Supratim Mukherjee vs West Bengal State Electricity ...
2023 Latest Caselaw 7331 Cal

                       In the High Court at Calcutta
                     Constitutional Writ Jurisdiction
                              Appellate Side

Before:
The Hon'ble Justice Lapita Banerji

                                 WPA 4953 of 2023
                                Supratim Mukherjee

                                           Vs.

                     West Bengal State Electricity Distribution

                              Company Limited & Ors.




For the petitioner                  : Mr. Durga Prasad Dutta, Adv.,
                                      Mr. Sumanta Ganguly, Adv.,

For the State                    : Ms. Joydip Kar, Sr. Adv.,
                                   Mr. Debanjan Mukherjee, Adv.,



Heard on                         : 25.09.2023



Judgment Delivered on            : 19.10.2023



Lapita Banerji, J:- In a previous writ petition being W.P.A. 318 of 2023 the

petitioner prayed for re-assessment by the Pre-Recruitment Medical Board for

appointment to the post of Office Executive in the West Bengal State Electricity

Distribution    Company   Limited    (in   short,   WBSEDCL).    The   petitioner

participated in a recruitment process pursuant to an advertisement dated
                                         2


December 22, 2018. He qualified in the computer test and also got selected in

the personal interview. However, the petitioner's candidature was rejected by

an office order dated November 18, 2022 as he was declared temporarily 'unfit'

due to high Myopia in the Pre-Recruitment Medical Board Examination.

2.    Mr. Dutta, learned counsel appearing on behalf of the petitioner submits

that after the said rejection order, the petitioner underwent Lasik Laser

Surgery for correction of his eyesight.     He prayed for reconsideration of his

candidature vide representation dated November 24, 2022 made to the

respondent no. 2/the General Manager (HR & A), WBSEDCL.

3. Furthermore, another representation was made on December 13, 2022

for reconsideration of his candidature by the Respondent no. 2.

Representations dated November 22, 2022 and December 13, 2022 were not

considered. Being aggrieved by such inaction the previous writ petition being

WPA 318 of 2023 was filed.

4. Mr. Mukherjee, learned counsel appearing on behalf of the WBSEDCL

submitted during the hearing of the writ petition being WPA 318 o 2023 that it

was not maintainable as all the terms of the advertisement were complied with

by the Respondent/WBSEDCL. He drew the attention of this Court to the

conditions of the Employment Notification in support of his contention that it

was specifically notified that the decision of WBSEDCL pertaining to Pre-

Employment Medical test will be "final" and "binding" on the candidate.

Therefore, it was against the conditions and the guidelines stipulated in the

Advertisement of the Corporation to reconsider the candidature of the

petitioner.

5. He also submitted that once such prayer for reconsideration was allowed,

the same would open floodgates unnecessarily and cause immense

inconvenience to the Employer. He referred to the guidelines of the company

dated May 6, 2010 regarding the norms and standards for "Medical Fitness".

6. Having considered the rival submissions of the parties and the materials

placed on record, this Court on January 16, 2023 found that;

a. The number of vacancies in respect of the Office Executives are 745.

There may be a possibility of all the vacancies not being filled up as on date.

b. The petitioner after qualifying in the interview went for Pre-Employment

Medical Examination.

c. After being found temporarily 'unfit', he went for Lasik Laser Surgery.

d. No prejudice or grave inconvenience will be caused to the employer in the

event the petitioner's candidature was reconsidered as per the Regulations and

Guidelines of the company and the petitioner was sent for another pre-

employment medical examination since he was temporarily UNFIT.

7. This Court directed that the Order dated November 18, 2022 be set aside

and the Representation dated December 13, 2022 be considered by the

respondent no. 2/General Manager (HR & A) within six weeks from date, upon

giving a personal hearing to the petitioner. A reasoned order was directed to be

passed and communicated to the petitioner within two weeks of passing

thereof.

8. Furthermore, it was directed that in the event all the vacancies were not

filled up as on date, one vacancy to the post of Office Executive be kept till

such time the Representation of the petitioner is considered and disposed of.

9. This said order was passed in view of the peculiar facts and

circumstances of the case.

