JUDGMENT
V. Kanagaraj. J.
1. The petitioner has filed this writ petition praying to issue a writ of mandamus directing the respondents to promote the petitioner as cashier with effects from the date on which the other sub-staff were promoted on the basis of the interview held on October 26, 1987 and pay the arrears to the petitioner and award costs.
2. In the affidavit filed in support of the writ petition, the writ-petitioner would narrate his case stating that he joined the respondent/bank as messenger in June 1970 and he was confirmed in service in January 1978 ; and presently he is working as Daftry in the Nagercoil Branch of the respondent/bank; that in February 1987 the respondent/bank conducted promotional tests for the sub-staff employees for being promoted as record keeer, godown keeper, bill collector and cashier; that he participated in the test and came out successful; that in October 1987, he was called for the interview and in July 1988, the list of candidates selected in the interview was published wherein his name was shown in serial No. 109.
3. The further case of the petitioner is that while so, he was given to understand that only after medical test, promotions would be given and he was sent for medical test to bank’s doctor, but after examining him the bank’s doctor did not give any opinion; that thereafter in December 1988 he was advised by the bank to appear before one Cardiologist, viz. Dr. S. Anilraj for checkup, who after examining him gave his opinion that there is no evidence of pulmonary hypertension; that while the petitioner was waiting for the order of promotion, to his dismay, he received a letter, dated October 3, 1991 stating that the Bank’s Cardiologist of the Central Office of the respondent/bank has given his opinion, without physically examining him, that he must undergo heart surgery immediately and only after that he could be promoted and he is not fit for promotion till such time.
4. The further case of the petitioner is that he sent a letter, dated October 12, 1991, to the second respondent protesting against the decision of the bank made on the basis of the alleged opinion of the bank’s Cardiologist of the Central Office and requested to give promotion that since he did not receive any reply, he sent a reminder on November 20, 1991 and thereafter he received a reply through the Branch Manager of the respondents/bank to the effect that his request for promotion was rejected by the management; that the opinion of the bank’s Cardiologist at the Central Office is imaginary and is not based on any evidence for Dr. Arulraj, who examined him has categorically stated that there is no evidence of pulmonary hypertension and that his heart and lungs are working within normal limits and that he is fit to work as a cashier or clerk and hence the respondent/bank ought not to have gone by the alleged opinion of the bank’s Cardiologist at the Central Office that in the respondent/bank several handicapped persons have been given promotions and there is absolutely no reason as to why the petitioner should be denied of his due promotion inspite of himself being fully qualified to be promoted; that all others, who qualified for promotion have been promoted and it is only in the case of the petitioner promotion was denied under pretext of the opinion of the bank’s Cardiologist at the Central Office and having left with no option and without other alternative remedy he came forward to file this writ petition praying for the relief sought for.
5. In the counter-affidavit filed on behalf of the respondents, it would be contended that the reference book on staff matters prescribes that candidates selected for employment in the subordinate, clerical or officers cadre in the bank shall be required to undergo medical fitness test at the time of entering bank’s service and the employees should also undergo a medical fitness test when they are promoted from subordinate cadre to clerical/cash department or trainee officer supervisory staff cadre and the bank has also appointed medical examiners and have also notified doctors, surgeons who have to perform the role of medical examiners ; that the medical officers on medical examination should rule out organic ailments like congenital heart disease; that the x-ray test of the petitioner revealed a hole in the heart; that the Specialist Dr. S. Arulraj, M.D. Cardiologist observed that a small hole was seen in the heart of the petitioner (ventricular septal defect) and that it was a birth defect and because of the defect, his heart has not suffered any heomodynamic disturbance as far and that he will be fit to work as a cashier or clerk; that the report of the Cardiologist was placed before the bank’s Senior Medical Officer at Madras and he opined that:
“he has ventricular septal defect (congenital
heart disease). As per the rules for medical
fitness he has to be disqualified for
promotion. He is suffering from organic
heart disease.”
Then the matter was referred to the Cardiologist of the bank’s Central Office at Bombay and he opined that, the petitioner was having congenital heart disease and that the disease was curable by surgery and that petitioner must undergo surgery immediately and after that he can be promoted; that the said Cardiologist also cautioned that at present the petitioner may be able to do his sedentary job of cashier but with the progress of time he will have complications like pulmonary hypertension and he may be declared infective endo cardiaties, which will not only handicap him but may turn out to be fatal for him then further expressing surprise as to how by the local medical opinion, he was declared fit, the petitioner was advised to undergo a surgery, that he declined; that it was in these circumstances, the petitioner could not be considered for promotion to the post of cashier and with such of the averments, the respondents would pray to dismiss the above writ petition.
6. Be it as it may. The strong point relied upon by the respondents is that it is not only at the time of promotion from sub-staff to clerical/cashier departments but also when candidates/are selected for employment in the subordinate/clerical or officers cadre, they are required to undergo medical fitness test but the counter-affidavit filed on behalf of the respondents would feel sorry for such a test having not been conducted on the petitioner at the time when he entered the service as a sub-staff.
