Central Administrative Tribunal - Delhi
Satwinder Kaur vs Union Public Service Commission on 13 November, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2649 of 2012
New Delhi this the 13th day of November, 2013
Honble Mr. Ashok Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
Satwinder Kaur
15-D, Century Enclave,
Phase-2, Nabha road,
Patiala, Punjab-147001.
. Applicant
(By Advocate: Shri Joginder Sukhija)
VERSUS
Union Public Service Commission
Through the Secretary,
Dholpur House, Shahjahan Road,
New Delhi-110069.
Government of India
Through the Secretary,
Ministry of Railways,
Rail Bhawan, New Delhi.
...Respondents
(By Advocate: Shri Rajiv Manglik)
O R D E R
Ashok Kumar, Member (A):
The applicant is aggrieved by her rejection of candidature from Engineering Services Examination, 2011 by the respondents on the ground of medical unfitness by a medical examination conducted on 19.04.2012 as well as by the Appellate Medical Board, which conducted her medical examination on 04.06.2012.
2. It is stated in the OA that the applicant had applied for the Engineering Services Examination, 2011 and had qualified in the written test as part of the selection process. Subsequently, she also appeared for interview/personality test. Based on her performance in both these tests, she was declared selected to Electronics & Telecommunication Group by respondents at Merit No.129 in the final list of the successful candidates. She was, therefore, called for medical examination at Lalit Narayan Mishra Railway Hospital, Gorakhpur on 19.04.2012 and states that she appeared before the Medical Board but was not medically investigated in detail. Vide their letter dated 03.05.2012 ( Annexure A-1), the respondents declared the applicant medically unfit for all (IRSSE, AEE (EME), 10FS, INAS, ANSO, WPC/MO, IRRS, ISS, ITS Gp. A and ITS Gp B in JTO) on account of Systemic lupus erythematosis (hereinafter referred to as SLE). She, therefore, got herself examined subsequently at Postgraduate Institute of Medical Education and Research, Chandigarh (hereinafter referred to as PGIMER, Chandigarh) where she was investigated and findings were certified vide letter dated 14.05.2012. Dr.Shefali K.Sharma, Assistant Professor in Department of Internal Medicine, recommended that she is medically fit vide letter dated 14.05.2012 (Annexure A-9). The applicant preferred an appeal for a second medical examination duly supported by the medical certificate issued by Dr. Shefali K. Sharma as aforenoted, but the Appellate Medical Board also declared her unfit for all services on account of Systemic Lupus Erythematosis and while doing so did not disclose the tests conducted by them on the applicant or other scientific reasons for such finding. The applicant then again submitted herself for examination at PGIMER, Chandigarh and vide letter dated 31.07.2012 (Annexure A-11) of the same Doctor, namely Shefalli K. Sharma, she was again certified as medically fit by the said Institute.
The rejection of the applicants candidature by declaring her unfit vide medical certificate dated 03.05.2012 as well as the medical certificate dated 19.06.2012 issued by the Appellate Medical Board has been assailed by the applicant on the ground of rejection being arbitrary and discriminatory and violative of the fundamental rights of the applicant, as guaranteed under Articles 14 & 16 of the Constitution of India, and further that the decision of rejection of the applicants candidature has no nexus to the objective of the selection process for ensuring physical and medical fitness of the candidates. It has also been stated that the two medical examinations were not conducted by the person, who had relevant expertise, are not based on relevant material, and even the available material was not considered rationally. No details of investigation have been carried out or forwarded while Dr. Shefali K. Sharma, Assistant Professor in the PGI, Chandigarh has given details of investigations conducted by her on the applicant. The applicants case is also that under this chronic disease SLE, she has skin involvement, which does not obstruct normal living and day to day life. Moreover, the applicant has served M/s HCL Technologies Ltd. as Software Engineer without any complaint on account of her medical unfitness. No major organ of the applicant has been involved in the said disease and the medical certificate issued by Dr. Shefali K. Sharma, Assistant Professor, PGI, Chandigarh stated that she was fit to do any kind of job and she was strongly recommended for any kind of job. Moreover, the disease had no impact on functional efficiency of the applicant and would not interfere with her efficiency as an Engineer in future because it only had a mild effect without major involvement of any organ. On the other hand, while assessing the medical fitness of a candidate for appointment the only requirement is that the candidate should be free from any physical defect likely to make interference with the efficient performance of the duties on appointment, which is not the case as is borne out by the medical certificate issued by the Expert of PGI, Chandigarh and the satisfactory performance of her duties with M/s HCL Technologies Ltd. during her period of employment.
