Delhi High Court
Delhi Transport Corporation vs Sh. Sanjay Kumar And Ors. on 31 October, 2014
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15.10.2014
Pronounced on: 31.10.2014
+ W.P.(C) 39/2014, C.M. NOS.65/2014, 14120/2014,
14132/2014 & 14394/2014
DELHI TRANSPORT CORPORATION ..... Petitioner
versus
SH. SANJAY KUMAR & ORS. ..... Respondents
+ W.P.(C) 41/2014, C.M. NOS.67/2014, 10212/2014,
10600/2014 & 10992/2014
SURENDER SINGH & ORS. ..... Petitioners
versus
DELHI TRANSPORT CORPORATION ..... Respondent
+ W.P.(C) 44/2014, C.M. NO.69/2014
DELHI TRANSPORT CORPORATION ..... Petitioner
versus
SH. BALWAN SINGH & ORS. ..... Respondents
+ W.P.(C) 45/2014, C.M. NO.70/2014
DELHI TRANSPORT CORPORATION ..... Petitioner
versus
SH. SATISH KUMAR ..... Respondent
+ W.P.(C) 105/2014, C.M. NO.187/2014
BALWAN SINGH & ORS. ..... Petitioners
versus
DELHI TRANSPORT CORPORATION ..... Respondent
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 1
Through : Ms. Avnish Ahlawat, Sh. N.K.
Singh and Ms. Gunjan, Advocates, for DTC
in Item Nos. 9 to 13.
Sh. A.K. Mishra, Advocate, for petitioner in
Item No.10.
Dr. Surat Singh with Sh. Arun Kumar
Panwar and Sh. Kumar Datta, Advocates, for
Resp. Nos. 1, 2, 3, 4, 6 & 8 in Item No.9.
Sh. A.K. Mishra, Advocate, for petitioners in
Item No.10.
Dr. Surat Singh with Sh. Arun Kumar
Panwar and Sh. Kumar Datta, Advocates, for
Resp. Nos. 2, 5, 7, 9, 14, 17, 19, 26, 31, 35,
41, 43, 46, 47, 48, 50, 51, 52, 57 and 62 in
Item No.11.
Sh. Madan Lal Sharma and Sh. Varun
Nischal, Advocates, for petitioner in Item
No.13.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
MR. JUSTICE S. RAVINDRA BHAT
%
1. This judgment will dispose of common questions of fact and
law which arise from the decision of the Central Administrative
Tribunal, in O.A. Nos.2295, 2550 and 3355 of 2013.
2. The brief facts of these cases are that the Delhi Transport
Corporation (DTC) requested the Delhi Subordinate Services
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 2
Selection Board (DSSSB) vide letter dated 7.11.2007, for recruitment
of 10,000 Drivers to run the DTCs fleet of busses in Delhi. DSSSB
advertised the posts on 21.12.2007 inviting applications - for which
the last date for submission of applications was 21.1.2008. Selection
was based on written test and driving skill test. The dossiers/files of
selected candidates were sent to DTC for further action, such as
medical examination and training, etc. The Govt. of NCT of Delhi
forwarded copies of the applicants' dossiers with copy of an Office
Order No.52 dated 30.9.2008 to DTC which stated that their
appointment would be subject to fulfillment of certain conditions of
eligibility, viz. (i) satisfactory character and antecedents, (ii) medical
fitness; and (iii) verification of relevant original
documents/certificates. Appointment of the selected candidates was to
be made on satisfaction of the competent authority regarding their
eligibility, as prescribed in the recruitment rules. Any
discrepancy/shortcoming in the documents concerning eligibility of
any of the candidates could entail cancellation of appointment at any
stage. The applicants were subjected to medical examination by the
prescribed medical board of the DTC, which declared them unfit for
appointment being 'colour blind'. All candidates, declared medically
unfit, including the applicants, represented for redressal of their
grievances to the DTC. Considering the representations, a decision
was taken by the DTC by Resolution No.90/2009 dated 22.12.2009 to
take up the matter with Guru Nanak Eye Centre (GNEC) for fresh
medical examination of the medically unfit declared candidates, by the
DTC medical board as per laid down medical standards of the
Corporation.
