Madras High Court
The General Manager vs V.Kandasamy on 5 July, 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.07.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)No.1061 of 2013
and
M.P.(MD)No.1 of 2013
The General Manager,
Tamil Nadu State Transport Corporation
(Madurai) Limited,
Tirunelveli Region, Tirunelveli. ... Appellant
Vs.
V.Kandasamy ... Respondent
PRAYER:- Writ Appeal filed under Clause 15 of Letters Patent to set
aside the order, dated 21.06.2011 passed by this Court in W.P(MD)No.
4174 of 2011.
For Appellant :Mr.K.Mahendran
For Respondent :Mr.K.Hemakarthikeyan
****
https://www.mhc.tn.gov.in/judis
JUDGMENT
(Judgment of the Court was delivered by DR.ANITA SUMANTH, J.)
This Writ Appeal is filed at the instance of the Tamil Nadu
State Transport Corporation, Madurai.
2.The Writ Petitioner had made an application for the post of
Conductor in response to a call for recruitment. Despite, according to
him, being possessed of all requisite qualifications, he was not
successful. Hence, the petitioner/respondent had, at the first instance,
sought a Mandamus directing the Transport Corporation to appoint him
as a Conductor.
3.The stand of the Transport Corporation was that the non-
selection of the petitioner was attributable to a deformity, that he suffered
from described as 'shortening of right lower limb'. The Writ Petition
came ultimately to be allowed by order dated 21.06.2011, the Writ Court
relying upon a decision rendered in very similar circumstances, in
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W.A(MD)No.317 of 2008, dated 22.07.2008.
4.A copy of that judgment has been circulated for our benefit.
The appellant in that Writ Appeal, one P.Mahavishnu, had also sought
appointment for the post of Conductor, but had been rejected and had
challenged the order of rejection. The deformity that he suffered from is
described as a 'deformity in the left hip due to non-union neck or femur
left'.
5.On a comparison of the deformities suffered by that appellant
and the appellant before us, the effect of the deformity in both cases
would be the shortening of the limb, the left limb in the case of
P.Mahavishnu and the right limb in the case of the appellant before us.
The Writ Appeal had come to be allowed by the First Bench on
22.07.2008.
6.The Bench noted that the medical authorities concerned had
certified that the deformity suffered by that appellant would not stand in
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way of his effective discharge of functions as Conductor. So to in the
present case, there is a certificate, that has been issued by the competent
medical authorities, to the effect that the petitioner would be in a position
to discharge functions as a Conductor effectively.
7.The Bench also refers to the Rules, which stipulate and
specify the deformities that would stand in way of effective discharge of
functions under four categories. The deformities mentioned are:
(i)Defective vision;
(ii)Defective hearing
(iii)Night blindness and colour blindness
(iv)Bow legs, knock knees or flat foot.
8.These are the only circumstances that, as per the Rules,
would stand in the way of employment and Mr.P.Mahavishnau, who
admittedly did not suffer from any of those deformities, was found
eligible for appointment. The Bench notes that the result of the
deformity would be to impair his gait, if at all, that may become a little
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inartistic. To quote the Bench, the functions rendered by the candidate
after all, are, not that of a 'dance trainer', but of a Conductor.
9.We are given to understand that the order in the Writ Appeal
was carried before the Hon'ble Supreme Court and was confirmed. It is
based on the order in the Writ Appeal that the learned Judge has allowed
the Writ Petition, directing, in conclusion, that the Writ Petitioner would
have to be provided employment within a period of eight weeks from the
date of receipt of a copy of that order.
10.The grounds raised in Writ Appeal are a reiteration of the
stand taken by the respondents at the original instance and learned
Standing Counsel would point out that the deformity would affect the
functioning of the respondent as a Conductor. We are unable to
subscribe to this view for the reasons already assigned by the learned
Judge relying on the order of the Division Bench, dated 22.07.2008,
since confirmed by the Apex Court.
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11.Another objection raised is that the Writ Petitioner had
approached the Writ Court even earlier, in W.P(MD)No.1534 of 2008
seeking identical relief of a Mandamus directing the Transport
Corporation to consider his claim for appointment. He points out that the
said Writ Petition was dismissed and further more, there is no disclosure
of that Writ Petition in the present Writ affidavit.
12.Adverting to the second limb of the above argument first,
even assuming that there is no disclosure in the Writ affidavit as alleged,
it would only amount to a technical violation and would not come in the
way of us rendering substantive justice.
13.Incidentally, we find that it is a same Judge, who has both
dismissed W.P(MD)No.1534 of 2008 (by order 11.03.2008) and allowed
W.P(MD)No.4174 of 2011 (by order dated 21.06.2011). Thus, it is
evident that the learned Single Judge has noted the circumstance an
distinguishing features that arose in both instances in arriving at
opposing conclusions.
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14.That apart, we find that the basis of the prayer in that Writ
Petition was itself different and distinguishable when compared with the
present Writ Petition. In that Writ Petition, the claim of the petitioner
was for appointment under the handicapped quota as per Section 33 of
the Disabled Persons (Equal Opportunities and Protection of Rights and
Full Participation) Act, 1995.