10. Mr. Dutta Learned Counsel appearing for the Petitioner submitted that

by the Impugned order dated February 16, 2023, passed pursuant to the order

dated January 16, 2023, the General Manager (HR & A) sought to reopen the

issue that was already settled by this Court by the order dated January 16,

2023. The General Manager sought to interpret the order in a manner refusing

to allow re-examination of the Petitioner, without taking into account the

findings of this Court.

11. Mr. Dutta, cited a Division Bench Judgment passed by the High Court of

Delhi reported in 2012 SCCOnLine Del 3131 (Ms. Sreeja K Vs. Union of India

& Anr.). In that case, the petitioner was held to be unfit on account of 'high

myopia' by the Medical Board constituted for pre-recruitment medical

examination. She appeared in a selection process for appointment to the post

of Junior Geologist with the Geological Survey of India (GSI).

12. Thereafter, the petitioner underwent LASIK surgery. She requested a

second medical examination. The same was allowed. The petitioner's vision

was within the prescribed parameters.

13. The petitioner was held to be unfit due to correction of her vision by way

of LASIK surgery after the first Medical Examination. After the LASIK surgery,

the petitioner's vision in both the eyes fell within the standard prescribed in the

Regulations but the Tribunal rejected the Application of the petitioner. The

Division Bench held that the Medical Board could not have declared the

petitioner as an unfit candidate since there were no Rules prescribing that a

person, who underwent LASIK surgery, would be either disqualified or declared

unfit. The Division Bench held that as per the own Office Memorandum of

GSI, an employee's eye sight could be corrected by suitable procedure.

14. He then cited a decision reported in ILR (2014) 1 Del 752 (Union of India

& Anr. Vs. Saikat Roy). The Hon'ble Division Bench of Delhi High Court held

that it cannot be disputed that in the absence of any restriction in Rule or

Regulation, the mere fact that a person has undergone corrective surgery,

cannot ipso facto tantamount to him being declared medically unfit. The case

of Saikat Roy (Supra) followed the case of Ms. Sreeja K (Supra).

15. Next he cited a decision reported in 2016 SCC OnLine Raj 8067 (Ajay

Singh Vs. State of Rajasthan) passed by a Coordinate Bench in the High

Court of Rajasthan. The Coordinate Bench held that even though it is true

that there must be an end to examination and re-examination of a candidate,

but, whether or not the person should be sent for re-examination depends on

the facts of the case. In that case, since there was a wide variation in the

Report of the authorities leading to the rejection and the Report of the

Government Hospital which examined the petitioner later, the respondent

authorities were directed to constitute a Board for examining the petitioner.

16. Mr. Kar, Learned Senior Counsel appearing on behalf of WBSEDCL

submits that no infirmity has been committed by the G.M. (H.R. & A) in not

sending the Petitioner for re-examination as the Petitioner's candidature was

directed to be considered by this Court in terms of the Regulations and

Guidelines of the Company. Since, the Regulations and Guidelines of the

Company did not permit re-examination by the Pre-Employment Medical

Board, the G.M. was justified in not allowing the re-assessment of the

Petitioner by the Pre-Employment Medical Board.

17. Mr. Mukherjee, Learned Counsel also appearing on behalf of the

Respondents cited a decision reported in AIR (1994) SC 1241 (Indian Council

of Agricultural Research & Anr, vs. Smt. Shashi Gupta). In that case, the

petitioner was offered appointment in the Agricultural Research Service as

Scientist Grade-S. She was required to produce a Medical Certificate of fitness.

Unfortunately, she was declared unfit by the Medical Board. The Appellate

Board also declared her to be unfit. She challenged the Medical Reports by

way of filing a writ petition.

18. The writ petition was transferred to the Central Administrative Tribunal.

The Tribunal quashed the Medical Reports and directed the petitioner to be

appointed in service. The petitioner challenged the Medical Reports before the

Tribunal on the grounds that she was already examined by a medical expert at

the time of her initial appointment as a Senior Computer/Technical Assistant.

19. Next she challenged the Medical Reports on the ground that she was not

required to undergo medical examination as the initial constitution of the

service rules did not provide for the same.

20. Since she was already a quasi-permanent candidate, she could not be

subjected to further medical examination.

