Sithara T.P v. The Fertilizers and Chemicals Travancore Ltd. (FACT) and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 ``` ## **`WP(C) NO. 16980 OF 2021`** ## **`PETITIONER:`** ``` SITHARA T.P AGED 30 YEARS S/O.PADMAKARAN, THAZHATHEL HOUSE, ANGAMALY, KIDANGOOR POST, PIN-683 572 ``` ``` BY ADVS. SUNIL KUMAR KURIAKOSE P.L.MARY TREASA ``` ## **`RESPONDENTS:`** - **`1 THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD. (FACT) REPRESENTED BY ITS MANAGING DIRECTOR, UDYOGAMANDAL,PIN-683 501, KOCHI, KERALA`** - **`2 DEPUTY GENERAL MANAGER HR THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD. (FACT), UDYOGAMANDAL,PIN-683 501, KOCHI, KERALA`** - **`3 ADDL R3: UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FERTILIZERS, MINISTRY OF CHEMICALS & FERTILIZERS, GOVERNMENT OF INDIA`** - **`4 ADDL R4: SECRETARY TO GOVERNMENT, DEPARTMENT OF PUBLIC ENTERPRISES, GOVERNMENT OF INDIA`** ``` (ARE IMPLEADED AS PER ORDER DATED 11/10/2021 IN I.A NO.1/2021 IN WP(C) 16980/2021) ``` ``` BY ADVS. ``` - **`M.GOPIKRISHNAN NAMBIAR NAVANEETH.N.NATH`** ``` K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 16980 OF 2021 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 16[th ] day of August, 2022** This writ petition is filed seeking the following prayers: _“(i) To issue a writ of certiorari or any other appropriate writ to call for the records leading to the selection process initiated as per Ext.P1 Notification and also as to Ext.P6 email and also set aside Ext.P6._ _(ii) To issue a writ of certiorari or any other appropriate writ to call for the records leading to Ext.P12 and declare that the same cannot be made applicable in the process of Medical Examination mentioned in Ext.P1 notification or in the alternative to declare that clause 8.1 and 8.2 of Ext.P12 is arbitrary and illegal and is not applicable in the Medical Examination and set aside the same._ _(iii) To declare that the petitioner is eligible to be appointed in the 1[st] respondent company as Technician (Civil) unaffected by any parameters related to height._ _(iv) To issue a writ of mandamus or any other appropriate writ directing the respondents to appoint the petitioner in the 1[st] respondent company as Technician (Civil) as offered in Ext.P3 offer letter”_ 2. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents as well as the learned Central Government Counsel. 3. It is submitted by the learned counsel for the petitioner that the petitioner had participated in the selection to the post of Technician ``` WP(C) NO. 16980 OF 2021 ``` ``` 3 ``` (Civil) in the 1[st] respondent public sector undertaking. It is submitted that she was successful in the medical examination conducted as well and she was issued with Ext.P3 offer of appointment. However, thereafter no further communications were issued by the company. The petitioner made a request before the respondents seeking the reason why appointment orders were not being issued to her. The petitioner was then informed by Ext.P6 that the petitioner did not meet the required physical parameters relating to height for employment in technical disciplines in the 1[st] respondent. 4. The learned counsel for the petitioner would contend that Ext.P1 notification calling for applications did not contain any prescription as to the height requirement of candidates in technical posts. It is submitted that the notification only provided that every candidate offered appointment in the company shall be subjected to preemployment medical examination before being allowed to join the service of the company and that the opinion of the Company Medical Officer in this regard shall be final. It is contended that the petitioner had appeared before the Medical Board and Ext.P4 is produced in ``` WP(C) NO. 16980 OF 2021 ``` ``` 4 ``` support of the contention that she was found medically fit and that there was no medical unfitness found in the examination. It is therefore contended that the rejection of the petitioner’s candidature for the reason that she do not meet the height criteria for employment in technical disciplines is completely illegal. It is submitted that the petitioner had secured 1[st] rank in the selection and that this Court, by interim order dated 01.04.2022, had directed that one post of Technician (Civil) should be kept unfilled and the vacancy should not be filled up without obtaining further orders in this writ petition. 