15.The stand of the Transport Corporation was that the
reservation provided for physically handicapped persons would only be
referable to certain specific posts, such as, Mike Announcer, Telephone
Operator and Public Relations Officer and cannot be extended to the post
of Driver and Conductor. Accepting the aforesaid stand, the earlier Writ
Petition had come to be dismissed by order dated 11.03.2008.
16.The premise upon which the present Writ Petition has been
filed is different, as the Writ Petitioner does not seek the benefit of
reservation at all. He seeks appointment in the general category on the
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ground that his disability would not stand in the way of appointment in
the light of the relevant Service Rules. The detailed discussion in the
order of the Division Bench, as reiterated by the learned Single Judge,
would support this submission.
17.In the interest of completion, the discussion in the Division
Bench, as extracted in the order of the learned Single Judge, is also
extracted here:
"4. The stand of the learned counsel for the
respondent was noted by the learned Judge in the order dated
14.12.2007. There is no dispute that the petitioner satisfied all
the requirements. He also has required educational
qualification and required height and weight. There is no
dispute that the petitioner's eye sight is also adequate. There is
a requirement under the relevant rules that the petitioner must
be free from physical deformity. The following deformities are
mentioned in the rules set out.
(i) Defective vision
(ii) Defective hearing
(iii) Night Blindness and colour blindness
(iv) Bow legs, knock knees or flat foot
The petitioner is not suffering from any one of them. The other
requirement of experience in driving and age requirement are
all satisfied by the petitioner. The only so-called deficiency
which was found in the petitioner is that the petitioner is
alleged to have a "deformity in the left hip due to non-union
neck or femur left"
5. On this ground, the respondent refused to
appoint the petitioner. The learned Judge has affirmed the
aforesaid stand of the respondent and dismissed the Writ
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Petition.
6. We are of the view that, in this matter, the
manner in which discretion has been exercised by the learned
Judge does not have our approval.
7. It is also not in dispute that the petitioner has
submitted a Medical Certificate issued by the Orthopaedic
Surgeon, Government Medical College, Thoothukudi to the
effect that the aforesaid alleged deformity does not prevent the
petitioner from walking around and working as a Conductor.
8. It is common knowledge that as a result of the
deformity, which is alleged against the petitioner, his gait, if at
all, may become a little inartistic. The petitioner is not
appointed as a dance trainer but only as a Conductor in a bus
and he satisfies all other requirements.
9. It cannot be disputed that in the present day
grim situation of unemployment, a person's opportunity to be
employed has been equated by the Apex Court as his right to
life under Article 21 of the Constitution of India. So, by
denying employment to the petitioner, virtually, his fundamental
right to life is sought to be taken away solely on the aforesaid
technical consideration.
10. The Apex Court has repeatedly emphasised that
when a person is denied his fundamental rights, such denial
has to be based on a procedure which is just, reasonable and
fair. There is no fixed standard of fairness. Fairness has to be
judged in the facts and circumstances of each case and in
judging the fairness of a procedure, the Court must have due
consideration of the entire facts and circumstances of the case,
including the societal condition in which the parties are placed.
The case of a person who is trying to eke out his living by
accepting the job of a bus Conductor must be judged with a
standard of a fairness which is obviously a little different from
the cases of business barons or those of corporate magnets. In
the cases of persons who are lowly placed the Courts have a
duty to stretch the law as far as possible, without violating it, to
give relief to those persons.
11. Going by the aforesaid consideration, this
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Court finds that the decision of the respondent in the instant
case in refusing the employment to the petitioner does not meet
the standards of fairness of any person of ordinary prudence.
Unfortunately, the learned Judge did not approach the issues
involved in this case from this angle.
12. It is left to this Court to interpret and apply the
rule in the light of Human Rights jurisprudence incorporated
by the Apex Court in our laws and as a result of which the
right to life has received a very liberal interpretation. So, we
are constrained to take a different view from the one which has
been taken by the learned Judge.
13. In these facts and circumstances of the case, we
direct the respondent to give appointment to the
petitioner/appellant to the post of Conductor since the
candidature of the petitioner is free from any other defect
except the one pointed out in the order under the appeal. Such
appointment should be offered to the petitioner/appellant
within a period four weeks from this date."
18.We have called for the Service Rules. The range of
disabilities that would disentitle a candidate for the post of Driver are
what have been noted by the Division Bench at paragraph 4 extracted
above. The stipulation regarding the disabilities that would disentitle a
candidate for the post of Conductor as per Rule is in general terms and
only states 'must be free from physical deformity'. However, we are of
the considered view that, that will not make any difference to the
conclusion that we have arrived at. The general stipulation which states
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'free from deformity' only means deformity, that would stand in the way
of Conductor exercising normal functions effectively. Thus,
notwithstanding this difference in stipulation between the Rules for a
Driver and Conductor, we are maintain that deformity suffered by the
respondent would not disentitle him to the post of Conductor. We
believe that the reasons for specification of disability in the case of a
Driver was bearing in mind the necessity for clear eye sight, sharp
reflexes and control.
19.In light of the above detailed reasoning, we see no merit in
the Writ Appeal and the same is dismissed. No costs.
[A.S.M.J.,] & [R.V.J.,]
05.07.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
cmr
https://www.mhc.tn.gov.in/judis
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
cmr
Judgment made in
W.A.(MD)No.1061 of 2013
Dated:
05.07.2023
https://www.mhc.tn.gov.in/judis