3. The applicant has, therefore, sought relief by way of quashing of the medical unfitness communicated vide letter dated 0305.2012 based on medical examination conducted on 19.04.2012, and the communication dated 19.06.2012 issued by the Appellate Medical Board on the basis of medical examination conducted on 04.06.2012 declaring her Unfit for all services and further in consequence thereof to declare her medically fit to be selected in service being a successful candidate of the Engineering Services Examination 2011. In addition, she has sought a direction to the respondents to select her for the said Examination as being medically fit to join the said service.
4. On the other hand, respondents have averred that the applicant was herself aware of the fact of the tests conducted upon her by the Appellate Medical Board and that in terms of the instructions contained in Railway Boards letter No.2011/E(GR)I/7/3 dated 29.05.2012, the applicant had appeared for medical re-examination by a second medical board, i.e. the Appellate Medical Board constituted on the basis of an appeal made by her to the Railway Board. She had earlier been examined at Lalit Narayan Mishra, Railway Hospital, North Eastern Railway, Gorakhpur on 19.04.2012 and was declared unfit in all the six Engineering Service Examination categories and was subsequently examined in consonance with Railway Boards letter No.2010/E(GR)I/7pt dated 16.05.2012 (Annexure R-1) by an Appellate Medical Board consisting of Physician, Surgeon, Ophthalmologist and a DMO of the Central Hospital, North Central Railway, Allahabad. She was found to be unfit on account of SLE, evident from the presence of classical skin lesions, as accepted by the candidate herself, and confirmed by the medical records produced by her. She was subjected to proper and complete investigations as all the routine required investigations were carried out. Detailed specialized investigations required for pin-pointing clinical stage following disease course and/or guidance for treatment of the disease were not carried out for obvious reasons, as the same were not indicated in the instant case. The certificate dated 31.07.2012 issued by the PGIMER, Chandigarh also stated that the applicant was suffering from SLE. It is also contended in the replythat the even in the first medical board at Gorakhpur, one physician, one surgeon, one eye surgeon and two co-opted members including one Dermatologist and one Gynecologist were present in the Board. In the second appellate medical board at Allahabad on 04.06.2012, one physician, one surgeon, one Ophthalmologist along with a Senior DMO were present. The above 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, Chandigrah. The objective of the medical examination of the candidate fors the Engineering Service Examination is to basically screen a candidate for the presence of any disease, physical defect or disability, which is likely to interfere with the efficient and continuous discharge of duties by the candidate, both at the time of selection and in future. It is submitted that the severity of SLE varies from mild and intermittent to severe and fulminant. Most patients experience exacerbations interspersed with periods of relative quiescence and permanent complete remissions are rare. Systemic symptoms particularly fatigue and myalgias/arthralgias, are present most of the time. Severe systemic illness requiring Glucocorticold therapy can occur with fever, prostration, and weight loss, anemia with or without other organ targeted manifestations. In this disease SLE, as many 25% of patients may experience remissions, sometimes for a few years, but these are rarely permanent. Though the applicant had only skin involvement at the time of conducting medical board but it cannot be denied that she is suffering from a chronic progressive systemic disease with periods of remissions and relapses and likely to involve multiple organs systems in a large population of patients over a period of time, some of which may even be debilitating or life threatening. Her services in M/s HCL Technologies Ltd. without any complaint cannot be a guarantee for her future health and it is not true that the medical board did not take into consideration the certificate issued by Dr. Shefali K.Sharma, Asstt. Professor, PGI, Chandigarh. One of the main objectives of the medical examination is to secure continuous effective service, and in the case of candidates for permanent appointment, to prevent early pension or payment in case of premature death. Survival of patients with this disease SLE were 95% at 5 years, 90% at 10 years and 78% at 20 years as found in some of the countries. Moreover, disability in patients with SLE is common due to primary chronic fatique, arthritis and pain as well as renal disease. Referring to the contents of the guidelines published in the Gazette of India Extraordinary dated 08.01.2011 (Annexure R-3) regarding medical examination of the candidates, the respondents have stated that as per these guidelines, the candidate must be in good mental and physical health free from any physical defect likely to interfere with efficient performance of the duties or her appointment. A copy of the extract of relevant information on SLE from Harrison Principles of Internal Medicine 18th Edition has been filed on record. Reference has been made to Para 11(i) and (k) of the aforesaid Gazette which reads as follows:-
(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.
