Danesh Khan vs Jamia Hamdard University
2013 Latest Caselaw 5309 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.2235/2012

%                                                    19th November, 2013

DANESH KHAN                                         ..... Petitioner
                          Through:       Mr. Sarwar Raza, Advocate.


                          Versus

JAMIA HAMDARD UNIVERSITY                  ...Respondent
                Through: Mr. Sudeep Dey, Advocate.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1.           Petitioner applied for the post of Laboratory Technician

(Senior Scale) with the respondent/Jamia Hamdard University. Petitioner

was declared successful in the selection process however petitioner was not

allowed to join duties because according to the respondent the petitioner

was not medically fit. Petitioner questions this action of the respondent in

denying him employment by stating that he is not medically fit.


2.           A reading of the writ petition shows that pursuant to the

directions of the respondent/University petitioner reported to one Dr.
W.P.(C) No.2235/2012                                         Page 1 of 5
 Anwar Habib, an empanelled doctor of the respondent/University, and who

opined on 28.2.2011 that "in view of Arotic Valve replacement opinion of

cardiologist is required".     Petitioner accordingly reported to Dr. A.K.

Bisoi, Assistant Professor C.T.V.S. AIIMS on 14.3.2011 who has opined

that the petitioner is "fit to carry on normal duty and fit for normal

employment". It cannot be disputed that Dr. A.K. Bisoi was a Cardiologist

and competent to check the issue of medical fitness of the petitioner on the

aspect of aortic valve replacement. For the sake of completion of narration

it may also be mentioned that Dr. Ripin          Gupta, Cardiologist, Fortis

Hospital has also declared the petitioner fit to join normal duties as per his

opinion dated 14.3.2011. Petitioner with the opinion of Dr. A.K. Bisoi

approached      Dr.    Anwar     Habib,    the    empanelled     doctor     of

respondent/University, and who on 15.3.2011 on the basis of Dr. A.K.

Bisoi's opinion gave a report that "on the basis of assessment report given

by Dr. A.K. Bisoi, Asstt. Prof. C.T.V.S., AIIMS, individual is declared

fit". Individual mentioned in the endorsement of Dr. Anwar Habib is

petitioner.

3.            A reading of the aforesaid facts show that petitioner has been

found fit to join normal duties in terms of the report of Dr. A.K. Bisoi of

AIIMS and confirmed by Dr. Anwar Habib of the respondent/University.

W.P.(C) No.2235/2012                                          Page 2 of 5
 In my opinion, therefore there can be no obstacle in the petitioner being

given employment with the respondent/University on the ground that

petitioner is not medically fit.

4.           Learned counsel for the respondent sought to argue that one

Dr. S. Dwivedi has found the petitioner medically unfit and Dr. S. Dwivedi

is an empanelled doctor of the respondent/University. However, I find this

argument to be misconceived because the counter-affidavit states that Dr.

S. Dwivedi only reported that petitioner was an asymptomatic having

undergone mechanical aortic valve replacement in the year 2003 and

therefore required frequent cardiac check-up. Thus requiring regular

medical check-up cannot mean that petitioner has been declared medically

unfit by Dr.Dwivedi. I may note that no document whatsoever has been

filed alongwith the counter-affidavit to support the case of the respondent

of the petitioner being medically unfit, and that must obviously be because

there is no report even of Dr. S. Dwivedi that petitioner is not fit to join

normal duties.

5.           In view of the above, I hold that the respondent is wrongly

denying the appointment to the petitioner. Petitioner is medically fit. The

mere fact that petitioner is required to have frequent check-up cannot mean



W.P.(C) No.2235/2012                                        Page 3 of 5
 that petitioner is not fit once doctors both of AIIMS and of the

respondent/University state that petitioner is fit to join duties.

6.           Writ       petition     is      accordingly       allowed        and

respondent/University is directed to give appointment to the petitioner as a

Laboratory Technician (Senior Scale). Appointment letter be issued to the

petitioner within a period of four weeks from today and which appointment

letter should give petitioner four weeks time to join his duties. Parties are

left to bear their own costs.

7.           After the aforesaid judgment was dictated, counsel for the

respondent states that no post is vacant as of today, however I find that

there is no such averment in the counter-affidavit. In my opinion, even if

the post is filled up that cannot deny petitioner appointment inasmuch as

petitioner was most illegally and arbitrarily denied employment by the

respondent/University. The respondent/University if so required can create

a post, including a supernumerary post, and petitioner will be entitled to all

the benefits of regular employment in case he joins his duties with the

respondent/University.      After all, the petitioner needs to be given

appointment because petitioner cannot be punished for no fault of his and




W.P.(C) No.2235/2012                                            Page 4 of 5
 which appointment is sought to be denied only because of illegal actions of

the respondent/University.




NOVEMBER 19, 2013                            VALMIKI J. MEHTA, J.

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