5. The learned counsel for the petitioner would contend that the petitioner had worked in a sister institution of the respondent-company, that is, the Fact Engineering and Design Organization (FEDO) as is evident from Exts.P7 to P11 orders and communications and that the service of the petitioner was never found lacking in any respect. It is therefore contended that the petitioner who was found perfectly fit in the medical examination could not have been denied appointment only on the ground that she did not meet the height criteria which was not a qualification or an eligibility as provided in Ext.P1. It is further ``` WP(C) NO. 16980 OF 2021 ``` ``` 5 ``` contended that the writ petition was thereafter amended producing Ext.P12, which is the pre-employment medical examination procedure of the 1[st] respondent and the provision at Clause 8 thereof which relates to the height for technical disciplines has been challenged by the petitioner as being arbitrary and unreasonable. The learned counsel for the petitioner would contend that Clause 8 of Ext.P1 notification only relates to medical fitness of the candidates and that the petitioner has been found medically fit in the medical examination. It is therefore contended that since the unfitness, as found by the 1[st] respondent is only with regard to the height of the petitioner, if it was a prequalification or an eligibility criteria and as such, it should have formed part of the notification failing which the petitioner has been put to prejudice by the rejection of the claim after undergoing the entire selection procedure and the medical examination and being found fit. It is further contended that in case the eligibility criteria is inserted in Ext.P12, the same ought to have been submitted for approval before the Government and that the prescription of a pre-qualification or an eligibility criteria without such approval from the Central Government ``` WP(C) NO. 16980 OF 2021 ``` ``` 6 ``` is completely untenable and unsustainable. It is also contended that the petitioner who had been employed on a contract basis by the respondents cannot be said to be unfit under any stretch of the imagination and that those contentions are completely untenable and are made only to defeat the claim of the petitioner. 6. A detailed counter affidavit as well as an additional counter affidavit to the amended writ petition are placed on record by the respondents. The contention of the respondents is that Ext.P1 notification itself specifically provided that the candidates would have to undergo the pre-qualification medical examination and would be eligible for appointment only if they are found fit in the said examination. It was stated that the opinion of the Company Medical Officer would be final. It is stated that Ext.P3 offer of employment also specifically states that the offer is subject to the petitioner being found fit after medical examination and after submission of all requisite documents. It is contended that Ext.P12 is not a prescription of a qualification or an eligibility criteria under the Recruitment Rules or otherwise and is only a guideline issued to the Medical Officers for the ``` WP(C) NO. 16980 OF 2021 ``` ``` 7 ``` purpose of deciding on the medical fitness of candidates. It is therefore contended that such guidelines do not require to be approved by the Central Government and that the candidates having been specifically alerted that they would have to undergo the medical examination were therefore liable to meet all the criteria as provided in Ext.P12 as well. It is submitted that the petitioner having, admittedly, been found unfit in terms of Clause 8 of Ext.P12 was deemed to be medically unfit and there was no requirement for the Medical Officer or the HR Department of the Company to inform the petitioner specifically of her disqualification since her height rendered her medically unfit for appointment in any technical post. It is further contended that since the lack of height of the petitioner was not a pre-qualification or an eligibility criteria and that the same was only one of the parameters on which medical fitness was to be measured, the same did not have to form a part of the notification. It is further contended that the appointment of the petitioner in the FEDO as a contract employee does not entitle her to contend that she was fully eligible for appointment in the company in terms of Ext.P1 notification, since Ext.P1 specifically ``` WP(C) NO. 16980 OF 2021 ``` ``` 8 ``` referred to medical fitness which, at the relevant time, had to be measured in terms of Ext.P12 guidelines as well. The learned counsel for the respondents contends that the post had been kept unfilled awaiting final disposal of this writ petition even prior to the interim order. 