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 3
3. In the light of the above development such candidates,
including the applicants, were directed to GNEC for their medical re-
examination. In GNEC, the applicants were examined by different
doctors and were declared fit and later appointed by DTC as Drivers;
they joined the services. One of the candidates, Vinod Kumar,
B.No.24243, who was initially found medically unfit by the DTC
medical board and later found fit by the GNEC, like the applicants,
caused an accident. He was re-examined by the DTC medical board,
which found him unfit for the post of Driver due to DDV & DNV
(colour blindness). In view of the medical condition of Vinod Kumar,
the Chief Medical Officer, In-charge, DTC suggested that all such
Drivers, who were declared fit by GNEC, had to be directed for
medical reexamination to avoid any accident in future. In the
circumstances, the DTC medical board issued Resolution No.25/2012
dated 12.4.2012 to get all such Drivers, who were declared fit by the
GNEC on their medical reexamination, medically examined by an
independent medical board for detecting the number of defective
vision cases. This resolution reads as under:-
"Extracts from the Draft Minutes of the DTC Board
Meeting held on 12.04.2012, as approved by the
Chairman.
Resolution No.25/2012: Item 15/2012: Conducting
re-medical examination in respect of those
candidates (Selected on regular basis through
DSSSB for the post of driver in DTC) by an
independent Medical Board who have been declared
medically unfit by the DTC Medical Board.
(Shri A.K. Goyal, CGM(P) was called in)
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 4
The DTC Board considered the Agenda item and
after detailed discussion thereon, approved that-
(i) All such DSSSB candidates (approx.. 413
amongst the 1st lot of 5148 who have already
been working in DTC as drivers and 170
candidates who have applied for re-test out of
total 216 candidates as o date amongst the
2nd lot of 2299 candidates) who have been
declared medically unfit by the DTC Medical
Board, may now be got re-medically
examined by an Independent Medical Board,
as resolved by the DTC Board vide Resolution
No.34/2011 dated 11.3.2011 as and when
Independent Medical Board is constituted as
per para-ii below.
(ii) For the above purpose, an Independent
Medical Board comprising 03 (three)
Doctors, one Doctor (Eye Specialist) from
Guru Nanak Eye Centre (GNEC) or any other
Govt. Hospitals of the GNCTD considering
no. of defective vision cases and another
Govt. Doctor (GDMOs) from GNCTD for
other cases of deformities of the candidates
and one Doctor from DTC Medical Board be
constituted to examine both the groups of
drivers mentioned in Para (i) numbering
approx. 413 & 216 drivers respectively.
The Board further directed that all previous
medical reports / relevant medical papers of
such cases for re-medical be placed before
the Independent Medical Board."
2. The Principal Secretary (Health),
Department of Health & Family Welfare,
Delhi Secretariat, New Delhi constituted an
independent medical board, vide Order No.
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 5
F/25/88/X/MB-DTC/H&FW/5062-70 dated
26.9.2012, for re-medical examination of such
Drivers. The said Order issued in this regard
reads as under:-
"Reference request received from Chairman-
cum-MD, DTC vide letter No.PLD-
III/(Driver)/DSSSB/2012/1745 dated
01.06.2012 regarding nomination of two
Doctors to be a part of Medical Board
alongwith one DTC Doctor for conducting re-
medical examination of DSSSB selected
drivers.
The Competent Authority after due
consideration of request, orders for
constitution of Medical Board consisting of
the following doctors for Re/Medical
examination of DSSSB selected drivers.
1. Dr. Anil Kumar Moghe, CMO (SAG), Central
Distt, DHS (Member).
2. Dr. Gia Chaudhary, Associate Professor,
GNEC (Member) for first seven days
Dr. Punita Sodhi, Associate Professor, GNEC
(Member) for next seven days.
Dr. Subhash Dahiya, Professor, GNEC
(Member) till the Medical Examination comes
to end.
3. Third Member of the Medical Examination
Board will be nominated by the CMD, DTC.
This issues with prior approval of Pr.
Secretary (H&FW)."
4. A Circular dated 18.10.2012 was issued to all the DTC Unit
Officers directing Drivers covered by the Resolution No.25/2012
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 6
dated 12.4.2012 to report to the independent medical board for their
re-medical examination. However, the Board constituted could not
proceed with the medical reexamination and subsequently, by an order
dated 17.4.2013, the Superintendent (H-II), Govt. of NCT of Delhi,
Health & Family Welfare Department, Delhi Secretariat, IP Estate,
New Delhi, conveyed that the re-medical examination of the
applicants might be conducted by the Government hospitals, viz. Deen
Dayal Hospital, GTB Hospital and Lal Bahadur Shastri Hospital
comprising 3 doctors (2 doctors from Government hospital and 1
doctor, CMO, DTC) as members of the independent medical board.
