Danesh Khan vs Jamia Hamdard University

Valmiki J Mehta, J.—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. A reading of the writ petition shows that pursuant to the directions of the respondent/University petitioner reported to one Dr. Anwar Habib, an empanelled doctor of the respondent/University, and who opined on 28.2.2011 that "in view of Aortic 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.

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. 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.

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.

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 that petitioner is not fit once doctors both of AIIMS and of the respondent/University state that petitioner is fit to join duties.

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. 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 which appointment is sought to be denied only because of illegal actions of the respondent/University.