REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) No.7112/2008
Date of Decision: March 04, 2011
MUKESH ..... Petitioner
through Mr. V.V.R. Rao, Advocate
versus
AIR INDIA & ANR ..... Respondents
through Ms. Padma Priya, Advocate
CORAM:
HON'BLE MISS JUSTICE REKHA SHARMA
1. Whether the reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in the „Digest‟? Yes
REKHA SHARMA, J.
The petitioner had applied for the post of Ramp Service Agent
with respondent No.2 pursuant to an advertisement published in
Employment News dated February 14-20, 2004. Despite having
cleared the trade test and personal interview, he has not been
appointed to the post, allegedly, on the ground that he was found
medically unfit, as he failed to meet the standard of Pre-Employment
Medical Examination (in short, called the “PEME”).
The grievance of the petitioner is that after he had presented
himself for the PEME conducted by the respondents, he kept waiting
for a favourable response and when for a long time he did not hear
from them, he made several trips to their office to know the status of
WP(C) No.7112/2008 Page 1
his appointment but to no avail. Left with no option, he sent a
legal notice to the respondents dated August 20, 2007 followed
by an application under the Right to Information Act dated
December 01, 2007. It was only thereafter, on December 12, 2007
that he was informed that he had been found medically unfit.
It is further his grievance that the information so given did not
specify the nature of medical unfitness that he was found to be
suffering from. That led him to file another application under the
Right to Information Act, dated December 27, 2007 calling upon the
respondents to supply him his medical report, in response to which he
received letter dated January 17, 2008 informing him that the
Medical Officer of the Company during the course of his medical
examination found him to be suffering from right ear deafness and that
it was for the said reason that he was declared medically unfit. Along
with this letter he was sent his medical report signed by Dr. V.K.Gupta
& Dr. V.K.Batra wherein against the heading “Final Assessment”, it
was recorded – “Temporarily Unfit”. On receipt of letter dated
January 17, 2008 along with his medical report, the petitioner got
himself privately examined from an ENT Specialist, namely,
Dr. V.K.Gupta, M.B.B.S., M.S. (ENT) FCGP Ex. H.C.M.S. who opined that
he suffered from no abnormality and that his hearing was within
normal limit. Armed with this report, the petitioner sent a letter to the
respondent dated February 19, 2008 requesting that he be appointed
to the post, and in the meanwhile, he sent another letter under the
Right to Information Act dated April 24, 2008 inter-alia requesting
the respondents to furnish details regarding the designation,
WP(C) No.7112/2008 Page 2
specialization, qualification and experience of Dr. V.K.Gupta and
Dr. V.K.Batra both of whom had signed his medical report. He also
sought information, whether they were ENT Specialists. The
respondents did not accede to his request for appointment on the basis
of the report obtained by him from an ENT Specialist, but after some
reminders vide letter dated July 18, 2008 did inform him that
Dr. V.K.Gupta was Locum Medical Officer with MBBS qualification and
had an experience of 35 years, and Dr. V.K.Batra was Deputy General
Manager, MD (Internal Medicines), M.N.A.M.S. (Internal Medicines) and
had an experience of 29 years. He was also informed that they were
not ENT Specialists.
In the aforementioned background, it is the case of the petitioner
that the respondents having themselves admitted that Dr. V.K.Gupta
and Dr. V.K.Batra who had declared him medically unfit on account of
abnormality in his right ear were not ENT Specialists and he having got
himself examined from an ENT Specialist who had given an opinion
that he suffered from no abnormality, there is no justification on the
part of the respondents in not appointing him to the post. Hence, he
has come to this Court seeking inter-alia a writ, order or direction to
the respondents to immediately consider him for appointment to the
post of Ramp Service Agent with effect from the date he was
disqualified in the medical examination and for a further direction to
frame guidelines for conducting pre-medical examination at a
Government recognized hospital by a qualified and specialist panel of
doctors.
WP(C) No.7112/2008 Page 3
Having set out the case of the petitioner, it is turn now to furnish
the respondents‟ version to the same. Both respondents No.1 & 2
have filed separate counter-affidavits but they have taken identical
stand in so far as the merits of the case are concerned. However,
before I refer to what the respondents have to say on merits, it needs
to be noticed that respondent No.1, namely, Air India in its
counter-affidavit has taken a plea that as on the date of the filing of
the writ-petition, it had ceased to exist as an entity, in as much as
along with Indian Airlines Limited, it stood amalgamated with National
Aviation Company of India Limited (NACIL) vide Ministry of Corporate
Affairs‟ order dated August 22, 2007 approving the scheme of
amalgamation. Hence, it has prayed for deletion of its name from the
array of parties. As regards the status of respondent No.2, it is stated
by both the respondents that it is a wholly owned subsidiary of
erstwhile Air India Limited and was established for undertaking ground
handling functions at various Airports.
On merits, the respondents have accused the petitioner of
deliberately suppressing a material fact that in the course of his PEME,
he was examined by an ENT Specialist and that by suppressing this
fact, he has sought to give an impression as if the Medical Officers of
the respondents who have declared him medically unfit had done so
without taking into consideration the report of the ENT Specialist.