21. The Tribunal's view that since the petitioner already held a quasi-

permanent status, no further medical test was required, was not accepted by

the Apex Court. The Apex Court held that once the Medical Board and the

Appellate Medical Board found the writ petitioner/respondent in the Appeal

unfit for the post, the Tribunal had no jurisdiction whatsoever to sit in Appeal

over the Medical opinions and direct the writ petitioner's appointment to

service. The employer had inherent right to be satisfied about the Medical

Fitness of a person before offering employment to him/her.

22. In the present case, this Court by its previous Order directed the

petitioner to be medically examined again by the Medical Board, for the

employer to be satisfied about the medical fitness of the candidate, before

offering employment to him. This Court did not proceed to interfere with the

opinion of the Medical Board. It only directed a fresh Medical Examination,

upon the petitioner undergoing a corrective surgery.

23. Also in the present writ petition, the Petitioner did not seek to challenge

the requirement of being examined by a Pre-Recruitment Medical Board.

24. Therefore, this Court fails to see how the decision in Shashi Gupta

(Supra) aids the case of the respondent/WBSEDCL. The case of Shashi

Gupta(Supra) was also distinguished on facts in Ms. Sreeja K (supra).

25. The next decision cited on behalf of the WBSEDCL is reported in 2011

(12) SCC 85 (Bedanga Talukdar Vs. Saifudaullah Khan & Ors.)In that case,

an advertisement was issued in 2006 for holding the preliminary examination

(screening of candidates) for a combined competitive examination, for

recruitment to the posts advertised by APSC. The last date for receipt of the

completed application forms was September, 2006. Posts were reserved for

several categories of candidates like OBC, SC, ST but no reservation was made

in favour of the disabled candidates under The Persons with Disability (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995.

26. Pursuant to a Public Interest Litigation (PIL), a fresh advertisement was

required to be made incorporating 3% reservation for Persons with Disabilities.

A Corrigendum was issued in June, 2007 to the advertisement issued in

August, 2006. Applications were invited for one post in Assam Civil Service

from the persons suffering from Locomotor Disability. It was made clear that

the candidates with Locomotor Disability must produce supporting documents

in the Office of the Assam Public Service Commission (APSC) or in the

examination hall before commencement of the examination. The Respondent

No.1 was certified by the District Medical Board, Dhubri as physically disabled

to the extent of 50% as on January 1, 2004. The preliminary examination was

held on September 23, 2007. The Respondent No.1 did not submit the

mandatory documents to substantiate his claim to the seat reserved for

candidates with Locomotor Disability. Therefore, he appeared in the

examination as a General Category candidate.

27. Both the Appellant and the Respondent No.1 successfully participated in

the preliminary examination and were called for the main examination. A

prescribed application form was required to be filled up. The Respondent No.1

claims to have indicated in the second form that he suffered from 50%

locomotor disability. According to him, he also submitted supporting

certificate. Both the Appellant and the Respondent No.1 successfully

completed the main written examination and were called for interview in

December, 2008. The Respondent No.1 claimed that he produced his

certificate during the interview. Such facts were disputed by the authorities.

When the list was published in June, 2009, the respondent No.1's (R1's) name

did not feature in the list as a physically handicapped candidate. The

Respondent No.1 made an application under Right to Information Act, 2005.

He came to learn that he had scored 100 marks more compared to the

Appellant. The revised list of selected candidates was published in February,

2010. The Respondent No.1's name did not appear in the said list. In a writ

petition filed by the Respondent No.1, the High Court passed a direction on

APSC to consider the case of the R1 afresh.

28. The R1's case was considered by the authorities in May, 2010. His claim

was not accepted. Another writ petition was filed by R1.

29. The authorities decided not to consider the case of R1 for appointment

against the solitary post earmarked for physically handicapped candidates,

since the identity card showing him as a physically handicapped candidate was

not submitted by R1 at different stages. The High Court directed the R1's case

to be considered taking into account the ID Card produced by him.

30. In such circumstances, the Apex Court held that there cannot be any

relaxation in the terms and conditions of the advertisement unless such power

was specifically reserved. The R1 submitted his document in respect of

Locomotor Disability for the first time in December, 2009. The R1 was being

considered as a general category candidate.

31. The Apex Court was of the view that the High Court could not have

issued the impugned direction to consider the claim of the R1 on the basis of

the identity card submitted after the selection process was over, with the

publication of the selected list.

