Gauhati High Court · 2012

04. The respondent herein construing himself to be eligible as per t he criteria prescribed, applied for the post of Geologist (Jr.) Group-A and havi ng appeared in the written examination was declared successful and was, eventual ly, short listed for the interview conducted thereafter. On the completion of th e process as above, he was empanelled in the list of successful candidates being assigned rank 245 in the country against the 330 vacant posts available for app ointment. He, subsequently, subjected himself to the medical examination and in the final list of the recommended candidate that was published, his name was not included due to his pending medical status. It was, thereafter, that he receive d the letter dated 12.07.2011 from the concerned authority to the effect that he had been declared unfit for (cid:28)High Myopia (cid:29) on the basis of the medical report fu rnished by the Central Medical Board, Safdarjang Hospital, New Delhi. According to the respondent, he was, however, granted liberty to appeal before the Governm ent along with the evidence about the possibility of an error of judgment in the decision of the first Medical Board. Situated thus, the respondent underwent LA SIK surgery at Sankara Nethralaya, Chennai for corrective intervention to cure h is medical condition of Myopia. He, thereafter on 31.07.11 requested for an appe al to the second Medical Board and the same having been acceded to, he was direc ted to appear before the Central Standing Medical Board, Dr. Ram Manohar Lohiya Hospital, New Delhi on 10.09.2011. In his written request for the appeal he had, inter alia mentioned about the LASIK surgery undergone by him. As inspite of his examination by the second Medical Board no communication was f orthcoming, the respondent filed an application under the Right to Information A ct, 2005 (for short also referred to as the Act) on 14.11.2011, seeking to be in formed of the reason for the delay, whereupon, he was intimated that he had been declared unfit by the second medical board on account of LASIK surgery. As he w as thus sought to be disqualified for the post as medically unfit, the responden t approached the learned Tribunal, which, by the impugned decision sustained his impugnment of denial of appointment on the ground of aforestated disqualificati on. As the decision of the learned Tribunal would reveal no written statement by the petitioners had been filed before it.

05. The petitioners in the instant proceeding, while admitting the s equence of events as recited hereinabove, have asserted on the basis of the Rule s and the relevant clauses of Appendix-II thereto that as the respondent had bee n disqualified to be medically unfit by both the Medical Boards qua the post inv olved, in the interest of the efficiency of the administration, the direction of the learned Tribunal to consider him for appointment to the post of Geologist ( Jr.) Group-A is unsustainable in law and on facts. According to them, in terms o f FR 10 and SR 4 as well, the respondent having been adjudged to be medically un fit on account of visual acuity, he was obviously disqualified for the post invo lved and thus, the rejection of his candidature is unassailable.

06. The respondent in his affidavit-in-opposition, while endorsing t he validity of the intervention of the learned Tribunal has pleaded principally that in absence of any criteria or norm in the Rules or in Appendix-II thereto d isqualifying a candidate undergoing LASIK surgery for being appointed to the pos t of Geologist (Jr.) Group-A, the reason cited to decline the same to him is ill usory, purported and irrelevant. As in any view of the matter, the ground of dis qualification sought to be enforced is in visible departure from the norms and s tipulations prescribed by the Rules and the Appendix-II thereto, it is patently non est in law, thereby rendering the decision disqualifying him wholly indefens ible. While highlighting that the second Medical Board had not declared him to b e unfit on account of visual acuity, the respondent, in his counter, underlined that LASIK surgery, per se is not a disqualification for appointment to the post of Geologist (Jr.) Group-A as is fortified by the job profiles attached to that post in several other public sector undertakings as well. That, candidates, who had undergone LASIK surgery are also, ipso facto not disqualified for being ind ucted as Astronauts in NASA as well as in the post of Lieutenant in the Indian A rmy has been referred to therein as well.