7. The additional counter affidavit filed by the respondents to the amended writ petition specifically states that prescribing of a minimum height requirement as a condition for employment is not arbitrary or illegal or violative of natural justice and that there is no legal bar in prescribing a minimum height as a condition for employment, particularly for an employment to a post which falls within a technical category. It is contended that since Ext.P12 is only guidelines with regard to deciding medical fitness of a candidate and there is no framing of any eligibility condition involved, there is no requirement for any sanction or permission from the Government Department. It is submitted that this aspect was clarified by the learned Central Government Counsel appearing for the respondent as well. It is further submitted by the respondents in the additional affidavit as follows: ``` WP(C) NO. 16980 OF 2021 ``` ``` 9 ``` _“ Taking into consideration the demands of the job and hazards involved, the Respondent Company has effectuated Exhibit P12 Procedure. Candidates selected for various posts are being subjected to pre-employment medical examination strictly adhering to the norms set out in the procedure. A minimum prescription for height for the candidate in technical categories is incorporated because of various technical factors and altering it/ watering it down risks the health and safety of not just the candidates but other employees too. The height requirement is independently motivated. Furthermore, candidates applying to technical posts are expected to operate instruments/ machinery which are in many cases situated at considerable height. Difficulties in accessing such instruments/ machinery not only disables the candidates from performing their duties to the best of their abilities, it also puts in jeopardy the lives of all those working at the MAH installation such as the Respondents Company’s.”_ 8. It is further contended that since the issue was not one of qualification or eligibility at all, it need not have been notified in Ext.P1. It is submitted that about 140 vacancies were notified by Ext.P1 and that all the candidates who applied and were successful in the selection procedure had been examined on the basis of Ext.P12 and no complaint, whatsoever, raised from any corners. It is submitted that it is open to the 1[st] respondent to prescribe the guidelines with regard to medical fitness and that the contentions of the petitioner are devoid of merits and cannot be accepted. ``` WP(C) NO. 16980 OF 2021 ``` ``` 10 ``` 9. The learned counsel for the respondents would place reliance on the decisions of the High Court of Karnataka in **The Manager, Reserve Bank of India vs. Gururaja Rao (1986 LAB I.C. 1711)** and in **M.Dinesan v. State Bank of India (ILR 1999 KAR 3411)** . It is contended that the Division Bench of the Karnataka High Court in **Gururaja Rao** had considered a situation where the petitioner, a successful candidate, did not meet the medical fitness criteria since he did not satisfy the height-weight ratio provided as per the guidelines fixed by the Reserve Bank for deciding medical fitness. In that case also, the petitioner was successful in the written test and the interview and was issued with an offer of employment subject to his being found medically fit. The criteria with regard to height-weight ratio did not find a place in the notification for appointment, but formed a part of the guidelines. The Division Bench of the Karnataka High Court considered the contentions that the criteria was not a part of the notification and held that the standard of physical fitness laid down in the circulars issued by the bank is not a prescription of qualification