32. The Apex Court was considering the candidature of the Appellant and the

R1 in respect of one reserved post. There was a specified date within which the

certificate of 'disability' had to be produced by R1, for being considered as a

Reserved Category candidate.

33. This Court again fails to see how the case of Bedanga Talukdar (Supra)

aids the Respondents' case. By an Order dated January 16, 2023, this Court

clearly recorded that there was a possibility of all the posts of Office Executives

(745 in number) not being filled up as on date. Therefore, in no way prejudice

or inconvenience would be caused to the employer if the petitioner's case was

reconsidered after his corrective surgery.

34. The petitioner, in the present case, had fulfilled all the eligibility criteria

and was sent for Pre-recruitment Medical test. The petitioner's Myopia was

beyond the prescribed limit. During the currency of the selection procedure,

this Court directed the petitioner to be re-examined by the Medical Board of the

Respondent/WBSEDCL to consider his medical fitness, as a candidate. How

the facts of the two cases can be equated, is beyond the comprehension of this

Court.

35. Next, he relied on a decision reported in 2013 (11) SCC 58 (Rakesh

Kumar Sharma vs. State (NCT of Delhi) & Ors.). In that case, a pre-requisite

for applying to the post of Trained Graduate Teachers (TGT) was a B.Ed degree

prior to the submission of the application form. The last date of submission of

application form was October 29, 2007. The Appellant had sat for the B. Ed.

Examination prior to the said date, but, his result was declared on January 28,

2008. Provisional letter of appointment was issued on June 19, 2009. It was

made clear that, if at any stage it was found that any information given by the

candidate was false or there was any concealment or misrepresentation, the

appointment would be liable to be terminated.

36. The competent authority terminated the service of the appellant in

October, 2010.

37. The Hon'ble Apex Court held that the Appellant did not possess the

requisite qualification on the last date of submission of the application form

even though he represented that he possessed the same. Therefore, even

though the Appellant possessed the qualification on the date of declaration of

the result, the same could not be held to relate back to the date on which the

application was made or the examination was held. Furthermore, if the

Appellant's case was treated sympathetically, a large number of candidates,

who were not eligible as per the stipulations contained in the advertisement

regarding eligibility criteria would be treated in a discriminatory manner since

they may not have applied by considering themselves to be ineligible as per the

terms of the advertisement. Therefore, there was no obligation to protect an

illegal appointment or usurpation of a post by an ineligible candidate.

38. In the present case, the General Manager (HR&A), WBSEDCL by its

reasoned/Impugned Order dated February 16, 2023 has himself stated that

the petitioner as per academic qualifications was an eligible candidate and that

was why he was allowed to appear in the computer based test and participate

in viva voce. The eligibility of a candidate for employment was to be verified on

the date of the notification of employment.

39. There was no dispute with regard to the petitioner being an eligible

candidate as on the date of publication of the employment notification. The

Petitioner has not mis-represented in any manner. The conduct of the

Petitioner was not such whereby in the event his candidature had been

considered sympathetically other eligible candidates would have been unfairly

discriminated against.

40. Therefore, this Court is of the view that the case of Rakesh Kumar

Sharma (Supra) does not aid the case of the Respondents. The eligibility of the

petitioner is not in dispute. After fulfilling the eligibility criteria, a candidate

may be declared unfit during the time of Pre-recruitment Medical test. The

eligibility of a candidate cannot be equated with the suitability of a candidate

assessed during Pre-Recruitment Medical Examination. Only eligible and

provisionally selected candidates would be sent for Pre-Recruitment Medical

Examination for assessment of suitability.

41. The next unreported Judgment relied upon is passed by a Hon'ble

Division Bench of the Delhi High Court on August 4, 2016 in Mamta Yadav&

Ors. vs. Union of India & Ors. The writ petitioner participated in the

recruitment process for employment in the Railway Protection Force (RPF). The

medical standards stipulate the distant and near vision to be as per the

prescribed schedule without corrective surgery. As per the Respondents, data

shows that 17.5% of the candidates, who undergo LASIK surgery, report night

vision problems later.

42. Indian Railway Medical Manual, 2000 was published when LASIK

surgery was not available. In order to update the Manual, a Committee

comprising of 3 senior Railway Ophthalmologists, was constituted. The

Committee held that LASIK surgery should not be permitted for RPF Personnel.