The Order dated 17.4.2013 reads as under:-
"...The Competent Authority after due consideration,
hereby directs constitution of two Medical Boards
consisting of the following doctors for medical re-
examination of cases relating to Eyes Defects:
A. Ist Medical Board to conduct Medical Re-Examination at
Deen Dayal Upadhyay Hospital
(a) Dr. H.C. Gandhi, The Board will work at
GDMO, DDU Hospital for first
Opthomologist, DDUH 15 days to examine the
(b) Dr. Deepak Verma, cases of eye defects.
GDMO,
Opthomologist, DDUH
(c) (c) Third Member of
the Medical
Examination Board will
be nominated by the
CMD, DTC
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 7
B. 2nd Medical Board to conduct Medical Re-Examination
at Guru Teg Bahadur Hospital
(a) Dr. G.K. Dass, Professor, The Board will work at
GTB Hospital GTB Hospital for
remaining days till the
(b) Dr. P.K. Sahu, Professor, medical examination
GTB Hospital concludes to examine the
cases of eye defects.
(c) Third Member of the
Medical Examination Board
will be nominated by the
CMD, DTC
C. 3rd Medical Board to conduct Medical Re-
Examination at Lal Bahadur Shastri Hospital
The Competent Authority further directs constitution of
3rd Medical Board consisting of the following doctors
for examining the cases relating to Orthopedics
Defects, Height and Amputation etc. and this board will
work at LBS Hospital.
(a) Dr. L.M. Singh, SAG, CMO, General Physician,
LBS Hospital.
(b) Dr. Hari Mansukhani, SAG, CMO, Orthopedics,
LBS Hospital
(c) Third Member of the Medical Examination will be
nominated by the CMD, DTC.
It is further directed that the Medical Board constituted
earlier by this department vide order
No.F.25/88/X/MB-DTC/H&FW/5062/-70 dated 26-09-
2012 shall stand discontinued henceforth.
List of candidates, after examination date and the
hospital at which they will be examined will be co-
ordinated and intimated to the respective hospitals by
the DTC.
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 8
This has the approval of Secretary (H&FW)."
5. All applicants were re-examined and found medically unfit
being colour blind. The relevant details regarding the applicants, were
given by DTC in its reply to the applications (except in
O.A.No.3355/2013) before the CAT. In these circumstances, DTC laid
off the applicant from duties in the months of April/May 2013 and
they filed applications before the CAT seeking directions to the DTC
to assign them duties forthwith on any post for which they are
considered fit.
6. The applicants urged that the medical reexaminations which
preceded their being denied employment was illegal, and contrary to
natural justice. It was also argued that since the second medical board
re-examination was conducted at the behest of DTC itself, it was
estopped from conducting yet another medical board. The applicants
also argued that the DTC should have acted with caution, considering
that many of the selected drivers could have developed disability after
employment. The CAT allowed the applicants, inter alia, reasoning
that:
"24. As far as the issue of promissory estoppel is concerned,
the same only applies in such cases where a party/person
makes some promises or statement of facts and the principle
cannot be invoked against a rule of natural science, such as
medical examination, etc. The mistaken outcome of medical
examination cannot be completely ruled out. It was for this
reason only that despite being declared medically unfit by
the DTC medical board, the applicants were subjected to re-
medical examination in GNEC. If the principle of
promissory estoppel is applied to, the outcome of principle
of natural science, such as medical examination, etc. would
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 9
also apply against the applicants for the simple reason that
initially they were declared unfit by the DTC medical board.
Merely because the DTC medical board initially accepted
the result of the medical examination conducted by the
GNEC, they are not estopped from subjecting the applicants
to another medical examination.
25. Though in these Original Applications the applicants
have questioned the withdrawal of the job of Driver from
them and no termination order has been passed, during the
course of hearing, it was submitted by learned counsels for
the parties jointly that the respondent-Corporation is in the
process of terminating the services of the applicants. Rather
the learned counsel for respondent also produced the
notices issued to the applicants to show cause that why their
services should not be terminated. Even if it is so, in view of
Section 20 of Administrative Tribunals Act, 1985, we cannot
interfere with the same. In the event the services of the
applicants are terminated, they would have their remedy to
take apposite course.