for the post. It was held that the circulars were in the nature of general ``` WP(C) NO. 16980 OF 2021 ``` ``` 11 ``` guidelines to Medical Officers to ensure uniformity in issuing medical fitness certificates to candidates in all selection centers. It was further found by the Division Bench of the Karnataka High Court that the contention of the petitioner that the condition with regard to the heightweight standard laid down by the bank should have formed a part of the notification calling for applications was without any substance. It was held that the said height-weight ratio was not a qualification prescribed for the post but it was only a general guide to regulate the discretion of Medical Officers. It was found that the mere fact that the applicants were not informed in advance of the existence of such a criteria would not render the selection or the rejection of candidature illegally. However, on facts, it was held that in the absence of any provision even in the guidelines with regard to obesity or hypertension being a disqualification, the petitioner therein was entitled to a re-examination by the Board. 10. In **M.Dinesan v. State Bank of India** (cited supra), the question was specifically whether a person applied for appointment as Law Officer in the State Bank and was found unfit on account of total ``` WP(C) NO. 16980 OF 2021 ``` ``` 12 ``` blindness in one eye was entitled to relief. The Court formulated several questions for consideration. The question formulated which is relevant for the purpose of this case is as follows: _“(i) Whether applying criteria or conditions of eligibility, without disclosing them to the candidates who apply for the post would be an arbitrary action opposed to Article 14 and 16(1)”_ In answer, after referring to the decision of the Division Bench in **Gururaja Rao** , the learned Single Judge has came to the following conclusion: _“11. The correct principle appears to be that while it is necessary to disclose the eligibility criteria, it is not necessary to disclose the method by which fulfillment of such criteria will be assessed by the Authority/employer. The eligibility criterion is that the candidate should be medically fit as per the requirements of the Bank. That is disclosed in the Notification inviting applications. But, it is unnecessary to specify the tests, guidelines and criteria that are considered or applied to determine whether a candidate is medically fit in the notification inviting applications, nor is it necessary to disclose them to the candidates. So long as the notification discloses that the appointment was subject to candidates being declared medically fit, as per the requirement of the Bank, it is unnecessary for the employer to disclose in the notification the detailed requirements of medical fitness. The first point is, therefore, answered in the negative.”_ ## 11. Thereafter, on consideration of the question whether the lack of ``` WP(C) NO. 16980 OF 2021 ``` ``` 13 ``` eyesight in one eye would be a disqualification in the nature of the employment offered, it was found that for the post of Law Officer, a minimum height is of no relevance and what is required is mental alertness and mental capability. It was therefore held that the rejection of candidature for person seeking appointment as Law Officer on the ground that he did not have sight in one eye was totally untenable. 12. Having considered the contentions advanced, I notice that the provision in Ext.P1 notification with regard to medical fitness is specifically as follows: ## _“8.0_ _**HEALTH/MEDICAL FITNESS** :_ _Every candidate offered appointment in the Company shall be subjected to Pre-employment medical examination before being allowed to join the services of the Company. The opinion of the Company Medical Officer in this regard shall be final.”