43. In a gazette notification issued by the Government of India, the standard

distant and near vision for classes of service was stipulated. The notification

classified the services under 2 categories; "Technical and Non-Technical". The

non-technical services included Indian Civil Accounts Service, Indian Railway

Accounts Service, Indian Defence Accounts Service etc.

44. It was held by the Apex Court that the gazette notification regarding the

permissibility of corrective surgery, would be applicable only to the candidates,

who applied for "non-technical" posts. The vires of Medical standard

prescribed by the Board for appointment of Constables in BSF and RPF was

not under challenge. Therefore, the petitioners placing of reliance on a Gazette

Notification concerning the 14 Services relating to "Non-Technical" posts was

misplaced while seeking recruitment to 'Technical' posts.

45. Mamta Yadav (supra) goes to show that the petitioner can avail of LASIK

surgery since he applied for recruitment to the post of an Office Executive

which can be equated with a "non-technical" post. The standard to be followed

for an Enrolled member of a Force, in a 'Technical Post' cannot be held to be

the standard that is applicable for an Office Executive working in a "non-

technical" Post.

46. Also in the present writ petition, no issue has been raised regarding

disqualification of candidates undergoing LASIK surgery applying for the Post

of Office Executive.

47. A decision reported in (2019) 6 SCC 362 (Maharashtra Public Service

Commission Vs. Sandeep Shriram Warade & Ors.) has been relied upon by

Mr. Mukherjee. In that case, the Apex Court held that the essential

qualifications for appointment to a post, are for the employer to decide. The

employer may prescribe additional or desirable qualifications, including any

grant of preference. The employer is best suited to decide the requirements

that a candidate must possess. The Court cannot lay down conditions of

eligibility or desirable qualifications. The Court cannot re-write the terms of the

advertisement by interpreting the conditions of "essential eligibility". In the

event there is an ambiguity in the advertisement, the same should go back to

the appointing authority after appropriate orders. No Court, in the garb of

judicial review can sit in the chair of the appointing authority and decide what

is best for the employer.

48. In that case, a candidate with required to obtain degree/qualification in

chemistry etc. coupled with practical experience in manufacturing and testing

drugs for a stipulated number of years. 'Preference' could be given to

candidates who had the desirable qualification of research experience. It was

held that the word 'preference' mentioned in the advertisement could not be

interpreted to mean that just because a candidate had research experience, he

had a 'preferential right' to be considered suitable for appointment.

49. Again, this Court fails to see how the essential eligibility criteria as

stipulated by the employer has been sought to be usurped in the garb of

judicial review by this Court. This Court had only directed the employer to re-

examine the medical fitness of the petitioner in accordance with the terms

and conditions/parameters stipulated in the advertisement/guidelines.

50. Next he cited a Judgement reported in 2021, SCC OnLine SC 1262

(State of Bihar and Others Vs. Madhu Kant Ranjan and Another).

51. In that case, the original writ petitioner applied for appointment as a

constable pursuant to an advertisement published in 2004. He participated in

a physical test held on September 08, 2006. The original writ petitioner did not

submit his NCC certificate either with the first application form or with the

second application form. Additional 5 marks were to be given to holders of NCC

'B' certificate and 10 marks for holders of NCC 'C' certificates. The Petitioner

was a holder of NCC 'B' Certificate.

52. As the petitioner did not submit the NCC 'B' certificate he was not

awarded 5 additional marks. The original NCC 'B' certificate was submitted

after the physical test in 2007. The cut off date for such submission was

February, 2004.

53. The Hon'ble Apex Court held that as per the advertisement, the

applicants were required to produce the relevant documents, certificates along

with the application form. The originals were required to be produced at the

time of their appointment before the Selection Council.

54. The settled proposition of law is that a candidate has to comply with all

the conditions/eligibility criteria as per the advertisement before the "cut off"

date mentioned in the advertisement, unless extended by the recruiting

authority. Since the applicant did not submit the said certificate along with the

application form and submitted the same after three years he was not entitled

to get additional 5 marks for holding a NCC 'B' certificate.

55. By the Impugned Order in the present writ petition, the authorities

concerned admitted that the "eligibility criteria" was fulfilled by the candidate.

He was also a provisionally selected candidate as he passed the computer

based test and viva-voce. The issue with regard to the petitioner, not fulfilling

the eligibility criteria on the "cut off" date did not arise in the present case.