07. Mr. Sharma, while reiterating the pleaded challenge to the impug ned decision, has, in course of his arguments, produced a copy of the letter No. 6-2/09/Med. Board, dated 05.11.2012 of the Chairman, Central Standing Medical Bo ard, Safdarjang Hospital, New Delhi, forwarding the report of the Central Standi ng Medical Board, Safdarjang Hospital, New Delhi qua the respondent following hi s second medical examination as well as the letter No.10/39/2012-M.II, dated 07. 08.2012 of the Government of India, Ministry of Mines forwarding the minutes of the meeting of the Board of Medical Experts on the references received, inter al ia on the appeal filed by the respondent for its opinion on his medical status v is-a-vis his claim for appointment to the post of Geologist (Jr.) Group-A. Accor ding to him, having regard to the prescribed norms as well as the consistent med ical opinion expressed, the respondent was medically unfit to be inducted to the post and, thus the impugned decision of the learned Tribunal ought to be interf ered with. Mr. Mahanta, per contra, reaffirmed the respondent’s pleaded ass 08. ertions and has referred emphatically to the decision of the Delhi High Court in WP(C) No. 3196/2012 (Ms. Sreeja K. Vs. Union of India & Geological Survey of In dia) on the same issue, determining against the disqualification of a candidate for being appointed to the post of Geologist (Jr.) Group-A on account of LASIK s urgery. He also relied on the communications exchanged with various other public sector undertakings through the Act to reinforce this plea and to contend that no interference with the decision of the learned Tribunal is warranted. That, me anwhile in compliance of the judgment rendered by the Delhi High Court in Ms. Sr eeja K. Vs. Union of India & Geological Survey of India (Supra), the petitioner therein had been accorded provisional appointment to the post of Geologist, an a rrangement undertaken before the Hon’ble Apex Court not to be questioned by the petitioners was highlighted.

09. We have analyzed the pleadings of the parties and the arguments advanced. To start with, it has not been seriously argued before us by the petit ioners that either in the Rules or in Appendix-II thereof or in any other charte r of eligibility criteria pertinent to the selection process, LASIK surgery, per se, had been comprehended or enjoined to be a disqualifying factor for appointm ent to the post of Geologist (Jr.) Group-A in the Geological Survey of India und er the Ministry of Mines, Government of India. The respondent, otherwise, on eva luation of his merit and suitability has been adjudged to be fit for the post. T hat on being informed that he had been declared unfit for (cid:28)High Myopia (cid:29) by the f irst medical board, he had undergone LASIK surgery for correction of his said me dical condition is an admitted fact. He disclosed this, as well in his request s eeking the leave of the concerned authorities for appealing to the second medica l board. As is apparent from the report of the second medical board, the finding s are as hereunder:- (cid:28)The candidate was examined by the Medical board comprising of three Ophthalmolo gists. The finding are given below: (R) 6/6 P Visual acuity (unaided) (R) 6/5 P Visual acuity (with glasses) (L) 6/6 P (L) 6/5 P Glasses (R) - 0.50 Spn/0.25 cyl 1800 (L) - 0.50/Spn 0.25 cyl 1800 Slit Lamp Exam LASIK done both Eyes (done on 18/07/11) Findings & dial. Normal B/E (cid:29) Flaps + appear normal The above extract would reveal that the board on the basis of th 10. e findings, however, did not declare him to be medically unfit for the post. Tho ugh, the forwarding letter 05.11.2012 referred to hereinabove refers to guidelin es for medical standard for Geologist disqualifying a candidate undergoing corre ctive LASIK surgery for Myopia to be unfit, the attention of this Court has not been drawn to any document beyond the Rules and Appendix-II as above. To reitera te, Appendix-II to the Rules, though, indicate that the medical standard with re gard to the colour perception and all other tests relating to the eyes would be of high order vis-a-vis the post, amongst others of Geologist (Jr.) Group-A, no reference of such requirement has been made qua the aspect of visual acuity. LAS IK surgery to be relieved of (cid:28)High Myopia (cid:29) has also not been cited to be an auto matic disqualification for the post. The bar of disease, constitutional afflicti on or bodily infirmity rendering a candidate unfit for the service as envisaged in Appendix-II to the Rules and relied upon by the petitioners, thus cannot get attracted in the attendant facts and circumstances in absence of any express or implied stipulation that corrective LASIK surgery to cure (cid:28)High Myopia (cid:29) by itsel f would amount to any one or more of such disqualifying determinants.

