Kerala High Court
Dr.Hasna Ibrahim vs Union Of India on 6 January, 2025
Author: Murali Purushothaman
Bench: Murali Purushothaman
2025:KER:97
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
WP(C) NO. 29523 OF 2024
PETITIONER:
DR.HASNA IBRAHIM, AGED 33 YEARS
W/O.BINSHAD.S, RESIDING AT FLAT NO.B42,
M.B.HEIGHTS THAIKKATTUKARA, COMPANYPADY JUNCTION
CHOORNIKKARA, ALUVA, ERNAKULAM, PIN - 683106
BY ADVS.
KALEESWARAM RAJ
THULASI K. RAJ
CHINNU MARIA ANTONY
APARNA NARAYAN MENON
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF POWER,
SHRAM SHAKTI BHAWAN, RAFI MARG,
NEW DELHI, PIN - 110001
2 NATIONAL THERMAL POWER CORPORATION LIMITED,
REPRESENTED BY CHAIRMAN AND MANAGING DIRECTOR,
NTPC BHAWAN, SCOPE COMPLEX, 7, INSTITUTIONAL AREA,
LODHI ROAD, NEW DELHI, PIN - 110003
3 CHAIRMAN AND MANAGING DIRECTOR
NATIONAL THERMAL POWER CORPORATION LIMITED, NTPC
BHAWAN, SCOPE COMPLEX, 7, INSTITUTIONAL AREA,
LODHI ROAD, NEW DELHI, PIN - 110003
WP(C) NO. 29523 OF 2024 : 2 :
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4 GENERAL MANAGER (HR),
NATIONAL THERMAL POWER CORPORATION LIMITED,
NTPC BHAWAN, SCOPE COMPLEX, 7,
INSTITUTIONAL AREA, LODHI ROAD,
NEW DELHI, PIN - 110003
5 DEPUTY GENERAL MANAGER,
NATIONAL THERMAL POWER CORPORATION LIMITED,
NTPC BHAWAN, SCOPE COMPLEX, 7, INSTITUTIONAL
AREA, LODHI ROAD, NEW DELHI - 110003
6 MANAGER(HR),
NATIONAL THERMAL POWER CORPORATION LIMITED,
NTPC BHAWAN, SCOPE COMPLEX, 7, INSTITUTIONAL
AREA, LODHI ROAD, NEW DELHI, PIN - 110003
R BY ADV N.S.DAYA SINDHU SHREE HARI,CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25.10.2024, THE COURT ON 06.01.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
The petitioner is working as a Doctor in the Employees' State Insurance Corporation Hospital, Udyogamandal, on contract basis. The National Thermal Power Corporation Ltd. (NTPC), vide Ext. P1 advertisement, invited applications for the post of General Duties Medical Officer (GDMO)/Medical Specialists for its hospitals at projects/stations. The qualification prescribed for the post of GDMO is MBBS with minimum two years' experience/practice after MBBS. The petitioner submitted application and participated in the selection process which included a written examination and an online interview. Based WP(C) NO. 29523 OF 2024 : 4 : 2025:KER:97 on her performance in the written test and interview, Ext. P2 offer of appointment was issued to her on 17.07.2024. In Ext. P2, it is provided that the NTPC Service Rules require that the petitioner should be declared medically fit before joining duty and she shall get her medical examination completed at one of the NTPC hospitals.
2. The petitioner attended her pre-joining medical examination on 25.07.2024 at NTPC hospital, Ramagundam, Telangana and she was declared temporarily unfit for a period of 21 days by the Chief Medical Officer as her Body Mass Index (BMI) was found to be excessive than the prescribed BMI provided in the 'Norms And Standards For Medical Fitness' issued by the NTPC vide Ext. P3. As WP(C) NO. 29523 OF 2024 : 5 : 2025:KER:97 per the norms, for age up to 35 years, the BMI of the candidate should be maximum of 30 kg/m 2. It further provides that the candidate found temporarily unfit shall be declared fit only in case the candidate fulfills the criteria including the norms for BMI.
3. A review medical examination of the petitioner was fixed on 21.08.2024. According to the petitioner, to achieve the BMI of 30 kg/m 2, she has to reduce 28 kg of her weight. On 19.08.2024, the petitioner sent Ext. P4 communication requesting for extension of the date for the medical examination by two to three months, as she was unable to achieve the required BMI of 30 kg/m² since the last examination on 25.07.2024. However, there was no response to Ext. P4.