Attention is also drawn to the contents under the heading Medical Boards Report in the Gazette of India: Extraordinary (copy of extracts of Annexure R-3), which is reproduced below:-
No person will be deemed qualified for admission to the Public Service who shall not satisfy Government or the appointing authority as the case may be that he has no disease, constitutional affliction, or bodily infirmity, unfitting him or likely to unfit for that service. It should be understood that the question of fitness involves the future as well as the present and that one of the main objects of the medical examination is to secure continuous effective service and in the case of candidates for permanent appointment to prevent early pension or payment in case of premature death. The respondents have, therefore, requested for dismissal of the OA as devoid of merits.
5. Both the learned counsel, namely Shri Joginder Sukhija for the applicant and Shri Rajiv Manglik for the respondents were heard. Shri Joginder Sukhija, learned counsel for the applicant during arguments referred to the following:-
(i) Judgment of the Honble Bombay High Court in Writ Petition No.576/2008 (Ranjit Kumar Rajak Vs. State Bank of India and specifically to paragraphs 21, 22, 26 and 27 of the said judgment;
(ii) Judgment of the Honble Delhi High Court in Writ Petition (C)) No.7208/2008 (Faizan Siddiqui Vs. Sashastra Seema Bal) in paragraphs 117 and 126.
6. We have perused the pleadings and documents in detail and have considered the arguments placed by the learned counsel.
7. It appears that Annexure A-1 i.e. the impugned communication dated 03.05.2012 has declared the applicant unfit for all examinations in which she appeared for Engineering Services Examination, 2011 and fit for none on account of Systemic Lupus Erythematosis. At Annexure A-1 (Colly.) is also the letter dated 19.06.2012, issued by the same Ministry, informing the applicant that the Appellate Medical Board at North Central Railway Hospital, Allahabd on 04.06.2012 had declared her unfit for all services on account of Systemic Lupus Erythematosis.
8. From the documents on record, it is also evident that M/s HCL Technologies Ltd. has issued an Experience Certificate on 04.02.2010 (Annexure A-3), inter alia certifying the applicants employment with that Organization for the period 30.07.2008 to 17.12.2009 on full time basis, and that at the time of leaving her job, she was designated as Software Engineer. It is to be mentioned that there is nothing adverse in this certificate regarding the applicant nor with respect to her performance or health condition. It states that the applicant left the job on her own accord.
9. We have also perused the certificate issued on 14.05.2012 (Annexure A-9) by Dr. Shefali K. Sharma, Asstt. Professor, Unit of Rheumatogoly, Department of Internal Medicine, PGI, MER, Chandigarh which is being reproduced for ready reference:-
Postgraduate Institute of Medical Education & Research Chandigarh, 160012. (India) Department of Internal Medicine Dr. Shefali K. Sharma Assistant Professor Unit of Rhenumatology No.Int.Med/122615 Date: 14/05/2012 TO WHOM IT MAY CONCERN 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).
I have examined her who is a candidate of Engineering Services Examination,2011 whose signatures are as under and declared medically unfit by Medical Board on account of SLE.
My findings upon examination are as under:
SLE is a chronic disease with a varies 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.
(Shefali K. Sharma) The second certificate issued by the same Dr. Shefali K. Sharma is dated 31.07.2012 i.e. after her examination not only by the Medical Board but also by the Appellate Medical Board conducted on 04.06.2012 in which vide letter dated 19.06.2012, the applicant was declared unfit for all jobs on account of aforesaid disease. This certificate dated 31.07.2012 (Annexure A-11) of Dr. Shefali K. Sharma is also being reproduced:-
Postgraduate Institute of Medical Education & Research Chandigarh, 160012. (India) Department of Internal Medicine Dr. Shefali K. Sharma Assistant Professor Unit of Rhenumatology No. Int.Med/2012/1815 Date: 31/7/2012 TO WHOM IT MAY CONCERN 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.
She is medically fit.