_ 13. The petitioner was subjected to a selection procedure in which she was successful, as is evident from Ext.P3 offer of appointment dated 06.07.2021. However, Ext.P3 also contain a clause that the petitioner would be eligible to join duty if certified medically fit after a medical examination and after submission of all required documents. Ext.P4 is ``` WP(C) NO. 16980 OF 2021 ``` ``` 14 ``` the record of the medical examination conducted on the petitioner. It is contended by the learned counsel for the petitioner that there was absolutely no findings of unfitness in Ext.P4 as well. However, the petitioner was not permitted to join duty even after the medical examination. The petitioner has sent Ext.P5 email to the HR Department to which Ext.P6 reply was received. Ext.P12 is the preemployment medical examination procedure provided in the company. Clause 8 of the said guidelines reads as follows: ## _“8.0._ _**DISQUALIFICATION-CRITERIA** (the list is indicative and not exhaustive)_ _The following, will be considered as disqualification of candidates in Technical and/or Non-Technical disciplines based on which they will be declared as medically UNFIT. Applicability of particular criteria, if limited to any of the disciplines/posts, the same is specified; otherwise the said criteria squarely apply to both Technical and NonTechnical disciplines._ _8.1 Height (applicable only for Technical disciplines)_ _8.1.1 For Males - Height lesser than 152.5 cm._ _8.1.2 For Females - Height lesser than 147.5 cm._ _8.2 Weight (applicable only for Technical disciplines)_ _8.2.1 For Males - lesser than 40 Kg._ _8.2.2 For Females - lesser than 35 Kg_ _8.2.3 BMI beyond 28 with systemic involvement for candidates up to 35 years of age._ _8.2.4 BMI beyond 30 with systemic involvement for_ ``` WP(C) NO. 16980 OF 2021 ``` ``` 15 ``` _candidates above 35 years of age.”_ 14. Having considered the contentions advanced on either side, I am of the opinion that the only question that this Court requires to answer is whether the requirement of height as provided in Ext.P12 amounts to a pre-qualification or an eligibility condition or is only a parameter for deciding medical fitness of the candidate. It is clear from the decisions with regard to qualifications with regard to height of candidates that such qualifications are usually prescribed as a part of the Recruitment Rules themselves. In the instant case, it is not in dispute before me that no such condition was there in the Recruitment Rules applicable to the 1[st] respondent with regard to technical posts as well. If that be so, the prescription that a person should have a minimum height to meet the medical fitness criteria for being eligible for appointment to a post, according to me, is a condition which touches upon the eligibility of the candidates. If the said position is accepted and if the condition with regard to height of a candidate is a part of the eligibility criteria, then the contention of the petitioner that it should have found a place in Ext.P1 would become relevant. It is clear that the petitioner is fully ``` WP(C) NO. 16980 OF 2021 ``` ``` 16 ``` qualified and had been successful in the selection procedure and was issued with Ext.P3 offer of appointment. Therefore, the only remaining reason for finding the petitioner unfit would be a finding of unfitness in the medical examination. The petitioner would contend that Ext.P4 would show that she was found to be medically fit as well. Then, the only question is whether the finding that the petitioner was not fit for appointment only because she did not meet the height criteria as provided in Ext.P12 will stand the scrutiny of law. 15. The contention of the respondents is specifically that the prescription that a person should have a minimum height to be eligible for being appointed to technical posts under the 1[st] respondent is a decision which has been arrived at in the light of the safety concerns with regard to the nature of the appointment. If that be so, I have no hesitation to hold that such a condition, which is informed by the nature of the duties to be performed, would definitely be an eligibility criterion or a condition of pre-qualification for appointment. Such a condition should definitely have found a place in the notification inviting appointments, failing which a person who is otherwise fully qualified, ``` WP(C) NO. 16980 OF 2021 ``` ``` 17 ``` found eligible in the selection and is found to be medically fit, cannot be denied the appointment on the ground that she does not meet the said condition. The decisions relied on by the learned counsel for the respondents would also support the proposition that where criteria or conditions of eligibility are applied to a selection without disclosing them