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2023 Supreme(Ker) 602
IN THE HIGH COURT OF KERALA AT ERNAKULAM
DEVAN RAMACHANDRAN, J.
Shaik Zakir Ahmed S/o Shaik Shakir Ahmed – Petitioner
Versus
The Fertilizers and Chemicals Travancore Limited – Respondent
W.P. (C) No. 29693 of 2022
Decided On : 25-08-2023
Advocate Appeared:
For the Petitioners: Arun Chandranm, Harimohan.
For the Respondents: M. Gopikrishnan Nambiar, K. John Mathai, Joson Manavalan, Kuryan Thomas, Paulose C. Abraham, Raja Kannan, Jai Mohan, K.S. Prenjithkumar.
Point of Law: If Public Sector Undertakings are allowed to deal with candidates in this manner, it will lead to a situation where any of them can be denied opportunities solely on account of attributes of disease.
Headnote:
Recruitment - Medically unfit for employment- Suffering from infection- Prays that Ext.P22 be set aside and that ‘FACT’ be directed to appoint him, adverting to his credentials to post in question, without any further delay – Medical Board declares that petitioner has been diagnosed with chronic Hepatitis B Infection and that he is unfit to hold post in question. (Para 17)
Finding of the Court: Medical Board in question declares that petitioner has been diagnosed with chronic Hepatitis B Infection and that he is unfit to hold post in question, since it is not a “temporary/short term sickness”- No amount of thought into such a rather general statement by a Medical Board, which is consisting of Medical Experts, discloses how they recorded so; and further, how they could declare a person to be unfit solely because he is suffering from “Hepatitis B” Infection - This is exacerbated by fact that said report contains precious little about health condition of petitioner; and therefore, Court cannot grant imprimatur to decision taken by FACT in Ext.P22, which exclusively relies on Ext.R1(a) – Court set aside Ext.P22; with a consequential direction to FACT to subject petitioner to a further medical examination.
Result: Writ petition allowed.
JUDGMENT :
DEVAN RAMACHANDRAN, J.
1. It will be a rather sad day if, in this age and era, a Public Sector Undertaking like the Fertilizers and Chemicals Travancore Ltd. (FACT) should deny employment to a candidate solely on the ground that he is suffering from Hepatitis-B infection.
2. The petitioner applied to be appointed as an Assistant (General) in the services of the FACT, pursuant to Ext.P1 recruitment notification. He asserts that he has all the essential qualifications and credentials, thus making him deserving for the said post; but that he has been denied it solely for the reason that he is battling Hepatitis-B virus, as evident from Ext.P22 issued by the ‘FACT’. He showed me that the said document records that he has been found medically unfit for employment, because a Medical Board constituted by them has certified that he is suffering from the afore infection. He thus prays that Ext.P22 be set aside and that ‘FACT’ be directed to appoint him, adverting to his credentials to the post in question, without any further delay.
3. Smt. Anjali T.A. - learned counsel for the petitioner, explained that her client has never been informed of the specific findings of the Medical Board, mentioned in Ext.P22 and therefore, that even when he filed this writ petition, he was oblivious to the same. She added that, however, pending this lis, ‘FACT’ has produced the said Medical Report on record as Ext.R1(a), along with their counter pleadings, which confirms her client’s apprehension that he has been singled out solely because he is suffering from Hepatitis-B. She argued that when the world is moving towards the imperative requirement of inclusivity, discrimination meted to a person solely because of a disease, is not merely untenable but rather disturbing. She thus reiteratingly prayed that Ext.P22 be quashed and ‘FACT’ be directed to consider her client for appointment, without any avoidable delay; and concluded saying that, the afore request is being made, not because her client requires any empathy or sympathy, but because he is fully qualified for the post, possessing all necessary credentials, as are prescribed.
4. Before I move forward, I must record that, noticing the facts presented in this case and hearing the rival contentions of the parties, when this matter had been heard earlier on 09.08.2023, I had passed the following order, which is self speaking. For the purpose of its full reading, I extract it under:
“The report of the Medical Board - a copy of which has been produced as Ext.R1(a) - says that the petitioner is suffering from chronic Hepatitis B infection, which “is a communicable disease through blood and body fluids” (sic) and is also “a progressive pathological condition” (sic).
2. Prima facie, in this era, when inclusiveness of persons who are suffering from such diseases, including HIV, are paradigm, a report of the afore nature is, prima facie, not tenable.
3. This Court is, therefore, of the view that the petitioner must be assessed through a different Board because, the mere factum of Hepatitis B being able to be transmitted through blood or body fluids, cannot be ipso facto a reason for the petitioner to be denied employment. This, of course, is only a prima facie view.
4. I, therefore, direct Sri. Jai Mohan - learned Standing Counsel for the FACT, to obtain specific instruction in this regard and as to whether they are ready to constitute a different Board, so that the petitioner can be properly evaluated again.”
5. However, on 16.08.2023, when this matter was again called, the learned Standing Counsel for ‘FACT’ reaffirmed that his client cannot appoint the petitioner on account of the medical report, namely Ext.R1(a) and hence, this Court passed a further order on the said day, which is ut infra:
“Even though this Court had issued an interim order on 09.08.2023, it is now stated by the respondents that they cannot abide by the suggestions contained therein because, they are bound by the earlier opinion of the Me