11. The text of the minutes of the meeting of the Board of medical e xperts on the references forwarded to it by the Ministry of Mines seeking commen ts on the issue is also revealing and is extracted hereinbelow for ready referen ce: - (cid:28)After examining the issues the committee was of the opinion that so far as exis ting guidelines are concerned total amount of Myopia or Hypermetropia (including Cylinder) should not exceed 4.00D and for LASIK surgery there are no clear cut guidelines. In these circumstances such candidates should be examined by a Medic al Board consisting of three eye specialists for Retinal evaluation. If on exami nation progressive degenerative changes involving the Macular area are not found they should be declared fit for the post of Geologist, Jr. Hydrogeologist and A sst. Hydrogeologist. Regarding formulating new guidelines in the matter, they have already been submi tted to the Ministry of Health & Family Welfare by a committee of experts for co nsideration and onward submission to DoPT. (cid:29) It would appear therefrom that though as per the guidelines in e 12. xistence at all relevant times qua the selection process, the total amount of My opia or Hypermetropia (including the cylinder) ought not to exceed 4.00D, for LA SIK surgery, there are no clear cut guidelines and that the candidates concerned should be examined by a Medical Board consisting of three eye specialists for R etinal evaluation and if on examination progressive degenerative changes involvi ng Macular area are not found, they should be declared for the post of Geologist , Jr. Hydrogeologist and Asst. Hydrogeologist.

13. This opinion of the Board of medical experts apparently preceded the examination of the respondent by the second Medical Board on 03.09.2012. To reiterate, the findings of this Board, however, do not discloses on his examina tion, that progressive degenerative changes involving the Macular area had been detected in him. In this view of the matter, having regard to the underlying obj ective of the second medical opinion, in our view, rejection of his candidature on the ground of corrective LASIK surgery, ipso facto, when judged on the prescr ibed criteria for evaluation of the overall suitability of the candidates for th e post involved, cannot be sustained. It is no longer res integra that the autho rities concerned must be rigidly held to the professed norms proclaimed to gover n and administer any public participatory process. While the requirement of FR 1 0 and SR 4, as well as, the stipulation of medical fitness for Government servic e can, by no means, be undermined in the interest of institutional efficacy, in absence of any unambiguously discernible bar or disqualification for appointment to the post of Geologist (Jr.) Group-A on account of corrective LASIK surgery, such a ground, as pleaded by the petitioners herein, cannot be endorsed.

14. The disclosures in the communications under the Act pertaining t o the job profile of Geologist (Jr.) Group-A in other public sector undertakings i.e. Oil and Natural Gas Corporation Ltd. and National Hydro Power Corporation as well as Indian Space Research Organisation under the Department of Space, Gov ernment of India and National Aeronautics and Space Administration of USA sugges ting against disqualification on the ground of LASIK surgery treatment for the p ost of Geologist is assuredly of the required persuasive value. Further, the not ice of the Combined Defence Service Examination conducted by the Commission in t he year 2011 (as annexed to the affidavit-in-opposition of the respondent) indic ates that the candidates who have undergone LASIK surgery for correction of refr active error would be considered for commission in Army, subject to fulfillment of the other criteria of eligibility. The letter No.338/001/HRD/DG/Misc /20/2011 , dated 02.09.2011 from the Director General, Geological Survey of India, Jawaha rlal Nehru Road, Kolkata to the Secretary, Govt. of India, Ministry of Mines, Sh astri Bhawan, New Delhi, which is available on records refers to a discussion he ld, amongst other senior officers of the organization (Geological Survey of Indi a) and a general consensus against the disqualification of any candidate for und ertaking LASIK surgery for appointment is also not out of place qua the issue in volved. The decision of the Delhi High Court in Ms. Sreeja K. Vs. Union of India & Geological Survey of India (Supra), is on identical textual facts and, thus r einforce the determination made hereinabove. In the wake of the above, the present challenge fails and is dismissed. No costs .