26. Since during the course of hearing learned counsel for
applicants emphasized that the technology in GNEC was
advance and the one adopted by the Special Medical Board
and DTC medical board was outdated and the view taken by
the doctors regarding fitness of the applicants in GNEC
need to be accepted, we first summoned the doctor from
DTC with Ishihara colour plates and asked him to test some
of the applicants before the Court. In respect of three
applicants we were satisfied that they were colour blind
while in respect of one candidate one of us (Mr. A.K.
Bhardwaj, Judicial Member) had a doubt. In the
circumstances, we summoned Dr. B. Ghosh, Director of
GNEC and asked him to submit his report regarding
medical examination of the applicants conducted in the
GNEC. He responded with promptness and presented a list
of candidates medically examined in the GNEC regarding
their suitability for the post of Driver in DTC.....Along with
the said list, Dr. Ghosh also presented certain other
documents, i.e., the opinion of the doctors.
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 10
27. In these cases not only an issue of livelihood of quite a
large number of persons but also the question of public
safety is involved. Had the applicants been disabled for the
post of Driver, maybe being colour blind, on acquiring
disability after joining the service, we could have no
hesitation in asking the DTC to apply provisions contained
in Section 47 of the Disability Act 1995 but in these
Original Applications, the applicants were considered
medically unfit for the post during the recruitment process.
When the doctor from the DTC submitted that the colour
blindness is by birth and cannot be incurred during the
course of employment, Dr. Ghosh, Director, GNEC took a
stand that a person may start lacking some colour
perception even later also. Though, at this stage, we could
dismiss the Original Applications as premature also but
since the applicants had approached this Tribunal to seek
an interim stay against their termination and this Tribunal
entertained O.A. No.2295/2013 on 11.7.2013 when it came
up for hearing afresh and as a result also,
O.A.No.2550/2013 on 30.7.2013, and considering the fact
that aforesaid two OAs involve the employment of large
number of DTC, in the interest of justice, we dispose of the
same with the following directions:
(i) The DTC medical board or the board constituted in
terms of the order dated 17.4.2013 would medically re-
examine the applicants adopting the device followed by the
GNEC and using its infrastructure, and also applying the
Ishihara colour plates, for which the Director of the Centre
will make all necessary arrangements, within two weeks
from the date of receipt of copy of this order.
(ii) If the said Board (not to be interfered with by the
staff of GNEC, except to the extent of making the
infrastructure available) considers them fit for the post in
question, they would be put back in service,
(iii) In case the Board finds them again unfit for the post,
the respondent-Corporation would be at liberty to complete
the process initiated by them to deal with the applicants;
and
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 11
(iv) The applicants would submit their reply to show
cause notices promptly and the present order would not
stand in the way of the Corporation to pass final order.
However, in the fitness of things the Corporation may have
its own decision to pass final order after considering the
report of the above medical examination.
No costs."
7. The DTC submits that the CAT fell into error in issuing the
impugned directions. Arguing that the CAT should not have interfered
with the determination of which employees fulfilled the medical
parameters, learned counsel stated that all applicants had been tested
and found wanting in the first instance. On account of their
representation, a decision was taken to have their eyesight tested
again. This time, they were certified to have been within the
prescribed parameters, and possessing normal eyesight. When one
such driver committed an accident, the matter was reviewed and a
third medical test was conducted through 3 separate, independent
panels of doctors. Each of the applicants was found to be colour blind.
In these circumstances, the CAT could not have directed yet another
test. It was emphasized that the basis for the direction appeared to be
that the test conducted earlier was technically unsound- a decision that
could not have been arrived at by CAT. It was held that since there
was no finding of illegality or mala fides, the CAT could not have
donned the role of a medical expert to direct DTC to disregard the
opinion of three independent medical boards.
