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2014 Supreme(Gau) 89
Gauhati High Court
Hrishikesh Roy, J.
Sri Raj Kishore Buragohain -Appellant
Versus
Airport Authority of India, National Airport Division represented by the Chairman and Ors. -Resopndent
Writ Petition (C) No. 6107/2006 and [Alongwith Writ Petition (C) No. 6001/2006]
Decided On : 28-01-2014
For the Appellant :Mr. N. Dutta, Sr. Advocate, Mr. I Choudhury, Advocate, Mr. R.M. Deka, Advocate and Mr. K. Barthakur, Advocate
For the Respondents:Mr. K.N. Choudhury, Sr. Advocate
Headnote:
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Sections 2(i) 47 - Constitution of India,1950 -Article 142 - Challenge - Terminating service - Quashing termination order - Appointment as Junior Assistant (Fire Service) - Whether candidates were already examined by a Civil Surgeon as in that event if re-examination is sought such cases are required to be referred to Medical Board instead of conducting review examination at level of Civil Surgeon - Whether medical report given by R.M.L. Hospital can be acceptable basis for terminating service of two petitioners - Held, Lawyer for selectees himself suggested for further medical test of successful candidates after they are appointed and accordingly it is argued that medical test on basis of which petitioners were selected and were appointed cant now be relied upon by petitioners to assail finding of Medical Report given by New Delhi Hospital -R.M.L. Hospital in their letter was of view that in case of re-examination of candidates who were earlier examined by Civil Surgeon norms require reference of such cases for examination by a Medical Board instead of at Civil Surgeon level - Therefore it is legitimate to question why medical re-examination was not done by a Medical Board and termination was ordered only on basis of re-examination at level of Civil Surgeon in Govt. Hospital - High Court can usefully refer to provisions of Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - In this Act under Section 2(i) "disability" includes blindness or low vision - Section 47 of Disability Act prohibits Government from discharging an employee who acquires disability during his service tenure and under proviso to Section 47 employer is required to shift employee who is found unsuitable to render service in his current post to some other post with same service benefit - Ordered Accordingly.
Heard Mr. I Choudhury, learned counsel representing the petitioner in both the cases. The respondent Airport Authority of India (AAI) and their officials are represented by the learned senior counsel Mr. K.N. Choudhury. The two petitioners who are serving as Junior Assistant (Fire Service) challenge the order dated 30.11.2006, whereby in pursuant to a post appointment medical examination, the appointees were declared to be medically unfit and consequently their services were ordered to be terminated through the order dated 8.12.2006. They were recruited through a selection process after they responded to the advertisement dated 12.1.2003 for the 31 posts of Junior Assistant (Fire Service), to be deployed in the North East Region Airports. The eye vision stipulated in the advertisement was 6/6 vision of both eyes without glasses and it was specified that only those candidates who are found physically fit, will be entitled to appear in the written test/driving test/physical endurance test.
2. Following the selection process and provisional selection made by the Selection Committee, medical examination on 4.7.2003 of the selectees by a Civil Surgeon of the Govt. Hospital was ordered and after the petitioners were certified to be physically fit by the Civil Surgeon, the letter dated 16.7.2003 was issued deputing the selected persons for the basic training course at the Fire Service Training Center, Narayanpur, Kolkata. Successful completion of the fire training was made a precondition for appointment as Junior Assistant (Fire Service).
3. The 31 selected candidates successfully completed the fire service training but in the meantime some of the unsuccessful candidates challenged the selection process by filing the WP(C) No. 4698, 5733 and 3790 of 2003. Simultaneously on complaint made by the non-selectees, a decision was taken by the Airport Authority of India (AAI) on 5.4.2004 to subject the selected candidates to fresh medical examination at New Delhi. Consequently the aggrieved selectees also filed the WP(C) No. 2800, 2644, 2877 and 2903 of 2004 to challenge the AAI's decision for fresh medical examination at New Delhi.
4. All the above cases were heard analogously and before the writ court, the AAI took the stand that the recruitment of the selectees was made by strict adherence to the norms and only those who qualified in the respective written test and medical test, were sent for fire service training at Kolkata. The learned Single Judge in his common judgment of 23.8.2004 observed that no illegality has been committed by the AAI in conducting the physical and written test. Moreover only because of inferior performance, the aggrieved petitioners were not selected. Therefore, noticing that fresh medical examination at New Delhi was ordered only because of complaints from the unsuccessful candidates, the Court quashed the notice dated 5.4.2004 and dismissed the WP(C) No. 4698, 5733 and 3790 of 2003. Consequently the WP(C) No. 2800, 2644, 2877 and 2903 of 2004 filed by the selected candidates were allowed.
5. The judgment of the writ court was challenged by the AAI by filing the Writ Appeal Nos. 417-420/2004 where the appellants challenged the quashing of the fresh medical examination ordered on 5.4.2004. The Division Bench in the judgment dated 29.11.2004 accepted the suggestion made by the learned counsel for the selected candidates that the private respondents may first be appointed before being subjected to further medical test. Consequently the Writ Appeals were disposed of with direction to the AAI to issue appointment letters to the selected candidates on condition that the appointees shall undergo further medical test, if so advised.
6. Thereafter appointment orders were issued on 5.1.2005 with the stipulation that the appointee will undergo another medical test in New Delhi at the earliest and if the appointees are found deficient in the medical requirement, their service would be terminated. With such sti