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4. While the medical re-examination was scheduled on 21.08.2024, the petitioner has filed this writ petition on 19.08.2024 contending that the denial of appointment to the post of GDMO in the NTPC on the basis of excess BMI, without grant of reasonable extension of time for medical re- examination is violative of her fundamental rights under the Constitution of India. It is also contended that the requirement to correct or reduce weight at the time of medical re-examination is unwarranted and hit by the theory of impossibility. Accordingly, the petitioner seeks to quash Ext. P3 and to declare Ext.P3 to the extent it fixes the eligibility criterion of a BMI of 30 kg/m², thereby denying her appointment to the post of GDMO in NTPC, as unjust, illegal, and WP(C) NO. 29523 OF 2024 : 7 : 2025:KER:97 arbitrary. It is further sought to declare that the petitioner is entitled for appointment to the post of GDMO in NTPC pursuant to Ext. P1, either by relaxing the eligibility criterion of BMI of 30 kg/m² or by granting a reasonable extension of at least six months for medical re-examination to meet the said criterion. A further direction is sought to respondents 2 to 6 to relax the eligibility criterion of BMI of 30 kg/m² prescribed in Ext. P3 for the petitioner's appointment to the post of GDMO in NTPC. Alternatively, a direction is sought to respondents 2 to 6 to grant an extension of at least six months for the petitioner's medical re- examination to meet the eligibility criterion prescribed in clause 7 of Ext. P3.
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5. This Court, by interim order dated 19.08.2024, directed respondents 2 to 6 to keep one post of GDMO/Medical Specialist in the NTPC vacant for appointment of the petitioner till 24.09.2024, provisionally, subject to the result of the writ petition.
6. A statement has been filed on behalf of the respondents contending that the writ petition is not maintainable. Further, with reference to Ext. P1 notification, it is stated that the requirement for a pre-joining medical examination, under the heading 'Health,' is as follows:
"HEALTH: The candidate should have sound health. Before joining, candidates will have to undergo medical examination at any of the WP(C) NO. 29523 OF 2024 : 9 : 2025:KER:97 NTPC hospitals and the decision will be final and binding. No relaxation in health standards is allowed."
It is stated that Ext. P3 norms and standards for medical fitness have been framed considering the role requirements, work environment, and work locations, which may also include remote areas. The statement refers to Clause 7 of Ext. P3 which deals with 'Body Mass Index' and it reads as follows:
"7.0. BODY MASS INDEX:
In case the weight of an
individual is found more than
prescribed as per the height - weight table as indicated above then Body Mass Index (BMI) will be taken as deciding parameter as per the norms given below:
WP(C) NO. 29523 OF 2024 : 10 :
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BMI should be maximum of 30 Kg/m2 7.2 Age above 35 years BMI should be maximum of 32 Kg/m2 According to the respondents, based on the performance of the petitioner in the written test and interview, Ext. P2 offer of appointment was issued to her wherein it is mentioned as follows:
"Our Service Rules require that you should be declared medically fit before you join. You may please get your medical examination completed at one of NTPC Hospitals".
The petitioner attended her pre-joining medical examination on 25.07.2024 and was declared WP(C) NO. 29523 OF 2024 : 11 : 2025:KER:97 temporarily unfit as her BMI was found to be excessive than the permissible limit. The statement then refers to clause 6.2 of Ext. P3 which reads as follows:
"The table of standard weight for various groups is given below.
Candidates not meeting the standard as given in the table below may be declared temporarily unfit for a maximum period of 21 days by CMO and shall be declared fit only in case the candidate fulfills the criteria including the norms for Body Mass Index."
It is stated that, as required under clause 6.2 of Ext. P3 norms, the petitioner was given 21 days' time for review. Meanwhile, through Annexure R2(c) communication sent by e-mail, the petitioner WP(C) NO. 29523 OF 2024 : 12 : 2025:KER:97 requested for additional two to three months to appear for the re-examination. However, on 17.08.2024, the petitioner, through Annexure R2(d) communication, informed NTPC that she would appear for the medical examination on 21.08.2024. The petitioner appeared for medical re-examination on 21.08.2024. On that day also, her BMI exceeded the prescribed limit. It is stated that, although she was advised to undergo certain examinations/diagnostic tests during her first medical examination on 25.07.2024, she did not complete them before reporting for the re- examination on 21.08.2024. She submitted Annexure R2(e) request on 21.08.2024 seeking six months' time to reduce 28 kg of weight in a healthy manner. WP(C) NO. 29523 OF 2024 : 13 :
2025:KER:97 It is contended that she was aware of NTPC's medical norms at the time of applying for the post and, having gone through the entire selection process, she cannot, now, challenge the criteria for selection merely because she failed to meet them. It is stated that the notification itself provides that a candidate shall not be considered for the post if she is medically unfit. It is further stated that none of the fundamental rights or statutory rights of the petitioner is infringed by the respondents.