to the candidates who apply for the posts, such action would be arbitrary and violative to Article 14 and Article 16(1) of the Constitution of India. In the instant case, the contention of the respondents that the criteria as to height of the candidate is only a parameter with regard to medical fitness cannot be accepted since the pleadings placed on record would itself show that the criteria with regard to height is something which is fixed, taking note of the nature of the duties to be performed. If that be so, it would definitely be a criteria with regard to eligibility which ought to form a part of at least the notification for employment. In view of the fact that the petitioner was never informed of the condition with regard to the minimum height, I am of the opinion that the rejection of the petitioner’s candidature by Ext.P6 on a condition which was never disclosed to her ``` WP(C) NO. 16980 OF 2021 ``` ``` 18 ``` is untenable. Ext.P6 is therefore set aside. The respondents shall permit the petitioner to join duty on the strength of Ext.P3 within a period of one month from the date of receipt of a copy of this judgment. In view of the fact that the petitioner alone has challenged the selection and since this Court had directed keeping of one vacancy unfilled to accommodate the petitioner in case she succeeded in the writ petition, the prior selections need not be reopened. However, the respondents shall notify the condition with regard to height in future notifications. This writ petition is ordered accordingly. ``` Sd/- ``` ## **`ANU SIVARAMAN`** ``` JUDGE ``` ``` NP ``` ``` WP(C) NO. 16980 OF 2021 ``` ``` 19 ``` ## **`APPENDIX OF WP(C) 16980/2021`** |**`PETITIONER’S EXHIBITS`**|| |---|---| |**`Exhibit P1`**|**`TRUE COPY OF THE RECRUITMENT NOTIFICATION`**| ||**`WITH NO.AD 1/2020 DATED 01.01.2020`**| |**`Exhibit P2`**|**`TRUE COPY OF THE MERIT LIST OF CANDIDATES`**| ||**`PREPARED BY THE 1ST AND 2ND RESPONDENTS DATED`**| ||**`08.06.2021`**| |**`Exhibit P3`**|**`TRUE COPY OF THE OFFER LETTER ISSUED BY 2ND`**| ||**`RESPONDENT WITH NO.DGM(HR) EST-HO-DATED`**| ||**`06.07.2021`**| |**`Exhibit P4`**|**`TRUE COPY OF THE LABORATORY RESULTS DATED`**| ||**`15.07.2021`**| |**`Exhibit P5`**|**`TRUE COPY OF THE EMAIL DATED 01.08.2021`**| |**`Exhibit P6`**|**`TRUE COPY OF THE EMAIL DATED 03.08.2021`**| |**`Exhibit P7`**|**`TRUE COPY OF THE LETTER FOR CONTRACT`**| ||**`APPOINTMENT, ISSUED BY THE FACT ENGINEERING`**| ||**`AND DESIGN ORGANIZATION (FEDO) DATED`**| ||**`19.08.2015`**| |**`Exhibit P8`**|**`TRUE COPY OF THE OFFICE ORDER SHIFTING THE`**| ||**`PLACE OF WORK OF THE PETITIONER BY THE FACT`**| ||**`ENGINEERING AND DESIGN ORGANISATION (FEDO)`**| ||**`DATED 18.04.2016`**| |**`Exhibit P9`**|**`TRUE COPY OF THE ORDER GIVING EXTENSION TO`**| ||**`EXT P7 BY THE FACT ENGINEERING AND DESIGN`**| ||**`ORGANIZATION (FEDO) DATED 03.09.2016`**| |**`Exhibit P10`**|**`TRUE COPY OF THE ORDER GIVING EXTENSION TO`**| ||**`EXT P7 BY THE FACT ENGINEERING AND DESIGN`**| ||**`ORGANIZATION (FEDO) DATED 19.09.2017`**| |**`Exhibit P11`**|**`TRUE COPY OF THE EXPERIENCE CERTIFICATE`**| ||**`ISSUED BY THE FACT ENGINEERING AND DESIGN`**| ||**`ORGANIZATION (FEDO) DATED 05.04.2018`**| |**`Exhibit P12`**|**`TRUE COPY OF THE GUIDELINES PRODUCED BY THE`**| ||**`FIRST RESPONDENT AS EXT.R1(A)`**| |**`RESPONDENTS’ EXHIBITS`**|| |**`EXHIBIT R1 (A)`**|**`TRUE COPY OF THE FACT PRE-EMPLOYMENT MEDICAL`**| ||**`EXAMINATION PROCEDURE DATED NIL.`**| |**`EXHIBIT R1 (B)`**|**`TRUE COPY OF THE RELEVANT PAGES OF THE`**| ||**`GUIDELINES AND CRITERIA FOR PHYSICAL FITNESS`**| ||**`FOR PRE-EMPLOYMENT MEDICAL EXAMINATION ISSUED`**| ||**`BY CHENNAI PETROLEUM CORPORATION LTD. DATED`**| ||**`NIL.`**| ``` 20 ``` ## **`WP(C) NO. 16980 OF 2021`** ``` EXHIBIT R1 (C) TRUE COPY OF THE RELEVANT PAGES OF THE GUIDELINES AND CRITERIA FOR PHYSICAL FITNESS FOR PRE-EMPLOYMENT MEDICAL EXAMINATION ISSUED BY OIL INDIA LTD. DATED NIL. EXHIBIT R1 (D)TRUE COPY OF THE RELEVANT PAGES OF THE GUIDELINES AND CRITERIA FOR PHYSICAL FITNESS FOR PRE-EMPLOYMENT MEDICAL EXAMINATION DATED NIL ISSUED BY THE INDIAN OIL CORPORATION LTD. EXHIBIT R1 (E)TRUE COPY OF THE RELEVANT PAGES OF RINL PRE- EMPLOYMENT MEDICAL EXAMINATION RULES (FOR APPOINTMENT IN EXECUTIVE AND NON-EXECUTIVE POSTS) DATED NIL ISSUED BY RASHTRIYA ISPAT NIGAM LTD ```