56. He then relied on a Coordinate Bench's Judgment/Order dated August

18, 2022 of High Court of Madhya Pradesh in W.P. No.894 of 2022 (Ms.

Harshita Pandey Vs. Northern Coalfields Limited & Anr.) where it was held

that the petitioner must conform to the rules relating to the medical

examination of Coal India Limited (CIL). The petitioner's eye sight, was much

below the acceptable of vision as per the Medical Attendance Rules of CIL.

Furthermore, she suffered from "by-lateral temporal polar," meaning

irreversible damage to retina.

57. Again this Court fails to see why the decision in Harshita Pandey

(Supra) has been cited by the respondents. This Court by the Order dated

January 16, 2023, did not direct the Respondents to either give a go-bye to the

Rules and guidelines pertaining to the Pre-recruitment Medical Examination.

It only directed the petitioner to be assessed again keeping in mind the

prescribed parameters of the Respondent Corporation as he was declared to be

temporarily unfit only.

58. Since the petitioner underwent LASIK surgery, this Court directed the Medical Board to assess whether the eye sight of the petitioner could fall within the prescribed parameters stipulated for the Pre-recruitment Medical Examination.

59. Next, he cited an unreported decision passed in R/Special Civil

Application No.24720 of 2022 (Mahendra Chawla Vs. Union of India),on

December 12, 2022, by a Coordinate Bench in the High Court of Gujarat at

Ahmedabad. In that case, the petitioner was held to be unfit for recruitment to

the post of Constable in view of the tattoo that he had on his right forearm.

60. Despite the tattoo being removed, the petitioner was declared unfit in the

RME as he did not remove the tattoo long before the RME was conducted and

the scar did not fade away substantially. In such case, the Coordinate Bench

held that infirmity could not be subsequently cured in order to dilute the

provision of advertisement.

61. The said case is distinguishable on facts. The petitioner was required to

(a) remove the tattoo and (b) the removal should have resulted in the tattoo

fading substantially so that the same could be treated as a scar and not a

tattoo during the recruitment process.

62. In such circumstances, the Court held that if the tattoo was removed

during the recruitment process and had not faded substantially, the infirmity

could not be subsequently cured. In Mahendra Chawla's case (supra) even

though the tattoo may have been removed by the Petitioner, the infirmity with

regard to the mark not being substantially faded, remained during the

recruitment process.

63. In the present case, during the recruitment process, the infirmity relating

to low vision was admittedly cured. There was no stipulation in the

advertisement that defect relating to 'Low Vision' had to be rectified long before

the selection process. There was no specific bar preventing the petitioner from

curing the infirmity during the recruitment process. Therefore, the petitioner

cannot now be barred from participating in the selection process on the ground

that the infirmity was cured during the recruitment process.

64. The aforesaid case aids the petitioner since for recruitment of an

Enrolled Member of the Force also, the Court directed the authorities to

constitute medical Board for re-examination of the petitioner.

65. Ms. Sreeja K's case (Supra) aids the case of the writ petitioner as he

underwent LASIK surgery after being rejected by the Pre-recruitment Medical

board and subsequently his eye-sight was found within the acceptable

parameters and was directed to be considered by the Division Bench.

66. The case of Ajay Singh (supra) aids the petitioner since for recruitment

of an Enrolled Member of the Force, the Court directed the authorities to

constitute Medical Board for re-examination of the petitioner even though as

per the guidelines the decision of the RME Board is "final". The same is usually

recorded in the Report of the RME itself.

67. In the present writ petition by the Impugned Order, the General Manager

(HR & A) held that:

"Eligibility of a candidate for employment is supposed to be verified

on the date of notification of employment. In other words,

candidates should have acquired qualification on or before date of

notification. As per academic qualification he was qualified that is

why he was called for the Computer Based Test, and Viva-voce

subsequently. As he passed Computer Based Test, and Viva-voce

he was referred for PMT. During PMT it was found that his vision

was not at par with physical requirement as per O.O. No. PP/Pre-

emp. Medical checkup/10/33 Dated: 06.05.2010 of the Director

(HR), WBSEDCL. In the said Office Order there is provision for

corrective measures in case of BMI, Gento Urinary System etc.,

individual above 35 yrs of age detected to be having type-II diabetes

without organ involvement & Pregnancy but there is no provision for

corrective measures in case of low vision. As there is no such

provision of corrective measures in the said office order, in case of

low vision, his corrective measures is not considerable."

