Karnataka High Court
Sri Shivananje Gowda B N vs The Karnataka Public Service ... on 21 April, 2022
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE S RACHAIAH
WRIT PETITION NO.7095/2022 (S-KSAT)
BETWEEN:
SRI SHIVANANJE GOWDA B.N
S/O LATE B.C NANJE GOWDA
AGED ABOUT 44 YEARS,
RESIDING AT NO.157/2,
KEERTHI NILAYA, DEVARAHATTI,
RAMESHWARA BADAVANE,
CHANNARAYAPATNA,
BEHIND NEW BUS STOP,
HASSAN - 573 116.
... PETITIONER
(BY SRI H.KANTHARAJU, SR. COUNSEL FOR
SRI K.R.LINGARAJU, ADV.)
AND:
1. THE KARNATAKA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY,
PARK HOUSE, BANGALORE-560001.
2. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HOME AND TRANSPORT DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU - 560 001.
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3. SRI SUJAY KUMAR K SUJAY
S/O DOMBAYYA GOWDA,
MAJOR,
NO.1-119, KUDKOLI HOUSE,
SHIREDAY VILLAGE,
SHIRADI POST
PUTTUR, D.K 574229.
... RESPONDENTS
(BY SRI PRAKASH K.M, ADV. FOR R1,
SMT. SHILPA S.GOGI, HCGP FOR R2,
R3 - NOTICE IS DISPENSED WITH.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT, ORDER
OR DIRECTION IN THE NATURE OF CERTIORARI SETTING ASIDE
THE ORDER PASSED BY THE KARNATAKA SATE ADMINISTRATIVE
TRIBUNAL ON 16/07/2021 IN APPLICATION NO.3260/2020 VIDE
ANNEXURE-A AND ALSO THE ORDER DATED 10/01/2022
PASSED IN REVIEW APPLICATION NO.93/2021 VIDE ANNEXURE-
B BY ALLOWING THE APPLICATION NO.3260/2020 AS PRAYED
FOR BY THE PETITIONER ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, B.VEERAPPA J, MADE THE FOLLOWING:
ORDER
It is an unfortunate case, where on the basis of a wrong report of the Medical Board, Bowring hospital, the candidature of the petitioner has been rejected by the KPSC on the ground that the applicant suffers from red and green colour deficiency i.e. colour blindness and found the height of the applicant as 167.6 cms i.e. ½ cm short of the 3 prescribed height. It was the subject matter of the application before the Karnataka State Administrative Tribunal in Application No.3260/2020. The tribunal considering the arguments of the parties, by its order dated 16.07.2021 has dismissed the application mainly on the ground that in terms of the notification issued by the KPSC, as per the C & R Rules, Motor Vehicle Inspector candidates must possess minimum height 168 cms, Chest girth 86 cms when fully expanded (minimum expansion must be 5 cms) and must have the standard distant near vision with or without glasses.
Better eye Worse eye (i) Distant vision 6/9 or 6/9 6/9 6/12 (ii) Near vision 0/6 0/8 Each eye must have full field vision. Colour blindness,
squint or any morbid conditions of the eyes or lids of either eye shall lead to disqualification.
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2. The tribunal further recorded a finding that, we have also carefully gone through the Annexure-A-31, the certificate alleged to have been issued by Dr. G. Nandakumar, Bowring and Lady Curzon Hospitals dated 06.07.2019 i.e. prior to filing of the application. According to this certificate, the height is 169 cms, Chest girth is 95 cms when fully expanded, but not mentioned minimum chest girth. The vision of both the left and right eye is shown as 6/6 under better eye column and under worse eye column it is mentioned as color - N. In respect of meaning of 'N' no observation is made. However, Dr. G. Nandakumar has certified that the applicant is free from all congenital diseases and or deformities. Dr. Shankar K.N., CMO, Bowring & Lady Curzon Hospitals, has issued another certificate dated 09.07.2019 with height of 169 cms, Chest girth 92 cms. (87 cms on expansion) and vision as normal. Further the tribunal recorded the finding that as rightly admitted by the applicant, candidature of the applicant has been rejected on the ground that the Medical Superintendent, Bowring Hospital, Bengaluru vide letter 5 dated 17.01.2019 addressed to the Deputy Secretary, KPSC, Bengaluru. Annexure-R1, made a remark against the name of the applicant as "unfit" along with other candidates. In particularly, the candidature of the applicant is rejected due to red and green color deficiency in the eye. Therefore, we are of the opinion that the expert's opinion is final in the selection process and accepted the same. Accordingly, the application came to be rejected.