(Shefali K. Sharma)
10. In both these certificates of Dr. Shefali K. Sharma, the first one dated14.05.2012 is immediately after the impugned communication dated 03.05.2012 (Annexure A-1) was issued to the applicant declaring her unfit on the basis of Medical Board whereas the second certificate dated 31.07.2012 of Dr. Shefali K.Sharma was issued after the applicant was declared medically unfit by the Appellate Medical Board. It is also evident from the first Medical Certificate of Dr. Shefali K. Sharma dated 14.05.2012 that she was aware of the applicant being a candidate of Engineering Services Examination,2011 and further that she had ben declared medically unfit by the Medical Board on account of SLE. In both these certificates, the applicant has been declared medically fit after examinations, tests and investigations conducted on her which have also been incorporated in the certificates itself. To that extent, it can be concluded that the basis of the opinion given by the doctor is disclosed in both these certificates. Neither in impunged order dated 03.05.2012 nor in order dated 19.06.2012 (Annexure A-1 (Colly.) these details have been specified by the Medical Board or the Appellate Medical Board. It is, therefore, noted that the declaration of her being medically unfit by the Medical Board as well as by the Appellate Medical Board is non-speaking and does not disclose any basis for arriving at the impugned conclusion. The principles of natural justice would require the declaration to be more explanatory than what has been disclosed in the impugned communication.
11.. The respondents have mainly stated and argued that on both the occasions, the Medical Board was multi disciplinary by way of composition of the Board, and further that the Appellate Medical Board consisted of a Physician, Surgeon, Eye Surgeon and two co-opted Mmbers including one Dermatologist and one Gyanecologist and also that the doctors in the Appellate Medical Board were senior and qualified doctors having the same qualifications as that of Dr. Shefali K. Sharma of PGI, Chandigarh. On the other hand, the applicants counsel argued that Dr. Shefali K. Sharma, Asstt. Professor Department of Internal Medicine is a Specialist on the subject of the disease and has better experience in examining and certifying the condition of the applicant in the context of the disease from which she was suffering.
12. The other aspect that has been highlighted by the respondents is that the main object of the medical examination is to secure continuous effective service of a candidate, and that he should be in good mental and physical health, free from any physical defect likely to interfere with the efficient performance of duties on appointment. We have also perused Annexure R-3 filed by the respondents with their reply which is the extract of the Gazette Notification. Para 13 of the said extract also states that in case of doubt regarding health of a candidate, the Chairman of the Medical Board shall consult a suitable Hospital Specialist to decide the issue of fitness or unfitness of the candidate for Government service and further that when any defect is found, it has to be noted in the certificate and the medical examination should state opinion whether or not it is likely to interfere with the efficient performance of duties required to be performed by the applicant. In this case, there is no evidence to suggest, nor have the respondents so stated in their reply that any reference was made to consult a suitable hospital specialist to decide the fitness or unfitness of the candidate as mentioned in para 13 of Annexure R-3. The respondents have admitted in their reply that the applicant during medical examination had admitted that she was suffering from the disease, SLE and further that it was confirmed by the medical records produced by her. It is thus evident that in the Appellate Medical Board, while the applicant had not only disclosed the disease, but also had the opinion of Dr. Shefali K. Sharma, Asstt. Professor, PGIMER, Chandigarh dated 14.05.2012. We observe that without sufficient basis to controvert the finding of Dr. Shefali K. Sharma where she had found the applicant medically fit, and without having sought the advice of a Specialist of a suitable hospital in case of any doubt regarding the opinion of Dr. Shefali K. Sharma, the Appellate Medical Board came to the conclusion that the applicant was medically unfit for all categories of Engineering Service Examination, 2011 for which she had applied. We do not find that the requirement of para 13 of the Gazette Notification (Annexure R -3), which has been produced by the respondents themselves, has been met.
13. Yet another aspect is that as to whether the condition of the applicant was such as would cause interference with the performance of duties by the candidate on appointment. Both the certificates, issued by Dr. Shefali K. Sharma, i.e. the first one dated 14.05.2012, and the second one dated 31. 07.2012 have opined that not only was she medically fit, but in the second certificate it has also been stated that she is fit to do any kind of job. She is living a normal life. We have noticed above that Dr. Shefali K. Sharma was aware that the candidate had been examined and declared medically unfit for the Engineering Services Examination,2011 on account of SLE by the Medical Board. We also find that Dr. Shefali K. Sharmas findings were based on detailed investigations in arriving at the conclusion that the applicant had only skin involvement and no major organ was involved. In this way, it was in the context of rejection by the Medical Board and the Appellate Medical Board that Dr. Shefali K. Sharma had given her opinion twice to the effect that the applicant was medically fit, and further in the second opinion that the applicant was medical fit to do any kind of job and was also living a normal life. In this backdrop, it is difficult to appreciate as to how the Medical Board and the Appellate Medical Board have concluded without any substantial evidence on record or any specific opinion to the contrary that the applicant could be presumed to be incapable of performing her duties in her service, not only at present but also in future.