68. In effect, the General Manager (HR&A) sought to disregard the directions

passed by this Court on January 16, 2023 by the Impugned Order. On

January 16, 2023, Mr. Mukherjee, the Learned Counsel appearing on behalf of

the respondent, WBSEDCL, categorically submitted that the petitioner's

candidature could not be considered by way of re-examination since the

Regulations of the company did not permit the same. He also submitted that

such reconsideration will open "flood gate" unnecessarily and cause immense

inconvenience to the Employer.

69. This Court finds it perplexing that as per the Regulations of the

company, reassessment of candidates in cases of BMI, Genitourinary System,

Type-2 diabetes without organ involvement and pregnancy could be reassessed

without the issue of opening of "flood gates" being raised but, as a special case,

despite the directions of this Court the "reassessment" of the candidature of

the Petitioner, was resisted on the issue of opening of "flood gates".

70. The issue with regard to the impermissibility in the

Regulations/Guidelines was considered by this Court, on January 16, 2023,

but the General Manager sought to give a go-bye to the specific directions of

this Court by again referring to the Guidelines/Regulations of the Corporation.

It has been sought to be argued on behalf of the Corporation that under Clause

"D" of the order dated January 16, 2023 the petitioner's candidature was

required to be considered as per the Regulations/Guidelines of the

Corporation. The Regulations/Guidelines of the Corporation did not permit

such re-examination for people with 'low vision'. Therefore, by not reassessing

the candidature of the Petitioner the General Manager did not fail to comply

with the Order passed by this Court.

71. When this Court specifically directed that no prejudice or grave

inconvenience would be caused to the employer in the event the petitioner's

candidature was reconsidered as per the Regulations/Guidelines of the

Corporation and the petitioner was sent for another Pre-Employment Medical

checkup, it was incumbent upon the General Manager to read the Order as a

whole to appreciate its true spirit and meaning without relying on only a part of

the Order and seeking to interpret it in a restrictive manner, according to his

convenience. After hearing the arguments on behalf of the Respondent

Corporation, the Order dated January 16, 2023 was passed. The General

Manager could not have again resorted to the same arguments to deny Pre-

employment Medical check-up of the petitioner, after corrective surgery.

72. When this Court directed the candidature of the petitioner to be

reconsidered as per the Regulations/Guidelines of the company, it naturally

implied that the consideration of petitioner's candidature to be made, keeping

in mind the Medical Parameters as stipulated by the Regulations/Guidelines of

the Corporation. It did not give the GM any authority to sit in Appeal over this

Court's Order by seeking to frustrate the directions of this Court in the garb of

impermissibility as per the Regulations/Guidelines of the Corporation.

73. In the present writ petition being WPA 4953 of 2023 the same arguments

have been advanced on behalf of the Corporation which were considered and

rejected in WPA 318 of 2023. Arguments have been advanced on the issue why

the Court's Order dated January 16, 2023 should not be carried out by citing

several Judgments. The Order dated January 16, 2023 has not been carried in

Appeal nor an application for clarification of the order was made by the

Corporation. The approach of the Corporation is not at all appreciated by this

Court.

74. Therefore, this Court is not willing to accept the arguments of the

Respondent Corporation intended to frustrate/not comply with the directions

passed by this Court on January 16, 2023. The attitude of the Corporation is

recalcitrant, to say the least.

75. Accordingly, the Impugned Order dated February 16, 2023 is quashed

and/or set aside. The parameters of the petitioner relating to his vision will be

re-assessed by the Pre-recruitment Medical Board and if the same falls within

the prescribed limits stipulated in the advertisement/Medical guidelines of the

Corporation, Petitioner will be considered for recruitment to the post of Office

Executive, upon compliance of all the formalities, within two months from the

date of this order.

76. With the directions aforesaid, WPA 4953 of 2023 is disposed of.

77. All parties to act on the downloaded server copy of this order from the

website.

78. Urgent certified photocopy of this judgment, if applied for, be supplied to

the parties upon compliance of all the requisite formalities.

(Lapita Banerji, J.)