P. Mahavishnu vs The General Manager, Tamilnadu State Government Transport Corporation (Madurai) at Tirunelveli

Asok Kumar Ganguly, C.J.—Heard the learned counsel appearing for the parties. This Writ Appeal has been filed by the petitioner, whose

Writ Petition No.7350 of 2007 was rejected by the learned Judge of this Court by an order dated 14.12.2007.

The material facts are that the petitioner applied for the post of Conductor on 30.4.2007 and he was asked to appear for an interview. After the

interview, he was asked to undergo physical test and thereafter, an order was issued to the petitioner by the respondent on 22.6.2007 directing

him to join the training on or before 30.6.2007 with all original certificates. Pursuant to the said order, the writ petitioner appeared before the

authorities with necessary demand draft. Then, he was asked to get medical certificate and he also obtained the same. Thereafter, no appointment

order was issued in favour of the petitioner. Hence, the petitioner was compelled to file the Writ Petition.

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

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 Petition.

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.

It is also not in dispute that the petitioner has submitted a Medical Certificate is-sued 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.

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.

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.

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 etch 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.

Going by the aforesaid consideration, this 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.

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.

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. Accordingly, the Writ Appeal is allowed. The order of the

learned Judge dated 14.12.2007 is set aside to the extent indicated above. Connected Miscellaneous Petition is closed. No costs.