Abhishek Antil vs National Aviation Company Of ...
2009 Latest Caselaw 2818 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     WRIT PETITION (CIVIL) 5508 OF 2008

                              Reserved on :        22nd July, 2009
                           Date of Decision :      24th July, 2009

      ABHISHEK ANTIL                                  ..... Petitioner
                                  Through:   Mr. Harpreet Singh and
                                             Mr. Daljeet Singh, Advs.

                    versus

      NATIONAL AVIATION COMPANY OF INDIA LTD.
                                          ..... Respondent
                        Through: Mr. Lalit Bhasin, Ms. Ratna
                                 Dhingra and Ms. Shreeya
                                 Sharma, Advs.


%     CORAM:
      HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

      1.     Whether 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


                              JUDGMENT

SIDDHARTH MRIDUL, J.

1. The Petitioner, by means of the present writ petition, seeks to

challenge letter dated 1st September, 2007 (impugned letter) issued

by the National Aviation Company of India (erstwhile Air India Ltd.),

the Respondent herein, whereby the Petitioner has been found unfit in

his medical examination held by the Respondent in Mumbai.

2. The brief facts leading to the present petition are that:

a. During the month of August, 2006 the Respondent invited

applications for the position of Cadet Pilot from Indian

Nationals. The last date for receipt of applications was

stated to be the 10th October, 2006.

b. The Respondent had made it clear in the invitation to

apply that the selected candidates would have to undergo

medical examination by the Company Medical Officer of

the Respondent so as to meet the Respondent's medical

standards and also the Class-I Medical by CME-IAM of the

Indian Air Force (IAF).

c. The Petitioner applied to the Respondent and was asked to

take a written examination on 14th January, 2007 and

complete various other formalities for the writing of the

said examination.

d. The Petitioner successfully qualified in the written

examination and was asked to report for an interview.

Thereafter, the Respondent vide their electronic mail

dated 3rd April, 2007 required the Petitioner to report for

his medical evaluation on 13th April, 2007 at 9.30 a.m. in

the Respondent's office at Mumbai.

e. As scheduled the Petitioner was subjected to medical

evaluation by Doctors of the Respondent-Company. On the

28th July, 2007 the Petitioner wrote to the Senior Manager

(Administration), Operations seeking information about

the results and informing the Respondent that the

Petitioner had successfully cleared the medical evaluation

and other tests conducted by the IAF authorities in the

month of March, 2007 and that he had been selected for

the Technical Branch as a Permanent Commissioned

Officer.

f. Subsequently, vide the impugned letter dated 1st

September, 2007 the Petitioner was informed that he had

been found unfit in the medical evaluation by the

Respondent-Company. The Petitioner is aggrieved by the

said impugned letter dated 1st September, 2007.

3. On behalf of the Petitioner, learned counsel, Mr. Harpreet Singh

strenuously urges that the Petitioner had successfully cleared the

Class-II and Class-I medical assessment conducted by the Directorate

General of Civil Aviation (DGCA) on 1st August, 2007 and

13th February, 2008 respectively. Counsel contends that holding of a

Class-I license is a sine qua non for becoming a Air Line Pilot as is

evident from the electronic mail sent by the Respondent-Company to

one of the candidates namely Sh. Randeep Singh Bedi. Counsel for the

Petitioner further urges that reports of tests undergone by him at

Dr. Lal Path Labs Pvt. Ltd. and Hindu Rao Hospital, Delhi on

12th January, 2008 and 3rd March, 2009 respectively, clearly show that

the Petitioner does not suffer from hypothyroidism as stated on behalf

of the Respondent-Company. Learned counsel for the Petitioner urges

that the Petitioner is medically fit to be appointed to the position of

Cadet Pilot in the Respondent-Company and therefore seeks a

direction to the Respondent to re-evaluate and re-examine him

medically.

4. Per contra, Mr. Lalit Bhasin, counsel appearing on behalf of the

Respondent-Company urges that the medical standards of the

Respondent-Company are more stringent than the conditions required

by the IAF and the DGCA and that the rules and regulations of the

Company qua pre-medical standards do not permit medical re-

examination. Counsel further urges that the Petitioner has not

challenged the rules and regulations of the Respondent-Company and

there have been no allegations of malafides attributed to the Company

or its officials by the Petitioner and as such, the present petition is

without merit.