8. Counsel for the applicants submitted that the order of the CAT
is justified and does not call for interference. Highlighting that the
drivers were subjected to a review medical board at the behest of
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 12
DTC, in which they were all cleared, it was contended that the DTC
could not have again reviewed its decision and subjected the
employees to yet another test. This showed a predisposition to decide
the issue in a particular manner. Besides, contended counsel, the DTC
was duty bound to take into account the service rendered satisfactorily
by each applicant and not draw a universal conclusion on the basis of
a solitary accident caused by one colour blind driver. It was submitted
that the CAT's direction to the DTC to conduct another medical test
had to be viewed in the light of the fact that the livelihood of a large
number of employees was at stake. Counsel also relied on the decision
of this Division Bench in Suresh Chand & Anr v Delhi Transport
Corporation W.P.(C) 4212/2014 (decided on 14.07.2014) and urged
that the DTC was directed to hold a proper inquiry in similar
circumstances, since the valuable rights of employees under the
Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 was involved. It was submitted that
in the present case, similar considerations apply and the rights of the
applicants to be afforded another opportunity cannot be denied and
that this would not prejudice DTC.
9. It is evident from the above discussion that in the first instance,
the applicants were disqualified on the ground of colour blindness.
Their representation yielded a positive response, in that GNCTD asked
them to be tested in one of its hospitals. All the applicants were
cleared then, along with several others. The precise ground for this re-
examination was to decide whether any of them was colour blind.
Unfortunately, after this re-examination, one of the Drivers was
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 13
involved in an accident; he was diagnosed with colour blindness. At
this stage, a decision was taken to constitute three separate
independent boards to test each applicant for colour blindness.
Significantly, the applicants did not challenge that decision. When
they underwent this (third) medical examination, the independent
boards found all of them to be colour blind. This prompted them to
approach the CAT, since DTC decided not to assign work to them, and
consequently not pay wages. This court notices at the outset, that the
CAT rejected the applicants' plea that DTC was estopped, in view of
the second medical exam results, from examining again to determine
if any of them was colour blind. Having made this decision, i.e. that
the DTC is unshackled by the results of the second medical test, and
cannot be hindered from holding a third medical test, there ought to
have been a compelling basis for the CAT to conclude that the results
of that third medical test were flawed. The speculative reasoning
discernible in its impugned order, suspecting the appropriateness of
the technology used (or its obsolescence) to test colour blindness, in
this Court's considered view, is unsustainable. The CAT cannot act as
an authority over the medical expert; sans a strong reason, based on
relevant material, it cannot hold that the technology used by three
separate medical teams to test colour blindness was inappropriate or
out dated. The reasoning of CAT on this aspect has to be rejected.
10. As to whether CAT could have issued the directions to DTC to
conduct yet another medical test, this Court has no doubt that, in the
present circumstances, such an order could not have been made. The
post in question is that of Drivers; they have to man large buses, which
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 14
ply on crowded public streets. Vision is a crucial part of the medical
parameters required for the discharge of duties attached to that post.
Colour blindness is an unacceptable condition. The applicants are,
fortunately, not saying that despite their colour blindness, the DTC has
to employ them; what they urge is that DTC should have held another
test by using another technology. It is here that the CAT, in this
Court's opinion, fell into error. Having not challenged the decision to
hold a re-medical examination (a third in that series) in relation to
colour blindness, and having undergone that medical examination, (in
which by three separate boards' independent appraisal, the applicants
were determined to be colour blind) the applicants could not have
legitimately challenged the results of that decision. Absent proven
mala fides, or illegality, procedural irregularity or violation of a
binding instruction or guideline, CAT could not have directed yet
another medical test - to be held in a particular manner. In the present
case, no rule, administrative circular, law or guideline was shown to
have been violated; there was no allegation of lack of bona fides in the
decision to hold a third medical test. In these circumstances, the CAT's
order directing a fourth medical test, was unwarranted.
11. This Court is also of the opinion that the decision in Suresh
Chand (supra) affords no assistance to the applicants. There, the
applicants had incurred disability after employment; the Court held
that the DTC's unilateral decision that such disability was a pre-
employment condition could not have been taken in the manner and
under the circumstances which occurred. In the present case, the last
medical test was based on a decision which was not challenged. That
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 15
such a medical examination was warranted in the background of
accident caused by one driver subsequently found to be colour blind,
was the rationale for the decision to hold a third medical board. DTC,
as an employer, had the right to decide and satisfy itself that the
incumbents satisfied the medical parameters required for the post, and
spelt out at the time of recruitment.
12. In the light of the above discussion, this Court is of opinion that
the impugned order cannot be sustained; it is accordingly set aside.
The writ petitions are allowed in the above terms, but without any
order as to costs.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
OCTOBER 31, 2014
W.P.(C) 39/2014, 41/2014, 44/2014, 45/2014 & 105/2014 Page 16