14. Another relevant document is the Experience Certificate dated 04.02.2010 in respect of the applicants past performance in her earlier job with M/s HCL Technologies Ltd (Annexure A-3) where she had worked as Software Engineer from 30.07.2008 to 17.12.2009 on full time basis. This certificate does not contain any adverse comment either on her performance of duties or her health. The performance of the applicant in the past in M/S HCL Technologies Ltd., the specific certificates of Dr. Shefali K. Sharma of PGIMRE, Chandigarh to the effect that she was medically fit as also fit to do any kind of job and was living normal life, and in the absence of any specific mention that her present condition could createhealth problem in future and would interfere with her efficiency while performing her duties, would lend support to the claim of the applicant that she being medically fit should be so declared and that the declaration of medical unfitness by the Medical Board as well as by the Appellate Medical Board is not correct.
15. The respondents have also produced extracts of medical literature on SLE (Annexure R-2). This contains the various manifestations that occur in patients suffering from this disease SLE, which include musculoskeletal manifestations, cutaneous manifestations, renal manifestations and nervous system manifestations. The data regarding remissions, relative quiescence etc. are given in this document. While we are not aware of the medical or scientific parameters given in this medical literature, (Annexure R-2), it can be safely presumed that an Assistant Professor of PGIMER, Chandigarh in the Department of Internal Medicine, such as Dr. Shefali K. Sharma would be aware of medical aspects and would have taken into consideration relevant parameters and specificities relating to the disease, while evaluating the medical condition of the applicant and, thereafter declaring, her medically fit to do any job.
16. We have perused the two judgments cited by the learned counsel for the applicant. In the judgment of the Honble Bombay High Court dated 8th May,2009 in Ranjit Kumar Rajaks case (supra), the Honble High Court held in para 21 as under:-
Reasonable accommodation if read into Article based on the U.N. Protocol, would not be in conflict with 31Municipal law. On the contrary it would give added life and dimension to the ever expanding concept of life and its true enjoyment. Is it open to a State and its agencies or authorities to contend that persons with disabilities like in the case of the petitioner, who otherwise are fit to discharge the functions of the post to which they applied on account of the medical disability which once they suffered from and no longer subsists, such persons have no right to employment. In our opinion a reading of Article 21 in this context would be defeating the very constitutional obligation of right to life. The State and its instrumentalities must act in a manner in which every citizen has a right to be considered for employment within its normal scope of functions as an employer. The right to select its employees would be the right of the employer. At the same time the terms for employment, must meet the test of Articles 14, 16 and 21. It will, therefore, be no longer open to the State merely on account of past or present medical problems if otherwise, a person is fit to work and can be reasonably accommodated and does not cause undue hardship, to deprive a person otherwise qualified and successful, to right to employment. The right to life would include the right to livelihood and, therefore, the right to work. This right is, however, subject to States economic capacity. The right to accommodation is already a part of our law having been enunciated in Anand Bihari and Ors, vs. Rajasthan State Road Transport Corporation, Jaipur & Anr., (1991) 1 SCC 731. In that case a bus driver who on account of defective eye sight suffered in the course of employment, directions were issue that he be suitably accommodated by the employer with any other job. The Court then directed the Corporation that in addition to the retirement benefits, to offer any alternative job which may be available and is eligible to perform. As per the facts in the judgment, the petitioner was suffering from HIV infection, had been declared medically unfit, was not found eligible and thus denied employment on the basis of renal transplantation. In the present OA also, the applicant is stated to be suffering from SLE, stated to be a chronic and severe disease. The Honble High Court further observed in para 22 as under:-
Taking into consideration the widespread and present threat of this disease in the world in general and this country in particular, the State cannot be permitted to condemn the victims of HIV infection, may of whom may be truly unfortunate, to certain economic death. It is not in the general public interest and is impermissible under the Constitution. The interests of the HIV positive persons, the interests of the employer and the interests of the society will have to be balanced in such a case. If it means putting certain economic burden on the State or the public Corporations or the society, they must bear the same in the larger public interest. The Court then observed as under: Therefore, in every such case, the test of medical fitness prior to employment or even during employment has necessarily to be correlated with the persons ability to perform the normal job requirements and any risk of health hazard he may pose to others at the work place.