7. A reply affidavit is filed by the petitioner to the statement filed on behalf of respondents, reiterating the averments in the writ petition.
8. Heard Sri. Kaleeswaram Raj, the learned counsel for the petitioner and Sri. P. Sreekumar, WP(C) NO. 29523 OF 2024 : 14 : 2025:KER:97 learned Senior Counsel assisted by Sri. Daya Sindhu Shree Hari, the learned Central Government Counsel for the respondents.
9. Sri. Kaleeswaram Raj would submit that the requirement of BMI at maximum of 30 Kg/m 2 for appointment to the post of GDMO/Medical Specialist has no rational nexus with the objects sought to be achieved under Article 14 of the Constitution. It is contended that, by imposition of such a condition, there is discrimination between otherwise eligible and meritorious candidates with that of candidates who meet the BMI criterion. It is contended that clause 7 of Ext. P3 excludes meritorious candidates from the purview of appointment on the basis of weight. A more meritorious candidate will be denied WP(C) NO. 29523 OF 2024 : 15 : 2025:KER:97 appointment on the basis of BMI and instead, a less meritorious candidate will be appointed. Sri. Kaleeswaram Raj relies on the decisions of the Hon'ble Supreme Court in D.S. Nakara and Others v. Union of India [AIR 1983 SC 130], Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722] and E.P. Royappa v. State of Tamil Nadu [(1974) 4 SCC 3] in support of his contention. Sri.Kaleeswaram Raj also contends that the 'sound health' requirement stipulated under Ext. P1 notification is arbitrary and irrational to the extent it predicates sound health on a direct correlation with BMI. Relying on the Article Sharma A. and Kushner R.F. (2009) a proposed clinical staging system for obesity. International Journal of Obesity, 33,289- WP(C) NO. 29523 OF 2024 : 16 : 2025:KER:97 295 and Apple R. Samuels L.R., Fonnesbeck, C.Schlundt, D.Mulvaney S., Hargreaves, M.Crenshaw, D.Wallston, K.A. And Heerman W.J. (2018) Body mass index and health-related quality of life. Obesity Science & Practice, 4:
417-426, he would submit that the presence of increased body fat alone does not necessarily imply or reliably predict ill health. Thus, it is contended that reliance on BMI as a definite measure or as a determinant of sound health is demonstrably flawed.
Sri. Kaleeswaram Raj would submit that clause 7 of Ext. P3 is hit by the test of 'manifest arbitrariness' as laid down by the Hon'ble Supreme Court in Shayra Banu v. Union of India [(2017) 9 SCC 1] and in Association for Democratic Reforms (Electoral WP(C) NO. 29523 OF 2024 : 17 : 2025:KER:97 Bond Scheme) v. Union of India [(2024) 5 SCC 1].
It is contended that the respondents have fixed the BMI limit without any rationale, demonstrating a lack of application of mind. It is further contended that the requirement of 30 Kg/m2 constitutes indirect discrimination against women. Sri. Kaleeswaram Raj submits that, the rigid enforcement of clause 7 of Ext. P3 disproportionately and adversely affects women in particular. Relying on the research works in Shinall J.B (2016). Distaste or Disability?
Evaluating the Legal Framework for Protecting Obese Workers. Berkeley Journal of Employment and Labour Law, 37(1), 101-142 and Rothblum E.D (2016). Seven: Weapons of Mass Distraction in Teaching Fat Studies: "But Aren't They WP(C) NO. 29523 OF 2024 : 18 : 2025:KER:97 Unhealthy? And Why Can't They Just Lose Weight?" Counterpoints, 467,71-79, Sri. Kaleeswaram Raj would contend that women are more adversely impacted by employment discrimination than their obese counterparts and the imposition of a specific BMI requirement, by its very nature, entrenches systemic body weight discrimination and is violative of gender equality.
Sri.Kaleeswaram Raj would also submit that indirect discrimination refers to a situation where a rule or a practice that is seemingly neutral, nonetheless has a disproportionately adverse impact upon a protect set or group of people. In support of the contention regarding indirect discrimination, he relies on the decisions of the Hon'ble Supreme Court in WP(C) NO. 29523 OF 2024 : 19 : 2025:KER:97 Lieutenant Colonel Nitisha v. Union of India [(2021) 15 SCC 125] and Sukanya Shantha v. Union of India and Others [2024 SCC Online SC 2694]. It is contended that the petitioner being a woman and obese is discriminated and excluded from the purview of appointment on the basis of these characteristics. Finally, it is contended that the requirement to correct 28 kgs weight in 28 days is hit by doctrine of impossibility and he relies on the decision of the Hon'ble Supreme Court in State of M.P. v. Narmada Bachao Andolan [(2011) 7 SCC 639].