5. Counsel lastly submits that Mr. Randeep Singh Bedi, on whose

case the Petitioner relies, had not undergone the Class-I assessment,

and that all that Respondent-Company intended to convey vide their

communication was that Class-I certificate of the DGCA was sine qua

non for becoming a Pilot and not for obtaining employment with the

Respondent-Company.

6. Learned counsel for the Petitioner relied upon the decision of a

Division Bench of the Punjab and Haryana High Court in Azad Singh

vs. Union of India; 2006 INDLAW PNH 5882. In that case the

Division Bench of the Punjab and Haryana High Court dealt with the

appointment of a Constable who had been found medically unfit

because he was statedly suffering from eye flu at the time of the

medical examination. Relying on the Hand Book of the medical

examination and on the fact that the petitioner had in the interregnum

been engaged as a Constable with the Indo-Tibetan Border Police,

after successfully clearing the requirements of medical fitness, the

Division Bench directed the competent authority to depute the

petitioner for further medical examination in accordance with law.

7. In the present case, it is seen that the Petitioner is on the verge

of embarking on a career. Also, the Petitioner has successfully

qualified in the written examination and interview conducted by the

Respondent-Company, for the said post. Further, the Petitioner has

successfully cleared the medical evaluation and other tests conducted

by the Indian Air Force authorities in the month of March 2007, prior

to his rejection on medical grounds by the Respondent-Company, and

had been selected for the Technical Branch as a Permanent

Commissioned Officer. Resultantly, in order to clear the confusion on

account of the result of the medical examination being declared after

a period of about four months, the Petitioner had expressed his

willingness to appear for a medical re-examination. There was,

unfortunately, no response from the Respondent.

8. It is also observed that, in the meantime the Petitioner

underwent the Class-II Medical Fitness Examination conducted by the

DGCA on 1st August, 2007 and was found medically fit. Thereafter, on

the 5th March, 2008, the Petitioner was also accorded by the DGCA

with a Class-I Medical Assessment Certificate, required for a

Commercial Pilot License. Further, the Petitioner also underwent a

test for hypothyroidism in January 2008, at a renowned path lab i.e.

Dr. Lal Path Labs Private Limited. The report of the said thyroid

function test ruled out the possibility of hypothyroidism qua the

Petitioner. Furthermore, the Petitioner underwent the same medical

analysis from a Government hospital namely, Hindu Rao Hospital on

3rd March, 2009 and again from Dr. Lal Path Labs Private Limited in

February 2009. The results of the said medical analysis ruled out any

possibility of hypothyroidism.

9. On the other hand, on behalf of the Respondent, the results of

the said tests were dismissed on the plea that medication can

suppress the results and prevent hypothyroidism from being detected

during tests. Also, the Respondent has attempted to explain the

reports of the Indian Air Force and certificates of medical fitness

issued by the DGCA, by stating that their standards are far more

stringent. I do not agree with this explanation for the reason that both

the Indian Air Force and the DGCA carry out medical tests for

according clearance to pilots and commercial pilots respectively and,

therefore, they could not be said to conduct medical tests in a less

stringent manner.

10. Further, the Respondent opposes the medical re-examination of

the Petitioner on the ground that their rules and regulations do not

permit it. This argument is specious for the reason that the

Respondent has been unable to show that the rules and regulations

forbid a re-examination or that there is an absolute bar to a re-

examination under the said rules and regulations. Even otherwise it is

noticed that the "Hand Book on Medical Assessment of Civil Flight

Crew in India" of the DGCA, the apex body, specifically provides an

appeal procedure in cases where an Aircrew has been declared

medically unfit.

11. In the facts and circumstances of the matter, I am of the opinion

that denial of re-examination would result in injustice to the

Petitioner. On the other hand no harm or prejudice is likely to be

caused to the Respondent, if the Petitioner was examined medically

once again, since, if the Petitioner fails the medical re-examination, he

would obviously not be selected for the post. On a query at the bar it

has been stated by counsel for the Petitioner that the training

program has not yet begun for the cadets chosen by the Respondent.

12. In the result, the Respondent-Company is directed to send the

Petitioner for a further medical examination by the Doctors of the

Respondent-Company, at the cost of the Petitioner, as undertaken by

him. If the Petitioner is found medically fit, he shall be considered for

selection for the necessary training by the Respondent. The impugned

letter dated the 1st of September, 2007 is hereby quashed.

13. The writ petition is allowed in the above terms. No costs.

SIDDHARTH MRIDUL, J.

July 24, 2009 mk