17. The second judgment is that of the Honble Delhi High Court in Faizan Siddiquis case (Supra) which relates to medical fitness of a female candidate seeking recruitment in the Sashstra Seema Bal. In this case, the medical unfitness was certified by the doctors of Sashstra Seema Bal who did not have expertise in the concerned field and gave findings without taking expert opinion or scientific material. In this matter also, the petitioner had contended that the Medical Board, including the review medical board had not based their declaration of her medical unfitness on any specific scientific material or any expert evaluation, and further that there were no nexus to the objective of the selection process of ensuring physical and medical fitness in recruits. These are some of the issues in the present OA also as have been highlighted by the applicant. The Honble High Court in para 43 of the aforesaid judgment also observed that none of the doctors physically or medically examined the petitioner in that case and that the opinion was not rendered on any tests performed on the petitioner. No investigation was effected. The doctors opinion did not disclose the basis of that finding. In Maneka Gandhi Vs. Union of India (1978) 2 SCR 621 (noted in para 96 of the judgment of the Delhi High Court), it was observed that The view I have taken above proceeds on the assumption that there are inherent or natural human rights of the individual recognized by and embodied in our Constitution. If either the reason sanctioned by the law is absent, or the procedure followed in arriving at the conclusion that such a reason exists is unreasonable, the order having the effect of deprivation or restriction must be quashed." and Bhagwati, J. Observed thus (at p.624 of AIR):
"Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."
In para 98, the Honble High Court noted the judgment rendered by the Honble Andhra Pradesh High Court in the case of State of Andhra Pradesh and Anrs. Vs. Nalla Raja Reddy and Ors. (1967) 3 SCR 28, this Court made the following observations:
"Official arbitrariness is more subversive of the doctrine of equality than statutory discrimination. In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrariness can be waved in all directions indiscriminately." W.P.(C) No.7208/2008 page 51 of 58 The impugned provisions appear to us to be a clear case of official arbitrariness. As the impugned part of the regulation is severable from the rest of the regulation, it is not necessary for us to strike down the entire Regulation."
In the end, the Honble Delhi High Court observed as under:-
126. We may also note that the purpose of a medical examination is not to create a body of persons in the community who have been labelled as "medically unfit" without any material or basis. Undoubtedly, definite State policy and positive action in this matter is immediately necessary inasmuch as there is growing awareness of issues as have been raised in the present case. The instant case also discloses the insufficiency of the regulations and guidelines on medical examinations by the respondents.
18. We are, therefore, inclined to conclude that the opinion of the Medical Board and the subsequent Appellate Medical Board where the candidate was declared medically unfit is not substantiated by specific findings based on investigation and any opinion of a specialist in a Govt. hospital as per Para 13 of the Gazette Notification (Annexure R-3). There are also no reason given to disagree with the findings of Dr. Shefali K.Sharma, Asstt. Professor, PGI, Chandigard. On the other hand, the findings of the Doctor in the PGIMER, Dr. Shefali K. Sharma on both the occasions are more specific. They are basedon specific investigations and in the second certificate issued by the said Doctor of PGIMER, not only has the applicant been declared to be medically fit but also found her fit to do any kind of job and living a normal life. The averment made by the respondents and the argument that the Medical Certificates dated 14.05.2012 and/or 31.07.2012 of Dr. Shefali K. Sharma had been procured by the applicant, do not objectively lead to the conclusion that simply because the applicant had disclosed that she was suffering from SLE, this would preclude her from performing her duties efficiently. Mere reference to medical literature and the data therein do not appear to be sufficient to controvert the findings of the doctor of PGIMER Chandigarh.
19. In view of above, it is apparent that the applicant has not been given fair treatment in the matter of consideration by the Medical Board and Appellate Medical Board. On the basis of her medical condition conducted by the Doctor in PGIMER, Chandigarh she was found fit to do any kind of job and living a normal life. All this leads to the conclusion that the applicant would be able to perform her duties. As held in these judgments, we observe that the State is not only obliged to protect the applicants fundamental rights but to take positive and affirmative action to grant her reasonable opportunity.
20. In the light of above, we are unable to sustain the impugned orders dated 03.05.2012 and 19.06.2012 (Annexure A-1 Colly.) and the same are accordingly quashed and set aside. O.A is allowed. The respondents are required to take consequential steps with respect to the applicants selection for the Engineering Services Examination-2011 in accordance with the rules and instructions within a period not exceeding two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) /usha/