Giving details of how the PEME is carried out, it is stated that various
medical examinations on a candidate are conducted by doctors who
are on the panel of respondent No.1 including specialist doctors and
thereafter, all the examination/assessment reports are handed
WP(C) No.7112/2008 Page 4
over/collected by Medical Officer of the respondent-company for final
review/assessment. The Medical Officer after compiling all the reports
from all the concerned panel doctors including specialist doctors, who
have carried out the medical examination, prepares a final report
giving his final remarks as per the Rules of the respondent-company.
As per the respondents, the same procedure was followed in the case
of the petitioner. The Specialists clinically examined him for
Pathological tests, X-Ray, ENT, etc. The confidential reports of all
these tests were sent in a sealed cover to the Medical Officer of the
company. The Medical Officer/s of the company assessed the reports
of the Specialists vis-à-vis the prescribed standard for the post. During
the course of the assessment of the report of ENT Specialist, namely,
Dr. (Major) Rajesh Bhardwaj, MBBS, MS(ENT), BLO, DNE, DHA, the
petitioner was found to be medically unfit by the Medical Officer of the
respondent-company, as the same was not meeting the standards of
the PEME prescribed by the company which were as under:-
Sl. No. Criteria Standard of Hearing
(Audiometry) (Audiometry) Loss
Hearing required of the petitioner at
as per PEME the time of pre-
Standards employment
examination
1 Average Hearing Less than 25 db 42 db (Right Ear)
Loss (Normal) 23 db (Left Ear)
2 Speech More than 90% 80% (Right Ear)
Discrimination (Normal) 98% (Left Ear)
It is stated that Dr. (Major) Rajesh Bhardwaj, ENT Specialist was
only required to furnish his report on the basis of clinical examination
conducted by him. It was thereafter the job of the Medical Officers of
WP(C) No.7112/2008 Page 5
the company to examine the report vis-à-vis the prescribed medical
standard. Accordingly, as noticed above, they examined the medical
reports of the petitioner and only then did they declare him unfit for
the job.
It is further stated that the job of Ramp Service Agent requires a
person to operate/handle equipments at the Tarmac Area of the
International Airport and as the Airport is a high risk area where high
level of noise occurs due to constant presence of aircrafts and other
heavy equipments, the job require precision in handling equipment.
Accordingly, strict medical standards are laid down and the selection of
the fittest from the fit is made so that the individual is not put to risk
himself and is also not a cause of risk to others in the Airport premises.
For what has been noticed above, the following question arises
for consideration:-
“Is the petitioner guilty of suppression of a
material fact? And if so, is the petition liable to
be dismissed on that score, and if not, has he
been wrongly declared medically unfit by the
respondents?”
One fact clearly emerges from the case set-out by the
respondents and that fact is that the petitioner was examined by an
ENT Specialist, namely, Dr. (Major) Rajesh Bhardwaj who was on the
panel of respondent No.1. But what I find to my dismay is that the
petitioner who has made so much ado about his having been declared
medically unfit by the Medical Officers of the respondents who were
not ENT Specialists, chose not to disclose this fact in his writ-petition.
The tone and tenor of his writ-petition is such that it gives an
WP(C) No.7112/2008 Page 6
impression as if the Medical Officers who declared him unfit had no
material before them. On the other hand, as pointed out by the
respondents, the fact of the matter is that they had before them the
report of the ENT Specialist as well as the medical standards for the
post in question which they applied to the report and only then did
they declare the petitioner unfit. The Medical Officers who compared
the ENT report of the petitioner with the prescribed standards were
neither naïve nor laymen. They too were qualified doctors. It required
no super-skill to consider the reports of the various specialists with
reference to the prescribed medical standard and declare a person fit
or unfit.
Given the fact that the petitioner is accusing the respondents
that he has been declared medically unfit by the Medical Officers who
were not qualified to do so, should he not have disclosed that he
appeared before an ENT Specialist of the respondents and was
examined by him? He chose to remain silent. To me, this silence was
not out of ignorance. It was deliberate and with a view to present a
distorted picture of what actually happened. For how many times the
Courts have to repeat that a petitioner must approach the Court with
clean hands? Here is a petitioner who knew that he had been
examined by an ENT Specialist and yet did not disclose this fact in the
writ-petition.
Something more! It is not the case of the petitioner that no
medical norms are prescribed by the respondents. It is also not his
case that the norms so prescribed were not followed. The respondents
have referred to those norms and in terms thereof, only less than
WP(C) No.7112/2008 Page 7
25 db of average hearing loss was considered normal and as regards
speech discrimination, more than 90% was taken as normal. The
petitioner suffered from average hearing loss of 42 db vis-à-vis his
right ear and 80% of speech discrimination in the said ear. He, thus,
fell far short of the laid down standards. It is stated by the
respondents that once a candidate is examined by a Specialist and has
been declared medically unfit by an in-house panel of doctors as per
the relevant Pre-employment Medical Rules, there is no provision of
referring a candidate for a second round of medical examination.
In view of the above, no fault can be found with the Medical
Officers declaring him unfit and I also feel that the petitioner does not
deserve to be sent for a fresh medical examination.
And last but not least, I cannot lose sight of the fact that the
petitioner has challenged the recruitment exercise that was
undertaken way-back in the year 2004. As per the respondents, all the
vacancies have since been filled up which I have no reason to
disbelieve.
For the fore-going reasons, I feel that the petition deserves to be
dismissed, and I hereby do so.
REKHA SHARMA, J.
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