3. Being aggrieved by the said order passed by the KSAT, a review application No.93/2021 came to be filed by the present petitioner, which came to be dismissed on 10.01.2022.
4. Being aggrieved by the said order passed by the KSAT dated 16.07.2021 and the review order dated 10.01.2022 filed at Annexures-A & B, the present writ petition came to be filed.
5. This Court by the order dated 18.04.2022 has observed as under:-
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"Heard the learned Senior counsel Sri H Kantharaju appearing for the petitioner and learned counsel Sri K M Prakash on behalf of the respondent - KPSC.
2. The learned Senior counsel would take the Court through various certificates issued by the Government hospitals and would question the opinion rendered during the medical tests holding the petitioner as suffering from color blindness and height.
3. The learned counsel for the Public Service Commission would submit that they have no objection for consideration of the candidature of anybody, provided that they confirm with the stipulations fixed by the appointing authority and he would submit that the petitioner may be referred to the Medical Board for reconfirmation of the finding.
4. Per contra, the learned Senior counsel would submit that the petitioner has produced various medical certificates which clearly go to prove otherwise, and that the petition could be adjudicated on the strength of the same.
5. In our opinion it may not be appropriate to rely on the certificates produced, but we are of the opinion that there is some substance in the fair statement made by the learned counsel for the 7 respondent. In that view of the matter, we direct the petitioner to present himself before the Director of Minto Ophthalmic Hospital on 20.04.2022. He shall report before the Director at 10.00 a.m. We request the hospital authorities to expedite the test on the same day including the height test also and forward the report to the learned High Court Government Pleader.
List this matter on 21.04.2022."
6. In view of the above order dated 18.04.2022 passed by the Co-ordinate Bench, the learned High Court Government Pleader Smt. Shilpa S. Gogi produced the report of Director, Regional Institute of Ophthalmology, Minto Ophthalmic Hospital, Bengaluru along with Ophthalmic examination out-patient and the extract of test conducted, with a sealed cover and the same is opened in the open Court before the learned counsel for the parties. As per the extract test conducted, at serial No.1(a) Physical Standard height required 168 Cms, the Result 169 Cms, Chest Girth 86 Cms when fully expanded, existing Cms 'nil'. The vision at serial No.2(c) and serial No.3 Hearing reads as under:-
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Sl. Event Physical Standard required Result No.
2. (c) Vision: Better Worse
i) Distant vision 6/9 or 6/9 * Right eye 6/6 for distance IMPRESSION:
6/9 or 6/12 * Left eye 6/6 *Presbyopia
ii) Near vision 0/6 0/8 * Right eye N8 with best *NORMAL * Left eye N8 correction OPHTHALMIC N6 both eyes EXAMINATION for near Colour blindness, squint or *Colour on Islvihara's vision test any morbid conditions of the eyes or lids of either eye shall be deemed to be a disqualification.
3 Hearing: Both eyes - NORMAL
i) Rinner's Test
ii) Webber's Test
iii) Tests for vertigo Slit Lamp Examination reads as under:
"Slit Lamp Examination:
Colour Both eyes
Vision Normal
_______ _______
(Ishihara's test)
Fundus:
OD OS
ON 0.3 CDR
Push NRD |
FR+
Sd/-
Dr. Vidya S Eswaran
Imp: Normal Ophthalmic Examination"9
7. In view of the report submitted by the Director of Minto Ophthalmic Hospital, Bangalore it clearly depicts that the applicant is qualified in terms of the qualification prescribed by the KPSC by calling the applications for the post of Motor Vehicle Inspector.
