Gujarat High Court
Azad Tejas Bhikhabhai vs State Of Gujarat & 3 on 3 February, 2016
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/6511/1998 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6511 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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AZAD TEJAS BHIKHABHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR BHASKAR P.TANNA SR COUNSEL WITH MR B.H. BHATT FOR TANNA
ASSOCIATES, ADVOCATE for the Petitioner(s) No. 1
MR ROHIT PATEL, AGP for the Respondent(s) No. 1 , 3 - 4
MR LR PUJARI, ADVOCATE for the Respondent(s) No. 2
MS ROOPAL R PATEL, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 03/02/2016
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ORAL JUDGMENT
1. The petitioner has challenged an order dated 6.1.1998 passed by the Agricultural and Cooperative department, Government of Gujarat, under which the petitioner's selection and appointment to the post of District Registrar of Cooperative Societies, came to be cancelled. Brief facts are as under :
2. The petitioner was discharging his duties as a lecturer in the Arts and Commerce college, Deesa. He applied for direct recruitment to the post of District Registrar, Cooperative Societies, which was a classI post and the recruitment had to be done through GPSC. After passing the competitive examination, he was called for oral interview on 25.7.1994. On 9.3.1995, GPSC issued a gazette notification providing a list of candidates who had been declared successful during such selection process and would be recommended for appointment. The petitioner was one of the selected candidates in the said list. The Government of Gujarat pursuant to such recommendations issued order of appointment dated 22.6.1996, offering appointment to the petitioner to the said post of Registrar, Cooperative Societies on temporary basis on probation, subject to certain conditions. One of the conditions was that such appointment would be subject to the physical fitness of the petitioner for discharging the duties. His fitness would be examined by the Medial board constituted by Government of Gujarat. The petitioner would present himself before such board for examination.
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3. It appears that for whatever personal reason, the petitioner could not report for duty within the time permitted and sought and was granted extensions. On 25.7.1997 the Government informed the petitioner to remain present before the Medical board for physical examination on 30.7.1997. The medical board declared him unfit. It appears that since the petitioner was not satisfied with such medial examination, the Government also constituted an adhoc appellate board. The petitioner was also examined by such appellate board. On 6.10.1997, the Government conveyed to the petitioner that he had been examined by the Standing Medical board as well as adhoc medical appellate board. During such medical examinations, it was found that the petitioner was having Rheumatic Valvular heart disease and, therefore, has not been recommended for appointment by the appellate medical board. On 6.1.1998, eventually the Government passed the order cancelling the order of appointment and selection of the petitioner to the said post of District Registrar of cooperative societies on the ground of his medical unfitness. The petitioner made further representation on 3.7.1998 without any positive response from the Government. Hence, this petition.
4. Learned counsel Shri Tanna for the petitioner submitted that the respondents did not supply any material of the conduct of the medical tests by the medical board and the appellate board. The papers submitted along with the reply before the High Court would not justify the requirement of hearing since the petitioner was completely in dark as to Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri Feb 05 02:15:53 IST 2016 C/SCA/6511/1998 JUDGMENT why he was declared unfit for discharging the duty on the post in question. He further submitted that the petitioner was examined by private specialised doctors who opined that the petitioner had successfully undertaken the stress test and could work out like a normal person. The Government under similar circumstances in case of one Harsh Yadav had taken a different stand. Though the heart condition of the said person was much worse than the petitioner, upon the opinion of the medical board at Jamnagar, he was continued in service. Thus the petitioner was treated differently.
5. On the other hand, learned AGP Shri Patel opposed the petition contending that the medical board as well as appellate board examined the petitioner and found that he was unfit to discharge the duties. The Government therefore, correctly recalled the order of appointment. The petitioner had in the meantime not resumed duties.
6. I have also heard learned advocate Ms. Roopal Patel for the GPSC.
7. From the record, it emerges that after being selected, the petitioner was offered appointment to the post of District Registrar of Cooperative Societies. This was however, subject to the petitioner being found fit to discharge such duties. The petitioner had to appear before the medical board who declared him unfit on account of his heart disease. The Government at the request of the petitioner constituted an adhoc appellate board. Such appellate board comprised of Dr. S.B. Dalal - Cardiologist, Dr.K. D. Desai - Urologist, Dr. H.L. Trivedi Nephrologist, Dr. Page 4 of 7 HC-NIC Page 4 of 7 Created On Fri Feb 05 02:15:53 IST 2016 C/SCA/6511/1998 JUDGMENT Manjulaben Anchaliyaprofessor General surgery, Dr. D.S. ShahNeurologist. The appellate board thus constituted of five specialized doctors. Dr. Dalal as cardiologist was the chairman. The board examined the petitioner and concurred with the view of the medical board and found him unfit on account of his heart disease. The medical papers have been annexed with the affidavit in reply filed by Shri S.B. Agarwal, Professor head of Medicine & President of Standing medical board, Civil hospital, on behalf of respondents no.3 and 4 under which he has pointed out that the petitioner was subjected to clinical examination. Additional investigations were made through the director of Director Cardiology Institute, Civil Hospital, Ahmedabad and Echo cardiography report was also obtained which confirmed Rheumatic Valvular heart disease with mild Aortic Regurgitation. It was on account of this that the petitioner was declared unfit.
8. In view of the opinion of two independent medical authorities namely, the board constituted by the Government of Gujarat for judging the fitness of selected candidates and the adhoc appellate medical board specially constituted to consider the case of the petitioner on account of his dispute with the opinion of the medical board, it would not be possible to hold to the contrary and declare that the petitioner was otherwise fit for discharging his duty. In the matter of such specialised field, in absence of any arbitrariness or mala fide, it would simply not be possible for the Court to overrule the concurrent view of two independent expert bodies comprising of several highly qualified doctors.
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9. The independent reports submitted by the petitioner may at best indicate the opinion of a concerned doctor privately engaged by the petitioner that his condition at present was almost normal. However, it is not the same thing as to suggest that the petitioner did not suffer from any heart disease. This was not even disputed by the petitioner. What would be the impact on the longitivity, fitness and the ability of the petitioner to discharge duties for prolonged period are the issues in the realm of expert opinion. It is not a case where a Government servant already in service is being declared unfit to discharge the service any longer. It is a case where a person is seeking appointment as a Government servant by way of direct recruitment. As an employer the Government is entitled to verify his fitness, his ability to discharge his duty efficiently and for a prolonged period. There cannot be any abstract comparison between two medical cases. What precisely was the medical condition of Shri Harsh Yadav is not known. Merely because in his case, the medical board at Jamnagar had opined that he was fit for duty would not ipso facto mean that the petitioner was also fit to discharge similar duties and thus indirectly the opinion of the board and the appellate board would be completely wrong.
10. Lastly, the ground of breach of principles of natural justice needs to be recorded only for rejection. This is not a departmental inquiry where the petitioner had to be informed of charges before any penal action could be taken. It was a case where the petitioner had to pass the physical test which before the medical board as well as the appellate board, he failed to do.
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11. In the result, the petition fails and is dismissed.
(AKIL KURESHI, J.) raghu Page 7 of 7 HC-NIC Page 7 of 7 Created On Fri Feb 05 02:15:53 IST 2016