 Page 3 of 5 By:KAMAL KUMAR Signing Date:23.12.2022 21:20:29 cannot be overlooked that the medical report itself delineates the limitations of the procedure and provides that non-negative results 'must be' confirmed by gas chromatography/mass spectrometry (GC/MS). While it is the case of the Petitioner that he has never consumed amphetamine or any other drug, it is the case of the Respondents that the medical report is to the contrary. Considering the fact that the screening test conducted in the first instance may not portray a correct picture and keeping in backdrop the limitation of the procedures as also the fact that the Petitioner has placed on record a medical test report dated 07.12.2022 albeit of a private diagnostic centre, this Court deems it appropriate to refer the Petitioner for a review medical examination.
8. Petitioner has rightly placed reliance on several orders passed by this Court, both by learned Single Judges and the Division Bench, where the Courts have directed constitution of Review Medical Boards. In the peculiar facts of this case and seen holistically, keeping in background fact that Petitioner has cleared all other tests and is a meritorious candidate, this Court is of the view that Petitioner can be subjected to a Review Medical Test.
9. Accordingly, Medical Superintendent, Dr. Ram Manohar Lohia Hospital, is directed to constitute a Medical Board to examine the Petitioner and: (a) assess if there is any evidence of Substance Abuse, more particularly consumption of amphetamine; (b) examine the two medical reports and render an opinion thereon; and (c) if necessary conduct the confirmatory tests, as aforementioned i.e. gas chromatography/mass spectrometry (GC/MS).
10. Petitioner shall report on 29.12.2022 at 09.00 A.M. in the office of Medical Superintendent, Dr. Ram Manohar Lohia Hospital, Delhi, for medical examination. A Senior Officer from the Airport Authority Signature Not Verified Digitally Signed W.P.(C) 17282/2022 Page 4 of 5 By:KAMAL KUMAR Signing Date:23.12.2022 21:20:29 of India from ATC/CNS is at liberty to be present in the Hospital on 29.12.2022, when the Petitioner reports for examination.
11. Both the medical reports dated 07.11.2022 and 07.12.2022 shall be furnished to the concerned Authority by the Petitioner as well as by the Respondents, to avoid any discrepancy.
12. The Medical Board shall render its opinion within a period of four weeks from today and the same shall be sent in a sealed cover to the Registrar General of this Court.
13. List for further hearing on 02.02.2023.
JYOTI SINGH, J DECEMBER 23, 2022/shivam Signature Not Verified Digitally Signed W.P.(C) 17282/2022 Page 5 of 5 By:KAMAL KUMAR Signing Date:23.12.2022 21:20:29