10. Sri. Sreekumar, on the other hand, would contend that Ext. P1 notification was issued on 10.01.2024 and the notification itself provides that WP(C) NO. 29523 OF 2024 : 20 : 2025:KER:97 the candidate should have sound health and no relaxation in health standards as per the detailed medical norms would be allowed. Clause 7 of Ext. P3 norms and standards for medical fitness provides for Body Mass Index and clause 7.1 provides that for age up to 35 years, the BMI should be maximum of 30 Kg/m2. The petitioner did not raise any objections and submitted the application without demur. Clause 6.2 of Ext. P3 provides that candidate not meeting the standards including the norms for BMI will be declared temporarily unfit for a period of 21 days and shall be declared fit only in case the candidate fulfills the criteria including norms for BMI. The respondents never require candidates to correct or reduce their weight during this period before their WP(C) NO. 29523 OF 2024 : 21 : 2025:KER:97 review, but provide a further opportunity to declare the candidates fit if they meet the criteria, including the BMI norms. In Annexure R2(e), the petitioner only sought extension of time by six months to reduce 28 kg of weight. The petitioner has no case that she was unaware of the norms and knowing fully well the norms, she participated in the selection. Only when she could not meet the medical norms, she has filed this writ petition challenging the norms. Sri. Sreekumar would further contend that it is for the employer to fix the norms as per the nature of the duties of the post. They have experts in the field to advise them to fix the norms and standard for medical fitness. This Court cannot substitute the norms in a proceeding under Article 226 of the WP(C) NO. 29523 OF 2024 : 22 : 2025:KER:97 Constitution. The norms applied to all candidates. The petitioner does not have a case that she was discriminated against in the application of Ext. P3 norms.
11. Sri. Kaleeswaram Raj submits in reply that challenge to Ext. P1 notification is not necessary and that, by participation in the selection process, there is no waiver of fundamental rights of the petitioner. He relies on the decision in Lombardi Engg. Limited v. Uttarakhand Jal Vadyut Nigam Limited [(2024) 4 SCC 341] in support of his contention.
12. The main thrust of the argument of Sri. Kaleeswaram Raj is that Ext. P3 norms regarding BMI offend Articles 14, 15 and 16 of the Constitution WP(C) NO. 29523 OF 2024 : 23 : 2025:KER:97 of India. Reliance has been placed on various scientific literature to contend that the BMI norm is arbitrary and lacks a rational basis. Ext. P3 norms are fixed by NTPC. NTPC is the Country's largest integrated energy company. They have hospitals at far-off locations to cater to the needs of their employees posted at various projects and mines. It is contended by the respondents that Ext. P3 norms and standards for medical fitness have been framed keeping in mind the role requirements as well as the work environment and work locations. When such norms have been fixed based on the advice of experts in the field, taking into account the role requirements, work environment, and work locations, it is not for this Court to substitute those WP(C) NO. 29523 OF 2024 : 24 : 2025:KER:97 norms based on any scientific literature. It would be prudent for Courts to leave decisions on matters that fall within the domain of expert bodies or policy makers to those authorities. The qualification and criteria for selection are matters which fall within the exclusive domain of the employer. The employer is best positioned to determine the qualifications a candidate must possess, based on the employer's needs and the nature of the work. Employers are generally best suited to determine the requirements for their roles, as they understand the specific demands of the job, work environment, and organizational needs. Physically demanding jobs or roles requiring work in extreme conditions might reasonably require stricter health standards. The WP(C) NO. 29523 OF 2024 : 25 : 2025:KER:97 Hon'ble Supreme Court in Official Liquidator v. Dayanand & Others [(2008) 10 SCC 1] has held that, the mode of recruitment, qualification and criteria for selection are matters which fall within the exclusive domain of the employer, and the Courts shall be extremely cautious in interfering with the exercise of such discretion by the employer. In Maharashtra Public Service Commission v. Sandeep Shriram Warade and others [(2019) 6 SCC 362], the Hon'ble Supreme Court, while holding that qualifications for appointment to a post are for the employer to decide, held as follows:
"10. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable WP(C) NO. 29523 OF 2024 : 26 : 2025:KER:97 qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial WP(C) NO. 29523 OF 2024 : 27 : 2025:KER:97 review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."