8. The Medical Report now produced before the Court by the Director of Minto Ophthalmic Hospital, Bangalore clearly depicts that the applicant is eligible in terms of the eligibility qualification prescribed by the KPSC for the post of Motor Vehicle Inspector. Unfortunately, on the basis of wrong assessment made by the Medical Board, Bowring hospital, his candidature was rejected. It is also unfortunate during the pendency of the proceedings before the KSAT, the applicant should have filed an application to refer the matter to the other Medical Board. The same has not been done and the KSAT has proceeded to reject the application of the petitioner mainly on the ground that it is the expert's opinion. Therefore, court should not be interfered. When this Court appointed the Medical Board Minto hospital, now the report is in favour of the petitioner 10 which clearly indicates that the Medical Board, Bowring hospital is not discharging its duty properly. Thereby, the innocent people like the present petitioner has to suffer and it is the high time for the State Government to prescribe a particular Medical Board for examination of the candidates for selection in the recruitments by the KPSC. Otherwise, the KPSC, by the concerned officer will refer either Bowring hospital or Minto hospital according to the whims and fancies based on the candidature. Thereby, injustice will be done to the candidates that has been done in the present case.
9. It is high time for the State Government to appoint a permanent Medical Board to ensure there must be transparency in the selection process instead of giving free hand to the KPSC to chose a Medical Board and the experts in all the recruitments to be conducted by the KPSC to enable the genuine candidate should not be deprived and justice to be done in all fairness to all the candidates in a 11 transparency manner. In view of the above, the matter requires reconsideration by the KPSC.
10. Without expressing any opinion on the merits and de-merits of the case, we are of the considered opinion that the rejection of the candidature of the petitioner made by the KPSC on the basis of the wrong report of the Medical Board, Bowring hospital, cannot be sustained and the same is liable to be quashed. The provisional list dated 04.07.2019 issued by the respondent-KPSC for the post of Motor Vehicle Inspectors only insofar as the petitioner, rejecting his candidature by the order dated 05.07.2019 issued by the KPSC is also liable to be quashed. This Court by the order dated 01.04.2022 ordered that the post of one Bheemanagowda Patil vacated shall be kept vacant, pending disposal of the present writ petition.
11. At this stage, Sri Kantaraju, learned senior counsel for the petitioner on instructions submit that the post one vacated by Bheemanagowda Patil kept reserved by this Court by order dated 01.04.2022, Bheemanagowda 12 Patil also applied for the post of Motor Vehicle Inspector under 3-A/Rural category. The same is placed on record. Sri Prakash K.M, learned counsel for the KPSC has opposed the said contention. The same is also placed on record.
12. In view of the subsequent report submitted by the Director of Minto Medical Board, Victoria hospital, Bengaluru in pursuance of the order passed by this Court dated 18.04.2022 the matter requires consideration afresh by the KPSC.
13. In view of the above, we pass the following:-
ORDER
i) The writ petition is allowed.
ii) The impugned order passed by the KSAT dated 16.07.2021 made in Application No.3260/2020 and the order dated 10.01.2022 made in Review Application No.93/2021 are hereby quashed.
iii) The order passed by the KPSC rejecting the candidature of the petitioner for the post of Motor Vehicle Inspector by the rejection list 13 dated 05.07.2019 is in violation of Articles 14, 16 and 21 of the Constitution of India.
iv) The first respondent-KPSC is directed to reconsider the claim of the petitioner for the post of Motor Vehicle Inspector as he has fulfilled the eligibility of minimum physical standard test under the Rules with regard to the height and the vision, as per the report stated supra and proceed in accordance with law.
v) A copy of this order shall be forwarded to the Chief Secretary, Government of Karnataka to constitute a permanent Medical Board for the selection of candidates by the KPSC in order to avoid future complications like the present case, in the interest of justice.
Sd/-
JUDGE Sd/-
JUDGE Chs CT-HR