7. The initial doctor attached to the respondent/bank and the Specialist Dr. S. Arulraj, M.D., Cardiologist who examined the petitioner medically, though detected the defect as congenital defect in the heart of the petitioner, ordered their opinion to the effect that it is not susceptible to cause any impediment or great hardship to the petitioner, so as to affect his normal work in the bank and would clear the petitioner’s case for promotion. But the respondents not being satisfied referred the matter to the bank’s senior medical officer and thereafter to the Cardiologist of the bank’s Central Office at Bombay and they offered their dissenting opinions from the opinion offered by Dr. S. Arulraj and would decline to clear the case of the petitioner for promotion as a result of which the respondents would conclude not to promote the petitioner inspite of himself being otherwise qualified in all other respects, which is an admitted case of the respondents. Hence, the respondents would conclude advising the petitioner to undergo cardiac surgery, imposing it as a pre-condition for promotion. But the petitioner declined to undergo surgery since according to him, there is absolutely no impediment for him to work without the surgery that was suggested by the respondents. Probably, the cardiac surgery since being a great risk on the very life of the petitioner, he might have decided otherwise that to comply with the pre-condition imposed by the respondents for his promotion.
8. The uniform case of the respondents is that such medical examinations are necessary for the bank employees as a routine affair irrespective of the fact whether it is at the time of the appointment or at the time of promotion to the higher ranks. But, in spite of the said rules being in existence, even at the time the petitioner got employed, he does not seem to have been referred to such medical examination at the time of his appointment but such a condition had been imposed only at the time of his promotion during which the defect is said to have been diagnosed. Hence, from the very attitude of the respondents in implementation of the rules, it could be inferred that the medical examination, as prescribed by the rules of the bank are not mandatory, but only recommendatory or a formality rather. However, it cannot also be said that there cannot be any such rule nor is it the case of the petitioner that the rules pertaining to such medical examinations should be declared void. But, the prayer of the petitioner is only to declare his promotion as on date it became due and hence from the point of view of the prayer of the writ petition everything has to be looked into.
9. In these, circumstances, looking at everything from the angle of the promotion of the petitioner, the point to be answered is whether the promotion of the petitioner could be withheld in the circumstances of the facts revealed regarding the health condition of the petitioner from the different opinions offered by different doctors in satisfying the alleged rules prescribed by the bank? Already the conclusion is arrived at regarding the rules adopted in practice that the said rule is not a mandatory one and to satisfy such rules, unless opinions are offered by the experts in an unequivocal manner, merely based on differing opinions offered by different experts, no definite conclusion could be arrived at by the bank especially going to the extent of denying the promotion of its employees, even in the event of they being found qualified in all other respects. It is the settled law that the expert opinion is neither infallible nor conclusive proof in order to decide matters of such nature and it is up to the authorities to apply their mind to arrive at their own conclusions, of course in consideration of such expert opinion.
10. In the case in hand, different opinions have been offered by different experts and the respondent/management without applying its mind to arrive at a valid conclusion in consideration of the different opinions offered by different medical officers, as seen above, has bluntly accepted the opinion offered by the specialists from the head office rejecting the other opinions offered by the Cardiac Specialists at Madras and without assigning any reason whatever, have ultimately arrived at advising the petitioner to undergo surgery thus imposing surgery as a precondition for promotion without arriving at its own decision in the existing conditions. At this juncture, it is not out of place to mention that the respondents have advised the petitioner to undergo the cardiac surgery absolutely bereft of any authority to impose such conditions especially in view of the fact that they are not in a position to give any guarantee for the life of the petitioner while undergoing such surgery and hence in his own right, the petitioner has decided not to undergo the surgery since he was confident in his considered opinion, that he was able to carry out his duties and responsibilities towards the respondents bank without any hindrance of health impediment. Moreover, it is further a settled law that under such circumstances when two opinions are available, one recommending the petitioner’s promotion treating the defect found on medical examination as “will not affect his health” and the other suggesting surgery the management must always prefer the one that is advantangeous to the employee, and not the other which is to his disadvantage. Accordingly, in the case in hand, the respondents should have decided to give promotion to the petitioner in acceptance of the opinion offered by the cardiac experts at Madras, who physically examined the petitioner, without giving weightage to the other opinion offered based on only the records thereby unnecessarily imposing the pre-condition on the petitioner to undergo surgery for his promotion, which, in all other respects, the petitioner deserves on merit. Hence, in the state of affairs that prevails in the case, the respondents have failed in their duties and responsibilities to apply their mind to the above factual and legal aspects prior to arriving at a decision to deny the due promotion of the petitioner on health ground.
11. Even though the service rules emphasize such a medical examination to be held for the appointees, to get qualified themselves for being appointed to the bank service and thereafter for promotion irrespective of the cadre for which they are appointed/promoted, it is all about matters concerned with the year 1987. Now we are at the verge of 1999 and 12 long years have gone by. It is reported on the part of the petitioner that the petitioner is hale and healthy and he is working without any hindrance or impediment caused on account of the defect said to have been detected in the medical examination held on the petitioner by different Cardiologists and nothing has gone wrong in the past 12 years as feared and apprehended by the doctors of the Central Office of the respondent/bank rather falsifying their opinion. This factor also goes against the danger anticipated regarding the health of the petitioner. Hence, as culmination of all the discussions held above, I am left with no option but to arrive at the irresistible conclusion that the denial of the promotion for the petitioner by the respondents is not only unreasonable but also discriminatory. The petitioner is undoubtedly entitled to his promotion on par with similarly placed other employees of the bank and it has become inevitable on the part of this Court to pass the following orders:
(i) The above writ petition succeeds and the same is allowed.
(ii) The respondents are directed to promote the petitioner as a cashier with effect from the date on which the other sub-staff were promoted on the basis of the interview held on October 26, 1987 and pay the arrears to the petitioner with all increased attendant benefits with interest at 6 per cent per annum within two months from the date of receipt of the presentation of this order.
12. However in the circumstances of the case, there shall be no order as to costs.