13. Ext.P1 notification was issued on 10.01.2024. The last date for online application was 24.01.2024. The notification provided that the candidate should have sound health and no relaxation in health standards would be allowed. Ext. P3, the detailed medical norms were also made available on the website. The notification further provided that while applying for any post, the applicant should ensure that he/she fulfills the eligibility and other norms mentioned therein. Ext. WP(C) NO. 29523 OF 2024 : 28 :
2025:KER:97 P2 offer of appointment issued to the petitioner also provided that as per the Service Rules, she should be declared medically fit before joining. Clause 7 of Ext. P3 provides for BMI and clause 7.1 provides that for the age up to 35 years, the BMI should be maximum of 30 Kg/m2. Knowing fully well the norms and standards for medical fitness, the petitioner applied for the post of GDMO. She appeared for the medical examination on 25.07.2024 and in terms of clause 6.2 of Ext. P3, she was declared temporarily unfit for a period of 21 days for not meeting the BMI norms. When she could not meet the medical norms, she has filed this writ petition contending that the norms regarding BMI are arbitrary. Being fully aware of the norms, she participated in the selection. She has thus WP(C) NO. 29523 OF 2024 : 29 : 2025:KER:97 waived her right to question the norms for selection. The Hon'ble Supreme Court in Tajvir Singh Sodhi v. State of Jammu and Kashmir [2023 KHC 6333:
AIR 2023 SC 2014] held as follows:
"13.1. It is therefore trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Therefore, we find that the writ petitioners in these cases, could not have questioned before a Court of law, the rationale behind recasting the WP(C) NO. 29523 OF 2024 : 30 : 2025:KER:97 selection criteria, as they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of the principle of waiver and acquiescence."
Thus, it is trite that, when a candidate participated in the selection without objection, demur or protest and is subsequently found to be unsuccessful, a challenge to the selection process is precluded. The petitioner has no case that the respondents had adopted any abhorrent, illegal or unjustified means in the selections process. She has also no case that she was WP(C) NO. 29523 OF 2024 : 31 : 2025:KER:97 discriminated against in the application of Ext. P3 norms.
14. It is to be noted that even in the re-medical examination conducted on 21.08.2024, which the petitioner underwent after filing the writ petition, she was found unfit as she did not meet the BMI norms. The contention of the petitioner that she was asked to reduce 28 kg weight in 28 days is denied by the respondents stating that the respondents never require candidates to correct or reduce their weight after the first medical examination and before the re- examination. Clause 6.2 of Ext. P3 provides that candidates not meeting the standard given therein will be declared unfit for a maximum period of 21 days by the CMO and shall be declared fit only in WP(C) NO. 29523 OF 2024 : 32 : 2025:KER:97 case the candidates fulfill the criteria including the norms for BMI. That apart, the norms do not require the candidates to reduce their weight before the re- examination. Therefore, the contention of the petitioner that requirement to reduce weight before re-examination is hit by doctrine of impossibility, also cannot be sustained.
In the light of the above discussion, this Court is not inclined to accept the contentions of the petitioner based on the scientific literature and the decisions cited. The writ petition is dismissed.
Sd/-
MURALI PURUSHOTHAMAN JUDGE SB WP(C) NO. 29523 OF 2024 : 33 : 2025:KER:97 APPENDIX PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ADVERTISEMENT WITH NO.02/2024 DATED 10.01.2024 PUBLISHED IN THE OFFICIAL WEBSITE.
Exhibit P2 TRUE COPY OF THE OFFER OF APPOINTMENT REF.NO.01:HR:RECTT:2024:ADVT.NO.02.24 DATED 17.07.2024 ISSUED BY THE SENIOR MANAGER (HR- RECTT), NTPC LIMITED.
Exhibit P3 TRUE COPY OF THE NORMS AND STANDARDS FOR MEDICAL FITNESS ISSUED BY THE NTPC LTD Exhibit P4 TRUE COPY OF THE ONLINE COMMUNICATION DATED 19.08.2024 SUBMITTED BY THE PETITIONER TO THE RECRUITMENT CELL, NTPC RESPONDENT ANNEXURES ANNEXURE A TRUE COPY OF THE E-MAIL DATED 17.07.2024 R2(A) SENT BY THE RESPONDENTS ANNEXURE A TRUE COPY OF THE OFFER OF APPOINTMENT DATED R2(B) 17-07-2024 ISSUED TO THE PETITIONER ANNEXURE A TRUE COPY OF THE EMAIL SENT BY THE R2(C ) PETITIONER DATED 16-08-2024 ANNEXURE A TRUE COPY OF THE EMAIL SENT BY THE R2(D ) PETITIONER DATED 17-08-2024 ANNEXURE R2 A TRUE COPY OF THE REQUEST SUBMITTED BY THE (E ) PETITIONER DATED 21-08-2024